Independent Education Union of Australia v Canonical Administrators
[1998] FCA 1127
•9 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – Industrial Relations Court of Australia – jurisdiction – whether Court has jurisdiction to entertain an application pursuant to s 170NG of the Workplace Relations Act 1996 – Federal Court of Australia – whether the Court has jurisdiction to entertain an application pursuant to s 170NG of the Workplace Relations Act 1996 where no application made for imposition of penalty – power to grant an injunction to restrain alleged contravention of Workplace Relations Act - industrial action – whether an employer has authorised or agreed to action by an employee – whether a refusal by an employer to pay salary in respect of a period of industrial action contravenes s 170MU of the Workplace Relations Act – application of s 187AA of Workplace Relations Act – whether prohibition of payment to employee in relation to period of industrial action extends to period of protected action under Part VIB Division 8.
Workplace Relations Act 1996 (Cth), ss 4(1), 124, 127, 170ML, 170MO, 170MT, 170MU, 170ND, 170NE, 170NF, 170NG, 170NH, 412
Judiciary Act 1903 (Cth), s 39B(1A)
Federal Court of Australia Act 1976 (Cth), ss 22, 23
Workplace Relations and Other Legislation Amendment Act 1996 (Cth), s 2, Schedules 13 and 16
Industrial Relations Act 1988 (Cth), s 412(1)(a)
Felton v Mulligan (1971) 124 CLR 367
In Re Judiciary and Navigation Acts (1921) 29 CLR 257
Transport Workers Union of Australia v Lee (unreported Black CJ, Ryan and Goldberg JJ, 30 June 1998)
Thomson Australian Holdings Pty Ltd v The Trades Practices Commission (1981) 148 CLR 150
QIW Retailers Ltd v Davids Holdings Pty Ltd (No 1) 36 FCR 386
Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873
Gapes v Commercial Bank of Australia (1979) 41 FLR 27
Welbourn v Australian Postal Commission [1984] VR 257
Australian Bank Employees Union v National Australia Bank Ltd (1989) 31 IR 436
Csomore v Public Service Board (1986) 10 NSWLR 587
Electricity Commission of New South Wales v The Federated Engine Drivers and Firemen’s Association of Australasia (NSW) [1975] AR 504
New South Wales Teachers’ Federation v Department of Education [1980] IAS(CR) 767
Sim v Rotherham Metropolitan Borough Council [1987] 1 Ch 216
House of Lords in Miles v Wakefield Metropolitan District Council [1987] AC 539
INDEPENDENT EDUCATION UNION OF AUSTRALIA v CANONICAL ADMINISTRATORS, BARKLY STREET, BENDIGO, THE PRINCIPAL SUPERIOR OF THE CONGREGATION OF THE SACRED HEART and THE PROVINCIAL OF THE ORDER OF THE SALESIANS OF ST JOHN BOSCO
VI 1400 of 1997
VG 280 of 1997
RYAN J
MELBOURNE
9 SEPTEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1400 of 1997
BETWEEN:
INDEPENDENT EDUCATION UNION OF AUSTRALIA
ApplicantAND:
CANONICAL ADMINISTRATORS, BARKLY STREET, BENDIGO
First RespondentAND:
THE PRINCIPAL SUPERIOR OF THE CONGREGATION OF
THE SACRED HEART
Second RespondentAND:
THE PROVINCIAL OF THE ORDER OF THE SALESIANS OF
ST JOHN BOSCO
Third RespondentJUDGE:
RYAN J
DATE OF ORDER:
9 SEPTEMBER 1998
WHERE MADE:
MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS:
That the application be dismissed.
Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 280 of 1997
BETWEEN:
INDEPENDENT EDUCATION UNION OF AUSTRALIA
ApplicantAND:
CANONICAL ADMINISTRATORS, BARKLY STREET, BENDIGO
First RespondentAND:
THE PRINCIPAL SUPERIOR OF THE CONGREGATION OF
THE SACRED HEART
Second RespondentAND:
THE PROVINCIAL OF THE ORDER OF THE SALESIANS OF
ST JOHN BOSCO
Third RespondentJUDGE:
RYAN J
DATE OF ORDER:
9 SEPTEMBER 1998
WHERE MADE:
MELBOURNE
MINUTES OF ORDER
THE COURT ORDERS:
That the application be dismissed.
Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1400 of 1997
VG 280 of 1997
BETWEEN:
INDEPENDENT EDUCATION UNION OF AUSTRALIA
ApplicantAND:
CANONICAL ADMINISTRATORS, BARKLY STREET, BENDIGO
First RespondentAND:
THE PRINCIPAL SUPERIOR OF THE CONGREGATION OF
THE SACRED HEART
Second RespondentAND:
THE PROVINCIAL OF THE ORDER OF THE SALESIANS OF
ST JOHN BOSCO
Third RespondentJUDGE:
RYAN J
DATE:
9 SEPTEMBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There are before the Court two applications, VI 1400 of 1997 filed in the Industrial Relations Court of Australia (“IRCA”) on 22 May 1997 (“the first application”) and VG 280 of 1997, filed in this Court on 16 June 1997 (“the second application”). Both applications were in identical terms and sought, pursuant to s 170NG of the Workplace Relations Act 1996 (“the W R Act”) an injunction to restrain the respondents from withholding payment of salaries for alleged non-performance of work by various teachers in Catholic secondary colleges administered respectively by the respondents. At the hearing of the substantive applications I acceded to a motion filed by the applicant in the second application for the applications to be heard together and for evidence received in one matter to be treated as evidence in the other.
The applicant, the Independent Education Union of Australia (“the Union”), an organisation of employees registered pursuant to the W R Act, and the respondents are parties to the Victorian Catholic Schools and Catholic Education Offices Award (1994) (“the Award”). On 16 April 1997 the Union sent by registered mail to all employer respondents to the Award (including the respondents in this matter) a Notice of Initiation of Bargaining Period (“the bargaining period notice”). Each bargaining period notice was identical in form and content and was as follows:
FORM R38
Workplace Relations Act 1996
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
NOTICE OF INITIATION OF BARGAINING PERIODNotice is hereby given to the Australian Industrial Relations Commission, that The Independent Education Union of Australia an organisation of employees
intends to try:
(a)to make an agreement under Division 3 of Part VIB of the Act with:
(NAME)
(b)to have any agreement so reached certified under Division 4 of Part VIB of the Act.
Particulars as specified in section 170MJ are:
a)the single business to be covered by the proposed agreement is
(NAME)
b)the employees whose employment will be subject to the agreement include all employees except School Officers whose employment is regulated by the terms and conditions of the Victorian Catholic Schools and Catholic Education Offices Award (1994) and The Victorian Catholic Schools and Catholic Education Offices Certified Agreement (1995) and all other employees employed by the employer in or in connection with the provision of education
c)the matters that the initiating party proposes should be dealt with by the agreement are as follows:
(i)Increases in Wages
·An increase of 14.5% to be paid in instalments over three years from 1 March 1997.
·In addition to the above an increase of $8.00 per week from 1 October 1996.
