The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Western Australian Government Railways Commission
[2000] WASC 196
•3 AUGUST 2000
THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH -v- WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION [2000] WASC 196
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 196 | |
| Case No: | CIV:1930/2000 | 24 & 25 JULY 2000 | |
| Coram: | HASLUCK J | 3/08/00 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Application for interim injunction refused | ||
| PDF Version |
| Parties: | THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION |
Catchwords: | Workplace Agreements Act 1993 Application for interim injunction Attempt to procure workplace agreements by alleged threats or intimidation Disadvantage due to employees' alleged refusal to enter into an agreement Principles relevant to issue of causation Principles relevant to grant of an injunction No serious issue to be tried Balance of convenience in context of industrial dispute |
Legislation: | Government Railways Act 1904 (WA), s 2, s 4(1), s 8, s 13(1) Industrial Relations Act 1979 (WA), s 41 Public Sector Management Act 1994 (WA) Workplace Agreements Act 1993, s 6, s 24(4), s 63, s 65, s 68(1), s 68(2), s 70 |
Case References: | American Cyanamid Co v Ethicon Ltd [1975] AC 396 Australia Paper Ltd v CEPU (1998) 81 IR 15 BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 171 ALR 680 Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531 Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67 Ratanyake v Chief Executive Officer, Department of the Registrar, Western Australian Industrial Relations Commission (1998) 78 IR 335 Rookes v Barnard [1964] AC 1129 United Firefighters Union v Country Fire Authority (IRCt (Vic) 24 December 1996 unreported) Clarke v Novek Pty Ltd (1996) 76 WAIG 2010 Game v Air Attention Pty Ltd (1996) 76 WAIG 1164 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WESTERN AUSTRALIAN GOVERNMENT RAILWAYS COMMISSION
Defendant
Catchwords:
Workplace Agreements Act 1993 - Application for interim injunction - Attempt to procure workplace agreements by alleged threats or intimidation - Disadvantage due to employees' alleged refusal to enter into an agreement - Principles relevant to issue of causation - Principles relevant to grant of an injunction - No serious issue to be tried - Balance of convenience in context of industrial dispute
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Legislation:
Government Railways Act 1904 (WA), s 2, s 4(1), s 8, s 13(1)
Industrial Relations Act1979 (WA), s 41
Public Sector Management Act1994 (WA)
Workplace Agreements Act 1993, s 6, s 24(4), s 63, s 65, s 68(1), s 68(2), s 70
Result:
Application for interim injunction refused
Representation:
Counsel:
Plaintiff : Mr M E Herron & Ms R Cosentino
Defendant : Mr T H F Caspersz
Solicitors:
Plaintiff : Gibson & Gibson
Defendant : Blake Dawson Waldron
Case(s) referred to in judgment(s):
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Australia Paper Ltd v CEPU (1998) 81 IR 15
BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 171 ALR 680
Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531
Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67
Ratanyake v Chief Executive Officer, Department of the Registrar, Western Australian Industrial Relations Commission (1998) 78 IR 335
Rookes v Barnard [1964] AC 1129
United Firefighters Union v Country Fire Authority (IRCt (Vic) 24 December 1996 unreported)
Case(s) also cited:
Clarke v Novek Pty Ltd (1996) 76 WAIG 2010
Game v Air Attention Pty Ltd (1996) 76 WAIG 1164
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1 HASLUCK J: The plaintiff union has applied to the Supreme Court for relief pursuant to s 65 of the Workplace Agreements Act 1993. The proceedings were commenced by an originating summons and programming orders were then made which led to pleadings and various affidavits being exchanged between the parties. During the course of the hearing, counsel for the plaintiff submitted a minute setting out the orders sought by the plaintiff in these terms:
- "1 An interlocutory injunction be granted pursuant to Section 65 of the Workplace Agreements Act 1993 restraining the Defendant from engaging in conduct in breach of Section 68 and Section 70 of the Workplace Agreements Act 1993 and thereby be prevented from threatening, intimidating or attempting to persuade any member of the Plaintiff from entering into Workplace Agreements under the Workplace Agreements Act 1993; and
2 That the Defendant be restrained from:
(a) Denying an equal distribution of rostered depot duties between award and workplace agreement employees including overtime and weekend work;
(b) Denying award employees equal access to rostered driving duties as offered to workplace agreement employees;
(c) Reclassifying employees previously employed as Level 5 Operators under AG21 of 1996 to a position under the Award other than Engine Driver (Thereafter):-
from the date of this order until trial."
Overview
3 The Industrial Relations Act1979 (WA) makes provision for the creation and enforcement of industrial agreements and awards by organisations of employers and employees, this being consistent with a long tradition of managing industrial affairs in this country. In the present
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- case, pursuant to the Industrial Relations Act, the terms and conditions of members of the plaintiff union in the freight services group of the defendant ("Westrail"), including train drivers and driver's assistants working out of various depots in metropolitan and rural areas, were governed by the Government Railways Locomotive Enginemen's Award 1973 ("the 1973 Award").
4 In or about February 1996, the plaintiff union and Westrail entered into an industrial agreement pursuant to s 41 of the Industrial Relations Act known as the enterprise bargaining agreement, or EBA. This supplanted the 1973 Award in regard to governance of the terms and conditions of the employees in question. The EBA allowed for longer and more flexible shifts and dispensed with certain classifications such as "drivers" or "driver's assistants" in favour of various levels of locomotive operators.
5 The Workplace Agreements Act made significant changes to the earlier tradition. Thereafter, the provisions of an award could be displaced by a workplace agreement, or WPA, being either a collective WPA or an individual WPA. By s 6 of the Workplace Agreements Act, when a WPA has been made no award applies to the relevant contract of employment, so long as the WPA remains in force. Nonetheless, with a view to safeguarding a number of long-established rights and privileges, including the freedom of association, the new Act prohibited any coercive conduct aimed at requiring or persuading employees to enter into workplace agreements. I will return to these provisions in due course, but for present purposes it is sufficient to note that by s 24(4) of the Act upon the cancellation of a WPA the contract of employment becomes subject to relevant award provisions (if any) unless it becomes subject to another workplace agreement.
6 Westrail proceeded to make available individual workplace agreements. The terms of these agreements were similar to the terms contained in the EBA. By the end of 1999, Westrail's employees were subject either to the EBA or to individual workplace agreements with the result that the 1973 Award, although still in existence, had ceased to apply. Many of the classifications and practices allowed for by the 1973 Award were no longer observed.
7 Towards the end of 1999, as a result of disagreements between the parties to the EBA arising out of the attempt to negotiate a new agreement, the plaintiff union took steps to retire from the EBA. The effect of a cancellation order was to resurrect the terms and conditions
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- contained in the 1973 Award for non-WPA employees, notwithstanding that some of the classifications and practices allowed for by the 1973 Award had been overtaken by subsequent events.
8 The relationship between the parties was complicated further by the fact that the State government had appointed a Rail Freight Sale Task Force to plan for and carry into effect the sale of the freight service. When this factor was combined with the desire of Westrail to have its workforce enter into workplace agreements reflecting the new classifications and practices (on the basis that they gave rise to greater efficiency), it seems that there was a degree of unease amongst some of the plaintiff's members as to what lay ahead.
9 According to the plaintiff, events have now taken place which indicate that Westrail is acting in a coercive manner, contrary to the prohibitions against coercive conduct contained in the Workplace Agreements Act. The plaintiff points to various statements allegedly made by or on behalf of Westrail referring to the availability of workplace agreements. The plaintiff also points to publication of rosters which might suggest that those employees who have now reverted to the 1973 Award will be rostered as driver's assistants, rather than as locomotive operators or drivers, and thus be deprived of certain benefits. It is against this background that the plaintiff union has applied for restraining orders of the kind mentioned earlier.
10 Westrail resists the application for an interim injunction on the grounds that the plaintiff has not demonstrated that there is a serious issue to be tried or established that the balance of convenience favours the plaintiff.
11 Westrail does not deny that in its view the terms and conditions of the current workplace agreements give rise to greater efficiency, with the result that a workforce employed in accordance with such terms is likely to be more attractive to a potential purchaser of the freight service. It goes on to say, however, that it has not engaged in any coercive or wrongful conduct. The statements complained of by the plaintiff are simply straightforward statements that workplace agreements are available for those who wish to take advantage of such an offer.
12 Westrail says further that as a consequence of the plaintiff union's cancellation of the EBA, Westrail is now obliged as a matter of law to administer two separate regimes concerning drivers and locomotive operators, namely, the terms of the 1973 Award, which apply to those
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- who are not presently bound by workplace agreements, and the terms of the workplace agreements. Westrail says that the rosters have been prepared accordingly. The reason that the rosters might seem to favour the WPA employees is referable not to any coercive intent, or any wish to single out or discriminate against those who have not been willing to enter into workplace agreements, but to the commercial reality that the WPA employees are at liberty to work longer and more flexible shifts. The loss of pay and status (if any) experienced by those who have reverted to the 1973 Award is not due to any step taken by Westrail, but flows from the plaintiff union's decision to cancel the EBA. Further, and in any event, it cannot be said that any loss has been caused by Westrail in circumstances where Westrail is simply acting consistently with its obligations under the 1973 Award.
