AMACSU v Shire of Mundaring
[2011] FMCA 731
•23 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMACSU v SHIRE OF MUNDARING & ANOR | [2011] FMCA 731 |
| INDUSTRIAL LAW – Employees eligible for membership of industrial association – ongoing negotiations for new enterprise agreement between industrial association and local government employer – letterbox drop of flyer by employees – flyer detailing negotiations and parties’ positions concerning enterprise agreement negotiations – flyer advocating vote for certain persons in forthcoming local government elections – direction to employees to cease letterbox drop and desist from disseminating information – conduct of employees alleged to breach Code of Conduct – unspecified appropriate action to be taken if direction not complied with – whether unspecified appropriate action is adverse action. |
| LOCAL GOVERNMENT – Employment – provisions of Code of Conduct – whether provisions of Code of Conduct prevent employees from electioneering in local government elections in relation to enterprise agreement negotiations between industrial association and local government – whether action or threat of action against employees arising from breach of Code of Conduct constitutes adverse action. |
| LOCAL GOVERNMENT – Employment – Code of Conduct – whether to be observed – whether enforceable if breach by employees. |
| LOCAL GOVERNMENT – Elections – whether flyer distributed in contravention of provisions requiring statement of name of printer – whether distribution of flyer unlawful activity. |
| PRACTICE AND PROCEDURE – Interim injunction – principles to be applied. |
| Fair Work Act 2009 (Cth), ss.342, 346(b), 347, 539(2), 540(2), 545 Fair Work (Registered Organisations) Act2009 (Cth) Local Government Act 1995 (WA), ss.1.4, 4.29, 4.30, 4.87, 5.40 5.103, Part 5, Division 9 Workplace Relations Act 1996 (Cth) |
| Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian and International Pilots Association v Qantas Airways Limited (2006) 160 IR 1; [2006] FCA 1441 Australian Licensed Aircraft Engineers Association v Glyndale Pty Ltd (2009) 179 IR 102, [2009] FMCA 188 Barclay & Anor v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2001] FCAFC 14 Bullock v Federated Furnishing Trades Society of Australasia (No.1) (1985) 5 FCR 464 Byrne & Frewv Australian Airlines Limited (1995) 185 CLR 411 City of Melbourne v Di Benedetto (1976) 33 LGRA 190 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131; [1999] FCA 1531 Hinton v Fawcett [1957] SASR 213 Neilson & Anor v City of Swan [2003] WASC 20 The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2011] HCATrans 243 |
| Applicant: | AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION |
| First Respondent: | SHIRE OF MUNDARING |
| Second Respondent: | JONATHAN THROSSELL |
| File Number: | PEG 264 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 September 2011 |
| Date of Last Submission: | 22 September 2011 |
| Delivered at: | Perth |
| Delivered on: | 23 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Schapper |
| Solicitors for the Applicant: | Derek Schapper |
| Counsel for the Respondents: | Mr N Douglas |
| Solicitors for the Respondents: | McLeods |
ORDERS
That until 4.00pm on 3 October 2011, or further order of the Court, the First and Second Respondents by themselves, and by their servants and agents, be restrained and an interim injunction is hereby granted restraining the First and Second Respondents from threatening to take, or taking, any adverse action against any employee of the First Respondent who electioneers in respect of the elections currently underway for positions of Councillors of the First Respondent. “Electioneers” includes:
(a)advocating in a manner; or
(b)printing, publishing or distributing any advertisement, handbill, pamphlet, notice, letter or article,
that is intended or calculated to affect the result of those elections.
That the Applicant file and serve:
(a)any amended application or amended claim;
(b)any further affidavits in support of the application and claim or amended application and amended claim; and
(c)an outline of contentions of fact and law,
by 4:00pm on 26 September 2011.
That the Respondents file and serve:
(a)a response;
(b)short points of defence;
(c)affidavits in support of the response and short points of defence; and
(d)an outline of contentions of fact and law,
by 4:00pm on 27 September 2011.
There be liberty to apply to each party to lead further oral evidence at hearing from any person who has filed an affidavit in these proceedings.
The matter be listed for final hearing at not before 9.30am on 28 September 2011 and not before 9.15am on 29 September 2011.
There be liberty to apply urgently.
Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 264 of 2011
| AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION |
Applicant
And
| SHIRE OF MUNDARING |
First Respondent
| JONATHAN THROSSELL |
Second Respondent
REASONS FOR JUDGMENT
Application
By application filed on 21 September 2011 the applicant union, the Australian Municipal, Administrative, Clerical and Services Union,[1] seeks an interim injunction restraining the first and second respondents, respectively the Shire of Mundaring,[2] and Jonathan Throssell,[3] the chief executive officer of the Shire, from threatening to take or taking adverse action against any member of the AMACSU who is employed by the Shire.
[1] “AMACSU”.
[2] “Shire”.
[3] “Mr Throssell”.
By leave, the applicant filed a Minute of Amended Interim Relief Sought on 22 September 2011, following the hearing, seeking an interim injunction in the following terms:
An interim injunction restraining the First and Second Respondents by themselves, and by their servants and agents, from threatening to take or taking any adverse action against any employee of the First Respondent who electioneers in respect of the elections currently underway for positions of Councillors of the First Respondent. “Electioneers” includes printing, publishing or distributing any advertisement, handbill, pamphlet, notice, letter or article that is intended or calculated to affect the result of those elections.
