Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council

[1999] FCA 928

FEDERAL COURT OF AUSTRALIA

Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council [1999] FCA 928

INDUSTRIAL - application for interlocutory injunction

Workplace Relations Act (Cth) 1996, ss 298K, 298L(1)(h), 298U
Local Government Act (Vic) 1989

AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL SERVICES UNION & ANOR v GREATER DANDENONG CITY COUNCIL & ANOR
V 248 of 1999

MADGWICK J
19 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 248 OF 1999

BETWEEN:	AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL SERVICES UNION First Applicant
WENDY PHILLIPS Second Applicant
AND:	GREATER DANDENONG CITY COUNCIL First Respondent
GLAD PTY LTD Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	19 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for an interlocutory injunction is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V 248 OF 1999

BETWEEN:	AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL SERVICES UNION First Applicant
WENDY PHILLIPS Second Applicant
AND:	GREATER DANDENONG CITY COUNCIL First Respondent
GLAD PTY LTD Second Respondent

JUDGE:	MADGWICK J
DATE:	19 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for an interlocutory injunction in an action brought by an industrial organisation, the Australian Municipal Administrative Clerical Services Union ("the ASU"), which organises municipal council employees in Victoria and by a shop steward, Wendy Phillips, employed by the first respondent, Greater Dandenong City Council ("the Council"), a large suburban city council.

2. The claim of the applicants is that action taken by the Council to dismiss its core of employees engaged on home care and community services work and to instead have the work that they had been doing done by a contractor, the second respondent, Glad Pty Ltd, amounts to a breach of s 298K of the Workplace Relations Act (Cth) 1996 ("the Act").  That section prohibits an employer from dismissing an employee, injuring an employee on his or her employment, or altering the position of an employee to the employee's prejudice, for reasons that include a prohibited reason.  Section 298L lists the prohibited reasons and these include under subsection (1)(h), that the employee: "is entitled to the benefit of an industrial instrument or an order of an industrial body".

3. The case of the applicants is that, demonstrably, the employees have been given notice of termination of their services because they provide a relatively expensive source of labour on account of various provisions of the industrial instrument which applied to them.  Of particular expense to the Council are penalty payments arising from the clauses of that instrument regulating the permissible spread of ordinary hours of work and overtime.  A different industrial instrument appears to apply to the employees of Glad Pty Ltd.  In particular, under that award there is a much wider spread of ordinary hours of work both as to the number of days of the week on which ordinary hours of work can be performed and as to the spread of hours on individual days of the week.  The applicants contend that it is impossible to say, having regard to the history of the matter, that one of the reasons which has actuated the Council is not that the employees concerned enjoy the benefits of the industrial instrument that applies to persons employed directly by this Council.

4. The case for the respondents is that the Council simply acted throughout in accordance with certain provisions of the Local Government Act (Vic) 1989 which required that there be a process of "competitive tendering".  This process enabled the employees of the Council themselves notionally to tender against outside tenderers.  The employees simply lost against the tender offer of Glad Pty Ltd.  They lost not only on considerations of cost, but, in the view of the Council, for other reasons as well.  It is also specifically denied that the Council had any concern with the level of wages and conditions provided by the standing industrial instrument and there is evidence that the Council's Chief Executive Officer was opposed to a reduction in those entitlements.  It appears that he sought to emphasise the importance of promoting greater productivity and thereby effecting savings through changed and, as he saw it, improved work practices.  It is said that, to give a meaning to the relevant paragraph of s 298L that would, in a statutory environment aimed at increasing the productive use of labour and allowing a flexibility of approach to industry, impede these aims, would be to accord to the provisions a meaning that Parliament would not and could not have intended.  Other arguments were put.

5. The application for injunction relief has been brought on urgently and the cases of both sides necessarily suffer from their having been obliged to assemble the best summary of available evidence quickly.  There are some factual bases in the evidence of the applicant which can support its case.

6. It is enough for me to say that, on the necessarily brief argument that I have been able to receive from the parties, it seems to me there is a serious question to be tried in the sense that there is a reasonably arguable case for the applicants.  However, such impressions as I have been able to form indicate that those arguments may not be of particular strength.  Certainly, I have formed no view that there is a probability of success. 

7. It is clear from the applicant's own material that the employer had plainly been intending to terminate these employees, as it ultimately did ten days ago, for some considerable period before this time.  The application to this Court is made three or four days before the notices of termination are due to take effect.  Glad Pty Ltd intends to take on as employees about half of the Council employees to be dismissed.  All of the Council employees will receive some redundancy pay from the Council.  It is likely that in both groups there are some employees who are content enough with events as they have transpired.  But it is probable that there are others, I should think the majority, who have reluctantly accepted their lot.

8. Counsel for the applicant, Mr Bromberg, submitted, among other things as to the balance of convenience, that, because a final hearing will be soon available, to maintain the status quo would prevent much heartache and disruption for employees facing dismissal and that there would otherwise be difficulty in "unscrambling the eggs" in order fully to give the desirable remedies which are available under s 298U of the Act.  The Council and Glad Pty Ltd expressly reject this argument.  In the event that the applicant's arguments as to the liability of the Council and perhaps Glad Pty Ltd ultimately prevail, that attitude will doubtless be of relevance in consideration of what remedies are appropriate and why.

9. There is a long and uniform body of authority in the Industrial Relations Court of Australia in relation to other reinstatement cases that employers who commit legal wrongs cannot save themselves from the consequences thereof by pleading hardship to other employees whom they have brought in to replace those wrongly dismissed.  As presently advised it would seem to me that the analogical force of those decisions to any entreaties as

   
   
   

   to the hardship of employees of Glad Pty Ltd, who are not ex-Council employees, would be strong. 

10. All in all, having regard to the lateness of this Court being approached, the fact that there appear to be weighty arguments to be put against the contentions of the applicant that might militate against its ultimate success in the action, and that nothing is likely to be done that cannot be effectively undone if the applicant's case is ultimately successful, I am disinclined to grant the application.  I take into account also that it may be anticipated that there will be a reasonably prompt decision in the matter even if the reasons for the decision are delayed to some extent.  I am able to fix the final hearing of this matter in Melbourne on 1 and 2 June, that is, about a fortnight hence.

11. The application for an interlocutory injunction is dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             19 May 1999

Counsel for the Applicants:	M Bromberg with R Doyle
Solicitor for the Applicants:	Maurice Blackburn & Co
Counsel for the First Respondent:	B Lacy
Solicitor for the First Respondent:	Maddock & Chisholm
Counsel for the Second Respondent:	S Wood
Solicitor for the Second Respondent:	Corrs Chambers Westgarth
Date of Hearing:	19 May 1999
Date of Judgment:	19 May 1999