Automotive Food Metals and Engineering Union and Northern Iron and Brass Factory
[1994] IRCA 66
•14 Jul 1994
IN THE INDUSTRIAL RELATIONS COURT
)
) No. QI 152 of 1994
)
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
BETWEEN: AUTOMOTIVE FOOD METALS AND ENGINEERING UNION Applicant
AND NORTHERN IRON AND BRASS FACTORY
Respondent
CORAM: Spender J
PLACE: Brisbane
DATE: 14 July 1994
REASONS FOR JUDGMENT
In these proceedings, by an application filed on 10 June 1994, the Automotive Food Metals and Engineering Union as applicant seeks, inter alia, an order declaring that the termination by the respondent of the employment of Jeffrey Ball constituted a contravention of Division 3 of Part VIA of the Industrial Relations Act 1988 ('the Act') and an order
requiring that the respondent reinstate Mr Ball in his
employment and that the respondent pay compensation to him.
2 By way of interlocutory relief, which is the aspect of the application with which I am presently concerned, the applicant seeks an order that Mr Ball be reinstated in his employment. I take this to mean that the applicant is seeking Mr Ball's
reinstatement pending determination of the principal
proceedings.
Mr Ball was employed as a maintenance fitter and turner by the respondent on a weekly basis under the Metal Industry Award 1984 Part 1, an award made under a law of the Commonwealth.
He commenced employment with the respondent on 27 April 1993. He is a member of the applicant union. The material suggests that there were a number of instances when Mr Ball did not work overtime which he had been asked to do, those requests being on 5 and 6 April 1994; and there was a further incident on 16 May 1994 where Mr Ball did not complete a repair of a vibrating screen before he finished his employment at the normal time for that shift.
On 26 May, the employer gave him a letter which referred to clause 21(b) of the Metal Industry Award, dealing with the
3 requirement of an employer to require an employee to work reasonable overtime, and the letter stated:
" We consider that in accordance with that clause there has been two recent instances where your conduct has been unsatisfactory.
During the week prior to April 5 to April 6 1994, you were requested to make yourself available to work overtime on those days. You did not work such overtime despite having agreed to do so.
At 11.15pm on May 16 1994 you were asked to carry out a repair job. You left work at 11.30pm without having completed the job and without notifying your Foreman or Leading Hand.
Please be advised that a continuance of this unsatisfactory conduct will not be tolerated and could result in termination of your employment. "
Subsequent to this letter, Mr Ball says that on 31 May he was requested by a Mr Quagliato to meet with Mr H Foxlee to discuss the issues contained in the letter of 26 May. Mr Ball states that he said he was happy to talk with Mr Foxlee but he wanted to have a union organiser present.
Later that afternoon, Mr Ball says that Mr Foxlee himself approached him and indicated he wished to discuss the 28 May letter. Mr Ball claims that he said he would meet with him, but he wanted to telephone a union official for advice. He says that Mr Foxlee stated that if he did not meet with him
4 immediately, he would be "instantly dismissed". Mr Ball says that he insisted on calling the union and that Mr Foxlee replied, "You are instantly dismissed" or words to that effect.
This version of events is challenged by Mr Foxlee's affidavit.
Mr Foxlee unfortunately simply says as to the relevant paragraphs of Mr Ball's affidavit, "I disagree with the contents of those paragraphs."
What is clear is that on 31 May Mr Foxlee gave a letter to Mr Ball confirming the termination of his employment effective immediately. The letter said:
" We further confirm that the reason for your termination is unsatisfactory conduct, in that you refused a lawful request and direction to attend the Executive Director' s office for discussion concerning the matters raised with you in our letter to you dated 26 May 1994.
Four weeks pay will be paid to you in lieu of notice. "
The present question is whether this court has power to order the respondent to reinstate the applicant, Mr Ball, on an interim basis. It was submitted by Mr Jolly on behalf of the union that there was power, that power being found in what was section 170EE(4) of the Act. Section 170EE was repealed by the Industrial Relations Amendment Act (No. 2) 1994. That bill
5
passed the Senate on 28 June 1994 and received royal assent on
30 June 1994, and commenced operation on that date.
Section 170EE in its previous terms commenced:
" After considering the merits of an application under section 170EE, the Court...may make such orders as it thinks appropriate. "
The present s. 170EE is in the following terms:-
" (1) In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:
(a)an order requiring the employer to reinstate the employee by:
(i) reappointing the employee to the position
in which the employee was employed
immediately before the termination; or(ii) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before
the termination; and (b) if the Court makes an order under paragraph
(a) :
(i) any order that i t thinks necessary to
maintain the continuity of the employee's
employment; and(ii) an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.
If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by
the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.
In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation;
(a) must not exceed, in respect of any employee,
the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and
(b) must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect.
The applicable amount for the purposes of paragraph (3) (b) is:
(a) subject to paragraph (b), $30,000; or
(b) if regulations made in accordance with Subdivision CA prescribe a formula for the annual indexation of the amount referred to in paragraph (a) - the amount worked out using that formula as it applies from time to time.
In respect of a contravention of section 170DB constituted by the termination of employment of an employee, the Court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would
7
have resulted in the employer not contravening that section.
6. Nothing in section 170EC or in this section limits the Court's power to make an interim or interlocutory order in relation to an application under section 170EA.