The substantive application seeks final relief by way of a permanent injunction and the imposition of civil penalties against the Shire and Mr Throssell.
The AMACSU alleges breach of s.346(1)(b) of the Fair Work Act 2009 (Cth),[4] which is a civil remedy provision,[5] by the Shire and Mr Throssell, threatening adverse action against Shire employees.
[4] “FW Act”.
[5] FW Act, s.539(2) - Item 11.
This Court has power to grant an interim injunction as sought.[6]
[6] FW Act, s.545(2)(a).
Factual matters
The AMACSU has coverage of operations in the industry of “Local Government Bodies” and “is formed in connection with the Local Government Municipal and Statutory Corporations Industry”.[7] Persons who are “bona fide employees of … Shire Councils or other Local Government Authorities” are eligible for membership of the AMACSU.[8]
[7] Rules of AMACSU (“AMACSU Rules”), being Annexure PB1 to the affidavit of Paul Burlinson sworn 20 September 2011 (“Mr Burlinson’s Affidavit”), r.5(a) – Part I and Part III.
[8] AMACSU Rules, r.5(b) – Part I(i).
The application is made on behalf of those employees of the Shire who are eligible for membership of the AMACSU. The AMACSU has standing to bring the application on behalf of those employees.[9]
[9] FW Act, ss.539(2) – Item 11 and 540(2). As to the necessity to prove standing in industrial matters see, for example, Australian Licensed Aircraft Engineers Association v Glyndale Pty Ltd (2009) 179 IR 102, [2009] FMCA 188, where an application by an employee association was dismissed because the association did not prove that it was entitled to bring the application because it did not prove that it was entitled under its eligibility rules to represent the interests of the relevant employees.
The terms and conditions of employment of the Shire’s employees are currently regulated by two enterprise agreements made under the Workplace Relations Act 1996 (Cth),[10] being:
a)Shire of Mundaring Municipal Employees Workplace Agreement 2008;[11] and
b)Shire of Mundaring (Local Government Employees) Collective Workplace Agreement 2008,[12]
but neither of which are presently in evidence before the Court.
[10] “WR Act”.
[11] Mr Burlinson’s Affidavit, para.7 (“Municipal Employees Agreement”).
[12] Mr Burlinson’s Affidavit, para.7 (“Collective Workplace Agreement”).
In broad terms:
a)the Municipal Employees Agreement covers employees who are outside or depot workers engaged in operational duties such as road construction and repair and maintenance, gardening and other outside of office activities;[13] and
b)the Collective Workplace Agreement covers inside workers mainly employed in managerial, professional, administrative, clerical, planning, regulatory, law enforcement, recreational, and community services activities.[14]
[13] Mr Burlinson’s Affidavit, para.8.
[14] Mr Burlinson’s Affidavit, para.9.
The Municipal Employees Agreement and the Collective Workplace Agreement have both expired, but remain in force, and the AMACSU is engaged in bargaining with the Shire for new enterprise agreements to be made under the FW Act for each group of employees.[15]
[15] Mr Burlinson’s Affidavit, paras.10 and 11.
The bargaining process for new enterprise agreements has been under way since approximately February 2011, and since July 2011 there have been a number of proceedings before Fair Work Australia[16] in respect of bargaining for a new outside workers agreement, including applications to FWA:
a)by the AMACSU for the conduct of a protected action ballot;
b)by the AMACSU for bargaining in good faith order;
c)by the AMACSU for an order that unprotected industrial action by the Shire must stop; and
d)by the Shire for an order that unprotected industrial action by employees must stop.[17]
[16] “FWA”.
[17] Mr Burlinson’s Affidavit, paras.12-14.
At present, no agreement for a new enterprise agreement for the outside workers has been reached, and negotiations are continuing, whilst applications for orders that unprotected industrial action must stop are adjourned before the FWA.[18]
[18] Mr Burlinson’s Affidavit, paras.15-16.
The AMACSU’s claim is that the Shire has threatened to take adverse action against employees eligible for membership of the AMACSU.
It is asserted that the adverse action occurs against the background of the negotiations set out above, and the following facts:
a)there are currently elections for councillors for the Shire under way, which elections are conducted by optional attendance ballot or postal ballot;[19]
[19] Mr Burlinson’s Affidavit, paras.17 and 18.
b)the postal ballot commenced on 20 September 2011 with ballots posted to electors on that day;[20]
[20] Mr Burlinson’s Affidavit, para.20.
c)the attendance ballot is to be held on Saturday, 15 October 2011, with electors casting a ballot required to attend at the office of the Shire at 7000 Great Eastern Highway, Mundaring;[21]
[21] Mr Burlinson’s Affidavit, para.19.
d)as part of its attempt to reach an enterprise agreement with the Shire, the AMACSU has drawn up a flyer which it has distributed to depot employees, and which it has asked the depot employees to put into letterboxes of houses within the Shire;[22]
[22] Mr Burlinson’s Affidavit, paras.21-22 and Annexure PB2 (“Flyer”).
e)the process of letterboxing the Flyer may have already commenced;[23]
[23] Mr Burlinson’s Affidavit, para.22.
f)the terms of the Flyer are as follows:
ASU NEWS
SHIRE OF MUNDARING
DEPOT WORKERS ASK FOR YOUR SUPPORT
LOCAL GOVT
Shire of Mundaring Depot Collective Agreement 2011.
