Construction, Forestry, Mining and Energy Union v Hamberger (Employment Advocate)

[1999] FCA 693

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining & Energy Union v Hamberger (Employment Advocate) [1999] FCA 693

INDUSTRIAL LAW – Interlocutory relief – injunction – whether serious issue to be tried – hearsay evidence – whether the respondent in breach of s170NC of the Workplace Relations Act 1996 (Cth) – prejudice – balance of convenience

Workplace Relations Act 1996 (Cth) ss 170NC, 170LM(2)

Bullock v Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464, applied

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v JONATHAN HAMBERGER (in his capacity as the EMPLOYMENT ADVOCATE)

V 259 of 1999

MARSHALL J
MELBOURNE
21 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 259 OF 1999

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	JONATHAN HAMBERGER in his capacity as the EMPLOYMENT ADVOCATE Respondent
JUDGE:	MARSHALL J
DATE OF ORDER:	21 MAY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

Upon the applicant giving the usual undertakings as to damages:

1.Until 4.30 pm on Friday, 28 May 1999 or further order, the respondent be restrained by himself, his servants or agents or otherwise from taking or threatening to take any action with intent to coerce:

(a)Multiplex Constructions Pty Ltd;

(b)the applicant;

(c)the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; or

(d)the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

not to seek to certify or vary the Federation Square Productivity Agreement, an agreement in accordance with Division 2 or Division 3 of Part VIB of the Act.

2.The hearing of the application for the extension of interlocutory relief and the directions hearing be adjourned to 10.15 am on Friday, 28 May 1999.

3.Liberty to apply on not less than 24 hours written notice to each 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 259 OF 1999

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION Applicant
AND:	JONATHAN HAMBERGER in his capacity as the EMPLOYMENT ADVOCATE Respondent

JUDGE:	MARSHALL J
DATE:	21 MAY 1999
PLACE:	MELBOURNE

REASONS FOR INTERLOCUTORY JUDGMENT

1. This morning the applicant, the Construction, Forestry, Mining and Energy Union, (“the CFMEU”) filed an application in which it sought the imposition of a penalty on the respondent, Jonathan Hamberger in his capacity as the Employment Advocate (“the Advocate”), for contravention of s170NC of the Workplace Relations Act 1996 (Cth) (“the Act”).

2. The application also sought an injunction restraining the Advocate from taking, or threatening to take, any action with intent to coerce the parties to the Federation Square Productivity Agreement (“the Agreement”) not to seek to certify the Agreement in the Australian Industrial Relations Commission (“the AIRC”).

3. The CFMEU relied on the affidavit of Mr Martin Kingham in its application for an interlocutory injunction.  That affidavit contains hearsay evidence that the Advocate requires changes to the Agreement in accordance with a redrafting exercise that he has performed.  The affidavit further asserts that the Advocate is insisting upon those changes being made and that as a consequence the Agreement in its current form should be discarded.

4. Mr Burnside QC, who appeared with Ms Richards for the CFMEU, informed the Court that pursuant to s170LM(2) of the Act the Agreement is required to be submitted to the AIRC for certification by next Friday.

5. Mr Burnside contended that the evidence before the Court revealed that the Advocate was seeking to subvert the Agreement and that as a consequence there was a serious issue to be tried concerning whether the Advocate was in breach of s170NC of the Act. Inter alia, s170NC prohibits action with intent to coerce a person or persons not to make, vary or approve an agreement under Division 2 or Division 3 of Part VIB of the Act.

6. Mr Burnside also submitted that the balance of convenience favoured the grant of an injunction as no prejudice would flow to the Advocate if such an order was made.

7. Mr Tracey QC appeared for the Office of the Employment Advocate, in the absence of the respondent who was on leave and unable to give instructions.  Mr Tracey made submissions in opposition to the grant of interlocutory relief. He also referred to the hearsay nature of the evidence given against the Advocate.  Further, he submitted that the Advocate had no power to interfere with the Agreement in the way alleged in any event.

8. The Court is entitled to rely on hearsay evidence in an application for interlocutory relief. Further, it is no answer to a request for such relief that the person who is alleged to have engaged in the conduct prohibited by the Act has no power to do so. The critical question is whether there is evidence before the Court, to which it is entitled to have regard, which shows that such conduct has been engaged in.

9. As the evidence now stands, the Court is satisfied that there is a serious question to be tried as to whether the Advocate has breached s170NC of the Act. Whilst no prejudice would flow to the Advocate from an interlocutory injunction, in the sense that it merely amounts to an obligation to obey the law, the mere absence of prejudice will not always suffice to provide a basis for the grant of interlocutory relief. In this case however, there is evidence of a very serious issue to be tried such that a marked balance of convenience in favour of the relief sought is not required. See Bullock v Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464 at 471 per Woodward J with whom the other members of the Court agreed.

10. If, contrary to Bullock the Court was required to positively find that the balance of convenience favoured the grant of interlocutory relief, notwithstanding that there was a very serious issue to be tried, the Court can take judicial notice of the fact that anxieties created by the conduct alleged would be likely to affect industrial relations on the Federation Square site and be contrary to the public interest.

Order

1. In the circumstances the Court makes the following orders.

   Upon the applicant giving the usual undertaking as to damages:

   1.Until 4.30 pm on Friday, 28 May 1999 or further order, the respondent be restrained by himself, his servants or agents or otherwise from taking or threatening to take any action with intent to coerce:

   (a)    Multiplex Constructions Pty Ltd;

   (b)   the applicant;

   (c)    the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; or

   (d)   the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

   not to seek to certify or vary the Federation Square Productivity Agreement, an agreement in accordance with Division 2 or Division 3 of Part VIB of the Act.

   2.The hearing of the application for the extension of interlocutory relief and the directions hearing be adjourned to 10.15 am on Friday, 28 May 1999.

   3.Liberty to apply on not less than 24 hours' written notice to each other party.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             21 May 1999

Counsel for the Applicant:	Mr J W Burnside QC with Ms M Richards
Solicitor for the Applicant:	Slater and Gordon
Counsel for the Respondent:	Mr R Tracey QC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 May 1999
Date of Judgment:	21 May 1999 (ex-tempore as revised from the transcript)