·In addition to the above the restoration of wage parity with their public sector counterparts for Principals and Deputy Principals by the payment of an additional 6%
(ii)Hours of Duty
·Reasonable limits on the total number of hours of work in a week;
·Reasonable limits on the total number of hours of meetings in a week;
·Reasonable limits on the total number of extras that can be required;
·Reasonable limits on the total number of hours of extra co-curricular duties;
·A proper and reasonable definition of face to face teaching;
·A maximum load to face to face teaching in secondary schools;
·Universal release time in Catholic primary schools for teachers and those holding POR’s;
·Reasonable limits of yard/bus/supervision duty;
·Defined limits on the working year.
(iii)The protection of all existing conditions of employment
(iv)Enhanced and effective grievance resolution and dispute settling procedures
(d)the industrial dispute to which the agreement relates is C. 21069 of 1993
(e)the proposed nominal expiry date of the agreement is 1 March 2000
The Commission is being asked to exercise powers to try by conciliation to facilitate the making of such agreement.
Dated......5APR 1997......1997
........ ........ ........ ........ ........ ........ .....
Signature of initiating party
On 21 April 1997 the Union, in accordance with s 170MO(2)(b) and s 170MO(5) of the WR Act, sent by post to all employers served with the bargaining period notice, a Notice of Intention to take Industrial Action (“the 170MO notice”). Each 170MO notice was identical in form and content and was as follows:
The notice of intention to take industrial action sent to you last week is withdrawn. This notice replaces that advice.
NOTICE OF INTENTION TO TAKE INDUSTRIAL ACTION
The Independent Education Union an organisation of employees gives notice pursuant to S.170MO (5) and (6) of the Workplace Relations Act 1996, of its intention to take industrial action.
The intended action will begin on 1 May 1997. The nature of the action is as follows:
Implementation of the following measures:
Non-attendance at:
· Morning Briefings
· General Staff Meetings
· Other after hours meetings
· Lunch time meetings
· Meetings, Seminars and Forums organised by the CEO
Ban on:
· Communication with the CEO
· Doubling up of classes in primary schools
· All scheduled class duties beyond 20 hours per week (Secondary Schools only)
· Yard supervision
· Lunchtime activities
· Writing of articles for school newsletter
· Non-attendance at full school assembly
· Catholic Secondary Schools Association sport
· Parent/teacher interviews
· All parent meetings outside 8.30 – 3.45
· Handing-in work programs
· Faculty meetings
· Camps and overnight retreats
· Zone closure day
· Family masses
· Detention supervision
· Collection of monies
Yours sincerely
Michael Flinn
General Secretary
On 30 April 1997 in accordance with s 170MR(1)(c) of the W R Act, the Union gave notice to the Industrial Registrar of the authorisation to engage in industrial action.
On 21 April 1997 the Victorian Catholic Schools Association (“the VCSA”), an unregistered organisation which represented most, if not all, employers engaged in the conduct of Catholic schools in Victoria, issued a bulletin to its members. On p 3 of the bulletin it was recited:
Advice About Industrial Action
1. Bans are Industrial Action
Based on legal advice that we have received, the bans being imposed in some schools relating to work normally undertaken and expected of teachers constitute industrial action as defined within the Workplace Relations Act (WRA).
2. Employer Must Withhold Pay
The WRA imposes a legal obligation on employers to withhold pay for industrial action. Section 187AA of the Act disentitles an employee from being paid for a period during which the employee engages in industrial action and prohibits an employer from making - or a union from seeking - such payments.
3. Wide vs Narrow Interpretation Of Withholding Pay
On a wide interpretation of the abovementioned section, if a particular ban concerned part of an employee’s routine and normal work (filing duties, for example, in the case of a clerical worker) there would be a compelling argument that the employee is not entitled to be paid for the whole period during which the ban applied. Where a ban affects work which is undertaken as the sole task for a specific period (eg. attendance at a meeting), a Court would be likely to take a narrow view of the section and hold that the period of time in relation to which an employer is prohibited from making a payment to an employee relates solely to the period during which the particular refusal to carry out normal duties continues (eg. the period of non-attendance).
VCSA Recommendation
VCSA recommends that employers adopt the narrow view described above. That is, that the employer is prohibited from making a payment to an employee only for the period/s during which the employee refuses to carry out normal duties.
After alleged industrial action had been undertaken by various teachers at the colleges of the respondents, deductions were made from the salaries of those teachers by the respondents. In paragraph 1 of each of the first application and the second application relief was sought in the following terms:
1.That the following Respondents by themselves or their servants or agents be restrained from deducting the wages of the employees of the Respondents as specified below any amount of money calculated by reference to any period of time during which any of the relevant employees have taken or take protected industrial action.
CANONICAL ADMINISTRATORS, BARKLY STREET, BENDIGO
- Danius Valaitis
- Phillip Sherry
- Molly Guntarik
- Christopher Coughlan
- John Eason
- Barbara Coughlan
THE PRINCIPAL SUPERIOR OF THE CONGREGATION OF THE SACRED HEART
- Barbara Murray
- Michelle Cotter
THE PROVINCIAL OF THE ORDER OF THE SALESIANS OF ST JOHN BOSCO
- Mark Donoghue
- Anna Garofalo
- Timothy Cox
- Michael Lafferty
It was agreed that the Court should confine itself to examining the evidence of only four of the teachers named in the first and second applications, three employed by the first respondent and one employed by the third respondent while no evidence would be presented in relation to either of the teachers named in the applications who had been employed by the second respondent. Mr Kenzie QC who appeared with Mr Lawrence of Counsel for the Union conceded that any injunctive relief granted by this Court could only apply in relation to the four teachers who gave evidence.
Mr Eason – Bendigo Catholic College
Mr John Eason was the first teacher to give evidence. At the relevant time he was employed by the first respondent as a biology teacher and VCE co-ordinator at the Catholic College in Bendigo. It was common ground between the parties that deductions were made from Mr Eason’s pay for non-attendance at a VCE Co-ordinators’ meeting which had been scheduled to take place between 3.45pm and 4.45pm on 5 May 1997, for non-attendance at a Victorian Administration Software System (“VASS”) meeting scheduled for 3.45pm on 19 May, and for non-attendance at a staff meeting on 26 May which had also been scheduled for 3.45pm.
Mr Eason admitted under cross-examination that he knew that he was to attend the VCE Co-ordinators meeting on 5 May 1997. However, he chose not to attend and, after participating in a short meeting in the staff room, performed other duties connected with the VASS computer system. The VASS system is the central register for student records for Years 11 and 12 at the school and is an essential administrative tool. Mr Eason deposed that he was the only person at the school who could do this work and that, although he had an allowance of five lessons to undertake these tasks, this represented only about three and a half hours. Mr Eason deposed that, in fact, the work took about ten hours per week.
On 19 May a VASS meeting was scheduled for 3.45pm. Mr Eason did not attend this meeting. He deposed that, on or before 16 May 1997, he “caused the school office to be advised” that he would, instead, be conducting a Year 12 biology tutorial, and that this was included in the Monday Morning Bulletin. Under cross-examination, Mr Eason said that a Ms Nerida Holland actually wrote a note on his behalf and passed it to the school offfice for inclusion in the Daily Bulletin of the next day. This Bulletin, Mr Eason said, normally arrived in the staff room at about 8.30am each day. Mr Eason did not see the note written by Ms Holland.
