National Union of Workers v Davids Distribution Pty Ltd
[1998] FCA 1530
•1 DECEMBER 1998
FEDERAL COURT OF AUSTRALIA
INTERIM INJUNCTION – power of the Court to grant interim orders –injunction to restrain the employer terminating the employment of employees – order requiring the employer to reinstate employees dismissed for picketing – construction of ss 170NG, 170NH and 298U(b) and (c) – application of s 23 of Federal Court of Australia Act1976 (Cth) to these sections – whether orders may be made under s 170NG in the absence of a claim for a penalty under s 170NF – whether serious question to be tried that employer engaged in conduct in contravention of ss 170MU and 298K Workplace Relations Act 1996 (Cth) – onus of proof under s 298V - whether balance of convenience favours the continuation of orders – interrelationship between serious question and balance of convenience.
INDUSTRIAL LAW – protracted industrial dispute – strikes and picketing – termination of employment – threat to dismiss further employees – whether employer engaged in conduct in breach of s 298K Workplace Relations Act 1996 (Cth) – whether dismissals were for a prohibited purpose – whether breach of s 170MU Workplace Relations Act 1996 (Cth) – whether employees engaged in protected action – whether picketing constitutes industrial action – whether industrial action engaged in “in concert” – whether notice was sufficient under s 170MO.
PRACTICE AND PROCEDURE – whether judge should disqualify himself for apprehended or actual bias – factors claimed to give rise to apprehended bias examined.
Workplace Relations Act 1996 (Cth) ss 4(1), 4(9), 127, 170L, 170ML, 170MM, 170MO, 170MT, 170MU, 170MW, 170ND(c), 170NF, 170NE(9), 170NG, 170NH, 298K, 298L, 298T, 298U, 298V
Federal Court of Australia Act 1976 (Cth) ss 22, 23
Trade Practices Act 1974 (Cth) ss 45(2), 80
Workplace Relations Act 1997 (Qld)
Trade Union & Labour Relations (Consolidation) Act 1992 (UK)
Trade Union Reform & Employment Rights Act 1993 (UK)
Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (Ryan J, Federal Court of Australia, 9 September 1998, unreported)
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626
Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398
Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Murphy v Lush (1986) 65 ALR 651
Epitoma Pty Ltd v Australasian Meat Industry Employees’ Union (1984) 3 FCR 55
Construction, Forestry, Mining & Energy Union v Curragh Queensland Mining Ltd (Wilcox J, Federal Court of Australia, 30 September 1998, unreported)
Castlemaine Perkins Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (Derrington J, Supreme Court of Queensland, 2 December 1997, unreported)
FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269
Coal and Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union (1998) 80 IR 14
Construction, Forestry, Mining & Energy Union v Full Bench of the Australian Industrial Relations Commission (Full Court, Federal Court of Australia, 6 November 1998, unreported)
Dowling v Bowie (1952) 86 CLR 136
Flower Davies Wemco Pty Ltd v Australian Builders Labourers’ Federated Union of Workers, WA Branch (1986) 20 IR 88
Tillmanns Butcheries Pty Ltd v A/asian Meat Industry Employees’ Union (1978) 42 FLR 331
Cohen v Peko-Wallsend (1986) 68 ALR 394
OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270
Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464
Re Printing & Kindred Industries Union; Ex parte Nationwide News Pty Ltd (1994) 122 ALR 303
Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd [1979] VR 107
Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23
Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 94 ALR 1
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505
Vakauta v Kelly (1989) 167 CLR 568
NATIONAL UNION OF WORKERS v DAVIDS DISTRIBUTION PTY LTD
No VG 382 of 1998
JUDGE: NORTH J
PLACE: MELBOURNE
DATE: 1 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 382 of 1998
BETWEEN
NATIONAL UNION OF WORKERS
APPLICANTAND:
DAVIDS DISTRIBUTION PTY LTD
RESPONDENTJUDGE(S):
NORTH J
DATE OF ORDER:
1 DECEMBER 1998
WHERE MADE:
MELBOURNE
UPON THE APPLICANT by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the Court directs –
AND UPON THE APPLICANT by its counsel further undertaking that it will not engage in any industrial action relating to the negotiations with the respondent concerning an enterprise agreement –
In this undertaking “industrial action” does not include any action by an employee if:
(a)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(b)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 work place, that was safe and appropriate for the employee to perform.
AND UPON THE APPLICANT by its counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998.
THE COURT ORDERS THAT:
Until further order, the respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons named in the schedule to this order as employees of the respondent with continuity of service save and except for the purpose of payment of wages; and
Until further order, the respondent, by itself, its servants and agents, is restrained from terminating the employment of the said employees and Alexander Pucar.
Paragraphs 1 and 2 do not prevent the respondent accepting the resignation of any of the said employees or Alexander Pucar.
Liberty to the parties to apply on the giving of 24 hours’ notice in writing to the other party.
The respondent’s application for disqualification is dismissed.
SCHEDULE
Bill Allison Brian Augustus Scott Benge Jerry Borg
Gary Boyd Spencer Bragg Joe Calleja Vince Camilleri
Tony Casey Phil Cotter Joe Darouti Arthur Davies
Eddy Dawson Noel Evans Chris Frost Jason Funnell
Ian Johnson Graham Mains Miladin Markovic Alan McLean
Michael Morawsky Glen Murray Warren Oxton Andrew Perkins
Daniel Phillips Ignacio Pinkihan Bernie Portelli Jim Ramsay
Andrew Rowley Kevin Saliba Michael Smith Tony Sultana
Ray Treacy Lou Vanderburg Anthony Younis Robert Heather
Shane Irvine Michael Mahboub Edgardo Fernandez Grace Overton
Marion Nemeth Michael Moses Brett Solomon Michael Galea
Christine Crook Albert McKinley Gary Conlon Michael Dukes
Anthony Spicer S Reti J Carratt A Prasad
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 382 of 1998
BETWEEN
NATIONAL UNION OF WORKERS
APPLICANTAND:
DAVIDS DISTRIBUTION PTY LTD
RESPONDENT
JUDGE(S):
NORTH J
DATE:
1 DECEMBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The question before the Court is whether existing orders should be continued pending the trial of the action, which is presently fixed to start on 7 December 1998. The effect of the orders is to restrain the respondent from carrying out its threat to terminate the employment of about 270 employees who were on strike from 8 July 1998 until about 28 August 1998 (in these reasons, these employees will be referred to as “the strikers”) and to require the respondent to reinstate 52 employees whom the respondent says were dismissed for the reason that they were present on a picket and impeded the movements of trucks into and out of the respondent’s premises in the course of the strike (in these reasons, these employees will be referred to as “the picketers”).
BACKGROUND
Davids Distribution Pty Ltd (Davids), the respondent, operates a large wholesale grocery business. It distributes goods to retailers from centres at Blacktown and Silverwater in New South Wales and Fyshwick in the Australian Capital Territory. The National Union of Workers (the Union), the applicant, is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (the Act). Davids employed about 300 people at the Blacktown distribution centre, about 60 at the Silverwater distribution centre and about 20 at the Fyshwick distribution centre. Many of these employees were members of the Union.
In October 1997, the Union served a log of claims on Davids seeking a new industrial agreement, including increased wages for employees at the distribution centres. This claim developed into a long running dispute, characterised by many proceedings in the State and Federal Industrial Relations Commissions. It is not necessary to recount the involved history of the dispute prior to June 1998.
The events directly relevant to the issues raised in this application commenced on 16 June 1998. On that day, the Union served a notice of intention to take industrial action on Davids. It appears that this notice was later withdrawn. But, in apparent response to it, Davids gave its employees a memorandum, dated 18 June 1998, in the following terms:
“The National Union of Workers has advised us that its members employed by us will be commencing an indefinite stoppage from tomorrow. As union delegates have commenced asking for annual leave we are forced to assume that there will be such a strike.
You should be aware that whilst your union is advising you that the strike is ‘protected action’ under Federal industrial legislation, our legal advice is that it is not. This matter will not be resolved until well after the strike.
If our legal advice is correct and the strike was not protected action, then it is clear that if you take part in the strike you will be guilty of misconduct. Of course if the union is correct then you will not. It is a matter for you to decide whether to risk your employment on the basis of the union’s advice.
Regardless of the above issue, it is clear that stopping trucks entering and leaving the premises is not, and never can be, protected action.
Any employee who, whilst engaged in a strike or otherwise, interferes with the free access to or exit of any vehicles or people from any of the warehouses operated by this company will clearly be guilty of serious and willful [sic] misconduct. Such employee’s employment will be terminated with immediate effect.”
