No judgment structure available for this case.

[2016] FWC 6102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.589 - Application for procedural and interim decision

Construction, Forestry, Mining and Energy Union
v
Northern SEQ Distributor - Retailer Authority T/A Unitywater
(ADM2016/5)

COMMISSIONER BOOTH

BRISBANE, 29 AUGUST 2016

Interim order application – s.589.

[1] This is an application bought by the Construction, Forestry, Mining and Energy Union (CFMEU) seeking an interim order under s.589 of the Fair Work Act 2009 (the Act) following the making of a scope application filed on 29 July 2016 against Unitywater (further scope application).

[2] The current scope applications seek either three agreements - brought by the The Australian Workers’ Union (AWU) and Unitywater - or for one agreement for the enterprise brought by the Australian Municipal, Administrative, Clerical and Services Union (ASU) and are supported by CFMEU and other unions as bargaining representatives.

[3] In the further scope application, the CFMEU applied for scope orders for either one agreement or alternatively two agreements.

[4] This interim order application is sought by the CFMEU to allow it to advance its position on its further scope application.

History of Bargaining and Scope Applications

[5] The industrial arrangements for Unitywater and its employees were thought to be under Queensland law until the High Court’s decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail. 1 Since about August 2015, the bargaining representatives have been bargaining under Commonwealth law.

[6] Bargaining commenced with a shared view of a single agreement but over time that was supplanted by a split in bargaining positions. The CFMEU filed for scope orders on a single agreement on 3 June 2016. Other union bargaining representatives filed in similar terms between 2 June and 8 June. The AWU and Unitywater each sought orders for three agreements filed on 27 June and 4 July respectively.

[7] The CFMEU’s 3 June scope application relied on an arguably-defective concerns notice and the CFMEU sought to remedy any possible defect by issuing further concerns notices and seeking to amend its application (14 June 2016). That scope application was withdrawn before hearings began.

[8] By mid-June 2016, Unitywater was in a position to put an agreement covering part of its workforce to ballot. It was one of the agreements later to form part of the Unitywater scope application. The unions seeking a single enterprise agreement sought an interim order to prevent that ballot from taking place. On 14 June 2016, I issued the interim order sought (first interim order). 2 The validity of the CFMEU’s concerns notice was challenged but not decided at that time, being more properly a matter for the substantive hearing that was to follow. The effect of the first interim order was that the matter would go to hearing. If Unitywater’s proposed agreement had been approved at a majority vote the ASU’s application would have been rendered meaningless.

[9] The CFMEU subsequently, on 28 July 2016, sent by way of email a document addressed “To All Bargaining Representatives” headed “Notice of concerns – scope and bargaining for proposed agreement”. That document was exhibited to the CFMEU’s further application for a scope order B2016/832 filed in the Fair Work Commission (the Commission) on 29 July 2016.

[10] The further scope application is expressed in the following terms:

1. The CFMEU seeks to have all employees covered by a single enterprise agreement.
2. In the alternative, the CFMEU seeks an order that there be a single indoor and a single outdoor enterprise agreement. 3

[11] The application then details the bargaining history and the CFMEU’s views on the merits and “fairly chosen” points of a single agreement as opposed to three agreements.

[12] In the meantime, the current scope applications were progressing. The parties agreed on 5 July 2016 to the competing applications being heard; a survey of employees was conducted; by 18 July each party, whether as applicant or respondent, filed and served their material; responses were provided by 25 July; documents in reply and further statements were filed and served by 1 August; hearings began on 3 August and were conducted over six sitting days, concluding on 18 August.

[13] On 25 July the CFMEU sought to amend its original scope application. As detailed earlier, on 29 July 2016 the CFMEU filed its further scope application. Additionally the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical and Plumbing Divisions (trades unions) sought to amend their original applications to include the same alternative scope.

[14] On 2 August, the CFMEU sought to join its further scope application to the current scope applications that had been subject to the directions. The trades unions sought to amend their applications.

[15] In a decision on transcript I declined to join the further scope application to the current scope applications because the application of 29 July included an alternative scope being for two enterprise agreements. For similar reasons I did not allow amendment to the CFMEU and other trade union applications.

[16] On 4 August 2016, the second day of hearings, the CFMEU brought this application, seeking an interim order, in the following terms:

Northern SEQ distributor - Retail Authority - trading as Unitywater ceases and refrains from making any requests for employees to approve an enterprise agreement until the Fair Work Commission makes a decision on the substantive application in matter B2016/832.

The Law

[17] In the Health Services Union v Victorian Hospitals Industrial Association and Others 4(HSU), the Full Bench held the test for making an interim order was the test set out by the High Court in Australian Broadcasting Corporation v O’Neill:

The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.” 5

[18] That is, an interim order might be made by this Commission if (a) there is a serious question to be tried; and (b) the balance of convenience favours making the order.