The note was in these terms:
Unit 3/4 biology students are advised that revision classes will be running after school as of today, on each Monday and Thursday until 5 o’clock, in the west wing of the IRC. All biology students are welcome to attend. Thank you, Ms Holland and Mr Eason.
Mr Eason deposed that he taught senior biology and, “as part of that, on a voluntary basis” he conducted tutorials for Year 12 biology students twice a week between 3.45pm and 4.45pm. Mr Eason agreed when it was put to him by Dr Jessup QC, who appeared with Mr McDonald of Counsel for the respondents, that by “voluntary” he meant that they were not required of him by the school. However, at the relevant time because of the approaching Year 12 examinations, he had been giving four such tutorials each week.
On 26 May a staff meeting was scheduled for 3.45pm. Mr Eason did not attend this meeting and again he “caused the office to be advised” on or before 23 May 1997 that he would be conducting a Year 12 biology tutorial instead, and that this was included in the Morning Bulletin issued for 26 May 1997.
Mr Coughlan – Bendigo Catholic College
The second teacher to give oral evidence at the trial was a Mr Christopher Coughlan. At the relevant time, he was employed by the first respondent as a teacher and year 10 Co-ordinator and worked at the Catholic College, Bendigo. He deposed that, in his role as Year 10 Co-ordinator, he was responsible for approximately 150 Year 10 students and 6 or 7 teachers. On 5 May 1997 an administration team meeting was scheduled for 3.45pm to 4.45pm at the College. Mr Coughlan did not attend this meeting but, instead, attended to his usual work as Year 10 Co-ordinator. Mr Coughlan did not attend three further meetings; a subject area meeting on 6 May 1997 scheduled for 4.00pm; an administration team meeting on 19 May 1997 scheduled for 3.45pm and; a staff meeting on 26 May 1997scheduled for 3.45pm. On each occasion, while the meeting was in progress, that is after 3.45pm, Mr Coughlan attended to his usual work as Year 10 Co-ordinator.
It was common ground between the parties that for the period ending 29 May 1997 an amount equal to the salary for four hours work was deducted from Mr Coughlan’s salary for non-attendance at these four meetings. Mr Coughlan’s evidence was that he carried on with the work that he did during his free time and, as a result of not attending the four meetings in question, he had been able to complete some work which he would otherwise have had to do at other times.
Mr Valaitis – Bendigo Catholic College
The third teacher to give oral evidence at the trial was Mr Danius Valaitis. At the relevant time he was employed at the first respondent’s Junortoun campus in the position of teacher. Mr Valaitis deposed that, although the normal hours of work at the College were from 8.35am to 3.45pm, it was decided by the Principal of the College that in order to facilitate parent-student-teacher interviews on the afternoon and evening of 1 May 1997, the hours of work would be rescheduled to occupy between 12.00 noon and 8.00pm. Mr Valiatis deposed that he ceased conducting interviews at between 3.50pm and 4.00pm. He then left the school at 4.15pm. Over the next few days Mr Valaitis arranged and held meetings with parents at alternative times during normal school hours. It was common ground between the parties that the first respondent deducted from Mr Valaitis’s salary a sum representing 4.25 hours being the period between 3.45pm and 8.00pm on 1 May 1997 when he did not conduct interviews with parents.
Mr Cox – Salesian College, Chadstone
The final teacher to give oral evidence at the trial was Mr Timothy Cox who, at the relevant time, had been employed by the third respondent as a teacher at the Salesian College, Chadstone. Mr Cox deposed that he and other teachers had taken action in the form of a ban on “all class duties beyond twenty hours per week”. It was the practice at the Salesian College for teachers to take extra classes from time to time in allotted free times. However, because of the ban, Mr Cox refused on three occasions to take extra classes beyond twenty hours’ face to face teaching per week; twice in the period from 1 to 16 May 1997 for which a deduction equivalent to one hour was made from his salary and once in the period 19 to 30 May 1997, for which a deduction equivalent to one hour’s teaching was again made.
Submissions of the Parties
Counsel for the respondents submitted that this Court did not have jurisdiction with respect to either the first application or the second application. Alternatively it was submitted that, even if this Court did possess jurisdiction with respect to either or both the first application and the second application, the Court could not grant the remedy sought by the applicant. It was submitted by Counsel for the respondents that the members of the Union listed in both the first application and the second application had engaged in industrial action that was not protected action for the purposes of the W R Act and consequently, so it was submitted, the respondents were entitled to withhold payment of salaries from employees in respect of periods of industrial action. Counsel further submitted, however, that, even if members of the applicant had engaged in industrial action that was protected action for the purposes of the W R Act, s 187AA of the W R Act prevented the respondents from making payments of salaries to employees in respect of periods of employment during which those employees had been engaged in industrial action.
Counsel for the respondents further submitted that a refusal by an employee to perform work as directed by an employer constituted industrial action and at common law entitled each respondent employer to withhold payment of salary in respect of each period during which such a refusal to perform work subsisted. Finally, Counsel for the respondent submitted that, in exercising its discretion, the Court should refuse to grant the relief sought by the applicant.
Although the first and second application each sought an injunction to prevent an alleged contravention of s 170MU of the W R Act, Counsel for the Union submitted at trial in the alternative that, notwithstanding the imposition of work bans by employees, the respondents had elected to accept the performance of alternative duties by the employees. It was submitted by Counsel that an acceptance by the respondents of the performance of alternative duties prevented those respondents from relying on s 170MU(2)(b) of the W R Act.
There can be distilled from that necessarily brief summary of the competing contentions of the parties the following questions which arise for resolution in these proceedings:
Does this Court have jurisdiction to entertain (a) the first application and (b) the second application?
If yes to 1(a) or (b),was the refusal to pay salaries in respect of a period of industrial action an injuring of the relevant teachers in their employment contrary to s 170MU?
If yes to 2, was that payment of salaries to the relevant teachers prohibited by s 187AA?
If yes to 3, should the Court, in its discretion, refuse the remedy sought by the Union?
I propose to consider each of those questions in the order in which I have posed them.
DOES THIS COURT HAVE JURISDICTION WITH RESPECT TO (a) THE FIRST APPLICATION AND (b) THE SECOND APPLICATION?
This was a significant preliminary issue raised by Counsel for the respondents who submitted that this Court does not have jurisdiction to entertain either the first application or the second application.
The first application VI 1400 of 1997 was filed in IRCA on 22 May 1997 and the second application was filed in this Court on 16 June 1997. Both were in similar terms and sought an injunction pursuant to s 170NG of the W R Act restraining the respondents from deducting from the salaries of named employees “an amount of money calculated by reference to any period of time during which those employees have taken or take protected industrial action”.
Section 170NG of the W R Act is in the following terms:
An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.
An “eligible court” is defined in s 170NE of the W R Act in the following terms:
For the purposes of this Division, each of the following is an eligible court:
(a)the Federal Court of Australia;
(b)a District, County or Local Court;
(c)a magistrate’s court.
