CPSU v Crown in Right of the State of Victoria

[1998] FCA 1557

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Interim relief – injunction sought to restrain a mail out of ballot papers to a group consisting both of signatories and non-signatories to Australian Workplace Agreements – whether entire group or only signatories to AWA’s entitled to vote – serious issue to be tried – balance of convenience – appropriate forum.

Workplace Relations Act 1996 (Cth), ss 170VZ, 170LK

CPSU and ANOTHER –v- CROWN IN RIGHT OF THE STATE OF VICTORIA and ANOTHER

VG 582 of 1998

MARSHALL J
MELBOURNE
28 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 582  of   1998

BETWEEN:	CPSU AND ANOTHER APPLICANT
AND:	CROWN IN RIGHT OF THE STATE OF VICTORIA AND ANOTHER RESPONDENT
JUDGE(S):		MARSHALL J
DATE OF ORDER:		28 OCTOBER 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

Until 4.30 pm on 25 November 1998 or further order:

1. The first respondent be restrained from sending, either through itself or 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 s 170LK of the Workplace Relations Act 1996 (Cth), described in the affidavit of Peter Roger Keogh, sworn 28 October 1998 and filed herein.

1. A copy of this order be served upon the Australian Electoral Commission as soon as possible, including by facsimile transmission.

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 AND ANOTHER APPLICANT
AND:	CROWN IN RIGHT OF THE STATE OF VICTORIA AND ANOTHER RESPONDENT

JUDGE:	MARSHALL J
DATE:	28 OCTOBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

In this matter an application has been made for interim relief, pending the hearing of an interlocutory application and directions hearing, in an application made pursuant to s170VZ of the Workplace Relations Act 1996 (Cth) (“the Act”). The Court has been requested to make an injunction requiring persons not to contravene, or to cease contravening Part VI D of the Act.

The Court, at this stage, may have considered the matter ex parte in chambers. However having regard to the relative novelty of this jurisdiction in this type of matter the Court thought it prudent to see if the respondents were able to attend. Only the first respondent was served with the application. Orders were sought on an interim basis and only against that respondent.  The Court has considered the helpful submissions of Mr Tracey QC, counsel for the first respondent, and those of Mr Friend, counsel for the applicants.

The subject matter of the application for interim relief will disappear at 3.45 pm today unless the Court grants relief. It is therefore imperative, from the applicant’s point of view, that this matter is dealt with urgently.  What is scheduled to occur at 3.45 pm today is a mail out of ballot papers to persons in respect of whom it is alleged there is an entitlement to vote upon the acceptance of a collective workplace agreement.

I am satisfied on the first question I have to determine on the application for an interim order that there is a serious issue to be tried as to whether the application discloses that there is a contravention occurring in respect to the Part, and on that basis I pause to consider the balance of convenience.

On the issue of balance of convenience for the purposes of the interim order, apart from the question of the costs of ballots going out, is the issue of the Court considering a position in which persons who may not be entitled ultimately to vote in a ballot, and who on the evidence have at least one different interest from the rest of the constituency in the ballot, leads the Court to consider that there may be some difficulty in terms of balance of convenience in allowing those who have that different interest to actually vote in the ballot. This is the essential issue of concern to the Court at the moment.

There is evidence before the Court in an affidavit from Mr Keogh, that persons who were signatories to Australian Workplace Agreements, some 1100 of them, have a different industrial interest from those who are not signatories to those agreements. Mr Keogh identifies that difference in terms of the conditions that they have been able to achieve by entering into such agreements, in comparison to the conditions that people have been able to achieve (or not able to achieve as the case may be) where they have not entered into such agreements.

On the other hand, no consideration was put before the Court as to any urgency in the conducting of the ballot.  A consideration put forward in relation to the balance of convenience was whether the Court was the appropriate forum in which to make any orders for interim relief at this stage or whether the matter should be left in the hands of the Australian Industrial Relations Commission, (“the Commission”).  There appears to be a multitude of applications in the Commission in relation to the general issue, including applications to terminate bargaining periods and the like.  The Court should not be unduly distracted as to what is open or available in other forums to other bodies or tribunals. 

I have a matter before me in respect of which I have jurisdiction to make the interim orders sought and in which a serious issue is to be tried and where the balance of convenience, although not overwhelmingly in favour of a particular result, does tend to favour the granting of interim orders.  I am minded to make those orders and I will do so. The order I will make will be in these terms until 4.30 pm on 25 November 1998 or further order:

1. The first respondent be restrained from sending, either through itself or 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 section 170LK of the Act, described in the affidavit of Peter Roger Keogh, sworn 28 October 1998 and filed herein.

1. A copy of this order be served upon the Australian Electoral Commission as soon as possible, including by facsimile transmission.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall

Associate:

Dated:             28 October 1998

Counsel for the Applicant:	Mr W Friend
Solicitor for the Applicant:	Gill Kane and Brophy
Counsel for the Respondent:	Mr R Tracey QC
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 October 1998
Date of Judgment:	28 October 1998 (ex-tempore as revised from transcript)