Submissions

[19] The application for the interim order was heard on 26 August 2016. Written and oral submissions were made for the CFMEU by Mr Eugene White of Counsel. The CFMEU relied on evidence already in the proceedings including three statements of Mr Menon and one of Mr Carroll. Unitywater made written and oral submissions represented by Mr Jamie Wells, King & Wood Mallesons. No other bargaining representative made submissions.

CFMEU

[20] The CFMEU’s primary contention remains for a single enterprise agreement, and the material in this interim relief application reflects the materials adduced in support of that position in the substantive matter.

[21] In support of its alternative two-agreement position, the CFMEU submitted:

two agreements has been the position of various bargaining representatives including AWU and Unitywater at various points in the bargaining process;

the Commission might have granted scope orders for two agreements in the proceedings;

the new application resolved potential technical points that were in issue at the time of the first interim order.

[22] In support of its application for this interim order the CFMEU notes that an order in terms of its primary position would resolve the matter; however, a scope order for three agreements and acceptance of those agreements by the employees would preclude any determination in favour of its alternative two-agreement position. It argues that this is consistent with the first interim order at [80] noting in that context “should the ballot proceed and be successful, it is fatal to the unions’ scope applications”.

[23] The CFMEU contends the interim relief it seeks should be ordered because:

there is a serious issue to be tried, namely that scope is a matter of proper and legitimate disagreement;

the balance of convenience weighs in its favour as:

any contentions arising from this new application are able to be disposed of very quickly;

the two-agreement position was addressed by the AWU in its earlier materials, opposing that outcome;

Unitywater is presumed to hold a similar position by implication;

there would be little need for substantive hearing and little if any new evidence required; and

“if the application for interim orders is not granted the CFMEU application may be rendered moot.” 6

Unitywater

[24] Unitywater opposed the application for the interim order.

[25] It points out that the interim order should not be given on the basis of the primary position (a single agreement). That position has been fully argued in the substantive hearings. The CFMEU remained a party throughout the proceedings and filed all its materials in support of a single agreement. The real issue here, it says, is “whether it is appropriate to grant relief on the basis of what the real issue is in this application, i.e. the alternative argument about two scopes”. 7

[26] On the alternative position, Unitywater submits:

the unions have strongly opposed more than one agreement;

the proposed split into two agreements in January 2016 led nowhere in advancing the bargaining;

the arguments against three agreements apply equally to two;

no evidence is offered that two agreements would advance fairness and efficiency;

no evidence is before the Commission of the employees’ views about two agreements, only about one versus three;

the concerns notice is defective:

reasonable time to respond was not afforded, being less than four business hours;

although it was addressed to all bargaining representatives it states concerns only to Unitywater;

the notice fails to raise the alternative position of two agreements meaning the concerns were not properly stated in the notice.

[27] Accordingly, Unitywater argues, the question to be tried is weak.

[28] On the balance of convenience, Unitywater summarises the CFMEU’s argument being that the balance of convenience supports its case because the order sought would preserve the status quo and ensure fairness and equity between the parties. It submits in response as follows:

The argument that the CFMEU’s application would be rendered moot is not clear. It may be so if the substantive decision is against its primary position, and if the three agreements are put to the vote, and then if the vote passes. Unitywater says that this argument is fully met by a counter-argument of prejudicial delay.

The argument that delay would only be prejudicial if the substantive outcome was for three agreements as sought by the AWU and Unitywater is self-referential.

The arguments about any delay in hearing the alternative position miss the point. The first interim order has been in place for an extended period pending the substantive hearing and decision. A further interim order would add further delay of indeterminate length.

[29] Unitywater notes that the CFMEU does not deal with delay in its submissions. It says the CFMEU delayed in bringing the application for interim relief and has not explained the delay, a matter relevant to the Commission’s discretion and to the balance of convenience. It drew the Commission’s attention to Deputy President Asbury’s decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch v Queensland Electricity Transmission Corporation Limited 8; and to Network Ten Ltd v Fullwood9; and Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing NSW Ltd & Ors1011. It urged the Commission to find that the CFMEU’s application here arose from its own default, specifically its defective concerns notices and the defective rectification attempted. Instead of following the current path Unitywater says the CFMEU should have withdrawn its defective application, reissued concerns notices and made a competent application. It could have done so in a timely way without causing prejudice or delay.

[30] On the two agreement alternative, Unitywater submits that such has been an option for CFMEU since 27 May 2016. It says it is “too late for the CFMEU to now seek interim relief to hold up other parties further. Had they raised this in a timely way, it would now fall to be determined as part of the other proceedings”.

[31] Last, Unitywater argues prejudice to it and its employees if the interim order was to be made. It says it has a right to ask employees to approve an agreement under s.181 and has been prevented from doing so “for 73 days now”. 12

[32] Prejudice is said to be occasioned because Unitywater has a business to run and needs to establish terms and conditions of employment; employees are being disentitled from voting on beneficial conditions; the employees have, by significant majority, expressed their preference for coverage by three agreements; an interim order would merely further delay the process and cause concern to employees and disruption to the sensitive issue of timing of a vote.