It was submitted by Counsel for the Union that, pursuant to s 170MU of the W R Act, an employer is prevented from harming an employee while the employee was engaging or had engaged in protected industrial action. Section 170MU is in the following terms:
(1) An employer must not:
(a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
(2) Subsection (1) of this section does not apply to any of the following actions by the employer:
(a)standing-down the employee;
(b)refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c)action of the employer that is itself protected action.
(3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.
The Section 170ML provides:
(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.
(2) During the bargaining period:
(a)an organisation of employees that is a negotiating party; or
(b)a member of such an organisation who is employed by the employer; or
(c)an officer or employee of such an organisation acting in that capacity; or
(d)an employee who is a negotiating party;
is entitled, for the purpose of:
(e)supporting or advancing claims made in respect of the proposed agreement; or
(f)responding to a lockout by the employer of employees whose employment will be subject to the agreement;
to organise or engage in industrial action directly against the employer and, if the organisation, member, officer, or employee does so, the organising of, or engaging in, that industrial action is protected action.
(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:
(a)supporting or advancing claims made by the employer in respect of the proposed agreement; or
(b)responding to industrial action by any of the employees whose employment will be subject to the agreement;
to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lock out is protected action.
Section 170MO provides:
(1) Any action taken as mentioned in subsection 170ML(2) by:
(a)an organisation of employees; or
(b)a member of such an organisation; or
(c)an officer or employee of such an organisation acting in that capacity; or
(d)an employee who is a negotiating party;
is not protected action unless the requirements set out in subsection (2) are met.
(2) The requirements are that:
(a)if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement - the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or
(b)in any other case - the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.
Section 170MT preserved protected action from certain consequences by stipulating:
(1) An order made by the Commission under section 127 does not apply to protected action.
(2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:
(a)personal injury; or
(b)wilful or reckless destruction of, or damage to, property; or
(c)the unlawful taking, keeping or use of property.
(3) Subsection (2) does not prevent an action for defamation brought in respect of anything that occurred in the course of industrial action.
Section 170ND(c) declares s 170MU to be a penalty provision. Section 170NF then provides so far as is relevant:
(1) A contravention of a penalty provision is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.
(2) The penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.
...
(5) An application for an order under subsection (1) that relates to a contravention of section 170MU may be made by:
(a)the employee concerned; or
(b)an organisation of employees of which that employee is a member; or
(c)an inspector; or
(d)any other person prescribed by the regulations.
...
Section 170NH enables a court to order the reinstatement of, and payment of, compensation to an employee affected by a contravention of s 170MU:
(1) If an employer contravenes section 170MU , an eligible court may order the employer:
(a)if the contravention was constituted by dismissing an employee - to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and
(b)in any case - to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.
(2) The rights of and relating to reinstatement that are conferred on a person by this section do not limit any other rights of the person.
Counsel for the respondents made a general submission in relation to both the first and second application that neither this Court nor IRCA had jurisdiction to entertain an application for an injunction pursuant to s 170NG of the W R Act. Counsel submitted that original jurisdiction was conferred upon this Court in relation to matters arising under the W R Act by virtue of s 412 of the W R Act which commenced on 26 May 1997 and is in the following terms:
(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:
(a)applications may be made to it under this Act; or
(b)actions may be brought in it under this Act; or
(c)questions may be referred to it under this Act; or
(d)appeals lie to it under section 422; or
(e)penalties may be sued for and recovered under this Act; or
(f)prosecutions may be instituted for offences against this Act.
(2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.
Counsel for the respondents submitted that, pursuant to s 412(1)(a) of the W R Act, this Court had jurisdiction with respect to matters arising under the WR Act in relation to which an application could have been made to the Court under the WR Act. It was submitted that, while this Court was an “eligible court” for the purposes of s 170NG , that section was not one in relation to which an application could have been made to the Court. Counsel submitted that the scheme of the W R Act contemplated an application under s 170NF for an order imposing a penalty for the contravention of a penalty provision. If the penalty were claimed in that way, an eligible court could make consequential orders of the kind referred to in ss 170NG and 170NH. Counsel for the respondents accepted, however, that once an eligible court has been seised of the matter by way of an application for a penalty under s 170NF, then the Court’s jurisdiction to make consequential orders of the kind referred to in ss 170NG and 170NH is enlivened notwithstanding that no penalty is imposed under s 170NF.
On the other hand, Counsel for the Union submitted that an alleged contravention of s 170MU of the W R Act was, for the purposes of s 412 of the W R Act, a matter “arising under this Act”. It was also submitted that this Court was an eligible court to which an application could have been made under s 170NF(5) for an order imposing a penalty for a contravention of s 170MU. It followed, so it was submitted, that this Court had, pursuant to s 412(1)(a) of the W R Act, jurisdiction with respect to an alleged contravention of s 170MU in relation to which an application “may be made” to the Court under s 170NF(5) of the W R Act for the imposition of a penalty. Counsel submitted therefore that, notwithstanding that no application had, in fact, been made under s 170NF(5), this Court nevertheless had jurisdiction to grant an injunction under s 170NG to restrain an alleged contravention of s 170MU of the Act. I agree with this approach.
In my view this construction of s 412(1) is to be preferred. It is significant that the introductory words of the section acknowledge that the Court has jurisdiction “with respect to matters arising under the Act” in relation to which applications and other proceedings of the kinds enumerated in paragraphs (a) to (f) may be brought. A “matter arising under the Act” is different from a proceeding which may be brought under the same Act. Thus in Felton v Mulligan (1971) 124 CLR 367 Menzies J said, at 382:
It is to be observed from s 76(i) and (ii) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law. A matter may involve the interpretation of a law without arising under that law. Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it. A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law. it is to be observed that there is a difference between a “proceeding” arising under a law and a “matter” arising under a law. A “proceeding” arises under a law only when it is authorized by that law; see Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, at p 537. A “matter” need not be a “proceeding”; it may be part of a proceeding, e.g. a defence that the law authorizing the proceeding is unconstitutional. So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law.
Of course, the legislature may define in an exclusive way if it wishes, the procedural machinery by which a court is to determine “matters” in respect of which the court has been invested with jurisdiction. This was acknowledged by the High Court In Re Judiciary and Navigation Acts (1921) 29 CLR 257 where it was observed at 265:
...we do not think that the word “matter” in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law.
However, the use in s 412(1) of the facultative expression “may be brought” suggests that the legislature in this context was not concerned to confine this Court’s exercise of the jurisdiction to matters arising in proceedings which had been instituted in one or other of the ways indicated in paragraphs (a) to (f). Moreover, at least since 17 April 1997 the general jurisdiction conferred on this Court by s 39B(1A) of the Judiciary Act 1903 in respect of a matter arising under a law made by the Parliament may be exercised by the grant of an injunction or the making of a declaration pursuant to s 22 or s 23 of the Federal Court of Australia Act 1976; see the recent judgment of a Full Court of this Court in Transport Workers Union of Australia v Lee (unreported Black CJ, Ryan and Goldberg JJ, 30 June 1998).