For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee.
In this section:
'relevant award' means an award or a State award;
'termination of employment' means a termination of employment that occurred before, or occurs after,
the commencement of this section, but does not include a termination of employment in respect of which an application under section 170EA was made to the Court before that commencement if the Courtpronounced final judgment in respect of the
application before that commencement. "
Section 170EE(6) is in the same terms as the previous s.
170EE(4). Notwithstanding the changes that have been
introduced in s. 170EE, in my opinion I have no power to make the interlocutory order sought on behalf of Mr Ball. The position under the earlier form of the section was considered by Wilcox CJ in Dunham v Randwick Imaging Proprietary Limited NI 137 of 1994, a judgment of 27 May 1994, in which his Honour indicated that, given the existence of s. 170EH, it would not
be appropriate to make an interim injunction restraining a
proposed termination.
His Honour said at the foot of page 17 of his reasons:
" When the statute [the Industrial Relations Act] that invests the court with jurisdiction to determine unlawful termination claims limits (by s. 170EH) the Court's power to grant relief of a particular kind (an injunction restraining an unlawful termination or proposed unlawful termination), it would not be 'appropriate' to transcend that limitation by recourse to the general language of s. 419. To do this would be to defy the legislative policy evidenced by s. 170EH and to render that section otiose. "
Section 170EH is in the following terms:
" Section 431 does not apply to a contravention or proposed contravention of Subdivision B. "
In respect of the previous s. 170EE his Honour said:
" Whatever the reason for s. 170EE(4), one thing is clear: i t is a savings provision, i t does not confer power. The power must be found elsewhere. So understood, the subsection still has work to do.
Section 419 enables injunctions to be made in relation to s. 170EA applications; although not injunctions restraining a proposed termination. "
His conclusion that the Act conferred no power on the
court to restrain a proposed termination of employment in
contravention of Subdivision B of Division 3 of Part IVA was,
in his Honour's opinion, in conformity with the intention of
parliament. He said at p. 20 of his reasons:
" An application for an interim injunction restraining a proposed termination would require the court to look at the facts of the case and form a view about them, if only a superficial view. In the normal course, this would have to be done before the case had been referred to the Industrial Relations Commission for conciliation. So the scheme intended by the Parliament (conciliation first, litigation -if absolutely necessary - later) would be subverted.
On the question of interim reinstatement, his Honour said:
" The alternative order sought by the applicant is an order that the respondent reinstate the applicant, on an interim basis, immediately after his termination. I do not think I have power to do this. It is true that s. 170EE(2) (b) speaks of a reinstatement order. But the type of order there envisaged is an order made pursuant to the general power conferred on the Court by subs. (1). The Court may exercise that power only '(a)fter considering the merits of an application under section 170EA' The Court has not yet reached that stage and will not do so until after conciliation proceedings in the Industrial Relations Commission.
10 In Tognolini v Burnett Petroleum Distributors Pry Ltd I had to consider also that a question of whether interlocutory relief in the terms sought by the present applicant was available under the Act. At p. 6 of my reasons for judgment, I said:
" The matter is elliptical but the provisions of the Act to which I have referred indicate to me a statutory intention not to permit interlocutory orders requiring a continuance of employment pending the determination of the question of
whether there has been a contravention of
Subdivision B.
Such a view seems to me to be consistent with longstanding policy and with the reluctance of courts to issue injunctions in the area of the performance of personal services. I am aware that the question of the interlocutory relief sought in the present case might impact on the rights of persons not parties to these proceedings, including the
employees of the respondent other than the
applicants. "
Consistent with the reasoning exposed in the judgment of the Chief Justice in Dunham's Case and my views in Tognolini, in my opinion under the present provisions of the Act, including s. 170EE, the Court lacks the power to make the orders sought by way of interlocutory relief. I have indicated in the course of argument some concerns concerning the factual circumstances of this matter. Having regard to the obligations
11 imposed on this Court by s. 170ED it is best I say nothing further about that aspect of the matter.
The orders that I make are that the application for interlocutory relief be refused, and the matter be referred to the Australian Industrial Relations Commission for conciliation pursuant to s. 170ED of the Industrial Relations Act 1988. In the event that conciliation is not successful, either party can restore the matter to the list on five working days' notice to the other.
I certify that this and the preceding eight (8) pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Spender.
Associate Date: 14 July 1994
Solicitor for the applicant: Mr R Jolly of Quinlan Miller &
Treston
Solicitor for the respondent: Mr K Watson of Blake Dawson
Wa1dron
Date of hearing: 14 July 1994
Date of judgment: 14 July 1994
IN THE INDUSTRIAL RELATIONS COURT
)
) No. QI 152 of 1994
)
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
BETWEEN: AUTOMOTIVE FOOD METALS AND ENGINEERING UNION Applicant
AND NORTHERN IRON AND BRASS FACTORY
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER: Spender J
DATE OF ORDER: 14 July 1994
Brisbane
THE COURT ORDERS THAT:
(i) the application for interlocutory relief be refused;
(ii) the matter be referred to the Australian Industrial
Relations Commission for conciliation pursuant to s.
170ED of the Industrial Relations Act 1988.
THE COURT DIRECTS THAT:
in the event that conciliation is not successful, either party can restore the matter to the list on five working days' notice to the other.
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