Australian Postal Corp v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, & Allied Services Union of Australia
[1997] FCA 1471
•15 Dec 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 715 of 1997
BETWEEN:
AUSTRALIAN POSTAL CORPORATION
APPLICANTAND:
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
RESPONDENT
COURT:
NORTHROP J
DATE:
15 DECEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
I direct that the application be issued. I shall treat this hearing as an ex-parte application for interim orders. I propose to make the orders sought and to give very brief reasons for so doing. This application is brought by the applicant, Australian Postal Corporation, under s 127(6) of the Workplace Relations Act 1996 seeking an order that an organisation affected by an order of the Commission made under s 127(1) be ordered to observe the terms of the order of the Commission. The Court has power to make such an order if it is satisfied that that organisation has engaged in conduct that constitutes a contravention of s 127(5) or is proposing to engage in conduct that would constitute such a contravention. At the same time the applicant is seeking an interim order pending the hearing and determination of the application, see s 127(6). Subsection 127(5) provides that the organisation to whom an order under s 127(1) is expressed to apply, must comply with the order.
The order is of extreme urgency since the order of the Commission was made this morning with effect from 12.20 pm to-day. The order was made under s 127(1) which enabled the Commission, if it appears to it, that industrial action is happening or is threatened, impending, or probable in relation to:-
“ ......
(c) work that is regulated by an award or a certified agreement;the Commission may, by order, give directions that the industrial action stop or not occur.”
In the present case the Commission made an order under s 127(1) this morning with effect from 12.20 pm, an order, which is binding upon the Australian Postal Corporation and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, called “the Union”, delegates and officers of the Union, and members of the Union employed in certain postal operations, which I need not read out in full in relation to work that is regulated by the following awards and agreements, which are then identified, namely, the Australia Post Operations (Interim) Award 1995; the Australia Post General Conditions of Employment (Interim) Award 1995 and Australia Post Enterprise Agreement 1996. The Union is an organisation under the Workplace Relations Act.
The industrial action to which the order is directed is defined in clause 3 of the order. The whole of clause 3 is set out:-
“ 3. INDUSTRIAL ACTION TO STOP
3.1Industrial action as defined in clause 3.2 of this Order shall not occur in the delivery operations of Australia Post located in Victoria from 12.20 pm on 15 December 1997 until midnight on 17 December 1997.
3.2. For the purpose of this Order:
(a)in respect of members, “industrial action” means the failure or refusal by a member to attend for work and/or to perform work as required by their contracts of employment including the stoppage of work planned in delivery operations in Victoria for 16 December 1997 as foreshadowed in the Union Circular dated 12 December 1997,a copy of which is attached to this Order; and
(b)in respect of the Union, its delegates or officers, “industrial action” means the incitement or encouragement of any of the members to fail or refuse to attend for work and/or to perform work as required by their contracts of employment.”
Clause 4 of the Order provides for service;
“4. SERVICE OF ORDER
The Australian Postal Corporation shall provide a copy of this Order to all persons and organisations bound by this Order, including the employees to whom the Order applies, by placing a copy on a notice board at each relevant work location.”
Clause 5 of the Order specifies the time and date of effect of the Order;
“5. TERM AND DATE OF EFFECT
This Order will take effect form 12.20 pm on 15 December 1997 and shall continue in force until midnight on 17 December 1997.”
There is no evidence that the order of the Commission has been placed on the notice board at any relevant work location, although there is evidence that the secretary of the relevant branch of the relevant division of the organisation was present at the hearing when the order was made by the Commission. There is evidence, on information and belief, that a copy of the Order was given to that State secretary shortly after the hearing. In addition to that, copies have been served on the solicitors for the respondent, which although officially not present, has been represented by Counsel who has assisted the Court in submissions made.
The relevant facts are within a fairly short compass. They disclose that for some time there has or have been threats of a stoppage of mail deliveries for Tuesday that is, tomorrow. The matter had come before the Commission on at least two occasions, and the Commissioner dealing with the matters had indicated that an order under s 127 would be made unless the organisation ceased from supporting the stoppage. The action taken by the organisation has been to continue to support and encourage the strike action on Tuesday. In these circumstances, the Commissioner made the Order I have referred to. Submissions were made that the Order of the Commission is defective, in that it refers to an application for an order to stop or prevent industrial action and names the respondent as the Communications, Electrical and Plumbing Union - Communications Division (P & T Branch), the Order refers also to the Australia Post Operations (Interim) Award 1995.
The organisation, quite properly, has submitted that a branch is not the organisation; it has no separate legal identity. However on the material before the Court it is quite clear that here it is the branch and other officers of the organisation and of the branch who are supporting and encouraging the action being taken by the workers and which has been organised by the shop stewards of the organisation. The material supports a finding that it is the Union, through its relevant branch, which is taking the action.
The order being sought in this Court is against the organisation itself. In all the circumstances, the Court finds that this is an appropriate case where there can be no dispute or uncertainty as to who the party is. It is the organisation (the Union) itself against which the order is being sought. It was the organisation itself against which the Commission made its order this morning.
