Corkill v Construction, Forestry, Mining and Energy Union

[1996] IRCA 110

DECISION NO:  110/96

INDUSTRIAL LAW - REGISTERED ORGANISATION - Application for DEREGISTRATION by non-member of the organisation - Allegation that the organisation "has engaged in industrial action that has had, is having and is likely to have a substantial adverse effect on the safety, health and welfare" of the applicant - Complaint of threats of violence by officers of organisation against persons protesting about logging activities - Delay in logging caused by presence of protesters in the forests - Whether evidence revealed "industrial action" as defined by s.4 of the Industrial Relations Act - Making of threats is not "industrial activity" because it is not a performance of work in a manner different from that in which it is customarily performed - Delay cannot adversely affect safety, health or welfare of community or part of the community.
PRACTICE - Application for summary dismissal of proceeding - Application granted as proceeding must fail  COSTS - Proceeding instituted without reasonable cause - Costs order made.

Industrial Relations Act 1988, ss.4, 294 and 347.

JOHN ROBERT CORKILL v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

NO. NI.4744 of 1995

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:     7 MARCH 1996

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )        No. NI 4744 of 1995
NEW SOUTH WALES DISTRICT REGISTRY)   

BETWEEN:JOHN ROBERT CORKILL

Applicant

AND:CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:     7 MARCH 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application filed by the applicant, John Robert Corkill, on 6 December 1995, as amended, be dismissed.

1. The applicant pay the costs of the respondent, Construction, Forestry, Mining and Energy Union.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA  )        No. NI 4744 of 1995
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN:JOHN ROBERT CORKILL

Applicant

AND:CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondent

CORAM:    WILCOX CJ
PLACE:    SYDNEY
DATE:     7 MARCH 1996

EXTEMPORE REASONS FOR JUDGMENT

WILCOX CJ: On 7 December 1995 the applicant, John Robert Corkill, filed an application in this Court seeking an order under s.294(1)(c) of the Industrial Relations Act 1988 for the cancellation of the registration of the Construction, Forestry, Mining and Energy Union ("CFMEU"). The respondent named in the application was Gavin Hillier, State Secretary of the union. When the matter came before the Court, a question was raised as to the appropriateness of Mr Hillier being the respondent, especially having regard to the fact that the union itself had not been joined. I held that it was inappropriate for Mr Hillier to be the respondent and, as a result of that ruling, the application was subsequently amended so as to name, as sole respondent, the CFMEU itself.

In filing an amended application on 18 January, Mr Corkill expanded his prayer for relief so as to include orders alternative to deregistration.  Whether or not it would be possible for the Court to make orders in those terms is a subject that I need not pursue at the present time.

The ground of the application, identified both in the original application and in the amended application, is that the organisation "has engaged in industrial action that has had, is having and is likely to continue to have a substantial adverse effect on the safety, health and welfare of the undersigned applicant pursuant to s.294(1)(c) of the Industrial Relations Act". 

Section 294(1) of the Act sets out three bases upon which an organisation, a person interested or the Minister may apply to the Court for an order cancelling the registration of an organisation. These bases are as follows:

"(a)the conduct of:

(i)the organisation (in relation to its continued breach of an award or an order or its continued failure to ensure that its members comply with and observe an award or an order of the Commission or in any other respect); or

(ii)a substantial number of the members of the organisation (in relation to their continued breach of an award or an order of the Commission or in any other respect);

has prevented or hindered the achievement of an object of this Act;

(b)the organisation, or a substantial number of the members of the organisation or of a section or class of members of the organisation, has engaged in industrial action that has prevented, hindered or interfered with:

(i)trade or commerce between Australia and a place outside Australia;

(ii)trade or commerce between the States;

(iii)trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

(iv)the provision of any public service by the Commonwealth or a State or Territory or an authority of the Commonwealth or a State or Territory; or

(c)the organisation, or a substantial number of members of the organisation or of a section or class of members of the organisation, has or have been, or is or are, engaged in industrial action that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community."

As indicated, the application relies on paragraph (c).  It is not necessary to consider either of the other paragraphs. 

