CPSU v Telstra Corporation Ltd

[1999] FCA 1706

FEDERAL COURT OF AUSTRALIA

CPSU v Telstra Corporation Ltd [1999] FCA 1706

INDUSTRIAL LAW - availability of interlocutory relief for alleged breaches of Workplace Relations Act 1996 - union’s right of access for discussion purposes - whether employer obstructed access to employees by restriction of meeting venue - relevance of agreement regulating venue and time of access

Workplace Relations Act 1996 s 285C, 285E

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, RICHARD JOHN JONSSON, PHILLIP KNAGGS v TELSTRA CORPORATION LTD (ACN 051 775 556)
Q 283 of 1999

KIEFEL J
BRISBANE
25 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 283 OF 1999

BETWEEN:

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

First Applicant

RICHARD JOHN JONSSON
Second Applicant

PHILLIP KNAGGS
Third Applicant

AND:

TELSTRA CORPORATION LTD (ACN 051 775 556)
Respondent

JUDGE:	KIEFEL J
DATE OF ORDER:	25 NOVEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application for interlocutory relief is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 283 OF 1999

BETWEEN:

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

First Applicant

RICHARD JOHN JONSSON
Second Applicant

PHILLIP KNAGGS
Third Applicant

AND:

TELSTRA CORPORATION LTD (ACN 051 775 556)
Respondent

JUDGE:	KIEFEL J
DATE:	25 NOVEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The Community and Public Sector Union (“CPSU”) seeks interlocutory orders concerning its access to its members and prospective members who are employees of Telstra Corporation Ltd (“Telstra”) in premises at 167 Eagle Street, Brisbane.  This dispute occurs in the context of a ballot presently under way concerning the views of Telstra employees in respect of a proposed enterprise agreement.

2. The orders sought might depend upon a view being taken as to the extent of the right of entry under s 285C Workplace Relations Act 1996.  For present purposes, I think it may be accepted that there is an argument about its availability to the applicants, though my preliminary view is that the entry referred to is one for the purposes of discussion and limited by reference to that purpose.  That is to say, so long as discussion with members and non-members could be achieved, the purpose is met.  It was not likely to have been intended that the entry into, and access to, the premises was intended to be on a much wider basis; that is to say, to wherever the union thought was the best meeting place.  But, as I have said, this is a very preliminary view, and it is not determinative in any way of the outcome of this application.  All that needs to be shown by the applicants on this issue is that there is a serious question which would be available to them at the final hearing to found an injunction, together with issues such as balance of convenience.  But in this case, as was conceded by both parties, there is a threshold question. 

3. It is asserted by Telstra that the place of meeting on 23 November last was agreed. If that is in fact the case, it is not possible to conclude, for the purposes of s 285E, that the CPSU officers were hindered or obstructed or their entry to the premises refused. So much was conceded by the CPSU.

4. This depends upon the evidence, on the one hand, of the union officer, Mr Jonsson; and, on the other, of Mr Kelly, the Telstra officer. There was no dispute that Mr Jonsson was a relevant permit holder under s 285C of the Act, as was Mr Knaggs, who accompanied him on 23 November for the purpose of conducting the meetings. Both gentlemen therefore had a right to enter the premises for the purpose of holding discussions. Those discussions may only be held during working hours and during the employees’ meal times or other breaks, and I take it is that reference in s 285C which may have led the CPSU to the view that the lunch rooms should be available to it.

5. Mr Kelly gave evidence to the effect that he had received a request for entry to, and the use of, the lunch room on the 15th floor of the premises from Mr Jonsson for nominated times.  The times were mis-stated in the facsimile he received, and he discussed this in a telephone conversation with Mr Jonsson on the same day, 17 November.  At that time, he said he also advised Mr Jonsson that the lunch room was not available; that other staff members had said that they did not wish business being conducted around them; and that he then offered a meeting room as an alternative.  In evidence, he nominated three staff members who had approached him with these advices, although he said there were more.  Mr Kelly says that Mr Jonsson nominated the meeting room on floor 15, and that he, Mr Kelly, noted that on the facsimile.  That was the condition on which a copy of the facsimile was posted on the bulletin board in or near the lunch room.  Mr Kelly said that Mr Jonsson was familiar with the meeting rooms on the various floors in the building, and that he had held a meeting in the room on the 15^th floor.  Mr Jonsson does not accept that he either accepted or nominated the 15th floor meeting room.

6. The conversation, the change to the facsimile, the events which followed the telephone conversation, and Mr Kelly’s reaction tend, in my view, to confirm that it was, Mr Kelly’s understanding that the CPSU accepted the arrangements of a meeting room offered.  I am also of the view that it was likely that Mr Jonsson went along with the conversation to the extent that he either accepted or in fact nominated the 15th floor meeting room.  This was really the only area of dispute in the evidence that appears to me to have been relevant.  Other aspects of it, including the conversations which followed later, were not in dispute.

7. I think it more likely than not that Mr Jonsson did go along with the proposal for the use of a meeting room and not the lunch room, although he certainly disputed Telstra’s rights in his own mind, and he believed, although it was not then stated by Mr Kelly, that what Mr Kelly was doing was derived from a national directive of Telstra. As events transpired, the CPSU did not intend to accede to the arrangement. When Mr Jonsson and Mr Knaggs arrived on 23 November, they asked to use the lunch room. This was declined again, and they were shown to the meeting room. They moved again to the lunch room. Mr Jonsson was later asked to leave on account of having breached the agreement. Mr Kelly said that when he found Mr Jonsson in the lunch room again, he put to him that this was in breach of the agreement they had reached. Mr Jonsson accepted in evidence that those words were used by Mr Kelly. It is quite unlikely, in my view, that someone would assert an agreement if he had not honestly believed that that was the case. It is unlikely that he could have been mistaken about it. But even if Mr Kelly had erroneously believed that to be the case, I consider that would be sufficient to displace any possibility that there was an intentional hindrance or obstruction of the right of entry under s 285C. It follows, in my view, that there is no basis for a claim for interlocutory relief, and the application is dismissed.

8. It appears that there is a live issue as between the CPSU and Telstra concerning the question of the use of the lunch room on a wider basis, but as it transpires, this was not the appropriate case in which to attempt to ventilate it.

9. I will put the question of costs over to 10 December.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             25 November 1999

Solicitor for the First, Second and Third Applicants:	Carne & Herd
Counsel for the Respondent:	Mr P Hack
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	25 November 1999
Date of Judgment:	25 November 1999