Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Gavin Munro and Anthony Crothers and Zoltan Gyuricza v Citipower Pty

[1997] FCA 607

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW  - protected action - employees engaged in work bans the subject of protected industrial action - application by employees for grant of interlocutory injunction to prevent employer from altering position of applicants to their prejudice by refusing to allow them to perform work whilst they engaged in protected action - whether serious issue to be tried - balance of convenience

Workplace Relations Act 1996 ss 170MI, 170MJ, 170MK, 170ML, 170MU, 170NF, 170NG

General Steel Industries Incorporated v Commissioner for Railways, NSW (1964) 112 CLR 125

COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and GAVIN MUNRO and ANTHONY CROTHERS and ZOLTAN GYURICZA v CITIPOWER PTY

VG 294 of 1997

MARSHALL J
BRISBANE (HEARD IN MELBOURNE)
9 JULY 1997

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
VICTORIA DISTRICT REGISTRY                  )                 No. VG 294 of 1997
  )  
GENERAL DIVISION   )  

BETWEEN:COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Firstnamed Applicant

AND:  GAVIN MUNRO
  Secondnamed Applicant

AND:  ANTHONY CROTHERS
  Thirdnamed Applicant

AND:  ZOLTAN GYURICZA
  Fourthnamed Applicant

AND:  CITIPOWER PTY
  Respondent

JUDGE:        MARSHALL J
PLACE:        MELBOURNE
DATED:       7 JULY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The respondent’s notice of motion of 27 June 1997 be dismissed.

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

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
VICTORIA DISTRICT REGISTRY                  )                 No. VG 294 of 1997
  )  
GENERAL DIVISION   )  

BETWEEN:COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Firstnamed Applicant

AND:  GAVIN MUNRO
  Secondnamed Applicant

AND:  ANTHONY CROTHERS
  Thirdnamed Applicant

AND:  ZOLTAN GYURICZA
  Fourthnamed Applicant

AND:  CITIPOWER PTY
  Respondent

JUDGE:        MARSHALL J
PLACE:        BRISBANE (HEARD IN MELBOURNE)
DATED:       9 JULY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. Upon the usual undertaking as to damages being given by the applicants:

Pending the final determination of the application or further order the Respondent refrain by itself, its servants or agents from contravening s 170MU Workplace Relations Act 1996 by continuing to injure in employment and/or alter the position of the second, third and fourthnamed applicants to their prejudice by refusing to allow them to perform work, wholly or partly because they were proposing to engage in or had engaged in protected industrial action.

1. The applicants file and serve any further affidavit on which they intend to rely at the trial on or before 18 July 1997.

1. The respondent file and serve any further affidavit on which it intends to rely at the trial on or before 1 August 1997.

1. The trial is to be by affidavit.

1. Each party’s contentions of fact and law and chronologies be filed and served on or before 12 August 1997.

1. The trial is to be conducted on 19 and 20 August 1997, commencing at 10.15 am on 19 August 1997.

1. That order (1) above not operate until the usual commencement time of work of each such applicant on 10 July 1997, being 7.30 am.

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

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
VICTORIA DISTRICT REGISTRY                  )  No. VG 294 of 1997
  )  
GENERAL DIVISION   )  

BETWEEN:COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Firstnamed Applicant

AND:  GAVIN MUNRO
  Secondnamed Applicant

AND:  ANTHONY CROTHERS
  Thirdnamed Applicant

AND:  ZOLTAN GYURICZA
  Fourthnamed Applicant

AND:  CITIPOWER PTY
  Respondent

JUDGE:        MARSHALL J
PLACE:        BRISBANE (HEARD IN MELBOURNE)
DATED:       9 JULY 1997

REASONS FOR JUDGMENT

On 20 June 1997 the applicants filed in the Victoria District Registry of the Court an application pursuant to s 170NF Workplace Relations Act 1996 (“the Act”) seeking the imposition of a penalty upon the respondent for contravention of s 170MU of the Act. The alleged contravention of the Act was said to be constituted by the respondent’s refusal to allow its employees to perform their work because they had engaged in protected industrial action.

On 23 June 1997 the applicants filed a notice of motion in which they sought an order in the following terms:

“1.That pending the final determination of the Application or further order, the Respondent refrain, by itself its servant or agents from contravening section 170MU of the Act, namely from continuing to injure its employees or alter the position of its employees to their prejudice by refusing to allow them to perform their work, wholly or partly because the employees were proposing to or had engaged in protected action.”

On 30 June 1997 the respondent filed a notice of motion seeking an order that the application be dismissed as disclosing no reasonable cause of action.