Consideration

[33] The first issue to be determined is whether the CFMEU’s present scope application is valid, conforming to the technical requirements of s.238. That requires examination of the concerns notice and attention to the adequacy of the time to respond.

[34] Unitywater argues that the concerns notice did not reveal the real concerns because it failed to disclose the two agreement proposition and therefore the bargaining representatives could not respond. Second, it says the response time – a few hours – was too short. Third it submitted that the notice was defective as it failed to address concerns to the other bargaining representatives merely stating the concerns the CFMEU had with Unitywater. 13

[35] The CFMEU argued that this application was alike to the first interim order and should be treated the same way, but that is only partly true. The extensive bargaining history and regular interchanges may well give rise to tolerance of short turn-around in concerns notices. Bargaining representatives are less likely to be prejudiced or compromised in a well-established bargaining process and the reasonableness of time frames required by s.238(3)(b) must be considered in context.

[36] But the first interim order was made in the context of, and indeed enabled, a full hearing at which the sufficiency of notice might be ventilated. That is not so here, where the interim order comes after hearing. The effect of the order sought here would be to re-open the matter with fresh grounds.

[37] Further, the CFMEU’s notice of concerns failed to raise the nub of its fresh application: the two agreement alternative. Therefore, the foundation of this application for a successful scope application is weak. That is, the CFMEU is unlikely to be able to demonstrate compliance with the prerequisite obligation in s.238(3)(a).

[38] Therefore, having concluded that the substantive application has low prospect of success, the defects in the concerns notice is a factor as to whether this interim order should issue. It is not necessary here to consider Unitywater’s other objections to the notice under s.238.

[39] For the following reasons I dismiss this application on general principles.

[40] First the CFMEU, as applicant for the interim order, must demonstrate there is a serious question to be tried. 14 Even setting the bar low, the CFMEU has done little more than assert there is a serious question. The CFMEU did not in its submissions adequately address what its case for the two-agreement position might be and I have found that the concerns notice is likely to be found to be defective. That is, it is unlikely that the Commission could determine if there was indeed a serious question.

[41] Unitywater submitted that the CFMEU submissions do not permit a positive conclusion on this question. In my view the material presented means the Commission cannot form the necessary view: the CFMEU has not discharged its obligation even to show there is “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.” 15

[42] Further, the balance of convenience weighs against the order sought.

[43] The parties have been bargaining in this jurisdiction for an extended period. The proceedings would delay the process further, and Unitywater and its employees prejudiced further if this order was allowed. I accept Unitywater’s submissions in this regard.

[44] Against this, the CFMEU is entitled to bring the application it did. However I do not accept the CFMEU’s proposition that its alternative position would be quickly dealt with. There is a real possibility, given the history of this matter, that testing the two agreement alternative will take considerable time. It brings into play a different industrial configuration from that already tested in evidence; the view of employees of two agreements (as opposed to one or three) is not known and cannot be extrapolated from the existing survey; the extent to which two agreements might promote fair and efficient bargaining better than one agreement or three agreements must be tested by evidence and submissions.

[45] Finally, in my view, the CFMEU’s further scope application, and more specifically the two agreement alternative, cannot be determined conveniently and fairly because of how late it had been filed in the proceedings. The reasons I gave on 2 August 2016 for declining to join the matters or to allow amendment of applications apply here.

[46] The balance of convenience weighs against the interim order.

[47] The application for an interim order is dismissed.

[48] The CFMEU asked on transcript that I delay my decision in the current Scope Applications, pending disposition of its interim order application.

[49] I did so.

[50] Having dismissed this application, I will separately publish my decision and reasons in those matters.

COMMISSIONER

Appearances:

Mr E White of Counsel with Mr W Ash for Construction, Forestry, Mining and Energy Union.

Mr J Wells for Unitywater.

Hearing details:

2016.

Brisbane:

26 August.

1 [2015] HCA 11

2 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and others v Unitywater[2016] FWC 5218.

3 Question 2.1.1 of the CFMEU’s Application, repeated at question 2.1.3.

4 [2012] FWAFB 2901

5 (2006) 227 CLR 57

6 CFMEU Submissions at paragraph 29.

7 Unitywater Submissions at paragraph 10.

8 [2014] FWC 8812

9 (1995) 62 IR 43

10 [1987] FCA 640; 76 ALR 633

11 Unitywater Submissions at paragraph 47.

12 Paragraph 49, as at 26 August 2016, the date of Unitywater’s Submissions.

13 See Australasian Meat Industry Employees’ Union v Woolworths Ltd[2010] FWAFB 1625.

14 See Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, Mason ACJ [11]-[12] and see HSU at [9] making it clear the applicant bore the onus of showing the requisite likelihood of success.

15 See ABC v O’Neill above.

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