On the same day, the Union served on Davids a notice of intention to take industrial action, which read as follows:
“NOTIFICATION OF PROTECTED ACTION
(S.170MO)In accordance with section 170MO of the Workplace Relations Act 1996 the National Union of Workers hereby gives notice of protected action in the form of
* bans and rolling stoppages
by members of the Union employed by
Davids Distribution Pty Limited
At the following sites:Davids Distribution Pty Limited
37 Bessemer Street, Blacktown NSW 2148
Ph: 9208 1222; Fax: 9208 1257Davids Distribution Pty Limited
4 Newington Road, Silverwater
Ph: 9202 4301; Fax: 9202 4308Davids Distribution Pty Limited
Cnr Nyrang and Mildura Streets
Fyshwick ACT 2609
Ph: 0262 9525 66; Fax: 0262 9509 01
This action shall commence on Thursday, 25 June 1998 and relates to the bargaining period initiated by the National Union of Workers in C No 2155 of 1998.”
On 25 June 1998, rolling stoppages commenced as notified. Then, at about 3 pm on 8 July 1998, an indefinite strike began and pickets were formed outside the entrances to the three distribution centres. On the next day, 9 July 1998, Mr Zammitt, the Assembly Manager at the Blacktown Distribution Centre, and Mr Blazejko, a Warehouse Supervisor at the Blacktown Distribution Centre, were instructed by Mr Richards, the State Manager for Distribution in New South Wales and the ACT, to take the names of employees whom they observed interfering with the free access of vehicles or persons at the Blacktown Distribution Centre. There were about 70 or 80 picketers present. Mr Zammitt and Mr Blazejko identified 35 employees. On the same day, Davids sent letters to the 35 employees, in the following form:
“Dear Sir,
You were observed at a picket line at the entrance of this company’s Distribution Centre at 37 Bessemer Street, Blacktown during the afternoon of Thursday, 9 July 1998.
Whilst on that picket line you were observed to interfere with the free access to or exit of vehicles and/or persons at the Distribution Centre. On the 18th of June 1998, I wrote to you advising you that your employment would be terminated if you engaged in conduct of that kind.As you are aware your conduct represents a dismissible offence. If you have any matter that you wish us to consider before taking action in respect of your conduct, your [sic] are invited to phone Mr David Small at or before 10:00am on 10 July 1998 on 9208‑1358.
Failing any satisfactory explanation or matter in mitigation being raised with us by that time your services will be terminated and cheque will be forwarded to you for outstanding monies.”
On 14 July 1998, Davids sent letters in similar terms to four more picketers in relation to alleged obstruction which occurred on that day and, on 20 July 1998, Davids sent a further ten letters to more picketers in relation to alleged obstruction which occurred on that day. On 20 August 19998, Davids sent a letter to Mr Reti in generally similar terms, although it alleged particular incidents against Mr Reti. It stated that he had damaged a bus window on 14 August 1998 and a prime mover window on 15 August 1998. On 21 August 1998, Davids sent letters in generally similar terms to Mr Prasad and Mr Carratt, although they alleged a particular incident against both, namely, damaging a bus window on 11 August 1998. In total, Davids sent such letters to 52 picketers.
On 13 July 1998, Davids obtained an ex parte injunction from the Supreme Court of New South Wales against the Union and three officers, restraining them from impeding the entry or exit of persons or vehicles from the New South Wales distribution centres. On 15 July 1998, Davids filed a motion for contempt, based upon the alleged breach of the ex parte orders obtained two days before. The hearing of this motion commenced on 27 July 1998, and concluded on 7 August 1998. The day before the hearing concluded, Davids sent the Union an offer to settle the dispute. On the day the hearing concluded, 7 August 1998, Davids sent a letter to the strikers, in the following terms:
“Dear Fellow Employee,
As you would be aware, the industrial dispute at our Blacktown and Silverwater sites has now been going for seven weeks. Whilst the company has made a substantial offer on increased wages, the union has apparently declined to even tell you of the offer or allow you to vote on it. Contrary to the misinformation contained in union circulars, the offer contains a number of changes to which the union has agreed and provides for a 6% wage increase whilst maintaining the 36 hour week.
Regardless of acceptance of the offer or otherwise the company is going to have to take some steps to return its operations to normal.
In early July we informed employees that the NUW maintained that the strike upon which employees were embarking was ‘protected action’. This has now changed.
Mr Belan, the NSW Secretary of the NUW, has announced on Radio 2KY and Radio 3CR that the action is being taken in conjunction with other unions including the MUA, the CEMEU, the AMWU, the CEPU and the Clerks Union. Section 170MM of the Workplace Relations Act makes it clear that industrial action is not protected if more than one organisation is involved. In other words, the strike is no longer a ‘protected action’. We have enclosed a copy of the section of the Act to assist you in obtaining advice. You should check Independent Legal Advice in relation to continuing with your strike.
As the strike is no longer a ‘protected action’, any further absence from employment by you is unauthorised absence from work for which you will be liable to termination.
UNLESS YOU ARE AT WORK ON OR BEFORE THE FIRST ROSTERED SHIFT ON WEDNESDAY THE 12TH AUGUST, YOU WILL BE REQUIRED TO SHOW CAUSE WHY YOUR EMPLOYMENT SHOULD NOT BE TERMINATED.”
THE BASIS OF THE APPLICATION
The Union filed the application in this proceeding on 11 August 1998, the day before the threatened dismissal of the strikers.
As the terms of the application are relevant to some of the arguments addressed by Davids, it is convenient to set out the terms, which were as follows:
“A. DETAILS OF CLAIM
On the grounds appearing in the accompanying Affidavit the Applicant claims:
1.A declaration that the Respondent has engaged in conduct in contravention of s.170MU of the Workplace Relations Act 1996 (the ‘Act’) in dismissing or threatening to dismiss employees, members of the Applicant, engaged in industrial action.
2.A declaration that the Respondent has engaged in conduct in contravention of Part XA of the Act in dismissing or threatening to dismiss employees, members of the Applicant, engaged in industrial action.
3.A declaration that the purported termination of employees, members of the Applicant, engaged in industrial action on and after 8 July 1998 was and is ineffective and void.
4.An order that the Respondent treat all persons employed by it on 8 July 1998 as employees of the Respondent and any purported termination of such person as void.
5.An order restraining the Respondent, its servants or agents from taking any and all steps to give effect to any purported termination of employment effected on or after 8 July 1998 and/or to give effect to any threat of termination made on or after 8 July 1998.
6.Penalties.
B.CLAIM FOR INTERLOCUTORY RELIEF
AND THE APPLICANT CLAIMS by way of interlocutory relief:
1.An order that, until further order of the Court, the Respondent, by its servants and agents, take no steps to give effect to any purported termination of employees of the Respondent who are members of the Applicant.
2.An order that, until further order of the Court, the Respondent, by its servants and agents, take no steps to give effect or carry out any threat to dismiss or terminate any employee of the Respondent, being an employee who is a member of the Applicant.”
The Union contended in argument that the dismissals of the picketers was wholly or partly for the various reasons set out below, and therefore contravened the section of the Act specified below:
(a)for the reason that the picketers had engaged in protected action (s 170MU(1)). The protected action was attending on the picket and/or taking and continuing strike action;
(b)for the reason that the picketers were members of the Union, which was seeking better industrial conditions, and the picketers were dissatisfied with their conditions (s 298L(1)(l));
(c)for the reason that, as a member of the Union, the picketers attended the picket and/or took and continued strike action for the purpose of furthering or protecting the industrial interests of the Union, such picketing and/or remaining on strike being:
(i)lawful; and
(ii)within the limits of an authority expressly conferred on the picketers by the Union under its rules (s 298L(1)(n)).
The Union argued that the Court had power to, and should, make interim orders having the effect of reinstating the picketers.
The Union also argued that the purported dismissals were void and ineffective because they were made in breach of the specified sections of the Act.
The Union contended that the threats to dismiss the strikers were wholly or partly for the various reasons set out below, and therefore contravened the section of the Act specified below:
(a)for the reason that the strikers had engaged in protected action (s 170MU(1)). The protected action was taking and continuing strike action;
(b)for the reason that the strikers failed to vote in favour of the making of an agreement to which the Union would be a party (s 298L(1)(e));
(c)for the reason that the strikers were members of the Union, which was seeking better industrial conditions, and the strikers were dissatisfied with their conditions (s 298L(1)(l));
(d)for the reason that the strikers, as members of the Union, took and continued strike action for the purpose of furthering or protecting the industrial interests of the Union, such strike being:
(i)lawful; and
(ii)within the limits of an authority expressly conferred on the strikers by the Union under its rules (s 298L(1)(n)).
The Union argued that the Court had power to, and should, make interim orders restraining Davids from carrying out its threat to dismiss the strikers.
THE COURSE OF PROCEEDINGS AND ORDERS MADE
On 11 August 1998, most of the employees of Davids were on strike and many of them were present on the picket. At the first hearing, on 11 August 1998, Davids gave undertakings not to dismiss any employees until 4.15pm on Friday, 14 August 1998, and the further hearing was adjourned until then.