13 I must now turn to the details of the matter. I note in passing that there is also a dispute between the parties on the evidentiary materials as to whether some of the statements relied upon by the plaintiff were actually made and as to whether some of the consequences of recent events are as alleged.
14 The plaintiff has referred in particular to the impact of recent events upon three of its members, namely, Mr Currell and Mr Steegstra (both of whom until recently were subject to the EBA) and Mr Selleck (who has been subject to an individual WPA and now wishes to revert to the Award). It will therefore be necessary to look at the circumstances of these three employees.
15 There is also a dispute as to how the actions of the Task Force should be regarded and as to whether it can be characterised as an agent of Westrail.
Background
16 Westrail was established pursuant to s 8 of the Government Railways Act 1904 (WA) as a body corporate. Section 8(3) provides that the Western Australian Government Railways Commission shall be a single person appointed by the governor. Section 8(2) provides that the Western Australian Government Railways Commission shall be the executive arm of the department which is defined by s 2 of the Government Railways Act 1904 as "that branch of the public service employed in connection with government railways".
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17 Westrail has the management, maintenance and control of every government railway, pursuant to s 13(1) of the Government Railways Act. Pursuant to s 8C, the minister may give directions in writing to the Western Australian Government Railways Commission with respect to the performance of its functions, either generally or in relation to a particular matter, and Westrail is required to give effect to the minister's direction.
18 Government railways are vested in the Minister for Railways, pursuant to s 4(1) of the Government Railways Act. All public railways in Western Australia are government railways. There are approximately 5,500 kilometres of public railways in Western Australia.
19 Part of Westrail's business consists of rail freight services. In or about late October 1998 the Task Force was set up by the Western Australian government to oversee the terms and conditions of the sale of the freight business of Westrail. The Task Force is constituted by about 17 people, none of whom are or have been employees of Westrail. The Task Force also engages a number of consultants (mainly from the private sector) to assist the Task Force in meeting its functions and objectives. The Task Force has no input into any operation or human resources decisions of Westrail such as rostering and classification of employees.
20 Westrail currently employs approximately 1,550 employees throughout Western Australia. Of these, approximately 505 are employed in relation to the operation of locomotives working out of a number of depots located through Western Australia. These employees are engaged by Westrail pursuant to a contract of employment. For ease of reference, I will call this group of employees the "subject employees".
21 The 1973 Award was exhibited to the affidavit of the Locomotive Division Secretary of the plaintiff union, Mr Brian Curran. Clause 6 of the Award prescribes the qualifications of an engine driver and driver's assistant. Clause 8 provides that promotion from driver's assistant to driver shall be made as vacancies arise. For the purpose of maintaining the present order of seniority amongst the workers, the employer shall arrange that driver's assistants in each depot shall have the benefit of acting work according to seniority. Clause 14 provides that the subject employee shall be paid a rate of pay for performing work in the classification of either an engine driver or a driver's assistant (qualified). Under cl 14(5) an engine driver may be paid as either engine driver - first year; engine driver - thereafter; engine driver - special class.
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22 Clause 17 deals with hours of duty and overtime payment. All time (exclusive of Sunday time) worked in excess of 40 hours in any one week shall be paid at the rate of time and a half. The employer shall arrange, as far as practicable, that shifts shall not exceed 8½ hours and, except in cases of emergency, a worker shall not be required to remain on duty for more than 10 hours. It is apparent from cl 21 that although the employer may require any worker to work reasonable overtime, the employer is not obliged to provide overtime.
23 In or about February 1996, Westrail entered into an agreement with the predecessor of the plaintiff union pursuant to s 41 of the Industrial Relations Act, this being AG21 of 1996, but generally known as the Enterprise Bargaining Agreement, or EBA. The EBA replaced the 1973 Award with respect to all its terms and conditions and applied to the subject employees. Clause 4 provides that the agreement is based on the conditions and rates in the Award and for the life of the agreement replaces the Award with respect to all its terms and conditions. The parties recognise in cl 5 that Westrail is required to operate in a deregulated market, with the result that key objectives are to ensure that freight trains are crewed in the most efficient manner and a quality service is provided to customers which is flexible and responsive to changing circumstances.
24 Under the EBA, the subject employees were engaged as locomotive operator-trainees or as locomotive operators from level 1 through to level 5. By cl 7 shifts are to be worked over "a cyclic period of four weeks" with the total hours of ordinary shifts being 160 hours over a four-week period. Shifts and hours worked in excess of 160 hours over a four-week period, not including daily overtime, will be roster cycle overtime. I note in passing that maximum hours of ordinary shifts in respect of two locomotive operator level 4 and above operation will be 12 hours; and in respect of locomotive operator level 4/5, nine hours.
25 It was common ground at the hearing before me that in or about September 1996 workplace agreements were made available to the subject employees by Westrail. Various employees entered into WPA agreements. For example, between March 1996 and March 2000 Mr Selleck was employed pursuant to various workplace agreements. A sample individual workplace agreement was exhibited to the affidavit of Mr Curran and this suggests that the workplace agreements generally made available to the subject employees were in similar terms to the EBA. This assertion by Westrail in its statement of defence was not disputed by the plaintiff. It follows that the WPA employees were on essentially the
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- same system of classification as the system under the EBA, that is to say, they were locomotive operators at certain prescribed levels.
26 The affidavits on both sides went into considerable detail about the history of negotiations for a replacement to the enterprise bargaining agreement or EBA. It was common ground that the plaintiff union filed a notice of intention to retire from the EBA on 12 November 1999 and eventually, after various procedural skirmishes, a cancellation order was made by Commissioner Beech on 20 June 2000. The effect of the cancellation order was that from 2 July 2000 the terms of the EBA no longer applied to those of the subject employees whose terms and conditions had previously been determined by the EBA. Thereafter, their conditions were governed by the 1973 Award, bearing in mind that by s 24(4) of the Workplace Agreements Act the effect of cancellation is to make employees "subject to relevant award provisions (if any) unless they become subject to another workplace agreement."
The Defendant's Position
27 Affidavits filed on behalf of Westrail revealed that since September 1996 Westrail's policy has always been that workplace agreements are available to existing employees who approach Westrail for a workplace agreement. The terms and conditions of such agreements are substantially the same as the terms and conditions of the EBA. Some 183 employees have entered into a workplace agreement with Westrail and, of that number, approximately 105 have entered into such an agreement since the cancellation order. Prior to the cancellation order, upon expiry of a workplace agreement, any workplace agreement employee was free to choose to enter into a new workplace agreement or to revert to the EBA. After the cancellation order, upon expiry of a workplace agreement, such an employee has been free to choose between entering into a new workplace agreement or being covered by the 1973 Award.
28 David Johnston is the Corporate Employee Relations Manager of Westrail. It emerges from his affidavit that as a consequence of the cancellation order, Westrail sought orders from the Commission to ease the transmission from the terms and conditions of the old EBA agreement back to the 1973 Award. A conference in that matter was heard on 28 June 2000. No orders were made. However, the matter is still open for either party to relist. He says that negotiations between Westrail and the union have broken down. Westrail remains committed to negotiating a new enterprise agreement with the union.
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29 David Detez is a Workplace Relations Officer employed by Westrail. I will return to his affidavit later in regard to the position concerning Mr Selleck. For the moment, it is sufficient to note that he also confirmed that Westrail's policy is that workplace agreements are available to existing employees upon their request. He said further that in response to a number of requests by employees engaged to operate locomotives in the freight services group, he drafted and distributed an information sheet for locomotive operators dated 29 June 2000, setting out the availability of workplace agreements to existing employees. A copy of the relevant document was exhibited to his affidavit. As this was one of the documents relied upon by the plaintiff as allegedly evidencing coercive or wrongful conduct, I will pause to describe it more fully.
30 The information sheet is issued in the name of Dave Detez, Workplace Relations Officer. It refers to some uncertainty concerning the cancellation and the eventuality that employees not covered by a workplace agreement will be required to revert to the 1973 Award. It mentions that many locomotive operators have made approaches to Westrail about being provided with an alternative to the Award. It goes on to say:
"State legislative provisions only provide one alternative and that is a WPA under the Workplace Agreements Act 1993. Accordingly this alternative is now being offered and the following details outline information about the workplace agreements (WPA) that are available."