September 2011
PLEASE SUPPORT DEPOT WORKERS EMPLOYED AT THE SHIRE OF MUNDARING
Shire of Mundaring Depot workers have been negotiating for a fair and decent Collective Agreement for more than eight months. These very low paid workers are struggling to meet the most basic costs of living. On average the depot workers earn only $44,000 each year (gross) and for 30 years they have been required to work regular overtime as part of their employment contract to complete projects for the Mundaring Community making use of the extended daylight hours. The workers have become dependent on this overtime, which equates to 3% pa, to meet basic living expenses. This over time is no longer guaranteed. These workers are already 10 to 12% behind the neighboring Shire’s of Kalamunda and York.
The CEO, Jonathan Throssell, who is paid in excess of $240,000 pa (plus “special” benefits) wants to strip away this overtime without any compensation, with a view to handing it out as a favour and / or punishment to workers required to work on their weekend or rostered day off. He has threatened to reduce workers to the absolute minimum employment conditions if they fail to vote in favour of his “unacceptable” proposal. He also seeks to remove 10% from Library Staff wages.
The depot worker’s Agreement expired in January 2011. Negotiations were delayed by the Shire until April 2011, and even then they sat on their hands until recently when workers commenced protected industrial action. In the past few weeks the Shire of Mundaring has prevented their employees from working, withheld their wages and locked them out of their workplace in response to them taking lawful protected action.
Many employees have suffered significant financial hardship as a result of the Shire stopping their pay. The Shire of Mundaring Depot Workers have established an “extreme hardship fund” to assist workmates suffering serious financial hardship as a result of the Shires draconian “19th century” actions.
We ask for your support for the Mundaring Depot Workers:
· Please purchase a professional “Australiana” photograph for only $20. There are 14 different photographs in the series. ALL PROCEEDS GO TO THE MUNDARING WORKERS “EXTREME HARDSHIP FUND”. Email enquiries and orders available through Jai Allen: [email protected]
· Please contact your local Councillor and tell them what kind of employer Mundaring Shire should be.
· Please Vote in the upcoming Council elections for a local Councillor who really cares about the future of the Mundaring Community and has a genuine interest in how the Shire treats its workers.
Council Elections – Saturday 15th October 2011
Shire of Mundaring Depot Workers and their families have resolved to recommend widespread support for Neil McLean (Central Ward), John Daw (East Ward) and Tony Kidder (South Ward) in the upcoming Mundaring Council Elections, to be held Saturday 15th October 2011. These candidates are very decent people who fully appreciate the traditional role of a local Shire Councillor. They are committed to working tirelessly to promote a sustainable, decent Community and will hold the CEO / senior management accountable without putting any political aspirations before the best interests of their Community. Please consider your vote carefully in next month’s local government election. Send in your postal vote now!*
Your support for the Shire of Mundaring Workers is very sincerely appreciated. They are very proud to work for you and the benefit of the Mundaring Community.
Authorised by Wayne Wood, Branch Secretary
Western Australian Branch Telephone: (08) 9427 77777
102 East Parade, EAST PERTH, 6004
Facsimile: (08) 9427 77000. Email address: [email protected].[24]
[24] Mr Burlinson’s Affidavit, para.21 and Annexure PB2. Transcribed from the Flyer without amendment of any errors or omissions therein.
g)it would appear that attached to the Flyer is a draft letter to elected Shire councillors in the following terms:
To all Elected Shire Councillors
C/o Shire of Mundaring
7000 Great Eastern Highway
Mundaring WA 6073Email: [email protected]
Dear Mundaring Shire Councillor,
c I am a rate payer in the Shire of Mundaring
c I live in the Shire of Mundaring.
cI am interested in the operations of the Shire of Mundaring and vote in local government elections.
I recognise and appreciate the valuable services that the Shire of Mundaring provides to the rate payers and the community.
I am shocked to learn that Mundaring Municipal Employee wages are so out of touch with our neighbouring hills local government of Kalamunda.
I am troubled that it appears you don’t accept that the Shire of Mundaring needs to remain competative in being an employer of choice by offering comparable wages that attract and retain quality loyal employees. I am surprised that you further seek to take away a component of the depot workers living wage equivalent to $2000 a year, that will effectively leave them without a pay rise for the next four years. I am equally shocked to also learn you seek to take 10% from the Library Staff wages without any compensation.
As you can appreciate the cost of living has risen dramatically and these are very low paid workers. How can you expect their families to have any quality of life if they continue to lose pace with the spiralling cost of living.
I believe that employees of the Shire of Mundaring should be paid a fair and competative living wage. Being an employer of choice is not just a political catch phrase. I support these loyal depot workers in their negotiations with the Shire of Mundaring for a fair pay rise, such that they are paid a living wage in order to support their families with dignity.
Please consider their very reasonable requests to settle the expired collective enterprise agreement.
