CPSU, the Community and Public Sector Union v Crown in Right of the State of Victoria
[1998] FCA 1582
•9 December 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – application seeking injunction to restrain the Employment Advocate from issuing approval notices in respect of certain agreements – whether an agreement to terminate an Australian Workplace Agreement which depends upon the occurrence of a contingent event ought to be construed as a “termination agreement” pursuant to the Workplace Relations Act 1996 (Cth).
Workplace Relations Act 1996 (Cth) ss170LE, 170LK, 170VF, 170VH, 170VJ, 170VM, 170VQ, 170VZ
CPSU, the Community and Public Sector Union Pty Ltd v Pacific Access Pty Ltd, (Marshall J, 4 December 1998, unreported), referred to
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION and GARY JAMES NIEWAND –v– CROWN IN RIGHT OF THE STATE OF VICTORIA and ALAN ROWE, EMPLOYMENT ADVOCATE
VG 582 of 1998
MARSHALL J
MELBOURNE
9 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 582 of 1998
BETWEEN:
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
FIRST APPLICANTGARY JAMES NIEWAND
SECOND APPLICANTAND:
CROWN IN RIGHT OF THE STATE OF VICTORIA
FIRST RESPONDENTALAN ROWE, EMPLOYMENT ADVOCATE
SECOND RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
9 DECEMBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The order numbered one of the orders made on 28 October 1998 be set aside.
The application be dismissed.
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 582 of 1998
BETWEEN:
CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
FIRST APPLICANTGARY JAMES NIEWAND
SECOND APPLICANTAND:
CROWN IN RIGHT OF THE STATE OF VICTORIA
FIRST RESPONDENTALAN ROWE, EMPLOYMENT ADVOCATE
SECOND RESPONDENT
JUDGE:
MARSHALL J
DATE:
9 DECEMBER 98
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The matter before the Court is an application pursuant to s170VZ of the Workplace Relations Act 1996 (Cth) (“the Act”) for an injunction requiring the first respondent not to contravene or to cease contravening a provision of Part VID of the Act. Part VID of the Act deals with the making of Australian Workplace Agreements (“AWAs”). The first applicant is CPSU, the Community and Public Sector Union (“CPSU”), an organisation of employees registered under the Act. The second applicant, Gary James Niewand, is a member of the CPSU and an employee of the first respondent, Crown in Right of the State of Victoria (“State of Victoria”), in its Department of Natural Resources and Environment (“DNRE”). The second respondent is the Employment Advocate (“the Advocate”). The Advocate has a role under the Act in the approval of AWAs, pursuant to Subdivision B of Division 8 of Part VID of the Act. The application seeks an order restraining the Advocate from treating as valid, and issuing an approval notice in respect of, certain agreements entered into between the Secretary of DNRE and any employee of the State of Victoria, on the basis that the agreements are not valid agreements under the Act.
BACKGROUND
The following applied as at 1 November 1998:
approximately 3,700 non-executive employees were employed in the DRNE
of that group approximately 1,270 had signed AWAs
846 of that group had signed an “AWA Termination Agreement” (“the termination agreement”)
Each termination agreement is in the following form:
“We hereby agree that this AWA will terminate on the day on which the Department of Natural Resources and Environment Certified Agreement 1998 comes into operation.”
Reference is then made to the particular “AWA case number” for each relevant individual.
The certified agreement referred to in the termination agreement is a reference to a proposed agreement which DNRE wishes to have certified pursuant to s170LK of the Act. Section 170LK(1) of the Act provides that:
“The employer may make the agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement.”
Section 170LE of the Act makes provision for the ascertainment of a “valid majority” of employees. One way of determining whether such a majority exists is by the conduct of a ballot.
DNRE proposed to conduct a ballot of its non-executive staff commencing in late October 1998 to determine whether a proposed s170LK agreement was acceptable to a majority of them. CPSU complained that those persons who had entered into AWAs should not be permitted to take part in the ballot on the basis that their employment was regulated by AWAs under different conditions to those which applied to the remainder of the workforce. The AWAs provided for a 3 per cent increase in pay as at the date of signing and an additional 3 per cent increase on 1 July 1999. The notional term of the AWAs was until 30 June 2000.