On Friday, 14 August 1998, the matter was again mentioned. Davids expressed concern about the continuance of the picket and alleged continuing breach of the orders of the Supreme Court of New South Wales. The Union was not able to offer an undertaking in respect of the continuance of the picket. Consequently, the hearing was adjourned for mention by videolink on Monday, 17 August 1998, to allow the Union to consider the question. No injunctions were granted in the meantime.
On Monday, 17 August 1998, the Union was still not able to undertake that there would be no picket action by its members. But it indicated that the question would be considered by a meeting of members on Wednesday, 19 August 1998. Consequently, no injunctions were granted and the application for interim orders was adjourned for full argument until 26 August 1998.
On 26 August 1998, the application for interim orders was argued. The Union offered undertakings as to damages and an undertaking to cease industrial action. Davids indicated that it wanted the employees, other than the picketers, to return to work. For practical purposes, the only issue between the parties at the end of this day was whether the balance of convenience favoured the making of orders. The only issue of substance urged by Davids on this question was that the return of the picketers would cause acrimony in the workplace. As there was no evidence of this likelihood and Davids was prepared to take back strikers who had been on the picket but had not been dismissed for their attendance, the Court granted injunctions in the following terms, on the undertakings set out below:
“UPON THE APPLICANT by its Counsel undertaking to pay to any party adversely affected by these Orders such compensation (if any) as the Court thinks just, in such manner as the Court directs –
AND UPON THE APPLICANT by its Counsel further undertaking that from 3:00 pm on Friday 28 August 1998 it will not engage in any industrial action relating to the negotiations with the Respondent concerning an enterprise agreement –
In this undertaking ‘industrial action’ does not include any action by an employee if:
(a)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(b)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 work place, that was safe and appropriate for the employee to perform.
AND UPON THE APPLICANT by its Counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998.
AND UPON THE APPLICANT by its Counsel further undertaking to enter into an agreed process of discussion with the Respondent as to the circumstances of the purported termination of each of the 52 employees with a view to narrowing the differences between the parties on this issue.
THE COURT ORDERS THAT:
1.Until 4:00 pm on 9 September 1998, the Respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons employed by it on 8 July 1998 as employees of the Respondent with continuity of service save and except for the purpose of payment of wages; and
2.Until 4:00 pm on 9 September 1998, the Respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, be restrained from taking all and any steps to give effect to any purported termination of employment effected on or after 8 July 1998 or to give effect to threat of termination made on or after 8 July 1998.
3.The further hearing of this application be adjourned to 10:15 am on 9 September 1998 to consider the extension of the above orders beyond 9 September 1998 and for directions.
4.Liberty to apply on very short notice.”
Reasons for decision were given. The further hearing was adjourned until 9 September 1998 to allow Davids to adduce evidence on the narrow question of the possible difficulty arising in the workforce from the continued presence of the picketers at work.
As a result of the orders, the strikers and picketers returned to work in shifts commencing on 28 August 1998.
On 9 September 1998, new counsel appeared for Davids. They sought to reopen the entire argument. In the end, I reluctantly agreed to hear argument on all issues and Davids’ argument took the entire day. In the course of argument, counsel for Davids raised the problem that the existing orders prevented resignations of employees and prevented Davids recognising the abandonment of employment by some employees. Consequently, the orders made on 26 August 1998 were slightly modified, by adding a new paragraph 2, as follows:
“2.Order 1 does not apply to employees of the Respondent who resign or abandon their employment.”
Otherwise, the orders made on 26 August 1998 were continued until 22 September 1998, the date fixed for the Union to put its argument in response.
On 22 September 1998, the Union put its argument and Davids foreshadowed an application for disqualification. This application, which is dealt with in detail later in these reasons, was heard on 23 September 1998. On 23 September 1998 I reserved my decision in relation to the application for interim relief and on the application for disqualification. The orders made on 26 August 1998, as modified on 9 September 1998, were continued until the determination of the application for interim orders.
The Union argued that the existing orders should be further continued and Davids argued that the orders should be discharged.
Resolution of the issues before the Court requires reference to a number of statutory provisions.
STATUTORY PROVISIONS
SECTION 170MU AND ASSOCIATED PROVISIONS
One basis for the Union’s application is asserted to be s 170MU, which relevantly provides:
“170MU (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.
.....
(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.”
Section 170MU is found in Division 8 Part VIB of the Act and the Part is entitled “Certified Agreements”. The object of the Part is “to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business” (s 170L). The scheme of the Division is to provide for a bargaining period, during which the taking of certain industrial action is immune from legal action. A bargaining period is commenced by service of a notice of initiation of bargaining period by a negotiating party on another party with whom the former seeks to make an agreement. Section 170ML identifies conduct that constitutes protected action. It provides relevantly as follows:
“170ML (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.
…
(7) This section has effect subject to the following provisions of this Division.”
“Industrial action” is defined in s 4(1), for the purposes of, inter alia, s 170ML, as follows:
“ ‘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
(d)a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if:
(i)the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii)the failure or refusal is in connection with an industrial dispute; or
(iii)the persons are employed by the Commonwealth or a constitutional corporation; or
(iv)the persons are employed in a Territory;
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.”
Section 4(9) provides:
“For the purposes of this Act:
(a)conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b)a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.”
The immunity of industrial action from legal action depends upon the industrial action fulfilling certain conditions. The conditions relevant in this case are the absence of action in concert (s 170MM) and the giving of notice (s 170MO).
Section 170MM provides:
“170MM (1) Engaging in industrial action is not protected action if:
(a)it is engaged in in concert with one or more persons or organisations that are not protected persons; or
(b)it is organised other than solely by one or more protected persons.
(2) Organising industrial action is not protected action if:
(a)it is organised in concert with one or more persons or organisations that are not protected persons; or
(b)it is intended to be engaged in other than solely by one or more protected persons.
(3) In this section:
protected person means:
(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.”
Section 170MO relevantly 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:
…
(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.
....
(5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.”
The immunity of certain protected action, and the limits to the extent of the immunity, are set out in s 170MT (2) and (3), as follows:
“(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 being brought in respect of anything that occurred in the course of industrial action.”
Enforcement of, inter alia, s 170MU and provision for remedies for contravention of the section are provided in Division 10 of Part VIB. Section 170MU is defined as a “penalty provision” (s 170ND(c)). Section 170NF(1) provides:
“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.”
The Federal Court is an eligible Court (s 170NE(a)).
Section 170NG provides:
“An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.”
Section 170NH provides:
“(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.”
SECTION 298K AND ASSOCIATED PROVISIONS
The other basis for the Union’s application is asserted to be s 298K, which is found in Part XA and which relevantly provides:
“(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a)dismiss an employee;
(b)injure an employee in his or her employment;
(c)alter the position of an employee to the employee’s prejudice;
(d)refuse to employ another person;
(e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person.
The prohibited reasons upon which the Union relied are set out in s 298L (1) (e), (l) and (n), as follows:
“(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
....
(e)in the case of an employee – has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or
....
(l)in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions; or
....
(n)as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i)lawful; and
(ii)within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.”
An application for orders under s 298U, in respect of conduct in contravention of Part XA can be made to the Federal Court. Section 298U provides:
“In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:
(a)an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i)in the case of a body corporate - $10,000; or
(ii)in any other case - $2,000;
(b)an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;
(c)an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
(d)an order requiring the person or industrial association not to carry out a threat made by the person or association, or not make any further threat;
(e)injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f)any other consequential orders.”
The onus of proof is dealt with in s 298V, as follows:
“If:
(a)in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.”
THE BASIS OF THE ORIGINATING APPLICATION
NO CLAIM FOR REINSTATEMENT UNDER THE ACT WAS MADE
Counsel for Davids contended that the Court could not entertain a claim for reinstatement under the Act because the application made no claim for reinstatement under the Act. There are references in paragraphs 1 and 2 of the application to conduct in contravention of s 170MU and Part XA of the Act. But these references, so it was contended, were directed to an allegation that any termination of employment was illegal and, by reason of the illegality, ineffective and void. That allegation, it was argued, was intended by the Union to support the relief sought in paragraphs 4 and 5, namely, orders requiring Davids to treat any termination as void and restraining Davids from giving effect to any such termination. It was argued that the relief was not sought under the Act but was sought in the exercise of the Court’s general jurisdiction. The relief was not a claim for reinstatement as is provided for in s 170NH and s 298U(b).
In my view, the substance of the relief sought in paragraphs 4 and 5 is reinstatement of employment as from the date of termination. This relief is claimed in respect of each of the three separate bases of liability set out in paragraphs 1, 2 and 3. The application would have put the matter beyond argument if it had added at the end of paragraph 1 “and for orders for reinstatement under s 170NH”, and had added at the end of paragraph 2 “and for orders for reinstatement under s 298U(b)”. But, even in the absence of these words, a fair reading of the application leads to the same construction.