Each notice of motion was heard by the Court on 7 July 1997.  At the conclusion of counsels’ submissions I dismissed the respondent’s notice of motion.  Judgment was reserved on the applicants’ notice of motion.

These reasons for judgment contain my reasons for dismissing the respondent’s notice of motion as well as my reasons for judgment on the applicants’ notice of motion.

BACKGROUND FACTS

The firstnamed applicant, Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others (“CEPU”), is an organisation of employees registered under the Act. The other applicants are individual members of CEPU and employees of the respondent. The respondent is a company which is engaged in the business of supplying electricity to consumers in central Melbourne. In March 1997 CEPU and the respondent commenced negotiations with a view to entering into a new enterprise agreement. On 17 April 1997 CEPU filed and served a notice initiating a bargaining period under the Act. See ss 170MI, 170MJ and 170MK of the Act. On 24 April 1997 CEPU filed and served a notice of intention to take protected industrial action under the Act. See s 170ML of the Act.

Part of the protected industrial action taken by CEPU was the imposition of bans by its members, including a ban on the last switch on of power to commercial and industrial customers.  On 9 May 1997 the respondent decided that it would not permit the individual applicants to perform work as they were not prepared to perform work which was subject to protected industrial action.  Although the banned work constitutes a very small part of the total duties of the individual applicants, it is a very significant function in the respondent’s business of supplying electricity to its customers.

THE LEGISLATIVE CONTEXT

Section 170MU of the Act provides as follows:

“(1)An employer must not:

(a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

(b)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.

(2)Subsection (1) of this section does not apply to any of the following actions taken by the employer:

(a)standing-down the employee;

(b)refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;

(c)action of the employer that is itself protected action.

(3)In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.”

For the purposes of Division 10 of Part VIB of the Act, s 170MU is a “penalty provision” Section 170NG of the Act, when read with s 170NE gives the Court jurisdiction to “grant an injunction requiring a person not to contravene, or to cease contravening,” s 170MU of the Act.

THE SUBMISSIONS

Mr Borenstein, of counsel, submitted on behalf of the applicants that the Court should grant an interlocutory injunction in the terms sought in the applicants’ notice of motion as there was a serious issue to be tried as to whether the respondent was acting in contravention of s 170MU of the Act and that the balance of convenience favoured the applicants.

Mr Parry, of counsel, submitted upon behalf of the respondent that there was no serious issue to be tried and that the application was on its face one which was bound to fail.  He submitted in the alternative that if there was a serious issue to be tried, the balance of convenience favoured the respondent.

Central to Mr Parry’s submissions was his contention that s 170MU(2)(b) applied on the facts of this case so as to make s 170MU(1) inapplicable. He submitted that the respondent was entitled to refuse to pay the individual applicants because under common law it was entitled to do so as they had not performed work as directed.

On the other hand, Mr Borenstein contended that s 170MU(2)(b) was directed to situations where an employee had performed some but not all of her or his duties and the employer refused to pay the employee for the whole of the work which the employee performed.

I am satisfied that the submissions of Mr Borenstein raise a serious issue to be tried.  I am also satisfied that the balance of convenience favours the applicants given that the second, third and fourth named applicants are suffering on-going hardship.  The evidence discloses that one of the applicants, Mr Gyuricza, has a sick child who recently required surgery which committed him to a significant financial outlay.  The other individual applicants, Mr Munro and Mr Crothers, both have on-going mortgage commitments.  I agree with the submission of Mr Borenstein that the individual applicants are currently suffering in a way which cannot be compensated simply by dollars and cents.

On the other hand, the respondent is continuing to operate its business with the assistance of contractors and there is no reason why any work which is the subject of protected action taken by the applicants cannot also be performed with the assistance of such persons.

Happily, I am now able to order a relatively speedy trial having regard to a recent change in commitments.  Therefore, the respondent will not have to wait inordinately for a trial of the matter while the interlocutory injunction remains in force.

Having found that the application raises serious issues to be tried it necessarily follows that I must dismiss the respondent’s notice of motion for the proceedings to be dismissed generally for disclosure of no reasonable cause of action.  This result follows naturally upon application of the relevant test expounded in General Steel Industries Incorporated v The Commissioner for Railways, New South Wales (1964) 112 CLR 125 at 129, per Barwick CJ.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the  Honourable Justice Marshall.

Associate:       

Dated:            

Counsel for the Applicants:  H. Borenstein

Solicitor for the Applicants:  Maurice Blackburn

Counsel for the Respondent:  F. Parry

Solicitor for the Respondent:  Arthur Robinson Hedderwicks

Date of hearing:  7 July 1997