In mid-October 1998 the Secretary of the DNRE, Mr Taylor, caused a letter to be sent to each person who had signed an AWA. The letters were materially identical. They attached the proposed s170LK agreement and advised that a ballot in respect of that agreement was to proceed on 6 November 1998. Certain additional benefits over and above the AWA conditions were said to arise from the proposed agreement, including an additional 1.5 per cent pay increase. Each letter also attached a termination agreement in the form described above.
Counsel for CPSU, Mr Friend, submitted that the purpose of Mr Taylor’s letter was to enable employees who had signed AWAs to participate in the ballot for the s170LK agreement. It was further submitted that if such employees vote they do so from an advantaged position whereby they have already had access to a 3 per cent pay rise and are liable to receive another 1.5 per cent pay rise and improved conditions of employment if the agreement is approved by a majority of non-executive DNRE staff. If the agreement is not approved those persons who signed AWAs maintain their 3 per cent pay rise while other employees receive no pay rise.
Many members of CPSU employed within the DNRE have taken a highly principled position in their dealings with the DNRE. They have refused to sign an AWA and have authorised CPSU to negotiate on their behalf to pursue a collective agreement with the DNRE. In support of that position those persons have engaged in industrial action and have suffered a loss of remuneration.
On 28 October 1998 the Court heard an application for an interlocutory injunction by CPSU. The matter came on for hearing at about 12 noon in circumstances where the Court was informed that ballot papers were to be sent at 3.45 pm that day to all non-Executive DNRE employees to vote on a proposed s170LK agreement. I formed the view on the basis of submissions then put to me that there was a serious issue to be tried in the substantive proceeding as to whether the termination agreements were valid. I held that the balance of convenience favoured the ballot process being stopped pending the trial of the proceeding.
THE LEGISLATIVE CONTEXT
Section 170VM of the Act provides as follows:
“1.The employer and employee may at any time make a written agreement to terminate the AWA.
2.A termination under subsection (1) takes effect at the end of the day on which an approval notice is issued for the termination agreement or at such later time as is specified in the termination agreement.
3.After the nominal expiry date of an AWA, the Commission may, on application by either party, terminate the AWA if the Commission considers that it is not contrary to the public interest to do so.
4.The Commission must issue a copy of its determination to the parties and to the Employment Advocate.
5.A termination under subsection (3) takes effect at the end of the day on which the Commission issues copies of its determination, or at such later time as is specified in the determination.
6.After the nominal expiry date of an AWA, the employer or the employee may file a termination notice, stating that the AWA is to be terminated in a manner provided for in the AWA.
7.A termination under subsection (6) takes effect at the end of the day on which an approval notice is issued for the termination notice, or at a later time specified in the termination notice.”
Section 170VF of the Act permits the making of AWAs and provides as follows:
“1.An employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee.
2.The AWA may be made before commencement of the employment.”
Section 170VH of the Act deals with the expiry and extension of AWAs and provides as follows:
“1.An AWA may specify a date as its nominal expiry date. The date cannot be more than 3 years after the AWA date.
2.If no date is specified, then the nominal expiry date is the 3rd anniversary of the AWA date.
3.An employer and employee may make a written agreement that extends the nominal expiry date. The extended date cannot be more than 3 years after the AWA date.
4.The extension agreement has no effect unless a filing receipt is issued for the extension agreement at least 21 days before the nominal expiry date that is to be extended.
5.The extension agreement takes effect on the day after an approval notice is issued for the extension agreement.”
Under s170VJ of the Act an AWA “stops operating”, inter alia, when a termination agreement under s170VM of the Act takes effect. See s170VJ(1)(e) and (2)(c).
Under s170VQ(1) of the Act an AWA has primacy over an award that would otherwise apply to an employee’s employment. Generally, an AWA “operates to the exclusion of any certified agreement that would otherwise apply to the employee’s employment”.
THE COMPETING CONTENTIONS
Mr Friend emphasised s170VM(2) of the Act. That sub-section deals with when a termination takes effect. Two possibilities are provided. The first one is at the end of the day when an approval notice is issued by the Advocate. The second is such later time as is specified in the agreement. Mr Friend specifically relied on the words quoted above as revealing a need for particularity in a termination agreement. His short point was that a conditional agreement to terminate an AWA was not a termination agreement because the relevant condition, that is the coming into effect of a certified agreement, may never be fulfilled. Mr Friend said that there was no time specified in the agreement regarding when it would stop operating because there was a lack of certainty as to when the termination would take effect. Mr Friend observed that if the contingent event does not occur the termination agreement would not operate to terminate the AWA. Mr Friend further submitted that the Advocate was unable to approve a proposed termination agreement if the document was not such an agreement under the Act.