Nevertheless, Counsel for the respondents contended that the “protected action provisions” contained in Part VIB of the WR Act introduced, what was said to be a new substantive right. It followed, so it was submitted, that the Court could not have recourse to general powers to grant injunctions conferred on it by ss 22 and 23 of the Federal Court of Australia Act 1976 but is confined to the enforcement provisions and procedures contained in Division 10 of Part VIB of the W R Act. A similar limitation was held to exist in relation to s 86 of The Trade Practices Act in Thomson Australian Holdings Pty Ltd v The Trades Practices Commission (1981) 148 CLR 150 at 162, and see also per Heerey J in QIW Retailers Ltd v Davids Holdings Pty Ltd (No 1) 36 FCR 386 at 390-391. In this respect Counsel for the respondents also submitted that a distinction is to be drawn between the conferral of jurisdiction upon this Court and a power to grant orders as to which see the remarks of the High Court in Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 exemplified by the observations of Gibbs J at 489-90.
In the present case, however, the claim for relief is under s 170NG of the W R Act which I consider to be analogous to s 298U of the same Act which was considered by the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [No 3] (1998) 72 ALJR 873 where it was observed in the joint judgment of Brennan CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 883:
It was emphasised in the joint judgment of four members of this Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161 that s 23 of the Federal Court Act “does not provide authority for granting an injunction where there is otherwise no case for injunctive relief”, whether “under the general law or by statute”. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620, Brennan J and Toohey J (Jackson (1987) 162 CLR 612 at 632) expressed the point as being that s 23 confers on the Federal Court such powers as are necessary or incidental to the exercise of the jurisdiction of that Court. Toohey J also emphasised (Jackson (1987) 162 CLR 612 at 631; see also at 639-642, per Gaudron J):
“To formulate the question in the present case by reference to the existence and history of Mareva injunctions tends to obscure the basic question which goes to the power of the Federal Court. Nevertheless decisions relating to Mareva injunctions may throw light on the question of powers arising expressly or by implication from legislation conferring jurisdiction and they may also throw light upon the existence of such powers as may be incidental and necessary to the exercise of that jurisdiction or the powers so conferred.”
Both Thomson Australian Holdings Pty Ltd v Trade Practices Commission and Jackson v Sterling Industries Ltd concerned relief in respect of claims founded upon laws made by the Parliament. Here the claims are for relief under s 298U(e) and in the tort of conspiracy. For present purposes and as indicated later in these reasons, it may be taken that the common law claims in conspiracy are founded either in the accrued jurisdiction as explained in Fencott v Muller (1983) 152 CLR 570 at 608-610 or as an associated matter within the meaning of s 32 of the Federal Court Act (PCS Operations Pty Ltd v Maritime Union of Australia (1998) 71 ALJR 863; [1998] HCA 29).
The orders which the Federal Court is authorised to make under s 298U(e) include an order to “remedy” the effects of conduct in contravention of Pt XA. The final orders sought in the present proceeding include orders which undo the reorganisation of the Group and once more place the stevedoring business now being conducted by Patrick Operations in the hands or under the control of the employer companies. The basis on which that relief is sought is that it is necessary to remedy the reorganisation of the Group in which the employer companies, in alleged contravention of s 298K(1)(c), altered the position of the employees to their prejudice. That remedy is sought in reliance on s 298U(e) of that Act. Similar remedies are sought in reliance on the auxiliary jurisdiction of equity to prevent the commission of a tort or the accruing of continuing damage from a tort committed. Before examining the power of the Federal Court to grant interlocutory injunctions, that Court’s jurisdiction to grant final relief of the kind sought by the employees should be considered. The jurisdiction to grant relief in tort – whether at law or in equity – is not conferred by the Act; it is conferred by s 23 of the Federal Court Act or by s 32 of that Act (PCS Operations Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 863; [1998] HCA 29).
Counsel for the respondents also advanced the narrower submission that neither IRCA nor this Court had jurisdiction in relation to the first application. It was common ground between the parties that if IRCA had jurisdiction in relation to the first application then pursuant to the transitional and saving provisions contained in Schedule 16, to the Workplace Relations and Other Legislation Amendment Act 1996 (“the Amendment Act”), the jurisdiction formerly vested in IRCA would have been transferred to this Court.
Section 2 of the Amendment Act is in the following terms:
(1)Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2)Subject to subsection (3), the items of the Schedules, other than Schedule 5, item 1 of Schedule 9, item 90 of Schedule 16 and the items of Schedule 12 and 19, commence on a day or days to be fixed by Proclamation.
(3)If an item of a Schedule does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
(4)Schedule 5 commences on 1 January 1997.
(5)Item 1 of Schedule 9 is taken to have commenced immediately before item 19 of Schedule 8 commences.
(6)Item 1 of Schedule 12 commences immediately after the commencement of item 3 of Schedule 10.
(7)If item 41 of Schedule 5 and item 3 of Schedule 6 commence on the same day, item 3 of Schedule 6 commences immediately after item 41 of Schedule 5.
The Amendment Act was assented to on 25 November 1996 and the provisions, amongst others, of Division 8 of Part VIB of the Amendment Act were proclaimed and took effect on 31 December 1996. However, Schedule 16 of the Amendment Act was not proclaimed at that time and therefore, pursuant to section 2(3) of the Amendment Act, took effect on 26 May 1997.
Schedule 16 of the Amendment Act is headed “Transfer of jurisdiction from the Industrial Relations Court of Australia to the Federal Court of Australia” and relevantly provides at item 30:
Workplace Relations Act 1996
30 Subsection 4(1) (definition of Court)
Repeal the definition, substitute:
Court means the Federal Court of Australia.
Under the heading “Division 2 - Transfer of jurisdiction and proceedings to the Federal Court”, item 63 provides:
Transfer of jurisdiction
(1)This item applies to jurisdiction and powers in or exercisable by the Industrial Relations Court or a Judge of that Court immediately before the transfer day in relation to an act or omission occurring before the transfer day, except in relation to matters for which:
(a)the Industrial Relations Court had begun the substantive hearing in proceedings in that Court; or
(b)proceedings had been completed in the Industrial Relations Court before that day.
(2)On and after the transfer day, the jurisdiction and powers to which this item applies:
(a)cease to be vested in or exercisable by the Industrial Relations Court or a Judge of that Court; and
(b)are, subject to subitem (3), vested in the Federal Court.
(3)In spite of subitem (2), the Federal Court has jurisdiction in relation to a matter that was remitted by the High Court to the Industrial Relations Court before the transfer day only if a Judge of the High Court has further remitted the matter to the Federal Court under item 65.
Item 64 provides:
Transfer of proceedings
(1)Subject to subitem (4), this item applies to proceedings commenced in the Industrial Relations Court but in respect of which the Industrial Relations Court had not begun the substantive hearing before the transfer day.
(2)On the transfer day, proceedings to which this item applies are transferred to the Federal Court.
(3)If proceedings to which this item applies are transferred under subitem (2):
(a)all documents filed in the Industrial Relations Court in relation to the proceedings are to be transmitted to the Federal Court; and
(b)any money lodged with the Industrial Relations Court in relation to the proceedings is to be transferred to the Federal Court and is taken to be money lodged with the Federal Court in relation to the proceedings; and
(c)everything done in or in relation to the proceedings in the Industrial Relations Court is taken to have been done in the Federal Court.
