Telstra Corporation Ltd v Community and Public Sector Union

[2008] FCA 1421

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v Community & Public Sector Union [2008] FCA 1421

TELSTRA CORPORATION LTD v CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA and JEFF LAWRENCE

VID 705 OF 2008

SUNDBERG J
16 SEPTEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 705 OF 2008

BETWEEN:

TELSTRA CORPORATION LTD
Applicant

AND:

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
First Respondent

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

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
Third Respondent

JEFF LAWRENCE
Fourth Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application for an interlocutory injunction be dismissed.

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	VID 705 OF 2008

BETWEEN:

TELSTRA CORPORATION LTD
Applicant

AND:

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
First Respondent

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

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA
Third Respondent

JEFF LAWRENCE
Fourth Respondent

JUDGE:	SUNDBERG J
DATE:	16 SEPTEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 11 September 2008 I dismissed Telstra’s application for an interlocutory injunction and said that I would give my reasons as soon as I could reduce them to writing. These are my reasons.

2. Telstra proposes to make employee collective agreements (ECAs) directly with its employees in two of its business units – Telstra Wholesale and Telstra Service Advantage (Call‑Centric). Both ECAs have a two‑part structure – Part A and Part B.

3. Telstra contends that the respondents have recklessly published false and/or misleading statements about the ECAs. It relies on s 401(1) of the Workplace Relations Act1996 (Cth) (the Act) which provides:

   A person contravenes this section if:

   (a)the person makes a false or misleading statement to another person; and

   (b)the person is reckless as to whether the statement is false or misleading; and

   (c)the making of that statement causes the other person:

   (i)to make, approve, lodge, vary or terminate a workplace agreement; or

   (ii)not to make, approve, lodge, vary or terminate a workplace agreement.

4. There are eleven statements that are said to contravene s 401(1). They fall into three categories:

   ·those that allege or imply that the ECAs will have the effect of reducing employees’ pay;

   ·those that allege or imply that the ECAs will have the effect of depriving employees of their right to union representation or support, and

   ·those that allege or imply that employees will not be able to enforce the ECAs.

5. The statements have been published in various articles, bulletins, websites and newsletters.

6. Telstra seeks an interlocutory injunction to restrain the respondents from further publishing the statements or statements to the like effect.

7. The first question is whether Telstra has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that at the trial of the action it will be held entitled to relief: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] and [72].

8. Some of the statements are lengthy and I will not set them out verbatim. The passages relied on are quoted in the affidavit of Darren Fewster, Telstra’s Director, Workplace Relations & People Services, filed on 9 September 2008, at [120] to [154].

9. Telstra contends that the first statement claims that it is seeking “to drive down the wages and conditions of its employees” by splitting the workforce into two classes “with inferior pay and conditions for all new employees”. However, resort to the whole of the document in which the statement appears (exhibit DF12) shows not that any employees are going to have their current wages reduced, but that, in accordance with documents leaked from Telstra, over time the leading position which Telstra employees have secured in the sector will be driven down to the point where they will be approaching or matching the wage levels of others in the sector.

10. The second statement is said to claim that the ECAs will result in employees no longer having the right to be visited by their union representatives in the workplace. Telstra claims that the falsity of the statement lies in the continuing existence of the right of entry under s 747 of the Act. That section enables a union official, who holds a permit, to enter premises for the purpose of investigating the suspected breach of, amongst other things, the Act or an employee collective agreement. However, the respondents point to s 760 which enables a union official to enter premises for the purpose of holding discussions with any eligible employee who wishes to participate in discussion. An “eligible employee” is an employee who, on the premises, carries out work that is covered by an award or collective agreement “that is binding on the permit holder’s organisation”. The unions in question will not be parties to the ECAs, and accordingly will not have the right to hold discussions under s 760. The evidence is that the form of entry that has been overwhelmingly used by the respondent unions at Telstra’s premises is that under s 760. I accept the respondents’ submissions that on a fair reading, taking into account the relevant workplace context, the second statement is a reference to the right of entry for the purpose of holding discussions. A reference to “the right to be visited by your union representative in the workplace” does not naturally bring to mind the right of a permit holder to enter to investigate a suspected breach of the Act or an agreement.

11. The third statement is to the same effect as the second.

12. The fourth statement contains the assertion that employees cannot enforce the various parts of the ECAs if they can’t take disputes over interpretation of clauses to arbitration. The assertion is made in the context of a discussion about the powers of the Industrial Relations Commission. The fourth statement is preceded by the sentence: “The dispute settling clause only enables ‘conciliation’ but not arbitration”. That is a correct statement. The dispute settling clause in the ECAs enables conciliation, but not arbitration, to be undertaken by the Commission. If conciliation fails, there is no resort to the Commission to resolve a dispute. Telstra does not endow the statement with a misleading quality by pointing out that s 718 enables an employee to apply to this Court in relation to a breach of the proposed ECAs.