There is, however, a more fundamental answer to the argument. One purpose of the written application is to require the applicant to convey to the respondent the basis of its claim and, thereby, to allow the respondent a proper opportunity to respond. Even if Davids was initially in doubt as to the basis of the Union’s claims, the course of argument made it clear that the applicant relied on s 170NH and s 298U. Davids had, and took advantage of, the opportunity to put full argument to the Court on the Union’s claims under s 170NH and s 298U. Even if there were some inadequacy in the terms of the application, the Court would not, in these circumstances, refuse to deal with the Union’s claims under s 170NH and s 298U. The matter would fall within the terms of s 22 of the Federal Court of Australia Act 1976, which provides:
“The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.”
NO PROCEEDINGS FOR A PENALTY
Davids also argued that reinstatement could be ordered under s 170NH or s 298U only if an application were made under s 170NF or s 298T. These sections were, it was contended, “gateways” to relief under s 170NH and s 298U.
Even if the proposition were correct, it would not assist Davids in the present case because paragraph 6 of the application seeks the imposition of penalties.
But, in my view, the proposition is not correct. An application for a penalty under s 170NF is not a “gateway” to relief under s 170NG or s 170NH. Each of the sections provides for different relief. Each form of relief may be claimed independently. In Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (Federal Court of Australia, 9 September 1998, unreported) Ryan J held that an application for an injunction under s 170NG or relief under s 170NH could be granted even if no penalty was claimed under s 170NF. His Honour held that the alleged contravention of s 170MU was a matter arising under the Act in relation to which the Court has jurisdiction under s 412 of the Act, which provides:
“(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.”
His Honour said, at pp16-17:
“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 were 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).”
THE POWER OF THE COURT TO MAKE INTERIM ORDERS
SECTION 298U
Counsel for Davids submitted that s 298U did not allow the Court to make interim orders for reinstatement. Two arguments were advanced. One was that the opening words of the section “In respect of conduct in contravention of this Part, the Court may .... make one or more of the following orders” meant that the orders can only be made after a final determination that there has been a contravention. This argument was rejected by the majority of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, at 655:
“The applications which may be made to the court under s 298T and the orders which may be made by the court under s 298U are defined in the same terms, namely, ‘in respect of conduct in contravention of this Part’. Counsel for the appellants submits that those words preclude the exercise of any of the powers prescribed by s 298U unless the court is satisfied on a final hearing that the contravening conduct has in fact occurred. But s 298T is not defining a condition that must be satisfied before an application can be made or the jurisdiction to hear and determine the application can be exercised; that section is defining the subject matter of the court’s jurisdiction under the Act. Whether or not an application is ‘in respect of’ contravening conduct depends not on the facts that are ultimately found but on the basis of the relief which is sought by the party invoking the jurisdiction. If the relief sought is an order of the kind prescribed in the lettered paragraphs of s 298U and if the basis of the relief is alleged conduct in contravention of Pt XA of the Act, the jurisdiction of the court is effectively invoked.”
The other argument advanced by Davids was that, upon the proper construction of s 298U, the Court was precluded from granting an interim order for reinstatement. Counsel for Davids contended that there was a general power to grant interim injunctions in s 298U(e). The power to grant specific relief by way of reinstatement was contained in s 298U(b). This specific power was not expressed to include a power to grant interim reinstatement. Consequently, it was argued, Parliament must be taken to have intended that the power to order reinstatement was limited to the making of final orders. The Union relied on s 23 of the Federal Court of Australia Act as the source of power to make interlocutory orders for reinstatement. It provided:
“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”
Davids then responded that s 298U was an exclusive code, restricting the relief available by way of reinstatement to final orders. Reliance was placed on Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 162. Thomson was concerned with s 80 of the Trade Practices Act 1974 (Cth), which provided for the Court to grant final injunctions restraining a person from contravening a provision of the Trade Practices Act. Section 45(2) of the Trade Practices Act prohibited contracts, arrangements or understandings which had the purpose or likely effect of substantially lessening competition. The majority (Gibbs CJ, Stephen, Mason and Wilson JJ) held that s 23 of the Federal Court of Australia Act did not allow the Court to grant a final injunction beyond the circumstances referred to in s 45(2). Their Honours said, at 161:
“When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act”;
and, at 162:
“....s 80 proceeds upon the footing that it constitutes the Federal Court’s exclusive charter to grant injunctions restraining, or relating to, contraventions of the Trade Practices Act. .... The inference is irresistible that Parliament looked upon s 80 as a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Trade Practices Act.”
Davids’ argument was that s 298U also enacted such a limitation and thereby precluded the operation of s 23 of the Federal Court of Australia Act.
In my view, s 298U is not an exclusive code in relation to the grant of interim relief by way of reinstatement. This was also the view of the Full Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626, where it was said, at 637‑638:
“Moreover, having regard to the provisions of the Workplace Relations Act it should not be assumed that the principles expressed in cases such as JC Williamson and Argyll have application to contracts of employment regulated by that Act. For example, the Act contemplates the reinstatement of a wrongfully dismissed employee. When the legislation contemplates relief of that type then there is no reason why interlocutory relief which may have the same practical effect should not be available to an employee whose rights have been arguably unlawfully infringed.”
On appeal, the High Court considered the power to make interlocutory orders in relation to the power granted in s 298U(e) to make orders “that the Court thinks necessary to stop the conduct or remedy its effects”. That power was not a power to make interim orders. The majority of the High Court considered that s 23 of the Federal Court of Australia Act provided power to make interlocutory orders by reference to the final relief claimed under s 298U(e). The majority said, at 655-656:
“[26] .... In so far as the power of the court under s 298U(e) is to make an order necessary to remedy the effects of contravening conduct, counsel for the appellants may well be correct in submitting that the power conferred by s 298U(e) is exercisable only when those effects have been found to exist. That is the condition upon the power to make a final order; it is not the definition of the jurisdiction to hear and determine an application in respect of alleged contravening conduct. The power to make an interlocutory order is exercised by reference to the relief finally available but that is not, or is not necessarily, to say that the power to make the final order is the source of the power to make an interlocutory order or confines the power to make an interlocutory order.
[27] .... Once the jurisdiction conferred on the Federal Court by the Act is invoked, that court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make ‘orders of such kinds, including interlocutory orders ..... as the Court thinks appropriate’. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the court in that class of proceeding. It cannot be invoked to grant an injunction where the court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction (Byrne v Australian Airlines Ltd (1995) 185 CLR 410, at 425-426). But this is not such a case.”
In the same way that the majority of the High Court in Patricks held that s 298U(e) was not an exclusive code of the remedies available under that section, I hold that s 298U(b) is not an exclusive code of the remedies available. Section 23 of the Federal Court of Australia Act allows the Court to make interlocutory orders for reinstatement.
SECTION 170NG AND SECTION 170NH
Counsel for Davids contended that s 170NG did not apply to past contraventions of s 170MU. It could not, therefore, be a basis for final relief in relation to the picketers who were dismissed. The section is concerned with a power to restrain continuing or future contraventions. Section 170NH was complementary, in that it applied to past contraventions and allowed orders for rectification by way of reinstatement or compensation. There is merit in this analysis.
Counsel for Davids, however, submitted that s 170NG and s 170NH permitted the Court to make final orders only. In respect of s 170NH, this conclusion flowed from the opening phrase “If an employer contravenes section 170MU ....”. It was argued that these words required the establishment of a proven contravention before any orders could be made. Doubtless, the purpose of these words is to specify the jurisdiction of the Court to make final orders. In my view, that is the only purpose of the phrase. It has nothing to say, either expressly or by implication from its context, about the circumstances in which interim orders may be made. Section 170NH is not an exclusive code in relation to reinstatement orders. It does not exclude the operation of s 23 of the Federal Court of Australia Act in respect of the power to make interlocutory orders for reinstatement.
Even if s 170NH were an exclusive code in respect of the making of final orders, it would not prevent s 23 from operating in respect of interlocutory orders. In Thomson, the High Court said, after holding that s 80 of the Trade Practices Act provided a code in relation to the power to make final orders, at 165:
“No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the Court or to the subject matter of the litigation, as Deane and Fisher JJ observed, even though it is not in a form which falls within s 80.”
In my view, s 23 of the Federal Court of Australia Act gives power to make interlocutory orders in cases in which final orders may be made under s 170NG or s 170NH. Nothing in these sections suggests that they restrict the application of s 23. Section 23 is available in the same way and for essentially the same reasons as it is available in relation to s 298U.
THE GENERAL APPROACH TO THE CONSIDERATION OF THE MAKING OF INTERIM ORDERS
As the Court has power to make the interim orders sought, the question arises whether the Court should make these orders. The traditional approach to this matter is to consider whether the applicant has established a serious question to be tried, and whether the applicant has established that the balance of convenience favours the grant of the orders: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651, at 653;Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, at 153-154; Murphy v Lush (1986) 65 ALR 651, at 652; Epitoma Pty Ltd v Australasian Meat Industry Employees’ Union (1984) 3 FCR 55, at 58-59.