It was also submitted on behalf of CPSU that if the termination agreements were not effective to terminate the AWAs the persons who signed AWAs would still have their employment regulated by the AWAs and as a result of s170VQ(6)(c) of the Act those persons will not have their employment regulated by the certified agreement if it receives majority support. Consequently, so the argument ran, any participation by “AWA employees” in the proposed ballot would be invalid.
Mr Uren QC, with Mr Wood of counsel, appeared for the State of Victoria. Mr Uren submitted that an agreement to terminate if a particular event occurs is, despite that condition, still an agreement to terminate. Mr Cavanough QC appeared for the Advocate. He submitted that Mr Friend’s emphasis on s170VM(2) of the Act was misplaced. He contended that the effect of that sub-section is to clarify that termination will not occur before approval by the Advocate. Mr Cavanough submitted that primacy must be given to sub-section (1) of the section. He echoed Mr Uren’s submission that the termination agreements in evidence were written agreements to terminate AWAs. The fact that they were conditional, he submitted, did not deprive them of that character.
Mr Cavanough contrasted s170VM(1) of the Act with s170VH of the Act which deals in some detail with the specification of a date for an AWA to expire.
CONSIDERATION
The question for the Court to determine is ultimately a very narrow one. Is an agreement to terminate an AWA which depends on the fulfilment of a condition still an agreement to terminate an AWA? As a matter of ordinary statutory construction the answer must be “yes”. By way of analogy one may ask whether an “injunction” in s170VZ of the Act, includes an “interlocutory injunction”. The answer again is “yes”. See CPSU, the Community and Public Sector Union v Pacific Access Pty Ltd, (Marshall J, 4 December 1998, unreported).
In my view a conditional agreement to terminate is nonetheless a termination agreement, albeit one of a particular sort, just as an interlocutory injunction is an injunction of a particular type.
Mr Friend contended that conditional termination agreements are open to misuse. For example he said that a termination agreement may be entered into shortly after an AWA is made which agreement may place onerous conditions on an employee under the threat of termination of the AWA. If such termination agreements were entered into the Advocate would have to ensure that consent was genuine. It would be surprising if a reasonable Advocate would be able to form such a view about purported termination agreements of that type.
CPSU’s real complaint is that its loyal members who have chosen to have it represent them collectively rather than enter AWAs have been disadvantaged by the process adopted by the DNRE. That may be so and if it is so then a regrettable state of affairs exists. However, it appears to me to be a state of affairs which is allowed to occur as a result of the provisions of the Act. It is not the duty of the Court to re-write what it may perceive to be unjust. It is the Court’s duty to interpret relevant statutory provisions with intellectual integrity. Having applied my mind to an analysis of s170VM of the Act and the related provisions referred to in these reasons I am of the view that the application must be dismissed because the termination agreements in question, in my opinion, are valid termination agreements under the Act.
It is unnecessary to deal with other issues raised by the parties in light of the Court’s determination of this crucial point.
ORDERS
The Court made orders in this matter on 28 October 1998. The order numbered one therein was in the following terms:
Until 5.00 pm on 25 November 1998 or further Order the first respondent be restrained from sending, either itself or through its agent the Australian Electoral Commission, postal ballot papers to its employees within the Department of Natural Resources and Environment in respect of the ballot for the proposed agreement under s170LK of the Workplace Relations Act 1996 described in the affidavit of Peter Roger Keogh sworn 28 October 1998 and filed herein.”
Having regard to my views on the final determination of the application I will now make the following orders:
That the order numbered one of the orders made on 28 October 1998 be set aside.
The application be dismissed.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 9 December 98
Counsel for the Applicant: Mr W Friend Solicitor for the Applicant: Gill Kane and Brophy Counsel for the First Respondent: Mr A G Uren QC with Mr S Wood Solicitor for the Respondent: Clayton Utz Counsel for the Second Respondent: Mr A L Cavanough QC Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 25 November 1998 Date of Judgment: 9 December 1998
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