Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Heyday 5 Pty Limited

[2018] FCA 2109

FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Heyday 5 Pty Limited [2018] FCA 2109

File number:

NSD 2352 of 2018

Judge:

BROMWICH J

Date of judgment:

21 December 2018

Catchwords:

INDUSTRIAL LAW – application for interlocutory order restraining vote for an enterprise agreement – whether misleading representations made concerning proposed agreement – whether conduct in trade or commerce – balance of convenience – held: application dismissed

Legislation:

Australian Consumer Law (contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)) s 18

Fair Work Act 2009 (Cth) s 345

Trade Practices Act 1974 (Cth) s 52

Cases cited:

Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594

Date of hearing:

21 December 2018

Date of publication of reasons:

10 January 2019

Registry:

New South Wales

Division:

Fair Work Division

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

17

Counsel for the Applicants:

Mr C Tran

Counsel for the Respondents:

Mr S R Meehan

Solicitor for the Respondents:

Henry William Lawyers

ORDERS

NSD 2352 of 2018

BETWEEN:

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Applicant

AND:

HEYDAY 5 PTY LIMITED ACN 158 865 091

First Respondent

STOWE AUSTRALIA PTY LIMITED ACN 002 556 603

Second Respondent

STAR ELECTRICAL CO. PTY LIMTED ACN 000 218 708 (and others named in the Schedule)

Third Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	21 DECEMBER 2018

THE COURT ORDERS THAT:

1.The interlocutory application be dismissed.

2.Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Revised from transcript

BROMWICH J:

1. The applicant in this proceeding is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union or CEPU).  The respondents are seven companies who employ members of the Union.  In its originating application, the Union claims:

   1.Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the respondents have engaged in misleading or deceptive conduct in contravention of s 21 [clarified at the interlocutory hearing to be a reference to s 18] of the Australian Consumer Law by including the "CEPU" name and referring to the CEPU in the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018 and requesting employees to vote to approve that agreement.

   2.Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the respondents have contravened s 345 of the Fair Work Act 2009 (Cth) by:

   (a)including the "CEPU" name and referring to the CEPU in the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018 and requesting employees to vote to approve that agreement; and

   (b)representing that "the next wage increase following those contained in this agreement shall not commence until 6 months after expiry of this agreement".

   3.Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the first, second and fifth respondents have contravened s 345 of the Fair Work Act 2009 (Cth) by representing that annual wage increases and increases in fare and travel allowances in the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018 will commence immediately upon approval.

   4.Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the third respondent has contravened s 345 of the Fair Work Act 2009 (Cth) by representing that the applicant will, and/or said that it will, respect the views of its members should they vote to approve the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018.

   5.Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) and/or 545 of the Fair Work Act 2009 (Cth) and/or s 232 of the Australian Consumer Law, the respondents be enjoined from requesting their employees to approve the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018.

   6.Pursuant to s 546 of the Fair Work Act 2009 (Cth), the respondents pay a pecuniary penalty to the applicant within 28 days.

   7.Such further or other order as the Court considers appropriate.

2. The Union seeks interlocutory relief that:

   1.Until further order, the respondents, by their servants, officers, agents and employees be enjoined from taking any further step to have their employees vote on 22-23 December 2018 to approve the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018.

   2.By 4pm on 25 January 2019, the applicant file and serve a statement of claim.

3. The claims for interlocutory relief were heard on a duty basis the afternoon prior to the vote of the proposed enterprise agreement, scheduled to commence at 8.00 am on 22 December 2018.

4. The Union impugns three categories of conduct on behalf of the respondents. 

5. First, on 13 December 2018, each of the respondents notified their employees that they would be seeking their approval for the making of a new multi-enterprise agreement under the Fair Work Act 2009 (Cth) with voting to occur on 22-23 December 2018. It is an electronic ballot being conducted by a third party commercial provider to the respondents. The name of the multi-enterprise agreement is the “Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018” (Enterprise Agreement).  The Union submits that by requesting employees to approve the Enterprise Agreement which bears the name that it does, the respondent employers are likely to mislead or deceive employees into thinking that the Union approved of the Enterprise Agreement, which is not true. 

6. Secondly, clause 6 of the Enterprise Agreement is said to misrepresent the capacity of employees to negotiate further pay rises after the expiry of that agreement. 

7. Thirdly, the Union impugns statements made by representatives of the first, second and fifth respondents to employees that annul wage increases and increased fares and travel allowances in the Enterprise Agreement will take effect immediately, when that is not so.