SERIOUS QUESTION TO BE TRIED
Counsel for Davids contended that there were three obstacles in the way of the Union establishing that there was a serious question to be tried that the picketers were dismissed for the reason that they engaged in protected action. He contended that the picketing was not protected action because:
(a)the notice of intention to take industrial action did not conform to the requirements of s 170MO;
(b)picketing was not industrial action within the definition in s 4(1) of the Act;
(c)the action was taken in concert with other Unions and was therefore not protected, as a result of the operation of s 170MM.
The obstacles referred to in paragraphs (a) and (c) apply equally to the case the Union sought to make in respect of the strikers.
NOTICE – SECTION 170MO
Davids contended that the notice of 18 June 1998 of intention to take industrial action did not conform to the requirements of s 170MO(5), in that it did not state “the nature of the intended action” and it did not state “the day on which it will begin”. The action to be taken was described in the notice as “bans and rolling stoppages” and was stated to commence on 25 June 1998. The action taken, for which protection is claimed by the Union, is the strike and picket from 8 July 1998 until 11 August 1998, when this application was filed.
What is meant by “the nature of the intended action” is governed by the context in which s 170MO(5) appears. Unlike the equivalent United Kingdom legislation: Trade Union & Labour Relations (Consolidation) Act 1992 (UK), as amended by the Trade Union Reform & Employment Rights Act 1993 (UK), the Act provides a comprehensive definition of industrial action. In the absence of subsection (5), the only requirement would be to notify that “industrial action” was to be taken. The presence of subsection (5) allows me to assume that, in its absence, a simple reference to the expression “industrial action” in a notice would suffice. The function of subsection (5) is to require notice of the “nature” of the action. The “nature”, in my view, is a reference to the specific element of the definition of industrial action which applies to the situation. This is a limited requirement to specify the general type of action to be taken. It can be contrasted to a requirement to notify “particular” action intended to be taken. There is good reason for a limited notice requirement. The construction, which I favour, has the advantage of certainty. Those notifying need only choose a description from the list of action within the definition. A requirement to notify particular action would often lead to controversy as to whether the action notified fell within the definition. This would inject uncertainty into a process which requires as much certainty as is possible. That Parliament has opted for certainty at some expense to comprehensiveness of description is evident from the requirement to specify the time of commencement of the industrial action. There is no requirement to specify the duration nor, as is required by the United Kingdom legislation, whether the action is to be continuous or discontinuous.
To determine what reference to the definition will suffice as a description of the nature of the industrial action to be taken, it is necessary to examine the definition of industrial action. The definition covers three types of activity. A strike is covered by subparagraph (d), and work to rules or go slows and like conduct is covered by subparagraph (a). Both provisions refer to the action taken by an employee in respect of the employee’s own work. Subparagraphs (b) and (c) include actions of employees in relation to others. They both relate to bans, limitations or restrictions on the performance of work, the acceptance of work, or offering for work. This subject matter remains constant throughout both subparagraphs. The remaining matters in each subparagraph are directed to the jurisdictional basis of the provision. Thus, if the notice refers to “bans”, it must be taken to be a reference to the bans referred to in subparagraphs (b) or (c) of the definition, that is to say, bans on the performance of work, the acceptance of work, or the offering for work. The description “bans” sufficiently describes the nature of the industrial action where the person notifying intended, at the time of notification, to impose bans at the time designated in the notice. Reference to the jurisdictional basis of the provision is not necessary in order to describe the nature of the industrial action for the purposes of s 170MO(5). Thus, in my view, there is a serious issue to be tried that the notification of “bans” was a sufficient notification of the action of the picketers in attending the picket.
Thus, the safest course for persons notifying an intention to take industrial action is to adopt the language of the definition of “industrial action”. But that is not to say that a notification which uses other words to describe the intended action will not be effective. There may, however, be more room for argument. Probably, notification of a “strike” would fall within paragraph (d). But does “rolling stoppages” describe the strike action taken after 25 June 1998 in attempted reliance upon the notice? It is accepted by Davids that there were rolling stoppages between 25 June 1998 and 8 July 1998. On 8 July 1998, there was a refusal to work which lasted at least until the filing of this application. It is argued that the uninterrupted strike action after 8 July was not properly described as part of “rolling stoppages”. In my view, it is arguable that the longer stoppage was part of the series, and it can properly be described as part of a series of rolling stoppages because of the events which occurred before it. The notice did not and was not required to state how long each of the rolling stoppages was to last. The definition of “industrial action” includes reference to a course of conduct consisting of a series of industrial actions (s 4(9)). In a letter dated 12 October 1998, Davids requested that the Court take account of the decision of Wilcox J in Construction, Forestry, Mining & Energy Union v Curragh Queensland Mining Ltd (Federal Court of Australia, 30 September 1998, unreported). In that decision, his Honour determined that a complete cessation of work was not within the description “overtime bans, bans on the use of contractors, work-to-rule, stop-work meetings and rolling stoppages”. However, the facts in that case were distinguishable from the present case. In that case, there was one interrupted cessation of work from 9 May to 25 August. In the present case, there was a series of stoppages of work commencing on 25 June 1998. That is to say, there was not a single cessation of work. Whether the circumstances fall within the description of the notice is a question of fact in each case. Wilcox J was concerned with a different set of facts than in the present case. In my view, “rolling stoppages” is an expression which arguably covers the present case of a series of stoppages of work. This type of problem of description shows the value of the construction which would permit a description of the nature of the industrial action by following the words of the definition in the statute. In this case, the industrial action would have been sufficiently described as “failing to attend for work in connection with an industrial dispute”. In my view, there is a serious issue to be tried that the action of the strikers was sufficiently notified by reference in the notice to “rolling stoppages”.
IS PICKETING WITHIN THE DEFINITION OF INDUSTRIAL ACTION?
In ordinary parlance, picketing is industrial action. It is a very common form of conduct used to support industrial demands. Other statutory schemes providing immunity for industrial action, such as United Kingdom legislation Trade Union & Labour Relations (Consolidation) Act 1992 (UK) as amended by the Trade Union Reform & Employment Rights Act 1993 (UK), extend the immunity to picketing subject to certain limits. In Castlemaine Perkins Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (Supreme Court of Queensland, 2 December 1997, unreported) Mr Justice Derrington had to consider whether picketing fell within the definition of “strike” under the Queensland Workplace Relations Act 1997. “Strike” was defined in broadly similar terms to “industrial action” under the Federal Workplace Relations Act. His Honour held that picketing fell within the definition. The differences in the provisions may be material in the final analysis but some of his Honour’s observations apply equally to the construction of the provision now under consideration. His Honour observed:
“It is such a significant part of industrial action [picketing] that if it were intended to have been excluded it might be thought, firstly, that that would somehow be made plain rather than depend upon an exclusive reading of fairly broad provisions of a definition; and secondly, that it would have been referred to in the Minister’s speech.
....
4.Normally picketing would be expected to be within the meaning of the expression ‘industrial action’ used to define the various activities in this way and the normal meaning of that term tends to colour the reading of that passage even though of course picketing does not amount to striking in the normal sense of the term.
5.The preservation of the right to picket seems in industrial law to be strongly associated with the right to strike in International Labour Law. See Creighton and Stewart Labour Law, second and paragraph 1102 footnote 2. It should be noted that under the provisions of the Act itself, section 3(I) under the title ‘Principle object of the Act’ refers to ‘assisting in giving effect to Australia’s international obligations in relation to labour standards’ and that includes the preservation of the right to strike in the broader sense.”
As was the case in Queensland, there is no suggestion that picketing is outside the definition of “industrial action” in the Minister’s second reading speech. Also, s 3(k) of the Act provides that “assisting in giving effect to Australia’s international obligations in relation to labour standards” is one of the means of achieving the principal objects of the Act. As Mr Justice Derrington observed, these considerations point to the likelihood that picketing is included within the definition of “industrial action”.
Turning now to the terms of the definition of “industrial action”, we see that such action includes “a ban .... on the performance of work, or on the acceptance or offering for work” and “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 ....”. In my view, it is arguable that picketing is a form of “ban” within the definition of industrial action in the Act. A picket is formed by a group of people assembled at the entrance to a workplace, to demonstrate the picketers’ demand that others not attend for or perform work. This is a form of ban on the performance of work. It is a physical and moral barrier to the performance of work. A ban is also, and perhaps more commonly, constituted by a decision of a governing organ of an organisation of employees to the effect that members of the organisation should not perform work. It is a moral and, possibly, legal barrier to the performance of work by members of the organisation. In neither case is the ban restricted to the work of the person imposing the ban. Further, it is arguable that a picket is 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 work. Again, the definition does not compel the conclusion that the practice must be in relation to the work of the person adopting the practice.
