Murphy J held in an injunction application there was a strong prima facie case that the tagging and locking out of 2 forklifts was for safety reasons, in which case Visy in issuing the “final warning” letter would have taken adverse action against the employee:
The applicants contend that there is a strong prima facie case that Visy had taken adverse action against Mr Zwart in contravention of s 340 of the Act, by issuing him with a final written warning on 18 August 2011 because he had exercised a workplace right by his conduct in tagging and “locking out” the two forklifts. In my view, if in tagging and halting the operation of the relevant forklifts Mr Zwart acted to maintain safety and avert danger pursuant to the OHS Act, he would have an entitlement to the benefit of, or a role or responsibility under a workplace law, and thus a workplace right. Dodds-Streeton J held similarly at  of her Honour’s interlocutory judgment.
Visy accepted for the purpose of the interlocutory hearing that the final written warning did constitute “adverse action”, in that it did alter Mr Zwart’s position to his prejudice.
I note that the second paragraph of the final written warning provides that the misconduct alleged related to Mr Zwart’s actions on 5 August 2011 in that he caused a cessation of work when other “control mechanisms” were available. In that regard the applicants contend that it is clear from the letter and the affidavit material filed that this was a reference to Mr Zwart tagging and locking out the two forklifts because of the inaudible reversing beeper, rather than taking some other approach to the problem. Alternatives raised in Visy’s affidavit material included approaches such as operating the horn on the forklift whilst reversing it, or getting a forklift from another section of the factory.
The final written warning also provides that Mr Zwart failed to cooperate and engage in reasonable discussions to resolve “the issue”. The applicants contend that it is clear from the affidavit material filed that “the issue” referred to in the final written warning is Mr Zwart’s tagging and locking out the two forklifts, and not readily accepting alternative approaches to the problems with the forklifts that were proposed by management.
I was also referred by counsel for the applicants to the decision of the Full Court of this Court in Barclay v The Board of Bendigo Regional Institute of Technical And Further Education  FCAFC 14; (2011) 191 FCR 212. This authority was accepted by counsel for Visy as creating some difficulty for the respondents in discharging their onus on the ultimate trial of this matter.
With regard to the reverse onus of proof found in s 361 of the Act, in my view the approach taken by Ryan J in Police Federation v Nixon  FCA 467; (2008) 168 FCR 340 at  is the correct one. In construing the predecessor provision to s 361(2) of the Act his Honour held that:
I do not construe [the section] as preventing the court, in assessing whether there is a serious issue to be tried, from having regard to the availability of the presumption in the final determination of the application. Similarly, I consider that account can be taken of the ultimate availability of the presumption when assessing the respective strengths of the case for the applicant and that for the respondent, as part of exercising the general discretion to grant or withhold interlocutory relief.
In all the circumstances, I consider that the applicants have a strong prima facie case that a reason for the final written warning is that Mr Zwart exercised a workplace right by tagging and locking out the two forklifts.
Brisbane Barrister – David Cormack