(4)This item does not affect a matter that was remitted by the High Court to the Industrial Relations Court before the transfer day under section 44 of the Judiciary Act 1903.
“Transfer day” is defined in Schedule 16, item 62 as follows:
transfer day means the day on which the Federal Court is invested with jurisdiction under Division 2 of this Part, being the day on which Part 1 of this Schedule commences.
It was accepted on both sides that, pursuant to s 2(3) of the Amendment Act, when the first application was filed in IRCA on 22 May 1997, the provisions contained in s 412 of the W R Act conferring original jurisdiction upon this Court had not yet commenced. It was also common ground that, at the date of the filing of the first application, IRCA had original jurisdiction pursuant to s 412(1)(a) of the Industrial Relations Act 1988 (“the I R Act”) with respect to matters arising under the I R Act in relation to which an application could be made to IRCA under that Act.
Section 412 of the I R Act was in the following terms:
(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:
(a)applications may be made to it under this Act; or
(b)actions may be brought in it under this Act; or
(c)questions may be referred to it under this Act; or
(d)appeals lie to it under section 422; or
(e)penalties may be sued for and recovered under this Act; or
(f)prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.
Counsel for the respondents submitted that the first application sought relief under, and alleged contraventions of, Part VIB of the W R Act. It followed therefore, so it was submitted, that s 412(1)(a) of the I R Act did not confer on IRCA jurisdiction with respect to matters arising under the W R Act in relation to which an application could be brought under the W R Act.
Counsel for the Union, however, contended that the reference to “this Act” in s 412 of the I R Act, was to the I R Act as amended by the Amendment Act. That was said to entail that, as the first application had been filed in IRCA after the commencement of the provisions contained in Part VIB of the W R Act, s 412(1)(a) of the I R Act should be read to include the provisions contained in the W R Act which had come into force. Counsel submitted further that IRCA had jurisdiction with respect to a matter under Part VIB of the W R Act notwithstanding that IRCA was not an “eligible court” for the purposes of the penalty provisions contained in Part VIB of the W R Act.
I am unable to accept the submission of Counsel for the applicant that IRCA had jurisdiction with respect to the first application. I find nothing in the I R Act, the W R Act nor the Amendment Act from which to infer a grant of jurisdiction to IRCA with respect to a matter arsing under the W R Act.
Accordingly, in my view, the jurisdiction confirmed upon IRCA by s 412 of the I R Act did not extend to matters arising under the W R Act. It follows, therefore, that Schedule 16 item 63(1) of the Amendment Act did not confer on this Court jurisdiction with respect to the first application. However, for the reasons already explained, this Court does, I consider, have jurisdiction to entertain the second application.
WAS THE REFUSAL TO PAY SALARIES IN RESPECT OF A PERIOD OF INDUSTRIAL ACTION AN INJURING OF THE RELEVANT TEACHERS IN THEIR EMPLOYMENT CONTRARY TO S 170MU?
At the threshold of this issue is the question whether the conduct of the teachers concerned amounted to “industrial action” as defined in s 4(1) of the W R Act. That definition, so far as is relevant, is in these terms:
“industrial action” (except in Part XA) means:
(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 a certified agreement or AWA, 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 a certified agreement or AWA 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
...
but does not include:
(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; or
(g) action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
The Evidence
Mr Eason and Mr Coughlan did not attend various after school meetings which they had been required to attend by their employer. It is true that each performed other duties that their respective contracts of employment broadly contemplated would be performed at some time or other, but those alternative tasks were not required by the employer to be performed at the times scheduled for the meetings. Mr Cox chose not to take any extra classes over and above the twenty hours of face to face teaching required of him each week. He, too, performed alternative duties required by his contract of employment but again they were not tasks that his employer wanted done at that time. The teachers have deposed that at no time were they advised by their respective employers that performance of alternative duties would not be accepted by their employers as performance of duties required under their contracts of employment. Not only did Mr Valaitis not perform the specific task required of him by his employer which was attending parent teacher meetings until 8.00pm but he also elected not to perform any alternative work instead.
It appears to be undisputed that it was an implied term of the teachers’ contracts of employment arising from accepted practice or usage that their hours of work encompassed (a) the core requirement of taking classes from about 8.30am until 3.45pm as determined by the school; (b) performing other professional duties either at the discretion of the individual teacher or as required by the school during “free”, that is non-teaching, time and after the normal teaching day; and (c) such duties after the end of the normal teaching day, that is after 3.45pm, that might be required by the school from time to time including attendance at sporting activities, staff meetings and parent-teacher meetings.
The action described above could only have lost its prima facie character as “industrial action” if it were shown to have been authorised or agreed to by the employer as contemplated by para (e) of the definition. In my view, the evidence in the present case does not support a finding that either of the employers agreed to authorise the absences from meetings or the refusal to take extra classes which occurred in contravention of express directions to the employees concerned. It follows, therefore, that the actions of the four teachers in this case of variously refusing to attend meetings, to conduct parent-teacher interviews, and to restrict the amount of face to face teaching was “industrial action” as defined in s 4(1) of the W R Act.
However Mr Kenzie QC for the union has contended that, even if the actions of the teachers amounted to “industrial action” as defined in s 4 of the W R Act, they were “protected action” within s 170ML and thereby attracted the protection conferred by s 170MU which was said to operate to prevent an employer from withholding payment of salary for periods of protected action. Section 170MU provides:
(1) An employer must not:
(a)dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b)threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
(2) Subsection (1) of this section does not apply to any of the following actions taken by the employer:
(a)standing-down the employee;
(b)refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c)action of the employer that is itself protected action.
(3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.
I entertain considerable doubt whether the exercise of a claimed right to withhold payment of salary or wages amounts to injuring an employee in his or her employment or alteration of the position of an employee to the employee’s prejudice within the meaning of s 170MU(1). As I perceive it, the purpose of that sub-section is to ensure that the relationship of employer and employee can resume or continue unaffected after the conclusion of protected industrial action. Accordingly, the employer is prohibited from dismissing or demoting the employee for the proscribed reason. Similarly, the sub-section precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees.
However, it is made abundantly clear by sub-s 2(b) that, even if a refusal to pay can ever be comprehended by sub-s (1), it is excluded from the prohibition if it occurs under the common law because the employee has not performed work as directed. Nevertheless, Counsel for the Union also contended that the respondents could not seek to rely upon s 170MU(2)(b) as excepting from the operation of s 170MU(1) a refusal to pay which was permitted under the common law because the employee had not performed work as directed. Mr Kenzie submitted that, although the teachers had not performed duties requested of them, the respondents had accepted the benefit of other work performed instead of that which had been requested so there could be no refusal to pay which was permitted under the common law.