There are at least two indicators in the Act which support this construction. The immunity of protected action from legal action, granted by s 170MT(2), is limited to industrial action which does not involve personal injury, wilful or reckless destruction of or damage to property, or the unlawful taking, keeping or use of property. This limitation is likely to have been drawn with picket conduct in mind. If picketing was not industrial action, the limitation would apply only to injury to person or property associated with strikes or conduct such as work to rules. Personal and property injury is far more likely to be associated with a picket than with a refusal to work or a work to rules. Furthermore, if the definition of industrial action did not include picketing, a very common instrument of industrial disputation would be outside the scope of the power of the Industrial Relations Commission. A central power of the Industrial Relations Commission to intervene in industrial disputes relates to industrial action as defined and is contained in s 127(1) and (5), which provide:
“(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:
(a) an industrial dispute; or
(b)the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or
(c)work that is regulated by an award or a certified agreement;
the Commission may, by order, give directions that the industrial action stop or not occur.
....
(5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.”
The Federal Court has power to enforce these orders under subsections (6) and (7), which provide:
“(6) The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:
(a)has engaged in conduct that constitutes a contravention of subsection (5); or
(b)is proposing to engage in conduct that would constitute such a contravention.
(7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6).”
In FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366, Drummond J assumed that picketing was industrial action, although the question was not expressly determined by him. In the Australian Industrial Relations Commission (the Commission), in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269, at 275, Boulton J, on the application of certain unions, ordered the termination of a bargaining period under s 170MW of the Act. Section 170MW(1) and (3) provided:
“(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.
....
(3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening:
(a)to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(b)to cause significant damage to the Australian economy or an important part of it.”
The industrial action relied upon included strike and picket action, and retaliatory action by the employer. The employer and the Commonwealth argued “that industrial action referred to in s 170MW(3) and as defined in s 4 of the Act does not include picketing conduct”. This construction was referred to as the narrow construction. The unions and the State of New South Wales argued that picketing was industrial action. His Honour said, at 279-280:
“The nature of the power given to the Commission under s 170MW(1) and (3) also tends to support the adoption of a construction of s 170MW(3) which does not confine the subsection in the way contended by the Commonwealth and the Company. It is a special power which allows the Commission to terminate a bargaining period where there is a risk of serious harmful effects for the economy or the community. An order to terminate a bargaining period under s 170MW(3) may be made on the Commission’s own initiative, on the application of the Minister or on the application of a negotiating party (s 170MW(8)). Where such an order is made the Commission may exercise conciliation and arbitration powers under s 170MX to bring about a settlement of matters in issue. It would seem inappropriate to construe the subsection in such a way that the Commission can only take action where there is a risk of serious harmful effects caused by the taking of protected action.
For the above reasons, I tend to prefer the broader construction of s 170MW(3) put forward by New South Wales and the unions.”
His Honour, however, did not have to choose between the two constructions because there were grounds for termination of the bargaining period on both constructions. On appeal to a Full Bench of the Commission, his Honour’s decision was quashed: (1998) 80 IR 14. As to whether picketing was within the definition of “industrial action” the President, Justice Giudice, said, at p 32:
“Conduct that is not capable of being industrial action within the meaning of the Act is not a proper subject for assessment even if it is thought to be in support of the proposed agreement. ....
The parties were at odds on the issue of whether picketing fell within the definition of industrial action. No submission made on the appeal compels the view that picketing as such, whether lawful or unlawful, is within the definition of industrial action. It is axiomatic that picketing is conduct engaged in outside the workplace by persons who either are not employees or who, being employees, have absented themselves completely from work. Whilst employees in the latter category may be engaging in industrial action in that they are on strike, the picketing activity is distinct.”
Justice Munro, although agreeing in the result, said as to this issue, at p 53:
“Also, in my view, ‘picketing’ can be found to be industrial action within the meaning of the Act. Activity that can be identified as, or is called picketing is conduct by individuals, some of whom may be employees of the workplace picketed. In my view such activity or conduct may also in some circumstances constitute industrial action. Conduct that is picketing may, on occasions, be conduct that amounts to the adoption of a practice in relation to work, or a restriction on the performance or acceptance of work, within the definition of ‘industrial action’.”
It is not clear whether Commissioner Larkin agreed with Justice Giudice or Justice Munro on this issue. The union sought prerogative relief from the High Court against the decision of the Full Bench of the Commission. This application was remitted to the Federal Court. A Full Bench of the Federal Court (Spender, Moore and Branson JJ, 6 November 1998, unreported) quashed the decision of the Full Bench of the Commission. The Court held that it was not necessary to express a concluded view on whether picketing was within the definition of “industrial action”. The Court, however, did offer a tentative view that picketing was not industrial action. It said[BB1]:
Had that been done and you had come to court and told me that it had been done and then it had appeared that there was ongoing serious acrimony, then I might be persuaded about the bona fides of your client to act in an attempt to get the workplace back to work, but where all that I’ve got is a letter as I read to your earlier which says the federal court, in effect, has inflicted on us persons who are guilty of gross misconduct and then the evidence that comes up about the workplace is that nothing terribly much has happened apart from ordinary teething problems of the day or two after the return to work, what should I regard as the likelihood of your client acting in the exercise of its discretion between now and the trial to act in conformity with the requirements of the law?
MR BUCHANAN: There’s absolutely not the slightest basis to doubt that it will act in accordance with the law and the evidence of its - - -
HIS HONOUR: There’s a very grudging, half hearted, inadequate attempt to address what it saw as a concern, relating to balance of convenience, or tell me if I’m wrong about that Mr Buchanan, because is there anything more that your client did than send out the newsletter of 1 September which says in the second sentence:
The injunction requires Davids to accept back 52 terminated workers who’d committed acts of gross misconduct
MR BUCHANAN: You will find in the material – your Honour is not entitled to make the assumptions, much less act on them. You will find in the material and I think I am bound to say, your Honour, that it’s capable of evincing such a serious predisposition against the respondent in these circumstances that it raises very serious questions about your Honour’s participation in the trial.
HIS HONOUR: You say that, Mr Buchanan, I’m asking you at the moment for a response to an initial reaction I have had to those lines in the document.
MR BUCHANAN: It’s a statement of the company’s position. They’re very unhappy, of course, about the consequences of your Honour’s order but your Honour was told they would be. They did take the view that it was gross misconduct. They do take the view that the reinstatements were not justified and will not be justified at the trial.
HIS HONOUR: But you see, you are saying, look, it’s very wrong for the court to restrain until the trial this company in these circumstances from exercising its usual right to terminate because it’s going to create all sorts of problems. What I’m seeking to explore with you is, if your client was serious in putting its concern about balance of convenience as it put last time, that there would be acrimony in the workplace - - -
MR BUCHANAN: There has been obviously.
HIS HONOUR: In a sense it’s been provoked.
MR BUCHANAN: Your Honour can’t assume that.
HIS HONOUR: I can read the letter.
MR BUCHANAN: Your Honour hasn’t even read the affidavits which we filed.
HIS HONOUR: And that’s what I’m asking you to explain to me, how they bear upon this initial reaction that I have.
MR BUCHANAN: They bear upon it in this sense, that they do give - - -
HIS HONOUR: Perhaps you should take me to the particular parts, Mr Buchanan.
MR BUCHANAN: They are full of explanations of investigation of the complaints which have been made by both non-striking and striking employees.
HIS HONOUR: I haven’t read them, they do raise an important issue and I think you should take me to them in some detail.” (transcript 9/9/98, pp 69‑71)
The passage as a whole starts from tentative conclusions drawn from the affidavits which I had read that Davids, having raised the possibility of acrimony in the workplace, had done little thereafter to ensure that such acrimony was avoided. The passage proceeded to invite counsel to point to specific parts of the affidavits filed on the morning and not yet read, which might affect that “initial reaction”. Particular complaint is made about the sentence:
“.... what should I regard as the likelihood of your client acting in the exercise of its discretion between now and the trial to act in conformity with the requirements of the law?” (transcript 9/9/98, p 69)
The sentence contains a question seeking information. The sense of it, in context, is made clear by the elaboration which followed counsel’s observation that there was no basis to doubt that Davids would act in accordance with the law. The elaboration was as follows:
“HIS HONOUR: There’s a very grudging, half hearted, inadequate attempt to address what it saw as a concern, relating to balance of convenience, or tell me if I’m wrong about that Mr Buchanan, because is there anything more that your client did than send out the newsletter of 1 September which says in the second sentence:
The injunction requires Davids to accept back 52 terminated workers who’d committed acts of gross misconduct”. (transcript 9/9/98, p 69)
The whole point of this exchange was to explore whether any acrimony which had occurred had been contributed to by Davids’ own actions. This was a legitimate and important matter for inquiry, relevant to the determination of the balance of convenience .
