Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Citipower Pty

[1997] FCA 812

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - application by union for grant of interlocutory injunction to prevent employer from altering position of its members to their prejudice by engaging contractors to perform work the subject of protected industrial action - balance of convenience

Workplace Relations Act 1996 ss 170MU, 170NF, 170NG

COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v CITIPOWER PTY

VG 423 of 1997

MARSHALL J
MELBOURNE
15 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VG 423 of 1997
)
GENERAL DIVISION	)

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

JUDGE:	MARSHALL J
PLACE:	MELBOURNE
DATED:	15 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The applicant’s notice of motion dated 11 August 1997 is dismissed.

1. The trial is to be by affidavit.

1. The proceeding is listed for hearing at 10.15 am on 27 August 1997.

1. Any further affidavit on which the applicant seeks to rely shall be filed and served on or before 19 August 1997.

1. Any further affidavit on which the respondent seeks to rely shall be filed and served on or before 22 August 1997.

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	)   VG 423 of 1997
)
GENERAL DIVISION	)

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

JUDGE:	MARSHALL J
PLACE:	MELBOURNE
DATED:	15 AUGUST 1997

REASONS FOR JUDGMENT

On 31 July 1997 the applicant, Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), applied pursuant to ss 170NF and 170NG of the Workplace Relations Act 1996 (“the Act”) for a penalty to be imposed upon the respondent Citipower Pty (“Citipower”) for contravention of s 170MU of the Act. CEPU alleged that Citipower is injuring its employees or altering their position to their prejudice by engaging contractors to perform work ordinarily performed by such employees, wholly or partly because such employees were engaging in protected industrial action. The application also sought an injunction restraining Citipower from continuing the conduct complained of by the CEPU.

The application was supported by an affidavit  sworn by the Victorian State Secretary of the Electrical Division of CEPU, Mr Dean Mighell.  Mr Mighell explained that Citipower was bound by various awards and agreements to consult CEPU when it intended to engage contractors.  He referred to an on-going industrial dispute between CEPU and Citipower and to the fact that Citipower has engaged the services of a contractor, Di Nuzzo Pty Ltd, (“Di Nuzzo”) to perform work during the dispute without engaging in prior consultation with CEPU.

On 11 August 1997, CEPU filed a notice of motion seeking the following interim relief in the proceeding:

“1.      That pending final determination of the Application or further order, the Respondent be restrained, by itself its servants or agents:

(a)      from giving effect to the variation made on 18 June 1997 to its contract with Di Nuzzo Pty Ltd, which variation is annexed to this order; and

(b)      from entering into any further contracts for the performance of any of the work ordinarily performed by employees of the Respondent who are members or eligible to be members of the Applicant.

2.        Such further or other Order as the Court deems appropriate.”

The notice of motion was supported by a further affidavit of Mr Mighell, sworn on 11 August 1997.  In this affidavit Mr Mighell referred to Citipower having varied its contract with Di Nuzzo on 18 June 1997.  Prior to that date, Citipower and Di Nuzzo had agreed that Di Nuzzo be engaged on an “as needs basis”.  On 18 June 1997, Citipower committed itself to engaging Di Nuzzo on the basis of the provision of twelve linesmen for thirty-eight hours per week until 3 April 2000.  Mr Mighell expressed concern that this commitment by Citipower would adversely affect the job security of Citipower employees currently engaged in protected industrial action when they returned to work.  He also expressed the concern that the availability of afternoon shift and on-call payments to his members would cease because of the engagement of contractors.  CEPU also relied upon an affidavit of its solicitor, Ms Roxon of Maurice Blackburn & Co, affirmed on 15 August 1997, to which is exhibited a letter from Citipower to Di Nuzzo acknowledging Di Nuzzo’s “reliability during current industrial litigation (sic) confronting Citipower”.