Yours sincerely,
Signature: ………………
Name: ……………….[25]
[25] Mr Burlinson’s Affidavit, para.21 and Annexure PB2. Transcribed from the Flyer without amendment of any errors or omissions therein.
h)it is alleged that on 16 September 2011 Mr Throssell, acting in his capacity as Chief Executive Officer of the Shire, instructed depot workers that they were not to distribute the Flyer, and that if they did distribute the Flyer, it would be considered a breach of the Shire’s Code of Conduct, and that “appropriate action”, which was unspecified, would be taken against the depot workers;[26]
[26] Mr Burlinson’s Affidavit, para.23.
i)later on 16 September 2011 Mr Throssell, again acting in his capacity as Chief Executive Officer of the Shire, sent to all of the Shire’s employees an email in the following terms:
Some of you may have received an email or a flyer from the ASU seeking your assistance in disseminating or delivering via letterbox drop a flyer entitled “Shire of Mundaring Depot Workers Ask for Your Support”. The flyer, prepared by the ASU, once again contains many inaccurate, untruthful and offensive statements. It states that Shire depot employees recommend support for three particular candidates in the upcoming elections.
I advised all of the depot employees today, just prior to their knock off time, that I would consider it a breach of the code of conduct and thus their employment contract if they undertook the action proposed by the ASU to distribute the attached flyers and advocate support for any candidates in the upcoming elections. I stressed that their own vote was their business, but they could not represent or purport to represent themselves as a Shire employee in disseminating this information to others.
I now issue this same directive to all other Shire employees. I consider it to be a breach of the code of conduct to participate in such action as a Shire employee. Shire employees must not comment on what are clearly political issues. They also owe an obligation of fidelity to their employer, which I consider would be breached by disseminating the information contained in the flyer. Should you choose to breach the code of conduct, I will be required to take appropriate action.
I realize that many of you will not have seen this ASU newsletter and many who have seen it will properly ignore it. I am taking this action to ensure all employees are aware of their obligations and mean no offence to those who would not consider such action.
However, I advise those who may be considering supporting this action to carefully reconsider.[27]
[27] Mr Burlinson’s Affidavit, para.24 and Annexure PB3, being an email sent from the Chief Executive Officer at 4.41pm on 16 September 2011 (“CEO’s Email”).
j)the CEO’s Email was sent to “Mundaring All Staff” with the subject line reading as follows:
CEO directive to employees regarding advice from ASU to canvass support for candidates;[28] and
[28] Mr Burlinson’s Affidavit, Annexure PB3.
k)on 20 September 2011 the AMACSU’s solicitor sent a letter to the CEO of the Shire by email and fax, which letter was in the following terms:[29]
[29] Mr Burlinson’s Affidavit, paras.26 and 27.
Dear Mr Throssell,
I act for the Australian Municipal, Administrative, Clerical and Services Union.
My client is entitled to represent the industrial interests of all or almost all of the Shire’s employees many of whom are members of my client, including the depot employees.
On 16 September 2011 you advised the Shire’s depot employees that you would consider it a breach of the code of conduct and thus their employment contracts if they undertook the action proposed by my client to distribute the attached flyer and advocate support for any candidates in the upcoming Shire elections.
On the same date you sent an email to all Council staff advising them to the same effect.
It is apparent from your statements to the depot employees and from the terms of your email to all employees that unspecified but adverse action would be taken against any employee distributing the flyer.
Your action, in threatening unspecified adverse action against employees who distribute the flyer, is an unlawful action: section 346 Fair Work Act 2009.
I am instructed to make an urgent application to the Federal Magistrate’s Court for an interim injunction restraining you and the Shire from continuing to take this action and make this threat.
I am instructed not to make that application provided that you, by close of business today, personally address the depot employees and advise them as follows:
1.On Friday 16 September I advised you not to distribute the ASU flyer entitled “Shire of Mundaring Depot Workers Ask for Your Support”.
2.I also advised you that if you did distribute the flyer I would consider it a breach of the code of conduct and thus your employment contract.
3.I also indicated that action would be taken against any employee distributing the flyer.
4.Following representations by the solicitor for the ASU, I now accept that I was wrong to advise you as I did and that I was wrong to threaten taking action against employees distributing the flyer.
5.I now advise you that you may if you choose to do so distribute the flyer in your own time.
6.Should you choose to do so no action will be taken against you by me or the Shire.
In addition, you are required to send an email to all Shire employees advising them in the same terms as set out above.
Please confirm that you will take the steps that I have outlined. If you do not intend to comply with this request please advise the name of your solicitors to accept service of my client’s application to the Court.
Please respond as a matter of urgency.
Yours sincerely,
Derek Schapper[30]
[30] Mr Burlinson’s Affidavit, Annexure PB4.
The Shire of Mundaring – Code of Conduct[31] contains the following provisions to which the Court was taken in argument:
[31] “Code of Conduct”. The Code of Conduct is a document to be prepared or adopted by the Shire under s.5.103 of the Local Government Act 1995 (WA) (“LG Act”).
INTRODUCTION
This Code of Conduct (Code) provides Members, Committee Members and employees with consistent guidelines for acceptable standards of conduct.
…
4.4Use of Information
…
(2)Employees must not make improper use of any information acquired in the performance of their duties as employees of the Shire:
…
(b) to cause detriment to the Shire or any other person.
….
4.8Personal Behavior
Employees must:
…
(d)make no allegations which are derogatory of the Shire or any person or which are otherwise improper and refrain from any form of conduct, in the performance of their official or professional duties, which may cause any reasonable person unwarranted offence or embarrassment;
(e)always act in accordance with their obligation of fidelity to the Shire; and
(f)represent and promote the interests and decisions of the whole of the Shire at all times.