31 The information sheet goes on to say that WPAs are offered to existing employees on request basis only. Until now employees have only had access to individual workplace agreements, but henceforth they will be provided with access to either an individual workplace agreement or a collective workplace agreement. Employees are invited to discuss the agreement with their operations coordinator, the manager rail operations for their region, Detez himself or some independent person or organisation before considering entering into the arrangements. The information sheet concludes:
"Westrail is of the view that these agreements can provide mutual benefits to both Westrail and to the employees who enter into the agreements particularly during such a period of uncertainty and all employees are encouraged to give the offers their favourable consideration."
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32 I will call this document dated 29 June 2000 the Detez Information Sheet. I note in passing that there is no passage in the document which could be described as overtly intimidatory or coercive in its tone. There is no passage which suggests that any employee who fails to enter into a WPA will lose existing benefits or be prejudiced.
33 Westrail's affidavits also addressed a number of specific issues raised by the statement of claim. The first of these issues concerned rostering. It emerged from Westrail's affidavits that under the EBA, the individual workplace agreements and the collective workplace agreements, an employee could work up to a maximum of 12 ordinary working hours in any shift. This contrasted with the 1973 Award, whereby five shifts were to be worked between Monday and Saturday with shifts not to exceed 8½ hours as far as practicable.
34 There is no entitlement under the Award for Award employees to receive any minimum amount of overtime per week. Therefore, to minimise operational efficiencies, it is Westrail's practice to roster such employees, as far as practicable, to work within their ordinary working hours. In order to comply with cl 16 and cl 17 of the Award, Westrail has arranged the rosters since July 2000 so that, as far as practicable, the shift length of an Award employee does not exceed 8½ hours. In accordance with the terms of the workplace agreements, the roster arrangements are designed to ensure that the shift length of a workplace agreement employee does not exceed 12 working hours in any one shift. The rostering arrangements have not been made with the intention of threatening, or intimidating to persuade any member of the plaintiff to enter into a workplace agreement. Westrail's intention in making the roster arrangements is to comply with the clauses in the Award and the workplace agreements, including in relation to maximum length of shifts.
35 Westrail's affidavits also dealt with classifications. Under the 1973 Award, an employee who is qualified to operate a locomotive can be classified as either a driver's assistant (qualified) or an engine driver. The driver's assistant (qualified) is a person who is qualified in driver's duties, but is not appointed as a driver. The classification system under the Award is based on seniority.
36 The EBA and workplace agreements abandoned the classifications under the 1973 Award and introduced a new classification system. The effect of the new classification system is that an employee who is qualified to operate a locomotive without supervision may be classified as either a locomotive operator level 4 or 5. There is no system of seniority.
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- The plaintiff union has consistently claimed that the Award employees are not bound by the Award to carry out the range of duties the employees were bound to carry out under the EBA, with the result that Award employees perform a more limited range of duties than those performed by the locomotive operators under the workplace agreements.
37 At the date of the cancellation order, Westrail was required to reclassify the Award employees from the classification of locomotive operator under the agreement to the appropriate classification under the 1973 Award. Westrail did not require all of the Award employees to perform work as engine drivers under the Award. Accordingly, Westrail applied the principles of seniority under the Award to the Award employees, with the result that some Award employees were classified as engine drivers and some Award employees were classified as driver's assistant (qualified).
38 Westrail's position is that the various classifications being administered by Westrail under the Award and the workplace agreements have not been put in place with any intent to threaten or intimidate any employee or to persuade them to enter into a workplace agreement referred to in rosters or letters nor have they been as a consequence of any employee's refusal to enter into a WPA. At all material times, Westrail's intention in classifying employees has been to comply with the various classification systems under the 1973 Award and the workplace agreements, and to meet its operational requirements for drivers.
39 John Goodall is the acting General Manager of Westrail. He said in regard to this matter that he wrote to each of the Award employees by letter dated 6 July 2000 setting out the effect of the cancellation order. The letter includes a passage saying that Westrail has determined the specific numbers of drivers required at each depot and has appointed employees located at the depot to the requisite number of driver positions. Employees not appointed to engine driver have been appointed to the appropriate level of driver's assistant. Appointments have been made in accordance with the Award methodology of seniority. Again, there does not seem to be any overt threat or sign of coercive conduct in this letter.
40 The Goodall evidence provided a foundation for the plea at par 3(s) to par 3(u) of the statement of defence that the range of duties performed by an Award employee is more limited than those performed by the workplace agreement employees. This evidence was relied upon to reinforce Westrail's submission that any supposed difference in the manner of treatment of the 1973 Award employees is not due to a
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- coercive intent, but simply flows from the fact that Westrail, as a consequence of the cancellation order, was thereafter required to administer two separate legal regimes.
41 Mr Goodall went on to say that if Westrail were forced to apply the terms and conditions of the 1973 Award to all employees, including the workplace agreement employees, then his estimate of the lost revenue to Westrail from not being able to fully render the freight services would be in the order of $75 to $100 million annually. This is because the 1973 Award does not allow shifts in excess of 8½ hours, as far as practicable, except in emergencies. Thus, Westrail's ability to operate efficiently and flexibly to render services would be severely curtailed. If Westrail were not allowed to enter into further workplace agreements with employees who desire them, then Westrail's ability to further improve its operating efficiencies would be restricted, for the reasons just given. The profitability of the business of Westrail could not be maximised.
42 The affidavits also dealt with the role of the Task Force. Evidence was put forward to support the plea in par 8 of the statement of defence that the decision to sell the rail freight business of Westrail was made and implemented by the government of the State of Western Australia. The decision was entrusted to the Task Force for implementation and the Task Force acts independently and separately from Westrail.
43 According to Mr Johnston's affidavit, employees at the Geraldton depot were informed by the employee relations consultant to the Task Force that any payment to an employee under a transfer package would be based on the payment to the employee under the industrial agreement that governed their employment at the date of the sale of the freight business. This would mean that if the terms and conditions of the employees' employment were covered by the 1973 Award, the transfer payment would be based on the Award rate. If the terms and conditions were based on a collective agreement, the transfer payment would be based on the rate of pay in the collective agreement. The consultant did not suggest that the Award conditions would not be acceptable to a new employer.
44 Mr Johnston went on to say that if the Task Force did not negotiate a new collective agreement with the union, an injunction preventing Westrail from offering further workplace agreements to Award employees would have a considerable effect on an Award employee who wished to enter into a workplace agreement upon the sale of the freight business. This is because the transfer payment would be calculated on the basis of
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- the rate of pay under the Award rather than the higher rate of pay under the workplace agreement.
45 Further, in the event that Westrail had to roster the workplace agreement employees in accordance with the rostering provisions in the 1973 Award, Westrail's capacity to effectively operate the business would be adversely and substantially affected. If Westrail had to roster all employees in accordance with the 1973 Award, Westrail would only be able to operate approximately 60 to 65 per cent of its services. This is because a rostering arrangement based on a maximum of 8½-hour shifts would require many more employees to perform the work currently performed by the workplace agreement employees on a 12-hour maximum shift length.
46 Mr Johnston exhibited to his affidavit a package of documents he received from the Task Force on 6 July 2000 containing information about the prospective sale. Counsel for the plaintiff referred to this document, but was not able to identify any passage with an intimidatory tone. Reference was made to a passage at page 8 of the transfer package which simply said that "the purchaser will be required to recognise and apply the various awards and agreements (including individual agreements) which apply to Westrail Freight employees at the time of transfer."
47 Reference was also made to a passage at the foot of page 4 of the transfer package which was in these terms:
"Transfer payments will be calculated based on an employee's ordinary rate of pay at the date of completion of the sale. It will include loadings payable for ordinary time worked such as shift loadings and payments of working ordinary hours on weekends. It does not include any regular or irregular overtime.
Cabinet has authorised the Task Force to implement wage increases for agreements which maintain current conditions of employment as at June 2000.
The Task Force has approved a 4% wage increase effective from the date that any relevant agreement is approved by the relevant industrial tribunal. This increase is available, subject to agreement, to all Westrail employees, whether transferring to the purchaser or not. In addition, if you choose to transfer to the purchaser, a further 3% increase would also be paid effective from the day before the sale completes. Consequently, both the
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- 4% and the 3% increases would be included in the calculation of the transfer package.
Employees who have been in receipt of a higher rate of pay for a continuous period of 12 months or more immediately prior to the date of the transfer will have the transfer payment and any leave paid out calculated at the higher rate."
The Plaintiff's Position
48 Mr Curran said in his affidavit that Westrail employs approximately 500 enginemen in the freight services division of which approximately 385 are members of the plaintiff union. The conditions of employment of approximately 85 per cent of the subject employees were, until 2 July 2000, governed by the EBA. He said that approximately 80 enginemen were employed under WPAs, being mostly employees of Westrail who were recruited after the registration of the EBA and upon the basis that their employment was conditional upon them signing a WPA.