In those circumstances, so it was submitted s 170MU(2)(b) had no application to the present case because the common law did not permit a refusal to pay salary for the period during which the industrial action subsisted. The reasoning of a Full Court of this Court in Gapes v Commercial Bank of Australia (1979) 41 FLR 27 was said to compel that result. However, the reasoning of Smithers and Evatt JJ in that case focused on the specific terms of an award which imposed an obligation to pay an annual salary which did not depend upon actual performance of particular duties. The view of the facts taken by Deane J in the same case enabled his Honour to conclude, at 33 that:
...the proper inferences to be drawn from all the evidence is that, in respect of the relevant period of three days, the bank waived the direction that the appellant cease work altogether and that the appellant was performing the duties which he in fact performed for the bank, with the consent of the bank. In these circumstances, the appellant was not “absent from duty without the consent of the bank”, within cl. 12(c). In so far as the three days in question are concerned, the only applicable express provision of the award was that a person in the position of the appellant is entitled to be paid an annual salary of the appropriate amount.
Similarly in Welbourn v Australian Postal Commission [1984] VR 257 it was found that the employer had indicated, in the face of selective bans on the performance of work, that the employers were not permitted to leave the post office. An intention was imputed to the employer that the employees should carry out at least part of their duties and that the employer would take the benefit of all work performed as it, in fact, did. Those findings of fact enabled Fullagar J to conclude at 269:
I am of opinion that the ultimate fact situation in the present case should be regarded as a “part performance situation”, with no effective prohibition on the part performance, and where, as everyone knew would happen, the employer accepted all the work done. I respectfully agree with Sheehy J that in such a case the application of the common law rules, including the rule in Cutter v Powell (1795) 6 Term Rep 320; 101 ER 573 and the rule applied in Australian National Airlines Commission v Robinson [1977] VR 87, “becomes impracticable”.
Similar intentions were imputed to the employer by Gray J in Australian Bank Employees Union v National Australia Bank Ltd (1989) 31 IR 436.
In the present case, the certified agreement which governed the employment of the relevant teachers (the Victorian Catholic Schools and Catholic Education Offices Certified Agreement 1996) provided merely that “The employers agree that they will apply the provisions of Appendix 4 (Schedule of Wages) attached to this Agreement. Appendix 4 contained a number of Schedules of which Schedule 2 commenced as follows:
WAGES : REGISTERED AND NON-REGISTERED TEACHERS
Salary sub-division $ per week
(=$p.a.¸52.18)$ per annum 1
2537.18
554.6628,030.00
28,942.00
The corresponding award provision in Gapes v Commercial Bank (supra) was:
6 – SALARY RATES – ADULT OFFICERS
Adult Males(a) Except as otherwise provided any adult male officer with years of adult service (other than an officer in respect of whom a certificate under section 48 of the Conciliation and Arbitration Act is in force) shall be paid the salary hereinafter assigned to those years of adult service-
Years of adult service Salary per annum
$1st 2,705
2nd 2,840
It may be, as Dr Jessup argued, that the difference in award prescriptions is sufficient to distinguish the present case from Gapes, but, in my view, a more fundamental distinction arises from the fact that there cannot be imputed to the present employers an intention to accept, in lieu of the benefit of the work directed to be done, the benefit of the other work which the teachers elected to do.
A difference can be discerned between refusals to work as directed by employees who work under more or less constant direction and refusals of employees, like the teachers in the present case, who are allowed a considerable degree of autonomy to determine when and how they carry out particular tasks and to establish an order of priority for the performance of those tasks. Of course, that autonomy may be overlaid by an express direction from the employer as happened, for example, in the present case when Mr Coughlan was directed to attend meetings which had been scheduled for identified times and Mr Cox was directed to take particular extra classes.
The significance of the distinction to which I have just adverted is that if the employee under more or less constant direction refuses to carry out the current direction he or she will have no work to do. Accordingly, there will be no entitlement to wages while that refusal subsists unless the employer issues a fresh direction for the performance of some different work thereby effectively countermanding the formerly current direction. In that case, it is easy to impute to the employer an intentional acceptance of the benefit of the different work which was held e.g. in Welbourn v Australian Postal Commission to revive the obligation to pay wages. Alternatively, the employer can be said to have waived the requirement that the employee should perform the full range of work contemplated by the contract; see Csomore v Public Service Board (1986) 10 NSWLR 587 where Rogers J observed, at 595:
Unless an employer waives the usual requirements of a contract of employment that an employee perform the full range of work properly assigned to him or unless the award under which the employee works makes a contrary provision, payment of wages is conditional upon performance by the employee of the full range of work assigned or, at least, a readiness and willingness to do so.
However, if the employer faced with a refusal by an employee under more or less constant direction to carry out a particular instruction, declines to give any other direction, there will be no entitlement to wages. That was effectively what happened in Electricity Commission of New South Wales v The Federated Engine Drivers and Firemen’s Association of Australasia (NSW) [1975] AR 504. In that case, the employee, Mr Swieringa, refused to man a pump which was included in certain bans and limitations which had been imposed by his union. He was not ordered to leave the site and offered to carry out other duties. However, he was given no other work and the employer was held to be entitled to withhold payment of wages from the time when he refused to work as directed. The Commission in Court Session (McKeon, Cahill and Dey JJ) observed at 514:
Cases abound in this Commission and elsewhere which state categorically that in order to be entitled to payment of the wage which the terms of his employment prescribe, an employee must be ready and willing and able to perform in accordance with the lawful and reasonable directions of his employer the service for which he contracted, and that any failure on his part to do just that of itself, and so long as the failure continues, disentitles him to such payment.
In the present case, it has been submitted on behalf of the applicant that if the employer has requested the employee to perform a task consistent with the contract of employment and the employee performs other work also contemplated by the contract as capable of performance by that employee, the employee cannot be said to have engaged in industrial action for the purposes of the Act if the employer has agreed to the performance of the other duties by the employee. In my view, however, where an employee refuses to perform a task within the scope of the contract of employment which he or she is directed to perform and elects to perform instead other work which would have to be done at some other, later, time, the employer is not to be taken to have accepted the benefit of that other work unless there has been an unequivocal indication that compliance with the earlier direction is no longer required. Mere inaction by the employer does not of itself amount to acceptance of the benefit of alternative work under the contract in place of that which the employee has been directed to perform. In New South Wales Teachers’ Federation v Department of Education [1980] IAS(CR) 767, a case very similar in a factual way to the present, the Industrial Commission of New South Wales in Court Session observed at 771-772:
The most significant of the agreed facts, in our opinion, are the facts that, in pursuance of their industrial campaign to improve working conditions, “teachers declined to perform their normal duties and in lieu thereof performed other activities” which, for the most part, were within the normal scope and functions of employment as a teacher but which, on the occasion in respect of which salary deductions were made, were performed in lieu of the duties assigned to them and after the teachers had declined to perform such duties”. Prima facie those facts would authorise the disputed deductions to be made from the teachers’ salaries if the 1975 decision of the Commission in Court Session in the Electricity Commission Case were followed.