4.9Honesty and Integrity
Employees must:
(a)observe the highest standards of honesty, integrity and propriety and avoid conduct, which might suggest any departure from these standards, noting that in this code,
“honesty” includes acting with sincerity and not lying or knowingly misleading, cheating or stealing.
“integrity” refers not only to knowing what is the right thing to do but having the moral strength and courage to act on one’s convictions and on principle rather than expediency; and
“propriety” is to behave correctly as befits the duties of one’s professional responsibilities and role;
(b)promptly bring to the notice of the CEO any apparent dishonesty on the part of any Member or other employee;
(c)be frank, honest and fair in their official dealings with each other in the performance of their duties as employees; and
(d)be objective in undertaking their professional duties and functions.
(Objectivity involves a state of mind which imposes on an individual the obligation to be fair and impartial, intellectually honest and free of conflicts of interest and bias).
4.14Corporate Obligation
…
(2)Communications and Public Relations
All aspects of communication by employees (including oral, written or personal), involving the Shire’s activities should reflect the status and objectives of the Shire. Communications should be accurate, polite and professional.
Employees should not comment on what are clearly political issues as that is the prerogative of the President or the CEO.
The Court also notes the following paragraph from the Introduction to the Code of Conduct:
This Code addresses the broad issues of ethical responsibility, and encourages accountable and open local government.
Adverse action – relevant provisions of the FW Act
Section 342 of the FW Act provides as follows:
Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by ...
Column 2
if ...
1
……
an employer against an employee
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
(3) …
(4) …
Section 346 of the FW Act provides that:
A person must not take adverse action against another person because the other person:
(a) …; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) …
Section 347 of the FW Act provides as follows:
A person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association; or
…
LG Act – relevant provisions
Section 4.87 of the LG Act contains provisions with respect to the printing, publication and distribution of electoral material, relevantly, as follows:
(1) A person who prints, publishes or distributes electoral material or causes electoral material to be printed, published or distributed, commits an offence unless —
(a) in the case of all electoral material, the name and address (not being a post-office box) of the person who authorised the electoral material appears at the end of the electoral material; and
(b) in the case of electoral material that is printed otherwise than in a newspaper, the name and business address of the printer appears at the end of the electoral material.
Penalty: $2 000.
(2) Subsection (1) does not apply to electoral material on an item included in a prescribed class of items.
(3) In this section —
electoral material means any advertisement, handbill, pamphlet, notice, letter or article that is intended or calculated to affect the result of an election but does not include an advertisement in a newspaper announcing the holding of a meeting;
print includes photocopy or reproduce by any means.
Section 5.103 of the LG Act also contains a provision relating to codes of conduct, relevantly, as follows:
(1) Every local government is to prepare or adopt a code of conduct to be observed by council members, committee members and employees.
[(2) deleted]
(3) Regulations may prescribe codes of conduct or the content of, and matters in relation to, codes of conduct and any code of conduct or provision of a code of conduct applying to a local government under subsection (1) is of effect only to the extent to which it is not inconsistent with regulations.
AMACSU Rules
It is relevant to note that Rule 4 – the Objects of the AMACSU Rules include the following:
a.To uphold the rights of organised labour, to improve, protect and foster the best interests of its members and to subscribe to and/or co-operate with a policy of improving the cultural and living standards of its members.
b.To watch over, improve, foster and protect the interests of its members;
c.To obtain and maintain for its members reasonable hours of work and fair wages and industrial conditions;
d.To obtain preferential treatment for members in all aspects of their employment;
e.To improve the social and economic position of its members
f.To assist members or their families in distress;
g.To formulate and carry into operation schemes for the industrial, social, recreational, intellectual and general advancement of members and to make arrangements with persons engaged in any trade, business, or profession for the provision to the members of the Union of any special benefits, privileges and advantages, in particular in relation to goods and services;
…
m.To provide information on industrial, economic, social, legal and political matters affecting members;
n.To assist members in enforcing their rights under any law relating to industrial conciliation or arbitration or compensation for illness or injuries or any other Statutory enactment;
o.To provide pecuniary, legal and other assistance for securing, protecting and advancing the rights, privileges, benefits, interests and welfare of members and their families and for the conduct of negotiations or any proceedings for the attainment of the objects (including this object) or any one of them of the Union;
…
v.To provide funds from donations, levies, fines, contributions, fees, interests on capital, and from any other monies from which payments may be made for the purposes of any of these objects;
…
ab.To undertake and do all such acts matters and things as may be necessary, incidental or conducive to the attainment of the above objects or any of them.
…
ae.To prevent lockouts between employers and members;
…
ag.To prevent, regulate or restrict the employer’s actions or claims to dismiss or refuse to employ or reinstate in employment, in all appropriate cases.
…
aj.To act as agent for and on behalf of members or non members in a manner consistent with these objects and the rules and in the interests of members and to do all things necessary and incidental thereto.[32]
[32] AMACSU Rules, rule 4.
Interim Injunction – principles
There is no dispute that in determining whether to grant an interim injunction the Court needs to be satisfied that there is both a serious question to be tried and that the balance of convenience between the parties favours the granting of an interim injunction.[33]
[33] Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63.
In this case both parties appear to accept that there may be a serious question to be tried. The parties differ as to whether the balance of convenience favours the granting of an interim injunction.