49 According to Mr Curran, a number of members had indicated to him that they did not wish to be bound by their WPAs beyond the expiry date of 30 June 2000 and wished to revert to the 1973 Award. He also referred to the breakdown of negotiations between the plaintiff union and Westrail towards the end of 1999 concerning a proposed new EBA, with the result that various issues were brought before the Industrial Relations Commission. These issues included the plaintiff's application for cancellation, an issue which was eventually decided in favour of the plaintiff union so as to resurrect the terms and conditions of the 1973 Award for those of the subject employees who were not committed to workplace agreements.
50 Mr Curran also referred to the plaintiff's negotiations with the Task Force in an attempt to reach an agreement on the terms and conditions of the transfer of employees upon the sale of the freight division of Westrail. He acknowledged that these negotiations with the Task Force did not directly involve Westrail officers. An agreement has not yet been reached between the plaintiff union and the Task Force. He said that on 21 June 2000 at a meeting between representatives of the Task Force, the Department of Productivity and Labour Relations and the plaintiff union, the Task Force made an offer (approved by Cabinet) for the terms and conditions of transfer of employees to be considered by the union. At the same time, it was indicated to the union that the Task Force and the department had authority to negotiate industrial agreements with the
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- plaintiff union for current employees. The Task Force indicated it had the authority to offer a 7 per cent wage increase to enginemen on conditions that the provisions of the EBA remained in place. This proposal was rejected by the union. The plaintiff union seeks to negotiate a new agreement based on the 1973 Award conditions. However, there are currently no negotiations between the plaintiff and Westrail.
51 The deponent went on to say that between 29 June 2000 and 10 July 2000 he has been contacted by approximately 60 union members from various depots who are employed by Westrail as enginemen pursuant to the EBA, the Award or WPAs. According to him, in general terms, the members have expressed concern as to the status of their employment as Award employees, and the allocation of work in rosters at the various depots. On 29 June 2000 he was informed by a number of members that Westrail officers had provided them and other enginemen with a notice stating that their terms and conditions of employment would revert to the Award as of 2 July 2000 and that appointments to the position of locomotive operator under the EBA would cease to have effect. The enginemen were advised by this notice that appointments would be made in accordance with the 1973 Award to positions of driver and driver's assistant.
52 A copy of the 29 June 2000 notice was exhibited to Mr Curran's affidavit. The notice is signed by Mr Goodall as acting General Manager freight and reads as follows:
"Application of Government Railway Locomotive Enginemen's Award 1973-1990
With the cancellation of the Order of the WA Industrial Relations Commission maintaining the operation of the terms and conditions of AG21 of 1996 the terms and conditions of the Government Railways Locomotive Enginemen's Award 1973 - 1990 will be applied from July 2 2000 to Locomotive Operators affected by the Order. Arrangements are in hand to have all rosters and working arrangements in place to comply with the award conditions.
Appointments to positions of Locomotive Operator in accordance with the requirements of AG21 of 1996 will cease to have effect from July 2 2000 and Locomotive Operators affected by the application of award conditions will be redesignated to award designations.
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- Westrail will determine the specific numbers of Drivers required at each depot to the requisite number of driver positions. Those affected employees not appointed to Engine Driver will be appointed to the appropriate level of Driver's Assistant.
Appointments will be made in accordance with the award methodology of seniority. Affected employees will be advised shortly of their designation and rate of pay.
From July 2 2000 the following rates of pay will apply:
Engine Driver First year 570.10
Thereafter 572.90
- Drivers Assistant
Second year 535.00
Thereafter 547.80
When acting as
Driver 563.30
If you have any concerns you should discuss them with your Rail Operations Coordinator."
53 Mr Curran goes on to say that on the same day that the subject employees received the Goodall notice, they were also provided with an information sheet on workplace agreements and a notice stating that workplace agreements were available for enginemen. I infer that this was the Detez information sheet. The notice to locomotive operators dated 29 June 2000 is signed by the Rail Operations Coordinator and reads as follows:
"Locomotive operators have made approaches to Westrail concerning the impact of the cancellation of the WA Industrial Relations Commission Orders maintaining AG21 and the eventuality that employees not covered by a workplace
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- agreement (WPA) will be required to revert to the terms and conditions of the Locomotive Enginemen's Award.
As a number of locomotive operators have asked about the opportunity of an alternative to reverting to the Award employees are advised that Workplace Agreements (either collective or individual) are available for employees if they wish to consider this option.
Interested employees are invited to contact myself to discuss this option."
54 Mr Curran said further that he has been informed by members at Wagin and West Merredin depots that they have been telephoned by Westrail officers and have been asked by Westrail officers to sign a WPA. On or about 7 July Mr Curran was contacted by members of the West Merredin depot. The members were concerned that they were being denied rostered hours which were available to employees who were employed on workplace agreements. In particular, they were concerned that employees who were employed pursuant to the Award were not rostered for shifts which entitled them to penalties, overtime, away from home and other allowances. As a result, their pay will be reduced by approximately $800 per fortnight compared with enginemen operating on the alternate roster. A copy of the roster was exhibited to Mr Curran's affidavit in order to demonstrate that it separates Award and WPA employees.
55 Mr Curran went on to say that he has been informed and believes that this "discrimination" in rostering has occurred in a number of depots in a similar manner. On 10 July 2000, he was contacted by Mr Rob Doig, who is a union representative in Geraldton. Mr Curran was advised that members of the Task Force were advising enginemen at the Geraldton depot that the Task Force wished to complete offers of employment in a holding company relating to the sale of the freight services by 15 August 2000 and that Award conditions would not be acceptable to a new owner or employer after the sale.
56 Mr Curran said further that prior to 2 July 2000 the overwhelming majority of enginemen were employed by Westrail as the equivalent of level 5 operators under the EBA. He acknowledges that this classification does not technically exist under the Award. However, the qualifications required and duties carried out were essentially the same as a "thereafter driver" under the Award. Under the WPAs all enginemen (other than
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- trainees) are classified as level 5 operators and paid accordingly. However, since 2 July 2000 Award employees have been appointed to positions of driver's assistant, purportedly in accordance with the Award classification and seniority provisions. According to Mr Curran, all enginemen have continued to carry out the same duties as prior to 2 July 2000. There is no distinction in the locomotive driving duties carried out by WPA employees and Award employees, however classified. The result is that enginemen who have been employed as drivers for between 4½ to 20 years are now being reclassified or reduced in rank to driver's assistants with a corresponding reduction in their rate of pay. Enginemen on WPAs are effectively being appointed to or retaining level 5 positions ahead of more senior enginemen.
57 Exhibited to Mr Curran's affidavit was a sample letter dated 5 July 2000 directed to a locomotive operator at Forrestfield named Bayley. The Bayley letter dated 5 July 2000 signed by Mr Goodall is in these terms:
"With the cancellation of the Order of the WA Industrial Relations Commission maintaining the operation of the terms and conditions of AG21 of 1996 the terms and conditions of the Government Railways Locomotive Enginemen's Award 1973 - 1990 have been applied from July 2 2000 to Locomotive Operators affected by the Order.
Appointments to positions of Locomotive Operator in accordance with the requirements of AG21 of 1996 ceased to have effect from July 2 2000 and Locomotive Operators affected by the application of award conditions have been re-designated to award designations.
Westrail has determined the specific numbers of Drivers required at each depot and has appointed employees located at the depot to the requisite number of driver positions. Employees not appointed to Engine Driver have been appointed to the appropriate level of Driver's Assistant. Appointments have been made in accordance with the award methodology of seniority.
Commencing from July 2 2000 by the application of the award conditions you are now appointed as a Drivers Assistant (qualified) on a weekly rate of pay of $547.80.
The Rail Operations Coordinator has a copy of the seniority list from which this determination has been made. If you believe
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- that your seniority date is incorrect then you are required to discuss it with the Rail Operations Coordinator and provide evidence to support your claim that the date is incorrect so that the matter may be reviewed."
58 In a supplementary affidavit sworn 21 July 2000, which was largely directed to the balance of convenience, Mr Curran said that if the injunction sought by the plaintiff is not granted, Westrail will continue to "discriminate" against Award drivers in distribution of depot work. This will lead to financial loss by the drivers and would ultimately have the effect of deskilling the drivers and denying them access to particular facets of work. Award drivers will lose acquired skills compared with workplace agreement drivers. Prior to the commencement of the EBA, Award drivers worked all routes currently allocated only to workplace agreement employees. There is no reason why Award drivers cannot continue to work these routes. For example, Westrail currently rosters only workplace agreement drivers based at Forrestfield to work the "through" Kalgoorlie train. However, there is a rest house at both West Merredin and Kalgoorlie which would allow Award drivers to work the "through" Kalgoorlie train. Both Merredin and Kalgoorlie drivers could work these trains as well as Forrestfield drivers.
59 Mr Curran went on to say in the supplementary affidavit that rates of pay and conditions in the workplace agreements are disadvantageous to employees as compared with the Award. If there is an even distribution of depot work, the financial rewards are better for Award drivers. In addition, the workplace agreements restrict employees' ability to take industrial action and restrict remedies for unfair dismissal.