The nature of teachers’ contracts of employment was also considered by Scott J in Sim v Rotherham Metropolitan Borough Council [1987] 1 Ch 216 where certain teachers, on instructions from their union, refused to take classes for absent teachers but remained on the school premises carrying out their normal tasks during non-teaching periods like marking papers or preparing for class. His Lordship held that the employing authority was entitled to make deductions from the teachers’ salaries referable to the periods during which they were found to have been in breach of their contracts of employment. In the course of reaching that conclusion, Scott J adverted to the distinction between a teacher as a professional employee and a worker required to work within a defined spread of hours under more or less constant direction observing, at 247:
In considering the scope of a teacher’s professional obligations as a teacher, it is convenient to start with those matters that are common ground. It is accepted that the teachers have an obligation to teach their classes in accordance with the timetable from time to time in force. It is accepted that they have obligations properly to prepare for their classes and to mark the schoolwork done by their pupils either in class or as homework. It is accepted that these latter obligations may require work to be done outside normal school hours. To put the point another way, a teacher could not excuse a failure to be properly prepared for a class or a failure to mark schoolwork within a reasonable time after it had been done by pointing out, correct though the observation might be, that he or she had not had time within school hours to do the work. It is, perhaps, one of the hallmarks of professional employment, as opposed to employment in non-professional capacities, that professionals are employed to provide a particular service and have a contractual obligation to do so properly. A worker in a car factory or shop may clock off at 5.30p.m. or, perhaps, work late on an overtime basis. An employed professional does not usually have an overtime option. He is employed to provide a particular service to proper professional standards. His contract may require his attendance in an office or other place of work for particular hours but his contractual obligations are not necessarily limited to work done within those hours. So, too, teachers’ duties are not necessarily confined to their obligation to be on school premises during school hours and to take their classes during those hours.
The reasoning of Scott J in Sim was approved by the House of Lords in Miles v Wakefield Metropolitan District Council [1987] AC 539 per Lord Templeman at 564 and per Lord Oliver of Aylmerton at 574.
Because the facts of the present case preclude a conclusion that the employer waived performance by the employees concerned of the work which they had been directed to do at a particular time, it follows that the employer was permitted to refuse to pay the employee in respect of that time. There was no acceptance in the requisite sense by the employer of the benefit of alternative work done at that time although the employer can be said to have received the benefit of that work in common with the benefit of other work performed in “free” time or otherwise at the employee’s discretion. (In the case of Mr Valaitis even that may be doubted because the evidence suggests that he did no other work between 4.15pm and 8.00pm on 1 May when he should have been conducting parent-student-teacher interviews.) For these reasons the second question which I have identified must be answered in the negative.
WAS PAYMENT OF SALARIES TO THE RELEVANT TEACHERS
PROHIBITED BY S 187AA?
Because of the conclusion which I have reached on the question just discussed, makes it unnecessary for me to resolve this third question. However, because of the novelty of s 187AA and out of deference to the careful arguments which have been addressed to it, I shall briefly indicate my views on the application of the section.
Under the heading “PART VIIIA - PAYMENTS IN RELATION TO PERIODS OF INDUSTRIAL ACTION”, s 187AA(1) of the W R Act is in the following terms:
An employer must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action if:
(a)the employer or employee was or is a member of an organisation during that period; or
(b)the employer was or is a constitutional corporation bound by an award, a certified agreement or an AWA during that period; or
(c)the industrial action was taken, or is being taken, in connection with work regulated by an award, a certified agreement or an AWA; or
(d)the industrial action was taken, or is being taken, in relation to an industrial dispute; or
(e)the industrial action was or is of a kind referred to in paragraph (a), (b) or (c) of the definition of industrial action in subsection 4(1); or
(f)the industrial action was taken, or is being taken, in a Territory.
Section 187AB prohibits an organisation or officer, member or employee of an organisation from making a claim on an employer, and from taking or threatening industrial action in support of a claim for payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action. By s 170AD the Court is empowered, on application under s 170AC, in respect of a contravention of s 187AA or 187AB to impose a penalty of not more than $10,000, to order payments of compensation for contravention of s 170AB, and to grant injunctions and other orders to stop the contravention or remedy its effects.
Counsel for the respondent submitted that the obligation imposed by s 187AA is absolute in its terms and there is nothing to suggest that the legislature intended it to be qualified by anything to be found elsewhere in the W R Act. In support of this view, reference was made to the Amendment Act and in particular to Schedule 13 which gathered together amendments to the W R Act. Counsel submitted that, if the legislature had intended the operation of s 187AA to yield to the operation of Division 8 of Part VIB of the Act, it would have been easy to have said so in that Division, particularly as s 170MT(1) was drawn to exclude from application to protected action the power of the Commission under s 127 to make orders to stop or prevent industrial action. The proximity of s 127 to s 124 which excludes the power of the Commission to entertain a claim for payment to employees in relation to a period during which those employees engaged, or engage, in industrial action was said to reinforce the construction that “industrial action” comprehends “protected action” unless the latter, narrower, concept is excluded from the wider by express words.
On the other hand, Counsel for the applicant contended that Division 8 of Part VIB of the W R Act was a self-contained prescription ordaining all the consequences of protected action. Reference was made, for example, to s 170MU(2)(b) as contemplating that payment might be made under the common law in relation to a period of protected action. However, as I have endeavoured to explain in answering Question 2 above, the common law requires payment only where the employer has accepted the benefit of alternative work or has otherwise waived performance of the full range of work allocated to the employee. In those circumstances the employee is no longer engaging in any industrial action as defined in s 4(1), let alone protected action within Division 8 of Part VIB.
In my view, s 187AA operates to prevent an employer from making a payment to an employee where the employee has engaged in industrial action whether such action is protected action or not. Part VIB of the Act is designed to create a framework in which negotiations for a certified agreement are undertaken (“the bargaining period”). The immunity provisions in s 170ML which attach to protected action allow employees to take industrial action and employers to lock out their employees during the bargaining period without exposing themselves to legal action (s 170MT) and, as far as the employees are concerned, without being dismissed from, or injured in, their employment which, it is contemplated, will continue after the bargaining period has come to an end and a certified agreement has been concluded or renewed. I consider that s 187AA in the context of Part VIIIA of the W R Act evinces a policy that collective bargaining should occur in an environment where employer and employee are to appreciate and accept the detrimental consequences for themselves of industrial action used as part of the negotiating armoury. For the employee those consequences are normally loss of remuneration in respect of the period of the industrial action and for the employer they are the loss of production attendant on a lockout. Consistently with that policy, s 187AA is framed to ensure that the loss of remuneration is not recouped after the bargaining is over and necessarily applies to protected action.
CONCLUSION
Because of the answer which I have given to Question 2, and, if that be wrong, because of the views which I have expressed on Question 3, the issue of the Court’s discretion to grant an injunction raised by Question 4 does not arise. Accordingly, for the reasons which I have endeavoured to explain an injunction will be refused and both applications must be dismissed.
I certify that this and the preceding thirty-three (33) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.
Associate:
Dated: 9 September 1998
Appearances inVI 1400 of 1997 and VG 280 of 1997
Counsel for the Applicant in each matter: Mr R. Kenzie QC
with Mr T. LawrenceSolicitors for the Applicant in each matter: Maurice Blackburn & Co Counsel for the Respondent in each matter: Dr C Jessup QC
Mr M McDonaldSolicitors for the Respondent in each matter: Mallesons Stephen Jacques Date of Hearing: 17 and 18 June 1997 Date of Judgment: 9 September 1998
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