The questions are not necessarily independent, but may be inter-dependent, leading a court to more readily grant an interim injunction when the balance of convenience is even and the claim strong, or where a claim is not as strong but there is a marked balance of convenience in favour of interim injunctive relief.[34]
Consideration
[34] Bullock v Federated Furnishing Trades Society of Australasia (No.1) (1985) 5 FCR 464 at 472 per Smithers, Sweeney and Woodward JJ.
CEO’s Email
It is necessary to first make some observations with respect to the CEO’s Email. Although the CEO’s Email was sent in the context of the Flyer being, or being proposed to be, distributed, a reading of the CEO’s Email does not limit the conduct in relation to which action might be taken by the CEO to distribution of the Flyer. The CEO’s Email is, on a plain reading, capable of indicating that the conduct about which action may be taken, includes the following:
a)distributing the Flyer; or
b)otherwise disseminating the information contained in the Flyer; or
c)advocating support for any candidate in the upcoming Shire elections; or
d)commenting on political issues, in the context of the enterprise agreement negotiations and the upcoming Shire elections.[35]
[35] “Proposed Actions”.
Serious question to be tried
Does the statement by the CEO in the CEO’s Email that he “will be required to take appropriate action” against employees who do all or any of the Proposed Actions give rise to a serious question to be tried?
The AMACSU says that it is a threat to take some form of unspecified appropriate action, which may be a reprimand, warning or more serious form of disciplinary action against any Shire employee who takes the Proposed Actions.
The AMACSU says any form of disciplinary action will, at least, be a threat to prejudicially alter the employees’ position, and if the threat is acted upon, constitute injury in employment.
At hearing, Counsel for the AMACSU quite properly advised the Court of the provisions of s.4.87 of the LG Act, and, conceded that the Flyer did not contain the name of the printer of the material. That, on the face of it, Counsel conceded, constituted a breach of s.4.87(1)(b) of the LG Act. Counsel however, pointed out that it was a breach easily remedied, and advised the Court that it was intended to be remedied, by the insertion of the words “and printed” after the word “Authorised” towards the end of the Flyer. In any event, the effect of that concession is that the distribution of the Flyer, if it has taken place to date, would constitute unlawful activity, and could not therefore be industrial activity for the present purposes of s.347 of the FW Act.[36]
The AMACSU however argues that that does not end the matter, because the CEO’s Email, on a plain reading leads to a conclusion that a Shire employee who does any of the Proposed Actions, other than distribute the Flyer (because that is unlawful), or who distributes the Flyer in amended form (that is, in a lawful form, including an attribution as to its printer) will be liable to the threat or actuality of adverse action by the Shire.
[36] Barclay & Anor v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 222 per Gray and Bromberg JJ; [2001] FCAFC 14 at para.34 per Gray and Bromberg JJ (“Bendigo TAFE”). Special leave to appeal the judgment in Bendigo TAFE to the High Court has been granted: The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2011] HCATrans 243.
The Shire and Mr Throssell say that there is nothing to injunct in this case because unless an employee takes action which is in breach of the Code of Conduct, then no “appropriate action” will be required to be taken against them by the Shire.
In the Court’s view, the submission on behalf of the Shire and Mr Throssell in this regard is misconceived. The issue is whether the Court may injunct a threat to take adverse action, that is action which is prejudicial to the employees’ position or may result in injury to the employees, where the conduct is otherwise lawful activity within the definition of “engages in industrial activity” for the purposes of s.347(b)(ii)(iii) and (v) of the FW Act. It gives rise to the question whether the CEO’s Email may arguably constitute a “threat”, and whether “appropriate action” may be prejudicial to the employees’ position or constitute injury if all or any of the Proposed Actions are taken.[37]
[37] Bendigo TAFE FCR at 231 per Gray and Bromberg JJ; FCAFC at paras.63-65 per Gray and Bromberg JJ.
In Australian and International Pilots Association v Qantas Airways Limited,[38] the Federal Court held that the mere announcement of intended industrial action did not constitute a threat for the purposes of s.298K(1) of the WR Act as there always existed the possibility that, for commercial, industrial or other reasons, a statement of intended action may never be acted on or might only be implemented in some modified form. It was held that an employer must do something to prejudice an employee, not merely foreshadow some future action which might or might not prove to be prejudicial, and that unless and until the decision is implemented no injury or alteration to prejudice the position of employees will have occurred. However, that finding was made in the context of an announcement of an intention to alter airline operations and crewing arrangements at a future point in time, being almost 12 months after the announcement. In Qantas the Federal Court observed that this was nothing more than an announcement of an intention to act in a particular way at some future point in time, and which did not involve a decision which was immediately operative.[39] The relevant announcement in February 2006 that Qantas would provide Jetstar with four airbuses at sometime before the early months of 2007 and that those aircraft, when transferred to Jetstar, would not be crewed by Qantas employees was, in the Federal Court’s view, an announcement that, without more, “could not amount to a warning that … [Qantas] was proposing to inflict harm on its pilots. The announcement was equally consistent with an assertion by … [Qantas] that the pilots were valued and needed to maintain domestic services. … It was in no sense a warning of future harm to them. … It said nothing about their continued employment with … [Qantas] or about any reduction in the terms and conditions of employment enjoyed by them.”[40]
[38] (2006) 160 IR 1; [2006] FCA 1441 (“Qantas”).
[39] Qantas IR at 14-15 per Tracey J; FCA at para.26 per Tracey J.