60 The supplementary affidavit concluded with an assertion that since 30 June 2000 about 100 drivers who were employed on the Award have signed workplace agreements. If Westrail is allowed to continue to induce drivers to sign workplace agreements, the ability of the plaintiff to negotiate a new collective agreement for drivers will be compromised.
61 Before leaving this aspect of the matter, I pause to observe that the Bayley letter draws out clearly an issue that lies at the heart of the controversy between the parties. When the respective positions of the two parties are contrasted, it becomes apparent, as illustrated by the Bayley letter, that the greater flexibility in respect of shifts and hours and other conditions allowable under the EBA makes it more economical and therefore more attractive to Westrail to give preference to enginemen whose employment conditions conform to the conditions prevailing under
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- the EBA or contained in workplace agreements. Accordingly, the statement in the Bayley letter that "Westrail has determined the specific numbers of drivers required at each depot and has appointed employees located at the depot to the requisite number of driver positions" is, in effect, another way of saying that Westrail finds it more convenient to select WPA drivers. Their driving skills may be of the same order as the Award employees, but when it comes to rostering they are thought to have superior attributes because of the greater flexibility in their employment conditions.
62 I pause to note also that there does not appear to be any provision in any of the contractual documents, including the Award, which challenge the entitlement of Westrail as the employer to control its operations by various administrative arrangements, including selection of drivers and setting of rosters. For present purposes, however, the crucial question is whether there is anything coercive in the manner in which these arrangements are presently being carried out, or whether the arrangements are referable to a refusal by certain employees to sign WPAs.
63 It is apparent from the earlier narrative that Westrail, as a consequence of various steps taken by the plaintiff union, culminating in the cancellation order, Westrail is presently obliged to administer two separate administrative regimes. Westrail argues that this necessarily leads to a distinction being drawn between the situation of employees under the Award and WPA employees. Westrail is entitled to administer its affairs upon the most commercially viable basis and it is therefore legitimate to set rosters favouring the employees working to less restrictive employment conditions. This should not be described as discriminatory conduct because the disadvantages to Award employees, if any, flow from the plaintiff union's own actions in obtaining the cancellation order.
64 In regard to this aspect of the matter, Westrail also placed reliance upon the affidavit of Peter Proudfoot, who has held the position of Manager, Rail Operations South-West since 8 November 1999. He sought to illustrate the administrative situation presently confronting Westrail by saying that some of the employees working out of the Picton depot operate the Australind passenger service. Clause 27 (distance payments) of the 1973 Award provides that employees working on the Australind passenger service be paid 11 hours and 15 minutes per shift, even though the run time is only about 8 hours. If Westrail rostered Award employees to work the Australind route rather than WPA employees, Westrail would, without the payment of overtime, lose 12
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- shifts a week that each Award employees could not work because they can only work 40 hours per week ordinary time. Accordingly, Westrail rosters WPA employees to perform the Australind route.
65 Mr Proudfoot went on to give similar examples concerning work out of the Picton depot, including reference to Westrail's contractual obligations with Alcoa of Australia Pty Ltd and in relation to the woodchip service provided to SOTICO. He concluded by saying that other than the Australind route, work performed pursuant to the Alcoa contract and work performed pursuant to the woodchip contract, the Award employees and the workplace agreement employees working out of Picton are dispersed equally across the roster. The Collie depot does not require the employees to be rostered for more than 8 hours per shift, with the result that employees working out of the Collie depot are all rostered on a 8-hour shift, with both groups of employees being equally dispersed across the roster.
66 Mr Proudfoot said that on 3 July 2000 he became aware of a union notice advising members not to shunt the Kwinana caustic siding. The effect of the ban is a third employee is required to assist in placing the wagons for loading. As a result of the ban, WPA employees are rostered rather than Award employees working out of Kwinana to perform the work. The reason for this is that there are no rostered extra persons to do that work of placing the caustic wagons for loading at the time when the train arrives (3 am). To roster persons for such work at that time would incur a substantial cost to Westrail in penalty rates.
67 Mr Proudfoot said further that the TiWest contract requires employees to transport coal from Kwinana to Ewington, pursuant to an approximately 10-hour shift. Westrail can maximise the economic operation of the TiWest route by rostering employees to work shifts in excess of 8½ hours. In the event that Westrail rostered Award employees on the TiWest route, Westrail would need to roster two crews for each time a locomotive was on the TiWest route because of cl 17 (hours of duty) of the Award. Other than the caustic and the TiWest route, Award employees and WPA employees working out of the Kwinana depot are equally dispersed through the roster.
68 In regard to the Forrestfield depot, Mr Proudfoot said that the Forrestfield to Kalgoorlie service by rail takes approximately 11 hours. The most cost effective manner for Westrail to roster this service requires the employees to be rostered to work a 12-hour shift. Because of the Award conditions, it would be necessary for an Award employee to book
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- off at Merredin and for a second crew to take the locomotive from Merredin to Kalgoorlie, which would not be operationally effective or practical.
69 Mr Proudfoot also referred to the West Merredin depot. The western service whereby grain is transported to Kwinana takes approximately 10 hours by rail. Accordingly, because of cl 17 of the Award, Westrail rosters WPA employees to perform the western service with Award employees performing the eastern service, which takes less than 8 hours by rail.
The Three Employees
70 The plaintiff's statement of claim included facts and matters relevant to the circumstances of three drivers employed by Westrail, namely, Mr Currell, Mr Steegstra and Mr Selleck. Their circumstances were also addressed by the statement of defence and the affidavits filed by the parties, although I notice that no affidavit was sworn by any of the three individuals in question.
71 The pleadings and evidentiary materials suggest that the circumstances of Mr Currell and Mr Steegstra can be considered together. Prior to 18 February 1996, Mr Currell was employed as an engine driver under the Award, but thereafter until 2 July 2000 he was employed under the EBA in the classification of locomotive operator - level 5. He is now employed as a driver's assistant (qualified) under the Award. The circumstances of Mr Steegstra were similar. In other words, both these employees who were working under the EBA have now reverted to the Award as a consequence of the cancellation order.
72 The plaintiff asserted in its pleading that on or about 30 June 2000 Mr Currell was asked by an employee or agent of Westrail at West Merredin to sign a WPA, but he refused to do so and elected to be employed under the Award. By letter dated 5 July 2000, Mr Currell was advised that his position had regressed to the position of driver's assistant under the Award. As at 5 July 2000, employees at West Merredin who were employed as level 3 driver's assistants under the Award prior to 17 February 1996 and who have subsequently signed WPAs are employed as engine drivers. Under the Award, the base rate of pay of a driver is $572.90 and the base rate of pay of a driver's assistant is $547.80. The plaintiff alleges that Currell will suffer a loss in his base rate of pay of not less than $25.10 and, in addition, his duties have been significantly altered.
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73 The statement of claim alleges further that by a roster published on 7 July 2000, Westrail distinguished between Award and WPA employees and favoured WPA employees and the provision of rostered hours to the detriment of Award employees, including Mr Currell. On or about 7 July 2000, Mr Currell was advised verbally by a servant or agent of Westrail at West Merredin that if he did not sign a WPA, he would forego monetary benefits upon the sale of Westrail Freight.
74 I pause to note that the only evidence in support of this plea is those passages in the Curran affidavit mentioned earlier, referring in general terms to events at the West Merredin depot. Westrail relied upon an answering affidavit of Joseph Facey, who is the Rail Operations Coordinator at West Merredin and, on his account, the only person at West Merredin at the material time with authority to act for and on behalf of Westrail in relation to employees entering into workplace agreements. He said that at no time had he asked Mr Currell to sign a workplace agreement and he was not aware of any other person doing so as an agent of Westrail. He said that on 7 July 2000 Mr Currell approached him in a joking manner and said words to the effect that: "You are supposed to offer me a workplace agreement." Mr Facey smiled and replied: "Are you requesting a workplace agreement? If you are, I can provide you with the information." At no time did he intend to or attempt to persuade Mr Currell to enter into a WPA or say words to the effect that if you do not sign a workplace agreement, you will forego monetary benefits upon the sale of Westrail Freight.
75 The statement of claim alleged that Mr Steegstra attended a meeting on 12 July 2000 which was held for Westrail Freight employees at Kwinana, such meeting being addressed by members of the Task Force who stated that employees should sign WPAs immediately, as no further negotiations were being conducted with the plaintiff and if employees did not sign WPAs, they would miss out on benefits. Again, there is no direct evidence in support of this contention and the matters in issue are denied by Westrail. Westrail admits that it published a notice dated 29 June 2000 at the Kwinana depot stating that as a number of the employees had asked about the opportunity of an alternative to the Award, it was making WPAs (either collective or individual) available to any employee if they wished to consider this option.
