Union delegate sacked weeks after joining up ordered back until trial

What happened

John Trego worked in the mining industry in Western Australia for about 18 years before moving to Melbourne in late 2018, after his marriage broke down. On or about 29 October 2018 he started as a factory hand at Wesbeam's timber factory in Dandenong, which packages timber for retailers. He supports four children.

By his account, he soon took on an informal "leading hand" role running the floor on day shift and was regularly offered overtime, earning about $1,800 a fortnight. The factory had about 23 employees. There was no enterprise agreement.

In March 2019 the human resources manager told the shop floor workers that the company wanted an enterprise agreement (an agreement setting pay and conditions for that workplace), and that they could bring in a union to help. On 17 April 2019, at a meeting in the factory car park, the workers present joined the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and Mr Trego became its delegate.

The warning, the allegation and the dismissal

Mr Trego's evidence was that from around 20 April he was never again offered overtime, costing him around $700 a fortnight. The company said production had slowed for everyone. In May a co-worker was made leading hand, and at a review he was warned about a problem with his "communication" and "attitude" and his probation was extended.

At a second review on 6 June 2019, he says, he was given a verbal "first and final warning" for talking too much about the union in work hours. The next day he told an office clerk he felt he was being punished. He was then told she had alleged he threatened her, and was stood down on pay pending an investigation.

Given until 11 June to respond, he asked through a union lawyer for the allegations in writing first; they had not arrived by then. On 13 June 2019 he was dismissed. The reasons included that he had "pushed" the clerk, had hindered the investigation by not giving a statement, and had discussed his performance review with another employee.

The legal test: what is adverse action?

Mr Trego and the union applied to the Federal Court under the general protections in Part 3-1 of the Fair Work Act 2009 (Cth). Adverse action by an employer includes dismissing an employee, injuring them in their employment or altering their position to their detriment. It is unlawful when taken for a protected reason.

Two protections were central. Section 340 protects a worker who has or exercises a workplace right, such as taking part in bargaining for an enterprise agreement or making a complaint about their employment. Section 346 protects a worker for being a union member, or for engaging in industrial activity such as acting as the union's delegate. Protected attributes such as race, sex, age and disability are covered separately, by s 351.

At a full trial, s 361 reverses the usual burden: once the worker shows the action and the protected circumstance, the employer must prove it did not act for that reason. This was an urgent interlocutory application, heard before any trial. To obtain an order, he needed a prima facie case (a serious question to be tried) and the balance of convenience, the comparative harm to each side, had to favour relief.

What the Court decided

Justice Mortimer stressed that the evidence was untested, but found the case "of considerable strength". The operations manager's own affidavit gave her the clear impression of "a sustained and wholesale objection to a union being involved in a workplace he managed". The link in time between Mr Trego's union role and his treatment appeared, on the current evidence, "too acute to be accidental", and a general slowdown did not explain the sudden loss of overtime.

The performance process looked "hasty and somewhat peremptory". CCTV footage said to show the incident with the clerk was not produced to the court, and the dismissal letter's description seemed "very difficult to justify" even on her account. The judge made no findings about what happened between them. Asking for the allegations in writing was "a perfectly reasonable and appropriate approach". She did not rely on the reverse onus at all.

Why he was ordered back to work

Rather than order his wages paid while keeping him away, which she first favoured, the judge ordered him fully reinstated until trial. His $3,050 payout would soon run out, he risked falling behind on rent and child support, and work gave him purpose and his social circle in a new city. "Unemployment is destructive in a myriad of ways," she said. The "chilling effect" on other union members was a lesser factor.

The company argued that its workers had "moved on" and that the clerk's safety was at risk. The judge gave the first point no weight and was not persuaded on the second. She accepted that a small workplace and ongoing litigation could create tension, which the company would need to manage. The company undertook not to induce employees to leave the union, and there was no order for costs.

What this means for you

Joining a union, acting as a delegate and taking part in bargaining are protected. If lost shifts, sudden warnings or a dismissal follow closely on that kind of activity, the timing can be strong evidence.

If you face a serious allegation, it is reasonable to ask for it in writing and get advice before answering. A general protections claim about a dismissal must usually be lodged with the Fair Work Commission within 21 days, so act quickly.