Australian Services Union v Electrix Pty Ltd - [1999] FCA 211

FEDERAL COURT OF AUSTRALIA
Australian Services Union v Electrix Pty Ltd [1999] FCA 211
INDUSTRIAL LAW – interlocutory relief – serious issue to be tried – duress – whether respondent has contravened s170WG(1) of the Workplace Relations Act 1996(Cth) by applying duress to meter readers it intends to employ on the condition that they sign an Australian Workplace Agreement – whether regard ought to be had to extrinsic material in construing that section – balance of convenience.
Acts Interpretation Act 1901 (Cth) s15 AB
Workplace Relations Act 1996 (Cth) ss170VA, 170VB, 170VK, 170VZ, 170WG
Workplace Relations and Other Legislation Amendment Bill 1996 (Cth)
Equiticorp Financial Services Ltd (NSW) v Equiticorp Financial Services Ltd (NZ) (1992) 29 NSWLR 260 applied
Newcastle City Council v GIO General Limited (1997) 191 CLR 85 followed
Health Services Union of Australia v North Eastern Health Care Network (1997) 79 FCR 43 considered
Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Ors v Citipower Pty, Marshall J, 9 July 1997, unreported, applied
AUSTRALIAN SERVICES UNION v ELECTRIX PTY LTD (ACN 06-7232393)
V 85 OF 1999
MARSHALL J
MELBOURNE
11 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 85 OF 1999

BETWEEN:

AUSTRALIAN SERVICES UNION
Applicant

AND:

ELECTRIX PTY LTD (ACN 06-7232393)
Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

3 MARCH 1999

WHERE MADE:

SYDNEY

Upon the applicant by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the Court directs:
THE COURT ORDERS THAT:
1.Until the hearing and determination of the proceeding or further order the respondent by itself, its servants or agents be restrained from requiring that any person who will be an employee of the respondent agree with the respondent to make an Australian Workplace Agreement as a condition of such employment.
2.The applicant to file and serve any affidavits on which it intends to rely at the trial and its contentions of fact and law limited to the question of liability by 4.00 pm, 11 March 1999.
3.The respondent to file and serve any affidavits on which it intends to rely at the trial and its contentions of fact and law limited to the question of liability by 4.00 pm, 18 March 1999.
4.The applicant to file and serve any affidavits in reply and any reply to the contentions of fact and law of the respondent by 4.00 pm, 25 March 1999.
5.The trial be conducted by affidavit.
6.The trial is fixed for not before 10.30 am, 1 April 1999, 10.15 am, 7 April 1999 and 10.15 am, 14 April 1999.
7.Liberty to apply on the giving of not less than 24 hours written notice to the other party.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 85 OF 1999

BETWEEN:

AUSTRALIAN SERVICES UNION
Applicant

AND:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Australian Services Union v Electrix Pty Ltd

Details

AGLC: Australian Services Union v Electrix Pty Ltd [1999] FCA 211
Case: [1999] FCA 211
Decision Date: 3 MARCH 1999

CaseChat Overview and Summary

The Australian Services Union sought an interlocutory injunction against Electrix Pty Ltd, which was in the process of hiring meter readers. The Union alleged that Electrix intended to employ these workers on the condition that they sign an Australian Workplace Agreement, which would contravene section 170WG(1) of the Workplace Relations Act 1996 (Cth). The Union claimed this arrangement constituted duress, and sought an injunction to prevent Electrix from requiring any prospective employee to sign such an agreement. The Federal Court was asked to determine whether Electrix had contravened the Act and whether there was a serious issue to be tried on the merits.

The legal issues before the Court were whether the term "duress" in section 170WG(1) of the Act should be interpreted narrowly or if it should be given a broader meaning. The Court also had to consider whether extrinsic material should be used to interpret the term "duress" in the Act. Additionally, the Court had to weigh the balance of convenience to decide whether an interlocutory injunction should be granted. The Court found that the term "duress" should be given a broad interpretation, and that extrinsic material could be used to construe the term. The Court also found that the balance of convenience favoured granting the injunction.

The Court granted an interlocutory injunction restraining Electrix from requiring any prospective employee to sign an Australian Workplace Agreement as a condition of employment. The Court ordered that the Union file and serve any affidavits it intended to rely on at the trial, limited to the question of liability, by 4.00 pm, 11 March 1999. The Court also ordered that Electrix file and serve any affidavits it intended to rely on at the trial, limited to the question of liability, by 4.00 pm, 18 March 1999. The Union was to file and serve any affidavits in reply and any reply to the contentions of fact and law of Electrix by 4.00 pm, 25 March 1999. The trial was to be conducted by affidavit and was fixed for not before 10.30 am, 1 April 1999, 10.15 am, 7 April 1999 and 10.15 am, 14 April 1999.

Orders

Orders of the court

1. Until the hearing and determination of the proceeding or further order the respondent by itself, its servants or agents be restrained from requiring that any person who will be an employee of the respondent agree with the respondent to make an Australian Workplace Agreement as a condition of such employment.

2. The applicant to file and serve any affidavits on which it intends to rely at the trial and its contentions of fact and law limited to the question of liability by 4.00 pm, 11 March 1999.

3. The respondent to file and serve any affidavits on which it intends to rely at the trial and its contentions of fact and law limited to the question of liability by 4.00 pm, 18 March 1999.

4. The applicant to file and serve any affidavits in reply and any reply to the contentions of fact and law of the respondent by 4.00 pm, 25 March 1999.

5. The trial be conducted by affidavit.

6. The trial is fixed for not before 10.30 am, 1 April 1999, 10.15 am, 7 April 1999 and 10.15 am, 14 April 1999.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY		V 85 OF 1999
BETWEEN:	AUSTRALIAN SERVICES UNION Applicant
AND:	ELECTRIX PTY LTD (ACN 06-7232393) Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	3 MARCH 1999
WHERE MADE:	SYDNEY