76 Mr Selleck was in a slightly different position. He had been employed under a WPA, but then wrote to Westrail giving notice of his intention not to renew his WPA with a view to reverting to Award conditions. The plaintiff pleads that on 12 July he was advised by a letter
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- from Westrail that if he elected to revert to the Award, his position would be regressed to that of driver's assistant and that if he elected to sign a further WPA, he would maintain his status as an engine driver for a further 6 months. Between 2 July 2000 and 14 July 2000, he was told verbally by the area manager and other employees of Westrail at Avon that if he did not sign a further WPA, he would lose benefits on the sale of Westrail Freight. On 14 July he was asked to sign a WPA by the area manager at Avon, but in fact he has not signed a further WPA.
77 Westrail relied upon an answering affidavit of Michael Ryan, who is the Rail Operations Coordinator at the Avon yard and responsible for the supervision of employees and the day-to-day management of operations at that site. He stated that at no time had he said to Mr Selleck words to the effect that if he did not sign a further workplace agreement, he would lose benefits on the sale of Westrail Freight, and nor did he say to Mr Selleck on 14 July words to the effect: "Will you sign a workplace agreement?" He referred to the discovery of a pro forma affidavit in the sign-on room at Avon yard, prepared in draft by the Australian Rail, Tram and Bus Industry Union which, if signed, could become evidence in these proceedings that Westrail had been asking its employees to sign workplace agreements.
78 Westrail also relied upon the affidavit of Peter Satie in seeking to rebut the plea contained in par 23 of the statement of claim that between 2 July and 14 July Westrail published a roster at Forrestfield which distinguished between Award and WPA employees, together with a notice which stated that if an employee did not like the roster, they could sign a WPA. Mr Satie said that in his capacity as rail operations coordinator at Forrestfield, he was the only person at that site at the relevant time with the authority to act for and on behalf of Westrail. At no time did he place a notice on the noticeboard of the kind alleged. He did place a notice indicating that workplace agreements were available by contacting the rail operations coordinator. I observe in passing that as to this alleged incident also there is no direct affidavit evidence from the plaintiff in support of its plea.
79 It is apparent from the affidavit of Mr Detez filed on behalf of Westrail that he, in his capacity as workplace relations officer, freight services group, had dealings with Mr Selleck in the period leading up to the expiry of Mr Selleck's workplace agreement. In that affidavit, Mr Detez refutes any suggestion of coercive conduct. Exhibited to the Detez affidavit were various exchanges of correspondence between the parties to those dealings. During the course of these exchanges, reference
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- was made to Westrail's guidelines for workplace agreements. The tenor of the guidelines is that all new employees will be offered a workplace agreement and any employee who holds a substantive position may request an offer for a workplace agreement.
80 I cannot identify any passage in the guidelines, or accompanying exchanges of correspondence which is overtly coercive in tone or in content, or which suggests the adverse consequences will follow from refusal to sign a workplace agreement. Like the other documents I have mentioned, the guidelines do not presume that there will be an offer of a WPA made by the employer which the employee will then accept or refuse, but rather that the first approach will be made by the employee. The WPA is available if he wishes to enter into it.
81 This is a consistent theme in the relevant documentation: that a WPA is available upon request. The proposed transaction having been structured in this way, it will be difficult for an employee to identify any moment in the "negotiations" at which it can be said that the employee "refused" to sign a workplace agreement. The consistency I have noticed in the documentation may also have a bearing on the evidentiary issue as to whether an inference can be drawn in support of the assertions made by each of the three employees that a request was made of him to sign a workplace agreement, that he refused the request and that this refusal led to adverse consequences. An inability to draw such an inference in the cases of the three employees may have a bearing upon the plaintiff's broader case.
Statutory Provisions
82 The plaintiff's application is made pursuant to s 65 of the Workplace Agreements Act 1993 which provides that the Supreme Court may grant an injunction in such terms as the court thinks fit where the court is satisfied that a person has engaged, or is proposing to engage, in conduct that amounts to, or would amount to, a breach of s 67, s 68, s 69, s 70 or s 71 of the Act or is involved in a breach of any of those provisions. An interim or interlocutory injunction may be granted before final determination of an application. Counsel for both parties accepted that the criteria governing the grant of an injunction in these circumstances was the same as the criteria applied generally in civil cases, that is to say, the plaintiff was required to demonstrate that there was a serious issue to be tried and that the balance of convenience favoured the grant of an injunction in order to preserve the status quo.
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83 It also became apparent that the plaintiff intended to rely specifically upon alleged breaches of s 68(1), s 68(2), s 70(1)(b) and/or s 70(1)(d) of the Workplace Agreements Act 1993.
84 The relevant passages of s 68 of the Act read as follows:
"68. (1) A person must not by threats or intimidation persuade or attempt to persuade another person to enter into, or not enter into -
(a) an agreement under this Act; or
(b) an agreement under this Act that contains or does not contain particular provisions.
(2) A person must not intimidate an employee of an employer, or threaten injury or harm to the person or property of an employee of an employer, because the employee is or is not a party to -
(a) an agreement under this Act with his or her employer; or
(b) an agreement under this Act with his or her employer that contains or does not contain particular provisions."
"70. (1) An employer must not -
(a) …
(b) alter the employee’s position in his or her employment to his or her disadvantage; or
(c) …
(d) otherwise injure the employee in his or her employment,
when the reason for doing so is that the employee refused to enter into -
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- (e) an agreement under this Act; or
(f) an agreement under this Act that contains or does not contain particular provisions.
- (2) If an employer is convicted of an offence against subsection (1) in relation to a person who is or was an employee, the industrial magistrate’s court by which the employer was convicted may order the employer -
(a) to re-instate the person if he or she was dismissed from employment; or
(b) subject to subsection (3), to pay to the person compensation for any loss or injury suffered as a result of the commission of the offence; or
(c) to do both of those things,
but the person is not entitled to compensation both under this section and otherwise for the same dismissal, loss or injury."
86 Before leaving s 70, I note in passing that by s 70(3) upper limits are placed upon a Magistrate's power to award compensation. By s 70(5) where in any proceedings for an offence against s 70(1) it is proved that an employer took any course of action mentioned in that subsection against or in relation to an employee after the employee refused to enter into an agreement, it is for the employer to prove that he or she took that course of action for some reason other than because the employee refused to enter into any such agreement. The present proceedings are not proceedings for an offence, but it will be necessary to take this provision into account when evaluating the application for an interim injunction.
Principles
87 When one begins to give consideration to the implications of these statutory provisions, a useful starting-point is the decision of North J in Australia Paper Ltd v CEPU (1998) 81 IR 15. That was an application for an interim injunction under the Workplace Agreements Act 1996 (Cth) to restrain the respondent unions from continuing to organise industrial action. There are broad similarities between the federal legislation and the statutory provisions presently before me, although I recognise, as will become apparent later, that there are important differences when one turns to the language used in specific provisions. North J observed that the
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- purpose of the statutory scheme was to allow negotiating parties, both employer and employee, maximum freedom consistent with a civilised community to take industrial action in aid of the negotiation of agreements without legal liability for that action.
88 North J said at 17 that by conferring a power to grant an injunction, parliament intended that the court would be guided by the principles established by equity for the grant of an injunction. This meant that the courts were to consider whether the applicant had made out a serious issue to be tried and whether it has established that the balance of convenience favours the grant of an injunction. Serious issue to be tried and balance of convenience factors need not be considered in isolation from each other. Thus, an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises a serious question to be tried) may still attract interlocutory relief if there is a marked balance of convenience in favour of it. If the court determines to grant an injunction, the terms may be moulded to meet the needs of the particular circumstances.
89 I pause to note that according to the general principles concerning grant of injunctions approved by North J the object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. Nonetheless, the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial.
90 The court must weigh one need against another and determine where the balance of convenience lies. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which called for detailed argument and material considerations. Unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. American Cyanamid Co v Ethicon Ltd [1975] AC 396.
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91 I have already noted that the plaintiff relies upon various discrete provisions. Section 68(1) provides that a person must not "by" threats or intimidation persuade or attempt to persuade another person to enter into a WPA. Section 68(2) prohibits intimidation "because" the employee is not a party to a WPA. These provisions indicate that there must be a causal connection between the misconduct complained of and the entry into an agreement or the relevant attempt. The provisions also require that there be evidence of "threats" or "intimidation" by Westrail. The Concise Oxford Dictionary defines a threat as a declaration of intention to punish or hurt; or as a menace of bodily hurt or injury to reputation or property, such as may restrain a person's freedom of action. It includes an indication of something undesirable coming. The verb "to intimidate" means to overawe with fear, especially in order to influence conduct.
92 These concepts were addressed by Heenan J in Ratanyake v Chief Executive Officer, Department of the Registrar, Western Australian Industrial Relations Commission (1998) 78 IR 335. In that case, the appellant's conditions were regulated by an enterprise bargaining agreement. When he learned that one of his brothers in Sri Lanka was dying, he decided to raise cash for a trip to Sri Lanka by seeking payment out of his annual leave entitlements. In the course of discussion with the Registrar, the appellant was led to believe that cashing-in of annual leave entitlements was available only to those who had signed a workplace agreement.