Citipower relied upon an affidavit sworn by its Manager, Distribution Services, Mr Colin Hoole, on 14 August 1997.  Mr Hoole’s evidence was that Citipower first entered into a written contract with Di Nuzzo on 22 April 1997, which had the effect of formalising an arrangement that had applied since January 1997 for Di Nuzzo to carry out work for Citipower “as and when required”.  He said that Citipower employees, including shop stewards, would have been aware of Di Nuzzo’s work for Citipower since January 1997.  He referred to the industrial situation which came to a head on 9 May 1997 and resulted in Citipower’s employees ceasing work for it on that day.  He said that the work being performed by Di Nuzzo included the repair of faults in the supply of electricity to customers including several hospitals and sporting centres.  He expressed a concern that the Court might make an order which would result in delays to fault servicing and affect the supply of electricity to Citipower’s customers.

Mr Hinkley, of counsel, appeared this morning for CEPU.  Dr Jessup QC and Mr Parry, of counsel, appeared for Citipower.  Mr Hinkley and Dr Jessup each made submissions which were relevant to whether or not there was a serious issue to be tried in the proceeding.  I am, for the purposes of this interlocutory judgment, prepared to assume that the application before the Court is competent and that there is a serious issue to be tried.  I turn now to the question of balance of convenience.

Mr Hinkley submitted that the balance of convenience favoured CEPU because:

• CEPU had been denied its right to consult with Citipower about the engagement of Di Nuzzo;

• the variation to Di Nuzzo’s contract injures CEPU’s members employed by Citipower by placing their employment in a changed position whereby they will ultimately have to compete with Di Nuzzo employees for their jobs;

• CEPU was concerned that the employment rights of its members might be adversely affected in the future.

Mr Hinkley submitted that the Court should not fear that health and safety would be jeopardised by the granting of an injunction in the terms sought because CEPU did not object to Di Nuzzo or any other contractor being engaged on “an as needs basis”.  What CEPU objected to was Citipower’s reliance upon the variation to its contract with Di Nuzzo in giving further work to it in accordance with the variation.  It was that reliance which CEPU wishes the Court to restrain.

In my view, the balance of convenience favours Citipower and the Court should not grant the relief sought by CEPU.  At present, on Mr Hinkley’s submissions, the CEPU does not object to Di Nuzzo being engaged beyond the basis set out in the variation if that is what is presently required on an “as needs basis” given the current industrial situation.  I believe there would be no practical consequences if the Court were to restrain Citipower from relying on the variation.  Work for up to and perhaps beyond the number of persons contemplated by the variation would continue in circumstances where the Court is only in a position to speculate as to what harm, if any, might befall Citipower employees as a consequence of the engagement of these persons.  I am satisfied that there is little prospect of any immediate or short term adverse affect upon Citipower employees in the absence of the injunction sought by the notice of motion.  Longer terms problems, should they eventuate, may be addressed in terms of the final relief sought in the proceeding.  I am fortified in making that observation by my ability to give this matter a hearing date in the near future given a recent change to my commitments.  Consequently, I decline to grant the relief sought by paragraph 1(a) of the notice of motion.

Mr Hinkley sought to amend paragraph 1(b) of his notice of motion by seeking to qualify it so as not to prevent the engagement by Citipower of other contractors in breach of any award or certified agreement obligations.  Even as amended, in the absence of probative evidence of the engagement of particular contractors and the circumstances pertaining to that engagement, I see no good reason to grant the relief sought by paragraph 1(b) of the notice of motion.

Consequently, the Court will order that the applicant’s notice of motion of 11 August 1997 be dismissed.  The hearing of the application will proceed at 10.15 am on 27 August 1997.  The trial will be by affidavit.  Any further affidavit on which the applicant seeks to rely shall be filed and served on or before 4 pm on 19 August 1997 and any further affidavit on which the respondent seeks to rely shall be filed and served on or before 4 pm on 22 August 1997.

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:            15 August 1997

Counsel for the Applicant:	Mr R W Hinkley
Solicitor for the Applicant:	Maurice Blackburn & Co
Counsel for the Respondent:	Dr C N Jessup QC and Mr F Parry
Solicitor for the Respondent:	Arthur Robinson & Hedderwicks
Date of Hearing:	15 August 1997
Date of Judgment:	15 August 1997