The CFMEU took the view that it was not possible for the applicant to bring the case within paragraph (c) and a notice of motion was filed on 21 February for the summary dismissal of the proceeding.  That motion has been heard today. 

In making the application for summary dismissal, counsel for the CFMEU, Mr Nolan, accepted the heavy burden that rests upon an applicant for summary dismissal and referred to the decision of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. That decision is well known and has been applied on numerous occasions. It is not necessary to discuss it in detail. It is sufficient to state that at 129 his Honour stipulated that a person seeking to invoke the jurisdiction of a Court ought not to be denied access to it:

"unless his lack of a cause of action ... is clearly demonstrated.  The test to be applied has been variously expressed; `so obviously untenable that it cannot possibly succeed'; `manifestly groundless'; `so manifestly faulty that it does not admit of argument'; `discloses a case which the Court is satisfied cannot succeed; `Under no possibility can there be a good cause of action'; `be manifest that to allow them (the pleadings) `to stand would involve useless expense.'"

It is obvious that the power to dismiss summarily ought not to be exercised unless the Court is positively satisfied that the action is hopeless.  For the purposes of this application, Mr Nolan concentrated upon the question whether or not the evidence revealed "industrial action" within the definition of that term in s.4 of the Industrial Relations Act.  He did not concede that Mr Corkill was "a person interested" within the meaning of s.294(1) but did not seek summary dismissal on the ground that he was not.

The definition of "industrial action" in s.4 is a definition that is subject to any expression of a contrary intention. But there is no reason to believe that there was a contrary intention in the use of the defined term in s.294. The definition is as follows:

"(a)the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:

(i)the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or

(ii)the work is performed, or the practice is adopted, in connection with an industrial dispute;

(b)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;

(c)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

(d)a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work;

(e)action by employees that is authorised or agreed to by the employer of the employees; or

(f)action by an employer that is authorised or agreed to by or on behalf of employees of the employer."

Mr Nolan contended that, even regarding the hearsay material which is set out in Mr Corkill's affidavit as being some evidence of the facts alleged, it does not demonstrate conduct falling within the definition.

The evidence relied upon by Mr Corkill is voluminous.  It is almost entirely of a hearsay nature.  Much of it is taken from newspaper accounts of things said and done by people concerned with the issue of logging in forests in Northern New South Wales.  The newspaper reports attribute statements to various officers of the CFMEU, including Mr Hillier, in which, so it is said, threats were made as to the action that the unions and their members would take against logging protesters who blockaded the forests.  Some of these threats were expressed in strong terms, assuming that the officers were correctly reported.  The newspaper reports also suggest that protesters entered forests in an endeavour to halt or delay logging.  They had some success, in that logging was delayed from time to time whilst there were discussions and instructions from the Government as to the course which ought to be followed.  Fortunately, those involved appear to have acted with good sense.  There is no indication of actual physical violence.  Nonetheless, if the newspaper accounts are to be accepted, there was a deal of feeling and this led to postponement of logging in some areas.  The argument put by Mr Nolan is that activity of this nature does not fall within the definition of "industrial action". 

Mr Corkill argued the matter on his own behalf.  He restricted himself to para.(a) of the definition of "industrial action".  His argument veered from time to time between two different specifications as to the relevant industrial action.  He seemed to rely primarily upon the making of threats.  Assuming that threats were made, and assuming in his favour that they were made by officers of the organisation on behalf of the organisation, so that they may properly be characterised as an activity of the organisation itself, it seems to me impossible to regard the mere making of threats as activity falling within para (a).  Paragraph (a) relates to the performance of work in a manner different from that in which it is customary performed.  I cannot see how the fact that union officers made threats of violence, if that is what they did, against people who interfered with forestry operations can be said to be the performance of work in a manner different from that in which it is customarily performed.  Quite evidently, those words are intended to refer to the performance of work by workers in the work place.