[40] Qantas IR at 17 per Tracey J; FCA at para.31 per Tracey J.
In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd,[41] the Federal Court held, in the context of that case, that a warning was an important part of relevant disciplinary procedures, and may have the effect of making an employee’s continuing employment less secure, and therefore altered the position of an employee to the employee’s prejudice within the meaning of s.298K(1) of the WR Act.[42]
[41] (1999) 140 IR 131; [1999] FCA 1531 (“Coal and Allied Operations”).
[42] Coal and Allied Operations IR at 156-157 per Branson J; FCA at paras.95-96 per Branson J.
In Bendigo TAFE the majority of the Full Court of the Federal Court referred to conflicting authority on the question of whether being liable to investigation or disciplinary proceedings can constitute a sufficient alteration of the position of an employee to that employee’s prejudice to amount to adverse action.[43] The majority then went on to observe that:
It would also be necessary to consider whether, even if requiring an employee to respond to disciplinary proceedings does not amount to adverse action, it might constitute threatening to take adverse action which, by virtue of s 342(2)(a) of the Fair Work Act, is itself adverse action.[44]
[43] Bendigo TAFE FCR at 230 per Gray and Bromberg JJ; FCAFC at para.57 per Gray and Bromberg JJ.
[44] Bendigo TAFE FCR at 230 per Gray and Bromberg JJ; FCAFC at para.57 per Gray and Bromberg JJ.
In this case some form of action is contemplated by Mr Throssell and the Shire in the event that there is a breach of the Code of Conduct. It is arguable that the suggestion implicit in the CEO’s Email is that some form of disciplinary action “will be required” if the Proposed Actions are taken, and the strength of such an implicit suggestion is reinforced by:
a)The form and content of the CEO’s Email which is referred to as a “directive” to Shire employees; and
b)the final paragraph of the CEO’s Email, in which Mr Throssell “advise[s]” those who are “considering supporting” the Proposed Actions “to carefully reconsider”.
It is strongly arguable, in the Court’s view, that the CEO’s Email is pregnant with an implicit warning of some kind of unspecified future harm to any Shire employees, who not only participate in the Proposed Actions, but “consider supporting” them. There is therefore a serious question as to whether this constitutes adverse action under s.342(2)(a) of the FW Act.
A further serious question arises as to what occurs if there are breaches of the Code of Conduct by the Shire’s employees. What, if any, action can be taken by the Shire in respect of the Shire’s employees? That is a serious question to be tried because from a brief perusal of the relevant provisions of the LG Act,[45] it appears that the only action which may be taken against persons who have breached the Code of Conduct is in relation to Council members, which does not include Shire employees.[46] Because s.5.103 of the LG Act indicates that the provisions of the Code of Conduct are “to be observed” by employees, it might be argued that they give rise to a statutory obligation.[47] This in turn gives rise to the question of whether or not a statutory obligation can be said to impose any obligation on the Shire employees, in the absence of any remedial provisions in the LG Act, under the contract of employment of the employees of the Shire, if the contract of employment does not specifically incorporate the terms of the Code of Conduct.[48]
[45] See generally LG Act, Part 5, Division 9, and s.5.40.
[46] LG Act, s.1.4 definitions of “council” and “member”.
[47] Neilson & Anor v City of Swan [2003] WASC 20 at paras.84-85 per Templeman J. In City of Melbourne v Di Benedetto (1976) 33 LGRA 190 at 194 per Lush J the Victorian Supreme Court held that provisions in planning legislation requiring a responsible authority to observe the requirements of a planning scheme did not extend to requiring the authority to ensure that a planning permit was implemented. See also Hinton v Fawcett [1957] SASR 213 in relation to a covenant to observe provisions of legislation relating to the licensing or regulating of billiard saloons.
[48] See Byrne & Frewv Australian Airlines Limited (1995) 185 CLR 411 at 422-423 per Brennan CJ, Dawson and Toohey JJ and 446-453 per McHugh and Gummow JJ.
The issue of whether any breach of the Code of Conduct is enforceable in the absence of relevant provisions related to employees in the LG Act, or whether it is enforceable under the contract of employment of the employees concerned, and therefore whether or not there is or is not the legal capacity to make a threat of adverse action, or to take or not adverse action, based on a breach of the Code of Conduct by Shire employees, is a serious question to be tried.
The issue of enforceability of the Code of Conduct also arises in its terms, because as Counsel for the AMACSU pointed out at hearing, the Code of Conduct only purports to be “guidelines” and is not in its own terms, purporting to be enforceable.[49]
[49] See the extract from the Introduction to the Code of Conduct at para.14 above.
Further serious questions arise as to whether or not the Code of Conduct is enforceable in relation to the Proposed Actions if they are carried out outside of working hours, and in the employee’s capacity as a member of the AMACSU. Thus, if a depot worker were, outside of working hours, to stand on a soapbox in the local shopping centre car park at Mundaring and say words to the effect that the employee was a member of the AMACSU because they were a depot worker at the Shire, and that the Shire and the AMACSU had been involved in negotiations for a new enterprise agreement, and that those negotiations had not progressed well, and that the assembled shoppers who are ratepayers in the Shire ought to vote for certain candidates named by the employee, is that lawful industrial activity, or a breach of the Code of Conduct in relation to which “appropriate action” might be taken as envisaged under the CEO’s Email?