Counsel for Davids then returned to the basic proposition that the balance of convenience favoured the making of no interim orders at all. He suggested that orders preventing not only reinstatement of employees but the subsequent termination of employment of those employees was “a serious and intrusive restriction” (transcript 9/9/98, p 74). In response, I said:
“I keep repeating, Mr Buchanan, these orders are interlocutory, they are designed to ensure that the status quo remains. If it was clear that your client had acted quickly and with determination to settle the workplace down, I think I’d be much more open to persuasion. I have the difficulty that the immediate response to the situation was to circularise the workplace with the letter that I’ve referred to which was not conducive to settling things down and stands on the rights that it has to appeal and so forth. I mean, I can’t stop it but it doesn’t encourage me to think that what is necessary in this case is the most stringent regulation of the conduct until the court can determine the case.” (transcript 9/9/98, p 74)
This passage raised with counsel for Davids the “difficulty” which I saw in the conduct of Davids after the making of order on 26 August 1998. It assumed that a serious question to be tried had been raised, and was exploring whether the failure to take sufficient steps to avoid acrimony in the workplace might justify the making of wide interim orders. The complaint made by counsel for Davids on the present application was that the passage suggested that Davids may not behave properly without wide restraint. This was the issue raised. But there was evidence about Davids’ conduct which needed discussion. To raise a matter which does not put a party in a favourable light is not the subject of legitimate complaint. This was a relevant matter, even if not favourable to Davids.
The issue was taken a little further on the next page. The question here was, again, whether there was any justification for interim orders beyond reinstatement. Counsel for Davids urged that, even if the Court was justified in reinstating the employees, it could not be justified in restricting Davids’ power to terminate their employment thereafter. To that, I said:
“Let me put this to you, Mr Buchanan. If, having failed in this interlocutory proceeding [and reinstatement orders were made], the company determined to provoke a number of employees whom it wanted to be rid of into a situation where it was able to terminate them for saying ‘get stuffed’ [a reference to an actual incident giving rise to a threat of dismissal] or something similar, it could achieve the exact same result as was sought to be achieved at least so it is found on this assumption and it is not my finding at this stage but on an assumption that there’s an arguable case of breach of 170MU or 298K. The position of the employer is so capable of being manipulated to achieve the same, that I would be looking if I was being asked to release control in the interim period, of some demonstration of bona fides and acting in a way which accepted that this was the regime that was going to apply until the hearing of case. Now, what do I in fact see the company have done?” (transcript 9/9/98, p 75)
Again, counsel for Davids in the present application argued that this passage demonstrated a view that Davids would not act properly. This is not a reasonable construction of the comment. The comment raised a theoretical reason for viewing the balance of convenience as favouring wide orders.
As the Union had not put its arguments in response by the end of the hearing on 9 September 1998, the matter was adjourned until 22 September 1998. The existing orders were continued in a slightly modified form. A reason for the continuation was the very fact that orders were then in place. I said to counsel for Davids:
“.... the orders are being made today because there are extant orders or were, yes there are extant orders. I have by no means determined either to accept or reject your submissions. They have been well put, they are not free from merit, and I will want to consider them, but one has to be realistic about the interim situation. There have been orders in place so far. The resumed hearing can only occur on the 22nd. In the meantime I will continue the orders but you oughtn’t to take that as any dismissive treatment of your arguments. I will consider them carefully. They’ve raised matter[s] which are, if not new, at least put in a much more amplified way.” (transcript 9/9/98, p 85)
Counsel for Davids submitted that Davids should be free to dismiss employees who misconducted themselves at work. It was alleged that Mr Pucar had harassed Mr Younan although, as to the nature of the conduct, counsel for Davids said:
“I apologise for this, your Honour, I really should be in greater command of this material, but it’s almost as new to me as it is to your Honour. I can’t turn it up, your Honour. I had an impression that there was some more material about Mr [Younan] but I confess I can’t find it at the moment.” (transcript 9/9/98, p 87)
In order to limit the continuing disputation, I fixed the trial for hearing on 9 November 1998. I then gave short reasons for the temporary continuation of the modified orders, as follows:
“Firstly that the trial is estimated on the basis of information presently available to take up to five days. The venue for the trial will be decided on 22 September 1998. Next, it should be noted that the purpose of the adjournment until 22 September is to allow the completion of argument on the application for interlocutory relief and the respondent’s notice of motion seeking variation or discharge of the injunctions. I have decided to continue orders in a slightly modified form in the meantime but emphasise that such orders are not made in any way as a reflection of the strength or weakness of the argument presently put comprehensively by Mr Buchanan on behalf of the applicant. I remain open-minded about the final result of the interlocutory application.
Mr Buchanan has raised in the course of today’s proceedings the difficulties in relation to termination by the company of certain employees for breaches of discipline. As I understand it that problem presently relates to Mr Pucar, Mr Taylor and Mr Dobson but he has pointed to the possibility that the current orders inhibit the company’s ability to deal with disciplinary matters effectively. I am conscious of the problem that this may cause for the company and consequently invite the company in the appropriate case to approach my associate for an urgent listing of any particular disciplinary incident that needs immediate attention.
In particular, should the company require the position of Mr Pucar to be ventilated, I have indicated that I am in Sydney in the next two days and would make some short time available for the purpose. Thereafter it will be a matter for – to approach my associate, but in any event the matter will be dealt with expeditiously. That protection is made available to the company in the light of the arguments so far put by Mr Buchanan and of course, not having heard what Mr Rothman has to say about the issue in detail.
It is desirable in my view that if urgent applications are to be made in relation to Mr Pucar or any others on disciplinary matters that the parties whether directly or by lawyers should confer to see if there is any common ground available so that the expense of further proceedings and the inconvenience necessarily connected with them can be avoided. Similarly, it would in my view be highly desirable for the parties to confer in relation to the 52 employees the union has undertaken to engage in such conference and I encourage Davids to do likewise.
It does seem to me also to be a matter of importance that Davids take positive steps to try and ensure as best the employer can that the workplace return to normality between now and 22 September during which time my orders will be in effect. It does seem to me from the perhaps limited view that I’ve gained in the course of the proceedings today that the communications with the employees in the letter of 1 September might in the current circumstances need some further explanation.
The position presently is that there are in place orders which should have the effect of returning the workplace to normal and it is desirable in my view that that message be communicated by the employer with the authority that that carries even though, as I recognise, the present orders are not the orders which the respondent would seek to have in place. Nonetheless they are in place and they will remain in place until 22 September barring any further legal proceedings and it would, I think, assist the matter if Davids took a positive step to bring that fact to the attention of their employees.
The extent to which Davids does so may well bear on the approach that I will have to take to the question of the balance of convenience for the period between 22 September and the date of the trial on 9 November. I say ‘may’ because I will, of course, hear argument as to the relevance of the conduct of Davids between now and 22 September, if indeed, there is evidence before me as to that matter. ....” (transcript 9/9/98, pp 94-95)
THE HEARING ON 11 SEPTEMBER 1998
Pursuant to the liberty reserved on 9 September 1998, Davids applied urgently to me to discharge the injunction to the extent necessary to allow Davids to dismiss Mr Pucar. This time, counsel who appeared on 26 August 1998 again appeared. No application was made that I should not hear the matter. The liberty to apply was reserved for urgent problems. I rejected the application on 11 September 1998 because there was insufficient urgency. I gave the following reasons for the decision:
“I think it is desirable that I indicate very briefly why I refused today’s application. On Tuesday, 9 September I reserved liberty to apply to the parties on short notice. In exercise of this liberty the respondent has applied for orders varying the existing orders to permit the respondent to terminate the employment of Mr Pucar. The only question that I will deal with today is whether the matter is of such urgency that it should be dealt with today rather than on the adjourned date for the application proper in 11 days time. I have indicated that I refused to deal with the matter as a matter of urgency today. It is essentially for the following reasons.
Firstly, the incidents with which the application is concerned today are about 10 days old. There is no evidence that there has been any difficulty in the prevailing situation over the previous 10 days in relation to Mr Pucar’s conduct. The remaining approximately same period between now and the resumed date should not therefore, it seems, give rise to any particular difficulty. Second, one disadvantage outlined by Mr Murphy of retaining Mr Pucar on the payroll is the need to pay him wages for the next 10 days. The answer to this is that the undertaking as to damages in operation in favour of the respondent would protect the respondent from any payment of wages which turned out to have been unnecessary.
Third, I have given careful consideration to the events upon which the respondent has formed the view that Mr Pucar should be terminated. It is possible to envisage circumstances which would justify a variation of such orders as are in place as a matter of urgency. In particular, if there was threatening conduct which was of recent origin and which was threatened to be repeated there may be cause, but the circumstances as outlined in Mr [Younan’s] affidavit accepting it is over the objections not yet [enunciated] by Mr Rothman but accepting it at face value, do not suggest to me such circumstances as require attention today rather than on 22 September.
Speaking broadly, the incidents which have given rise to the application began with a confrontation between Mr [Younan] and a Mr Hill. It is undoubted on the material upon which I am presently acting that Mr Hill’s action in blocking aisle seven was wrong. Mr Hill is no longer an employee of the respondent. He has resigned. The situation between Mr Hill and Mr [Younan] escalated, it appears, because Mr [Younan] took matters into his own hands rather than seeking the assistance of management.