The second activity on which Mr Corkill placed reliance is the disruption to forestry activities which, he suggests, occurred because protesters were in the forest.  His argument is that the presence of the protesters meant that the loggers had to perform their work in a manner different from that in which they customarily performed that work; namely, they were delayed in carrying out their work.  And accordingly, this answers the opening words of para.(a).

I doubt that a case such as that was within the contemplation of Parliament when the definition was enacted. It is noteworthy that each of paras.(a) to (d) are concerned with restrictions imposed by the workers, not restrictions imposed upon them as a result of the activities of others. However, even if one reads the words in this way, there is a problem in translating that notion into para.(c) of s.294(1), in a way that would provide a ground of action for the applicant. The industrial action has to be an action "that has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community or a part of the community".  If the relevant industrial action is the postponement of logging because of the presence of the protesters, it is difficult to see how that postponement can have a substantial adverse effect on the safety, health or welfare of the community or a part of it.  The reason for the postponement, no doubt, was that to carry out logging operations while there were protesters in the forest would have endangered the protesters' safety.  Logging might have had an adverse effect on their safety, but not the postponement of logging. 

Looking at the matter in a wider context, Mr Corkill's complaint is that logging is undesirable, in the interests of the community and the preservation of its forests and ecological diversity; not the postponement of the logging.
          It seems to me that the action is misconceived and must fail.  Accordingly, I think I should accede to the application for summary dismissal.  In doing that, I wish to make clear that I express no view whatever about the wisdom or otherwise of logging the relevant forests.  That is a matter that has not been litigated in this proceeding and would not be within the jurisdiction of this Court to determine.  It is a matter about which there are strongly and sincerely held views on each side of the argument. 

Secondly, I wish to make clear that I have formed no views as to whether particular things were said by particular people.  As I have indicated, the material before the Court in respect of those matters is almost entirely of a hearsay nature.  There has been no investigation of the accuracy of that material.  For the purposes of considering this application, I have assumed in Mr Corkill's favour that, if the matter went to trial, he would be able to make out his allegations of threats and of disruption in the forest with postponement of logging activities; but I reach no conclusions about those matters.  Also, of course, I reach no conclusions about the justifiability of any behaviour in which any person has engaged. 

The question I have to determine is a technical matter, namely whether the action that is alleged falls within a certain sub-section of the Industrial Relations Act and, in particular, within a concept defined in relatively narrow terms by s.4. That is all I have to determine and it is all I do determine. As I have a clear view about that matter, and I am satisfied that the applicant's situation could not be improved at any trial, it is appropriate to deal with the matter in the way sought by the respondent union.

The union also seeks an order for costs. Section 347(1) of the Industrial Relations Act provides that "a party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause".  The argument put on behalf of the union is that this action was being instituted without reasonable cause.  Reference is made to decisions such as Thompson v Hodder (1989) 21 FCR 467 and Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.

I think this is a case of a proceeding being instituted without reasonable cause. As I have indicated, even approaching the matter by reference to the facts alleged by Mr Corkill, there is simply no basis upon which it can be said that the Court would have power to make an order for cancellation of the registration of the union. If that is so, then quite plainly the Court cannot exercise any of the other powers given by s.294.

I have some reluctance in acceding to the application for an order for costs.  I appreciate that Mr Corkill brings the action, not for his own gain, but in pursuit of what he regards as being the public interest.  Over recent years, courts have sometimes taken the view that a person suing in the public interest should not be ordered to pay costs, even though ultimately unsuccessful, if the case was fairly arguable.  However, that is not this case.  I think that, if Mr Corkill had obtained appropriate advice or even, with respect to him, given the matter the necessary objective consideration, he would have realised that the case was hopeless.  With the greatest sympathy for him, I think I have to accede to the application and make an order for costs in favour of the respondent.  The order that I make is that the application filed by Mr Corkill on 6 December 1995 as amended be dismissed with costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment of Chief Justice Wilcox.

Associate:

Dated:     7 March 1996

APPEARANCES

Counsel for the Applicant:     Self

Counsel for the Respondent:         J Nolan

Solicitor for the Respondent:       Steve Masselos & Co

Date of hearing:  7 March 1996