Telstra Corporation Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[1997] FCA 1516

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 718 of 1997

BETWEEN:

TELSTRA CORPORATION LIMITED (ACN 051 775 556)
Applicant

AND:

THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC,
ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA
First Respondent

COLIN COOPER
Second Respondent

LEN COOPER
Third Respondent

LEN McLEAN
Fourth Respondent

JUDGE:	RYAN J
DATE:	18 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

There is before the Court a motion for the following interlocutory orders:

1.The respondents be restrained from engaging in or organising, and from encouraging, advising or procuring any employee of the applicant to engage in, any act or omission which constitutes -

(a)a failure or refusal to attend for work, or

(b)a failure or refusal to perform work, or

(c)a ban, limitation or restriction on the performance of work,

where that act or omission has the purpose, or has purposes that include the purpose, of supporting or advancing claims against the applicant in respect of the employment of employees whose employment is subject to:

·the Telstra/CEPU Operator/Consultant Job Design Work Review Agreement 1997; or

·the Telstra (Network Operations)/CEPU - Operations and Maintenance Agreement 1997; or

·the Telstra Communications Officer Structure Review Agreement 1997; or

·the Telstra Technical & Lines Workforce Rearrangements Agreement 1997

until such time as the nominal expiry date or dates of such agreement or agreements has passed.

2.The respondents be restrained from taking any steps to organise, procure or facilitate a stopping of work by employees of the applicant or any of them on Friday 19th December 1997;

3.The first respondent inform its officers, shop stewards and members within the area of its membership covered by the terms of the letter from the first respondent to the applicant dated 15th December 1997, a copy of which is marked as Exhibit “RMM 31” in the affidavit of Robert Malcolm MacKenzie sworn on 16th December 1997, that the stoppage of work on Friday 19th December 1997 will not take place;

4.The time for the service of this Notice of Motion be abridged so as to permit service at or before 12:00 noon on Wednesday 17th December 1997.

The respondents are The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”),  Colin Cooper, the Divisional President of the Communications Division of the CEPU,  Len Cooper, a Divisional Vice President of the same Division and Victorian Branch Secretary of the Victorian Telecommunications and Services Divisional Group Communication Division of the CEPU, and Ian McLean, the Branch Secretary of the Queensland Telecommunications and Services Divisional Group Communication Division of the CEPU.

I consider, contrary to the submissions made by Mr Haylen QC, who appears with Mr Reitano for the respondents, that the Court has a discretion to grant interlocutory or interim relief restraining the contravention of a penalty provision as defined in s 170ND of the Workplace Relations Act 1996. However, the sections which have been invoked by the applicant in this case raise difficult questions of the application of elusive concepts of purpose and mixed or multiple purposes.

It is clear that the industrial action to be taken in the present case will not directly involve any employee whose employment is subject to an agreement or award, the nominal expiry date of which has not passed.  The primary purpose of the employees who will be involved in the threatened industrial action may be taken, I consider, to be that of advancing claims against the applicant in respect of the employment of the participating employees.  I have not been persuaded, on the limited reflection which I have been able to give to the matter today, that the reference to “purpose” in s 170MN of the Act should be construed as being a reference to a purpose which includes the proscribed purpose, as was indicated in a different legislative context in Mikasa (N.S.W.) Pty Ltd v Festival Stores (1972) 127 CLR 617 which was applied by the High Court in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, where Mason J said, at 616:

In the light of what was said by Barwick CJ and Walsh J in connection with the words “for the reason that” in s 66B(2)(d) of the Trade Practices Act 1965-1971 in Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 at 634-5 and 646; [1972-73] ALR 921 at 929-30 and 937, the Industrial Court has held (see Roberts v General Motors-Holden’s Inc (1975) 30 IIB 2085) that an employer is actuated by a particular reason or circumstance, if that reason or circumstance was “a substantial and operative factor” influencing him to take that action.  The Industrial Court has thereby rejected, rightly in my opinion, the notion that sub-s (1) is speaking of the sole or predominant reason actuating the employer.

In the circumstances of the present case I consider that an interlocutory injunction, if it were to be granted, should be confined to confining the presumptively restrained respondents from engaging in or organising and from encouraging, advising, or procuring any employee of the applicant to engage in industrial action for the purpose of supporting or advancing claims against the applicant in respect of the employment of employees whose employment is subject to the four specified agreements, the nominal expiry date of which has not passed.

I consider that to grant an injunction in terms of either paragraph 2 or paragraph 3 of the motion would be to go beyond the relief which I have been persuaded is available to the applicant on the proper construction of s 170MN.  I entertain real doubts about the utility of a modified grant of an interlocutory injunction in the form of paragraph 1 of the notice of motion as I have elaborated it.  As well, there would be grave difficulties in enforcing or supervising compliance with an injunction in that form if the Court were persuaded to grant it.

I have also been influenced in deciding to exercise my discretion adversely to the applicant by the consideration that the industrial action which it has sought indirectly to restrain is action of which the requisite, albeit, minimum notice, stipulated by the Act has been given and that the detriment to the respondent Union may be irremediable if the Court were ultimately persuaded that the interlocutory injunction should not have been granted.

For these reasons, necessarily limited by the circumstances, the motion for an interlocutory injunction is refused.  I shall reserve the question of costs and adjourn the directions hearing to a date to be fixed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             18 December 1997

Counsel for the Applicant:	Dr C Jessup, QC with Mr S Wood
Solicitors for the Applicant:	Freehill, Hollingdale & Page
Counsel for the Respondent:	Mr W Haylen, QC with Mr R Reitano
Solicitors for the Respondent:	R L Whyburn & Associates
Date of Hearing:	18 December 1997
Date of Judgment:	18 December 1997