It was argued also that here the industrial action referred to in the Order of the Commission was so uncertain that the Orders sought should not be made. In this respect, reference was made to a decision of Marshall J in matter VG 674 of 1997 in the matter of Metal Trades Industry Association of Australia v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. There the facts were very different. There the order of the Commission had said:
“For the purposes of this order, the expression ‘industrial action’ has the same meaning as that set out in s 4 of the Workplace Relations Act 1996.”
On any view that description of industrial action is far too wide for the purposes of any injunction. Here, as far as the organisation is concerned, the industrial action is defined in clause 3 of the order of the Commission. On a proper reading of it, and as far as the organisation is concerned, it is limited to industrial action meaning:
“The incitement or encouragement of any of the members to fail or refuse to attend for work and/or to perform work as required by their contracts of employment.”
That brings in clause 3(2)(a) of the Order, namely:
“in respect of members, “industrial action” means the failure or refusal by a member to attend for work and/or to perform work as required by their contracts of employment including the stoppage of work planned in delivery operations in Victoria for 16 December 1997 as foreshadowed in the Union Circular dated 12 December 1997, a copy of which is attached to this Order;....”
The reference to the media releases and union circular attached to the order of the Commission make it quite clear what was intended to be done.
It is also argued on behalf of the organisation that because of an order made by another Commissioner on Friday, uncertainty arose as to which order should be obeyed. Here, in my view, there is no uncertainty at all. The order made by Commissioner Blair this morning is the relevant order. It was referred to. There can be doubt as to what is covered by it.
In these circumstances, the question is: should the Court make an interim order? It is realised that the main action cannot be heard before tomorrow. Any interim order would have the effect of binding the organisation with respect to action to be taken tomorrow. If the strike does not occur, it could well be that the whole action would fail, but at the same time having regard to the urgency of the matter, the Commissioner making the order this morning, and the matter coming on before the Court this afternoon, this is a matter where the Court should make the order sought even though there may be difficulties in implementing it. Questions might arise later as to what is to be achieved by the making of the Court Order.
During the course of the submissions it was said that at the present time the Order of the Commission is binding and can be enforced by an action for a penalty brought under s 178 of the Workplace Relations Act. However, in addition to that provision, the Parliament has indicated a need for more severe penalties being imposed if the Court makes an interim order which is disobeyed. The Court makes an order in the circumstances presented in s 127(6) and (7) of the Workplace Relations Act. The basis for making such an order is that the Court considers it appropriate and is satisfied that the organisation is proposing to engage in conduct that would constitute a contravention of the Order of the Commission.
In the present case, the Court is so satisfied and is satisfied for the purposes of an interim order that the injunctions should be made.
Questions might arise as to whether the Court should look into the merits of what gives rise to the basis for the industrial action; but in my opinion, on the facts of this particular case, it is not appropriate for the Court to do so. It is a fairly clear-cut case where the evidence makes it quite clear that the strike is in relation to an issue between the employer and the organisation in relation to work regulated by an award or a certified agreement.
It is said on behalf of the Union that the applicant has not complied with the Order in that it has not served copies of the Commission’s Order by posting them on notice boards. That would be a very good argument to support a refusal to grant injunctions against members, but no order is being sought against members at this stage. This is a case where the Union as an organisation must take the responsibility of complying with the order of the Court as made.
Accordingly, upon the organisation giving the usual undertaking as to damages, the Court makes the following orders:
Until the hearing and determination of the application or until further order pursuant to s 127(7) of the Workplace Relations Act 1996, the Respondent be restrained (whether by its officers, delegates, servants or agents or howsoever otherwise) from engaging in conduct which constitutes a contravention of the Order made by Commissioner Blair on 15 December 1997 in proceeding C No 38791 of 1997 before the Australian Industrial Relations Commission ( the ‘Order’).
The Respondent by 5.30 pm or so soon thereafter as reasonably practicable, issue a union circular this day to all Shop Stewards, such circular to be forwarded by facsimile transmission to their usual place of employment, the circular advising that by reason of this order, the foreshadowed stoppage on 16 December 1997 will not proceed (the ‘Circular’).
The Respondent forward by facsimile transmission to the Applicant’s solicitors a copy of the Circular by 5.30 pm this day or so soon thereafter as reasonably practicable.
The Respondent by 5.30 pm this day or so soon thereafter as reasonably practicable forward by facsimile transmission a media release on the Respondent’s letterhead and signed by an authorised officer of the Respondent to the following newspapers, being “The Age”, The “Herald Sun” and “The Australian” and to the following Melbourne metropolitan television stations, being Channels 10, 9, 7, 2 and SBS and to the Applicant's solicitors, such media release to state that by reason of this Order the foreshadowed stoppage on 16 December 1997 will not proceed.
The application be otherwise adjourned for further directions to 10.15 am on 19 December 1997.
I will initial a copy of the draft order with the additional times included in it, which can be used for the purposes of having the order issued today by this Court.
I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop
Associate:
Dated: 18 December 1997
Counsel for the Applicant: Mr J Bourke Solicitor for the Applicant: Minter Ellison Counsel for the Respondent: Mr N Ellery Solicitor for the Respondent: Slater & Gordon Date of Hearing: 15 December 1997 Date of Judgment: 15 December 1997
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