He shifted the obstruction which prompted a reply by a fellow worker which caused a series of interchanges escalating in intensity and descending to the absurdity of the following exchange. As Mr [Younan] proceeded on his pallet mover along the now unobstructed aisle seven he passed one of the employees involved in the obstruction and that employee said ‘You fuck wit’. That provoked the response by Mr [Younan] ‘Did you swear? Why did you swear?’
The emphasis I interpolate being on the wickedness of using bad language. Not receiving an answer, Mr [Younan] responded ‘Don’t fuck up with me. Don’t talk to me.’ It seems to me clear that the stated abuse had become quite nonsensical by this point. Matters moved on and on the following Monday there was further verbal disputation between Mr Hill and Mr [Younan] which seems from the material so far to have followed on from the events of Friday. In the presence of Mr Pucar, Mr Hill said to Mr [Younan] ‘You bugger, we’re going to take you home tonight and you’re not going to work at Davids any more’.
Within a few sentences Mr [Younan] responded ‘Michael, if you want to do something to me, see me one to one’. It was at this point that Mr Pucar’s first intervention occurred. He said ‘Do you know you’re a scab, you fucking scab’. It should be noted that Mr Pucar’s first intervention was verbal. It was after a discussion between Mr Hill and Mr [Younan] and it was particularly immediately after Mr [Younan] had invited Mr Hill to settle the matter one to one.
Shortly afterwards as Mr Hill opened his car boot in the car park Mr [Younan] said to Mr Hill ‘Michael, are you going to see me on Forge Street?’. This appears in the way it is related in the affidavit to have been said by Mr [Younan] as a further stage in the invitation to settle their differences. Mr Hill responded ‘Yes, we’re going to see you there’. At this point it is said that Mr Pucar ran up and said to Mr [Younan] ‘You are a fucking scab. What do you think you are, smart coming back to work, you fucking cunt I’m going to kill you’ and I think it fair to say that at this point Mr Pucar was restrained by other employees.
Again, I think it proper to observe that this interchange occurred in the context of a conversation initiated by Mr [Younan] between Mr [Younan] and Mr Hill who had been involved in controversy and Mr Pucar should be seen as a participant in the animosity of two others. As I have remarked on a number of occasions one of those others, Mr Hill, has now left the employment of Davids. None of these conclusions should in any way be taken by the parties to suggest that the Court condones the alleged conduct in any way whatsoever.
Indeed as I have made it plain in argument such conduct, particularly if more remote from the time of commencement of employment, that is if such conduct were to have occurred later and in close proximity to the present, would cast real doubt upon the continuance of the orders but that is not the issue currently before the Court. The question is whether this conduct in all the circumstances is sufficient to invoke the liberty to apply for urgent relief.
To return to the narrative, Mr Pucar then apparently, although the facts are not entirely clear despite Mr Murphy’s attempted explanation of them – apparently Mr Pucar at this stage left the carpark with Mr Hill and drove to some spot. Then an incident occurred in which Mr Hill followed Mr [Younan] from the carpark, overtook him, pulled in .... in front of him and slowed down. Mr Murphy explained that it was not the allegation of Mr [Younan] that Mr Pucar was involved in this incident. It is not entirely clear to me that there is any significance of threat at this point.
The affidavit of Mr [Younan] then continues to identify Mr Pucar at some point on the Great Western Highway in that group of other people and that congregation apparently gave Mr [Younan] cause to be frightened. It seems to be, however, that that was because of the prior incidents and not because of anything that was particularly done at that time. This narrative of the events outlines an unlovely and regrettable course of events. However as I said, Mr Pucar is presently suspended, there is no suggestion that he will be at the workplace in the next 11 days.
The conduct is not of a nature in my view that it calls for urgent attention outside the consideration of the primary application for interlocutory relief. Yes, is there anything further – the court is adjourned.” (transcript 11/9/98, pp 34-37)
In the present application, counsel for Davids relies upon two paragraphs in the 37 pages of transcript of the hearing on 11 September 1998. The issue in both is the same. They both concern paragraph 4 of an affidavit sworn by Mr Younan on 10 September 1998 which, in part, said:
“From the moment that striking employees returned to work on Friday 28 August 1998, I observed a number of those storemen blocking aisles in the warehouse. This conduct hindered me in the normal performance of my work. I clearly recall one incident in particular which occurred at approximately 9:00pm on Friday 28 August 1998. On that occasion I was in aisle number 7 and it was just before I was due to commence my break. I observed Mr Michael Hill and a person who is known to me as ‘Bradsy’ standing in aisle number 7. I do not know Bradsy’s surname but I recognise him as a storeman who had been on strike during the period 8 July 1998 to 28 August 1998. As I approached these two men on my pallet mover they moved their pallet movers so as to block the aisle so that I could not proceed any further. It was apparent that they were aware of my presence and that they were deliberately coordinating their movements to prevent my passage through aisle 7. As a result of their conduct I had to wait for approximately 10 minutes in aisle number 7. I then got off my pallet mover and went to Bradsy’s pallet mover and moved it out of the way so that I could proceed. As I did this Bradsy said to me:
‘When you finish your work bring my crown back.’
I said:
‘You wait here and see if I bring it back.’
I then got back onto my pallet mover and proceeded along aisle number 7 passed [sic] Bradsy and Michael Hill. As I passed them Bradsy screamed out:
‘You fuck wit.’
I drove back to him and said:
‘Did you swear – why did you swear?’
Bradsy did not answer me. I said to Bradsy:
‘Don’t fuck up with me, don’t talk to me.’”
The first comment about which complaint is made is:
“HIS HONOUR: .... So what happens, Mr Hill admittedly on this evidence starts the ball rolling. Mr [Younan], I am looking now at the sentence just before the first conversation:
I then got off my pallet mover and went to Bradsie’s pallet mover and move it out of the way so I could proceed.
In the circumstances, Davids gave Mr [Younan] no guidance as to what to do so he takes the law into his own hands.” (transcript 11/9/98, p 16)
The second comment about which complaint is made is:
“HIS HONOUR: I am seeking to put to you that what I derive at the moment from your evidence in paragraph 4 is that and I put it to you, that undoubtedly the starting point was apparently a wrongful act by Mr Hill no longer an employee. That is the starting point and there is no escaping in your favour that that was a wrongful act on this evidence but why is it that Mr [Younan] responds in a way that is provocative if Davids had done the responsible thing and put in place a procedure to balance the other side of the undertaking then what escalated it seemed to me over a number of days between Mr Hill and Mr [Younan] into which Mr Pucar was drawn, may not have happened.” (transcript 11/9/98, p 18)
On the present application, counsel for Davids argued that the exchanges were unduly disparaging of Mr Younan’s position, and there was no solid foundation for the suggestion that Davids had not done enough to ensure a smoother return to work. I have previously addressed the evidence as to Davids actions in relation to the return to work. There was an issue to be explored whether the alleged harassment was partly the responsibility of Davids. No lack of neutrality emerges from the reference to this issue. Mr Younan’s position was referred to, taking into account the wrongful act done to him. In the first passage, it is said: “Mr Hill admittedly on this evidence starts the ball rolling”, and, in the second passage, it is stated that “there is no escaping in your favour that that was a wrongful act”. These references provided the necessary balance to an assessment of the actions of Mr Younan.
THE HEARING ON 22 SEPTEMBER 1998
When the hearing resumed, on 22 September 1998, counsel for Davids foreshadowed the present application for disqualification. I determined first to hear the Union’s arguments in response to the arguments of Davids which had been put on 9 September 1998 and then to consider the present application. In the event, the Union’s argument and Davids’ reply took all of 22 September 1998. Consequently, the present application was argued on 23 September 1998.
CONCLUSION
For the reasons expressed, I refuse Davids’ application for disqualification.
I certify that this and the preceding one hundred and ten (110) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North
Associate:
Dated: 1 December 1998
Counsel for the Applicant: (11, 17 August) Mr S Rothman SC
(14 August) Mr J H Pearce
(26 August) Mr S Rothman SC with Mr J H Pearce
(9, 11 September) Mr S Rothman SC with Mr J H Pearce
(22, 23 September) Mr S Rothman SCSolicitor for the Applicant: Ryan Carlisle Thomas Counsel for the Respondent: (11 August) Ms M L Warren QC
(14 August) Mr G Hatcher with Mr J Murphy
(17 August) Mr G Hatcher
(26 August) Mr J Murphy with Mr B Cross
(9 September) Mr R J Buchanan QC with Mr B Cross
(11 September) Mr J Murphy
(22, 23 September) Mr R J Buchanan QC with Mr B CrossSolicitor for the Respondent: Middletons Moore & Bevins Date of Hearing: 11, 14, 17, 26 August, 9, 11, 22 & 23 September 1998 Date of Judgment: 1 December 1998
[BB1] at p17
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