13. The fifth statement is that Telstra is “using the damaging remnants of the Howard Government’s Work Choices IR laws to deny workers the right to be represented by unions”. The statement is neither false nor misleading. The Act allows an employer to negotiate an agreement directly with employees with no union involvement or to make an agreement with a union. When read in the context of the whole publication (which is exhibit DF15), the passage relied on by Telstra is seen to be no more than a complaint that Telstra has chosen to negotiate directly with employees. Thus the first sentence of the relevant publication is that “Telstra workers should be given the choice to have their unions negotiate a collective agreement rather than have the company’s managers push a non‑negotiable job contract upon them”. The publication goes on to say that the unions have applied to the Commission to help end the dispute with Telstra by conducting a ballot of employees to determine whether they want a union‑negotiated agreement or a non‑union agreement.

14. The sixth statement is to the same general effect as the first statement. Insofar as Telstra seeks to rely on the sentence “[Many Telstra staff] mistrust the company after it was revealed Telstra managers have a plan to slash the company’s wages bill”, there is no evidence that many Telstra staff do not hold that view.

15. The seventh statement is that “The non‑negotiable pay offer made by Telstra to some staff this week … would cut key conditions such as overtime … for new employees”. Part B of the ECAs deals with new employees. It provides that overtime is not payable to new employees who earn more than $52,000 per annum. This is less than that available to Part A employees and inferior to the overtime arrangements for employees covered by Telstra’s existing collective agreements. While the statement is in general terms, it is neither false nor misleading in providing a comparison between existing employees and new employees.

16. The eighth statement is to the same effect as the fourth.

17. The ninth statement is that unions are excluded from the Telstra Wholesale ECA “which has implications for your rights”. I am unable to discern what Telstra’s complaint is here. The unions are excluded from the ECA and this does have implications for employees’ rights, such as the unavailability of the s 760 right of entry to which another part of the statement draws attention. I can see nothing false or misleading about this statement.

18. The tenth statement is that Part B employees “may be asked to work significant additional time without payment”. The reader’s attention is then drawn to clause 40.3 of the ECA, which is said to “make this clear”. Telstra’s complaint is that it is false to say that all Part B employees “do not receive additional payment for working without payment”. But that is not what the statement says. Nor is it what clause 40.3 says.

19. The eleventh statement is to the same effect as the fourth statement.

20. It will be apparent from the foregoing that Telstra has not made out a prima facie case, in the sense described at [7], that the respondents have made false or misleading statements.

21. Had I been satisfied that Telstra had a prima facie case as to the making of false or misleading statements, and as to recklessness, a question would have arisen as to causation under s 401(1)(c)(ii). In Shop Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (2008) 166 FCR 562 at [41], the Full Court (Moore, Marshall and Tracey JJ) said:

    The language of s 401(1)(c) raises a serious doubt as to whether subs 1(c) has any application to the making of collective agreements. Whilst it makes grammatical sense to speak of an individual making or approving an agreement with his or her employer, it is not linguistically apt to speak of one of a number of individuals voting on whether or not to approve what may become a collective agreement as making or approving that agreement. At most they are expressing an opinion which, depending on the majority view, might or might not lead to the agreement being made or approved. The individual will not make or approve it.

22. Those observations were obiter. Nevertheless they are a considered expression of “serious doubt” as to whether Telstra will be able at trial to make out the requirement in s 401(1)(c)(ii).

23. There are two related discretionary considerations that would have led me to refuse relief even if I had been satisfied that a prima facie case was established. The ballot of employees is to occur on 15 and 16 September 2008. Telstra took issue with the statements now being challenged on 26 August. However it did not seek interlocutory relief until 10 September, though by reason of short service of the considerable body of affidavit material, the application was not heard until 11 September, two working days before the ballot. In the meantime the statements complained of continued to be disseminated. Thus the impugned statements were, to Telstra’s knowledge, being aired, and presumably having effect on the minds of voters, over two weeks before Telstra sought interlocutory relief. The delay in seeking relief thus progressively made its grant less useful to Telstra. The damage it says it fears had well and truly been done by the time it came to court. It has shown no real urgency in seeking to prevent it.

24. Having regard to my conclusion that Telstra has not shown a prima facie case, it is not necessary to consider the balance of convenience. However the matters canvassed at [23] bear on that issue and would have caused me to conclude that the balance did not favour the grant of relief.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:        16 September 2008

Counsel for the Applicant:	P Jopling QC and M Follett
Solicitor for the Applicant:	Freehills
Counsel for the Respondents:	H Borenstein SC
Solicitor for the Respondents:	Maurice Blackburn Lawyers

Date of Hearing:	11 September 2008
Date of Order:	11 September 2008
Date of Reasons:	16 September 2008