8. I am of the view that the second and third categories, taken alone, would fail to meet the balance of convenience test for injunctive relief upon the ground that the issues raised are considerably less a consideration than the considerations in allowing the vote to proceed.  Therefore, there is no point in prejudging the arguable case in respect of that particular aspect of the Union’s claim. 

9. I am of the view that the first category described above would meet the balance of convenience test if the arguable case was able to be established.  The fate of the application presently brought for injunctive relief therefore turns upon whether an arguable case has been established for the first category. 

10. I am satisfied that the inclusion of “CEPU” in the title of the Enterprise Agreement has the capacity to mislead or deceive or otherwise be false in conveying the impression that the Enterprise Agreement has at least tacit approval support of the union.  I am satisfied also that this was at least reckless.  I am not satisfied that letters and other communications from the respondents to their employees go far enough to correct that impression, let alone to convey the true position that the Union stridently opposed such multi-enterprise agreements.  It is not denied that the respondents were aware of the Union’s position in that regard. 

11. The arguable case therefore turns on what may be seen to be two purely, or largely purely, legal questions:

    (1)is section 18 of the Australian Consumer Law (ACL) at schedule 2 of the Australian Competition and Consumer Act 2010 (Cth) capable of applying?; and

    (2)is section 345 of the Fair Work Act capable of applying?

12. I turn, first, to s 18 of the ACL. The Union argued for the application of s 18 from the absence of textual indications or authority that it did not apply and sought to distinguish the decision of the High Court in this area under the parallel form of s 52 of the Trade Practices Act 1974 (Cth) in Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594. The respondents argued as to the scheme of the Fair Work Act and why the ACL should not apply against that scheme and relied upon authority to indicate that it did not, including the lack of the necessary trade or commerce nexus. 

13. It was for the applicant to satisfy me that it had an arguable case that s 18 of the ACL is capable of applying to the present circumstances. I have not been able to reach that state of satisfaction. I am not satisfied that the restrictive operation of s 18 identified in Concrete Constructions, which dealt with the equivalent provision of the former s 52 of the Trade Practices Act, has been met.  That is because in turn I am not satisfied that the issue concerning the Agreement arises “in” trade or commerce.  As the High Court noted in Concrete Constructions at pages 602 to 603:

    The phrase “in trade or commerce” in s. 52 [of the Trade Practices Act, now s 18 of the ACL] has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct “in trade or commerce” can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business. If the words “in trade or commerce” in s. 52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct handsignal when driving a truck in the course of a corporation’s haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. Alternatively, the reference to conduct “in trade or commerce” in s. 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt the words used by Dixon J. in a different context in Bank of N.S.W. v The Commonwealth [(1948) 76 CLR 1, 381], the words “in trade or commerce” refer to “the central conception” of trade or commerce and not to the “immense field of activities” in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

14. It is not to the point that the enterprise agreements in this case may arise in the context of tendering or otherwise in assisting in business activities.  They are nonetheless not “in” trade or commerce. 

15. Turning then to s 345 of the Fair Work Act, the necessary trigger for the application of that provision is that the representation in question must be “about” a workplace right or about the exercise, or the effect of the exercise, of a workplace right.  I am not satisfied that an arguable case has been established that the appearance of “CEPU” in the title of the Enterprise Agreement is either about workplace rights or about the exercise, or the effect of the exercise, of workplace rights.

16. Notwithstanding the findings I have made on an interim basis that the first category of representations were misleading or deceptive, or false, and in the case of the latter category, recklessly so, I am of the view that no basis for bringing an action against the respondents has been established or shown to be reasonably arguable such as to warrant a grant of an injunction to prevent the vote from taking place this weekend.  Upon that basis, the interlocutory application is dismissed.

17. The respondents asked that costs be reserved.  That is the appropriate course in all the circumstances.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

Associate:

Dated:        10 January 2019

SCHEDULE OF PARTIES

NSD 2352 of 2018
Respondents
Fourth Respondent:	FREDON INDUSTRIES PTY LIMITED ACN 003 361 297
Fifth Respondent:	FIP ELECTRICAL (NSW) PTY LIMITED ACN 066 085 578
Sixth Respondent:	GOLDLINE INDUSTRIES PTY LIMITED ACN 145 459 490
Seventh Respondent:	NATIONAL CABLE INSTALLATIONS PTY LIMITED ACN 010 477 666