93 Heenan J held that it could not fairly be said that the refusal of the appellant's request created a fear in the mind of the appellant that he would suffer a detriment. The truth simply was that his request was refused and he was told, in effect, that a similar request would be granted if he entered into the workplace agreement. The pressure of which the appellant complained was imposed upon him not by the respondent, but by his own unfortunate circumstances, namely, the grave illness of his brother and his shortage of ready cash. The uncontested evidence of the respondent as to his mentioning to the appellant the option of taking long service pay in advance was inconsistent with intimidation: it tended to show that he was suggesting a way in which the appellant could obtain the cash he needed without entering into the workplace agreement.
94 In the course of his judgment Heenan J, while discussing s 68(1), approved reasoning to the effect that the term "intimidation" in normal parlance involves the creation of a fear in the mind of the subject that he or she will suffer a detriment either directly to him or herself or to some other person about whom the person the subject of the intimidation cares.
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95 I digress briefly to note that in the well-known decision of Rookes v Barnard [1964] AC 1129, when the House of Lords had occasion to consider the constituents of the emerging tort of intimidation, it was recognised that there was no logical distinction between a threat to do tortious or criminal acts, on the one hand, and threats to break contracts on the other hand. To sustain the tort of intimidation, it must be shown that there was an operative threat and the intimidator has or is believed by the party threatened to have the coercive power which is of the essence of the tort. In the words of Lord Devlin at 1209: "All that matters to the plaintiff is that, metaphorically speaking, a club has been used. It does not matter to the plaintiff what the club is made of - whether it is a physical club or an economic club, a tortious club or an otherwise illegal club."
96 Nonetheless, it is apparent from the decided cases that it is not enough to simply point to lawful conduct which might produce unwanted consequences as far as the complaining party is concerned. There must be some element of acting so as to create a real apprehension that a detriment will result. Absent any element of conspiracy, it is questionable whether conduct can be regarded as coercive when it is allowed for by an agreement between the parties or by the relevant award. One party to the contract may feel a sense of displeasure that certain provisions are being activated, but in such a case can the feeling of displeasure be equated to a sense of fear or apprehension of adverse consequences amounting to a threat?
97 Section 70(1)(b) provides that an employer must not alter the employee's position to his or her disadvantage when "the reason for doing so" is that the employee refused to enter into a WPA. Issues associated with this provision in the context of the present case include, again, the issue of causation and the issue of what amounts to a disadvantage or injury.
98 In Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67, the Workplace Relations Act (Cth) was again under consideration. The Geraldton Port Authority decided to lease its bulk handling facility to a private operator and to cease to provide labour to stevedores. It implemented this decision by offering employees voluntary redundancy, shifting employees from irregular shiftwork to day work and ceasing employment of casual employees. Relief was sought via s 298K of the Act, whereby an employer must not, for a prohibited reason, alter the position of an employee to the employee's prejudice. Nicholson J
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- dealt with the necessity for reasons to have causal effect at par 294 to par 296. He said at par 295:
"I also agree the fact that there is some connection between the employer's act and the employee's union membership or entitlement to the benefits of an award does not mean that the employer did the act because the employee was a union member or entitled to the benefit of the award. Whether an employer was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact. It will often involve questions of judgment and the characterisation of the employer's reasons. Cf Wood v City of Melbourne Corporation (1979) 26 ALR 430. For example, if an employer made a decision to make his operation more efficient or to facilitate the provision of services to the service users at a lower cost (and for no other reason) that action is not open to the inference of having been taken for reasons which include that the employees are members of a union or have the benefit of an award. The critical question, however, is what were the actual reasons of the GPA and hence of each of its members."
100 He then held that only one aspect of the first respondent's implementation of its decision contravened s 298K. The shifting of employees from irregular shiftwork to day work and the consequent diminished opportunity to earn overtime constituted an injury in employment or prejudicial alteration to the position of those employees in contravention of s 298K. While the shift also resulted in a reduction in the annual leave entitlement of these employees, this did not contravene s 298K because it occurred in accordance with the applicable award.
101 While discussing this case, I digress briefly to note that s 70 of the WA statute, unlike the provision before Nicholson J, requires that the refusal to enter into a WPA must be "the" reason for the adverse consequence complained of and not simply "a" reason. This suggests that it must be the operative reason. I note also in the Geraldton Port Authority case (supra) that a diminution in benefit was not thought to be discriminatory where it occurred in accordance with the applicable award.
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102 Nicholson J held further that the prospect of redeployment under the Public Sector Management Act1994 (WA) did not contravene s 298K because, until the redeployment occurred, it could not be determined that the redeployment was injurious or prejudicial. Further, an offer of voluntary redundancy did not contravene s 298K because it was open to the employee to accept or reject the offer and, once accepted, the employment ceased so that there was no relevant employment against which to measure any alleged injury or prejudice. The failure to employ casual employees did not contravene s 298K, since such employees had no right to expect work. No conspiracy was established since, while the common purpose of the conduct was to reduce the influence of the award applicable to the first respondent's employees, this was not an unlawful purpose.
103 Westrail placed considerable reliance upon the subsequent decision of the Full Court of the Federal Court in BHP Iron Ore Pty Ltd v Australian Workers Union (2000) 171 ALR 680. In that case, a subsidiary of BHP was engaged in negotiating a new collective agreement with State registered unions representing the applicant's award employees. The applicant notified the unions that it proposed to withdraw from the agreement and then offered to each of its award employees an individual workplace agreement. Since that time, the applicant refused to bargain collectively with unions representing its award employees. The individual WPAs offered higher wages and certain other benefits compared to the award. The respondent sought interlocutory injunctions alleging that the applicant had injured some of its award employees or altered their positions to their prejudice for prohibited reasons contrary to s 298K of the Workplace Relations Act (Cth).
104 The Full Court held that a breach of s 298K of the Workplace Relations Act requires an alteration in the employee's position which has been brought about by a discriminatory act of the employer in "singling out" the employee for exposure to detrimental consequences or exclusion from benefits or advantages. Here, the position of each award employee who did not sign a workplace agreement had not been changed to his or her detriment by an intentional act of the employer: the relative change in wages and conditions was brought about by the acceptance of some employees, and the rejection by others, of an offer made indiscriminately to all employees.
105 The Full Court said at par 41:
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- "It will be readily apparent that, in the present case, BHPIO has not treated any employees differently from other employees by reason of their union membership. The terms of the offer permit those accepting it to retain or acquire union membership as they wish. Any difference in treatment has resulted solely from non-acceptance of the offer. That was not the case in HSUA v Tasmania where the employer intentionally framed the offer so that it was not available to union members."
106 The Full Court in the BHP case distinguished two of the cases relied upon by counsel for the plaintiff in the present case, namely, United Firefighters Union v Country Fire Authority (IRCt (Vic) 24 December 1996 unreported) and Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531.
107 In the United Firefighters case, the Country Fire Authority effectively offered a limited number of promotions on condition of entry into individual employment agreements. That was to attach a new condition to employment in the service of the authority which could be regarded as injuring each employee or altering each employee's position to his or her prejudice. That was thought to be unlike the position in the BHP case where the offer was made indiscriminately to all employees in the relevant categories. The Authority's action could not be described as the imposition of an adverse condition.
108 The question which arose in the Canonical Administrators case was whether the withholding by employers of teachers' salaries referable to a period of protected industrial action amounted to an injury of the relevant teachers or an alteration of their position to their prejudice. There was a suggestion that the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than were extended to other employees could be characterised as a form of prejudice. Nonetheless, the Full Court in the BHP case was prepared to distinguish the BHP case from the Canonical Administrators case. The court said at par 48:
"However, in our view, the observations in Canonical Administrators extend only to an alteration in the employee's position which has been brought about by a discriminatory act of the employer in 'singling out', as Marshall J put it, the employee concerned for exposure to detrimental consequences or exclusion from benefits or advantages such as promotion or the availability of congenial shifts or attractive overtime. As we have endeavoured to explain, the facts of the present case do not
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- reveal any such discriminatory 'singling out' by BHPIO of any of its existing workforce."
109 The Full Court went on to say in respect of the circumstances before them in the BHP case that although it was also true that a continuing award employee who received a promotion or some other beneficial change in his or her employment might not achieve the same increase of remuneration as a similar employee on an individual workplace agreement, that would be a consequence of an election between different contractual regimes for the regulation of the employment of the two groups of employees. It would not have been brought about by the active, intentional, conduct of the employer which is struck at by s 298K.