Serious questions also arise as to whether the duty of fidelity, which the CEO alleges in the CEO’s Email has been breached, extends to preclude participation in lawful industrial activity, and the local government political process, by a member of the AMACSU who is a Shire employee.
The prohibition on the taking of adverse action applies where a person engages in industrial activity, or has so engaged, or proposes to so engage.[50] The question as to whether Shire employees engaged in the Proposed Actions are engaged in industrial activity needs to be considered in light of the AMACSU Rules, which are set out above. When regard is had to those Rules it is clearly arguable that the Proposed Actions are industrial activity for the purpose of ss.346(b) and 347(b)(ii)(iii) and (v). Indeed, the Proposed Actions relate to core objects of the AMACSU in relation to obtaining fair wages and industrial conditions, improving the social and economic position of its members, and providing information on industrial, economic, social and political matters affecting members, amongst others.[51] There is therefore a serious question to be tried as to whether Shire employees eligible to be members of the AMACSU who engage in the Proposed Actions, which are consistent with the objects of the AMACSU’s Rules, are engaged in lawful industrial activity, which if hindered by threat of prejudicial alteration of an employee’s position, may constitute adverse action.[52]
[50] FW Act, s.346(b).
[51] See generally the AMACSU Rules set out at para.21 above.
[52] Bendigo TAFE FCR at 231 per Gray and Bromberg JJ; FCAFC at para.63-65 per Gray and Bromberg JJ.
Furthermore, potentially interesting questions arise as to the interaction, and potential inconsistency, between the provisions of ss.346 and 347 the FW Act, and the AMACSU Rules (which take effect under federal legislation, namely, the Fair Work (Registered Organisations) Act 2009 (Cth)) and the provisions of s.5.103 (and associated provisions) of the LG Act and the Code of Conduct.[53]
[53] Assuming that the Code of Conduct has been adopted by the Shire, a matter as to which there is presently no evidence.
In all of the above circumstances, there can be little doubt that there is a serious question, or questions, to be tried in this matter.
Balance of convenience
If an interim injunction does not issue in this matter Shire employees will run the risk of “appropriate action” being taken against them by the Shire if they engage in any of the Proposed Actions. That risk militates against their participation in public debate and processes concerning the Shire elections, in any capacity which might involve disclosure of their status as Shire employees.
If an interim injunction does issue the Shire employees will be able, at least until final determination of these proceedings, to engage in the public aspects of the Shire election process, and express their views as to the events concerning the Shire and the AMACSU related to the enterprise agreement negotiations, and advocate support for certain persons to be elected to the Council because of the perceived support of those persons for the position of the AMACSU (or at least the Shire employees) in those enterprise agreement negotiations.
Because the election is a little over three weeks away, time is critical if the Shire employees are to be able to participate in that manner in the Shire election process. While the risk of “appropriate action” by the Shire is pending, their ability to participate, and to influence the electoral process (particularly in circumstances where postal ballots have already opened), is limited by the perceived risk of the taking of “appropriate action” against them by the Shire in respect of the Proposed Actions.
Notwithstanding that the Shire had a days notice of the intention of the AMACSU to make this application, and then a days notice after it had been filed and served of the hearing of the matter, and the capacity to apply urgently even after judgment had been reserved, there was no evidence led on behalf of the Shire at hearing, or any application to lead evidence after the hearing and prior to the issuance of this judgment. There is no particular evidence of any prejudice to the Shire if the Shire employees who are eligible for membership of the AMACSU are allowed to advocate support for particular candidates, or to print, publish and distribute election material as defined in s.4.87.
In the Court’s view the balance of convenience weighs in favour of the grant of an interim injunction. There is a greater interest in the Shire employees, and especially those who might be eligible to vote[54] (a matter about which there is no evidence), being able to participate in the local government electoral process in relation to the Proposed Actions (which are matters affecting the Shire as a local government, and particularly as a local government employer) than in having the Shire employees’ ability to air the issues the subject of the Proposed Actions suppressed by the risk of the Shire taking “appropriate action” against them. The balance of convenience weighs in favour of the Shire employees, both as Shire employees and as members of the AMACSU, being able to express concern as part of the local government electoral process, even if they are identified as Shire employees, about their employer’s conduct of the enterprise agreement negotiations, and being able to advocate support for certain candidates who support the position of the Shire employees or the AMACSU. Indeed, it is arguable that to allow the Shire employees to act in this manner might be to encourage accountable and open local government, which is said to be one of the matters that the Code of Conduct addresses.[55]
[54] See LG Act, ss.4.29 and 4.30.
[55] See the extract from the Introduction to the Code of Conduct, extracted at para.15 above.
The balance of convenience in this regard is further strengthened by the fact that the Court can make time to hear the matter next week, and any interim injunction is therefore likely to have a limited life of between seven and ten days until a final judgment is delivered.
Conclusion
The Court has concluded that there is a serious question, or are serious questions, to be tried, and that the matters the subject of the serious question or questions are arguable, and that the balance of convenience favours the AMACSU, and that therefore an interim injunction ought to issue. That interim injunction will be in broadly similar terms to the interim injunction sought by the applicant, but will also include reference to Shire employees being able to advocate support for particular candidates in the election.
There will also be consequential programming orders to facilitate the hearing of this matter next week. Costs will be reserved.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 23 September 2011
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