110 I have already noted in passing that s 70 of the Workplace Agreements Act (WA) requires that the act complained of must be "the" reason for taking the relevant step. This is in contradistinction to the decided cases under the federal Act where the operative concept is "a" prohibited reason. In other words, the court in the present case must determine whether the factor that brought about the alleged disadvantage was a refusal by the complainant employees to enter into a WPA. It will obviously be material to determine whether there are innocent or legitimate explanations for what has been done of the kind under consideration in the BHP case and the Geraldton Port Authority case. Both cases suggest that it is permissible for an employer to make decisions aimed at improving efficiency and to arrange its affairs so that employees can make an election between two separate employment regimes, notwithstanding that an election not to join a new regime may lead to a less satisfactory status and less benefits. In such a case, the reason underlying any perceived difference of treatment is thought to flow not from unlawful conduct on the employer's part but from the employees' decision to stay with the old regime.
Balance of Convenience
111 Various submissions were made on both sides concerning the balance of convenience.
112 The plaintiff contended that an interim injunction is necessary to preserve the status quo. If such an injunction is not granted, irreparable damage will be suffered by the plaintiff and some of its members which will not be able to be cured or rectified. Agreements registered pursuant to the Workplace Agreements Act override the statutory effect of an award and collective agreements in respect of each employee who is a party to
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- such an agreement. There is no provision in the Industrial Relations Act by which Westrail can be compelled to bargain collectively with the plaintiff.
113 Once employees have signed a WPA, they are bound to that agreement until its expiry. The terms and conditions of the existing and proposed WPAs are disadvantageous to employees in the long-term, counsel for the plaintiff submitted. Employees who sign a WPA before the sale of Westrail Freight will be bound by the terms of the WPA upon the transfer of the business. The sale of Westrail Freight has given rise to industrial issues of significant importance, upon which the plaintiff seeks to negotiate the interests of its members. The effect of employees signing WPAs is that the power of the plaintiff to negotiate a collective agreement with Westrail is compromised.
114 In answer to these submissions, counsel for Westrail argued that the grant of an interim injunction would interfere with Westrail's legitimate entitlement to implement what it perceived to be efficiencies flowing from entry into the WPAs by those employees who wished to make such a choice. The proposed injunction would not only interfere with the employer's entitlement to administer its affairs in response to changing commercial realities, but also would impede the freedom of choice of employees who had not necessarily had an opportunity to be heard in respect of the matters in issue in these proceedings. Westrail emphasised that the particular circumstances of only three employees had been described - Messrs Currell, Steegstra and Selleck - and the evidence of any infringements of the Workplace Agreements Act concerning those employees was said to be scant and unpersuasive. There was insufficient evidence as to why an interim injunction was necessary to maintain their position pending final determination. Counsel also placed reliance upon s 70(2) of the Workplace Agreements Act which provides that if an employer is convicted of an offence under s 70, the Industrial Magistrate's Court may order the employer to pay compensation for any loss or injury suffered as a result of the commission of the offence.
115 The plaintiff submitted that the form of the orders sought was too wide. They were said to be vague and oppressive in that par 1 of the proposed orders sought to restrain conduct concerning "any member" of the plaintiff union. An application for relief in these terms had to be considered against a background of a statement of claim referring to the circumstances of only three employees out of a union membership of 385. An interlocutory injunction should be framed in terms that were no wider than necessary to proscribe the impugned conduct. Further, par 1 of the
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- proposed orders simply picked up the statutory language of s 68 and s 70. It was not clear in the circumstances of the present case exactly what kind of conduct the orders sought to restrain. Westrail would have to determine for itself, at the risk of contempt, whether it was in danger of breaching the injunction. If particular employees felt aggrieved about losing money as a result of some specific violation, then the individual or group of individuals concerned should pursue a complaint in the Industrial Magistrate's Court.
116 Counsel for Westrail also sought to place the present application for relief within the context of the ongoing industrial relations dispute between the plaintiff and Westrail concerning the negotiation of terms and conditions of employment to apply to the subject employees in place of those contained in the former enterprise bargaining agreement, or EBA. Counsel reminded the court that the plaintiff union retired from the industrial agreement after negotiations broke down for a replacement. It then obtained the cancellation order as part of an industrial relations strategy arrived at extracting concessions from Westrail. In effect, the plaintiff was seeking from the Supreme Court, by way of an injunction, relief aimed at overcoming disabilities that its own actions had imposed upon its members, for the consequence of the cancellation order was that with the revival of the 1973 Award, Westrail became obliged, as a matter of law, to administer two separate employment regimes. In these circumstances, it could not be said that there was a clear causal connection between Westrail's alleged misconduct and the adverse consequences that the plaintiff and three of its members complained of. The plaintiff was simply trying to shore up its position in the bargaining process and this should be taken into account by the court in weighing up the balance of convenience.
117 Westrail went on to say that the essence of the dispute between the parties was an industrial dispute. Controversies of the kind should be dealt with by the Industrial Relations Commission which has been dealing with matters in issue between the parties since September 1999. The Commission was still seised of the matter in that Westrail has applied to the Commission to amend the Award to replace it with new provisions that supersede the current, outmoded Award. The present application could be regarded as nothing more than a tactical move and this was evidenced by the plaintiff's own submission alleging damage to its bargaining position. The plaintiff union was aware of a conference application in the Commission made in the last week of June 2000 by Westrail for interim orders to be made by the Commission to ease the transition from the industrial agreement to the 1973 Award. No orders
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- were made. However, it was open to the plaintiff union to seek to relist the matter at any time before the Commission.
118 Against the background of these submissions, counsel for Westrail submitted that there was no serious question to be tried on the facts raised by the affidavits and the balance of convenience did not favour the grant of an injunction. If the court took that view of the matter, then the application should be dismissed.
Findings
119 It is apparent from the overview of the dispute I provided in opening, and from the more detailed review of the matters in issue I have undertaken in the course of these reasons for judgment, that various findings are required. I will begin by turning to the allegations arising under s 68 of the Workplace Agreements Act that Westrail has, by threats or intimidation, persuaded or attempted to persuade members of the plaintiff union to enter into workplace agreements of the kind mentioned earlier; alternatively, that misconduct of this kind has occurred "because" certain of the plaintiff's members are not parties to workplace agreements.
120 When one looks at the various documents reflecting Westrail's desire to improve efficiency by offering employees an opportunity to enter into WPAs, as I have noted earlier, the plaintiff is unable to identify any document or passage which contains overtly threatening or intimidatory language, that is to say, language calculated or likely of itself to inspire fear or apprehension of adverse consequences in the recipient. I am referring here to the Detez information sheet, the Westrail guidelines, the Task Force transfer package and various communications with employees such as the Goodall notice and the Bayley letter.
121 The affidavits before me may arguably evidence a mood of unease or uncertainty amongst employees, but a very careful analysis must be undertaken as to whether this is a consequence of coercive conduct by Westrail, or any party such as the Task Force acting on its behalf, or whether such a mood is simply a consequence of the unsettled state of the negotiations between the parties, combined with various ambiguities arising from the resurrection of the 1973 Award. There is evidence before me that the terms and conditions of the 1973 Award are now outmoded, having been left in abeyance for a number of years with the plaintiff union's consent. I have already indicated that a sense of displeasure that old provisions are being reactivated cannot necessarily be equated with a fear of adverse consequences of the kind required to make out a claim
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- based upon threats or intimidation, especially in circumstances where the party responsible for reactivating the old clause is the plaintiff union itself.
122 When I turn to the facts and matters bearing upon the rostering issue and the circumstances of the three employees, Messrs Currell, Steegstra and Selleck, observations to similar effect are pertinent. There is no direct evidence before me from these three employees bearing upon the matters complained of and much of the evidence brought forward by the union secretary, Mr Curran, concerning the situation of these employees, and the situation of others like them, is arguably refuted by evidence to the contrary reflected in the affidavits filed for and on behalf of Westrail.
123 Even if Mr Curran's evidence be accepted in its entirety at face value, thus putting the plaintiff's case at its highest, the matters complained of do not reveal overtly threatening or intimidatory conduct. At best, the proposition is that Westrail, by its own officers, or in some instances in conjunction with or via the Task Force, has requested certain employees to enter into workplace agreements. When this is considered in the light of changes to rosters and the relegation of certain locomotive operators (as they were classified under the EBA) to driver's assistants (qualified), an inference can and should be drawn that Westrail is relying upon an insidious threat of adverse consequences in order to achieve its purpose of committing all employees to WPAs prior to the proposed sale of the freight service. Or, to put it another way, keeping in mind the provisions of s 68(2), some of the plaintiff's members are being threatened with harm because they are not parties to workplace agreements.
124 I acknowledge that facts and matters of this kind may be enough to raise a serious issue to be tried in some cases. One has to recognise that in the case of a large employer pressure can be applied covertly and by various hints and suggestions. The Canonical Administrators case (supra) indicates that in some circumstances allocations of uncongenial shifts and rostering designed to afford few opportunities for overtime can be characterised as altering an employee's position to his disadvantage. In the present case, however, the situation is complicated by the fact that Westrail can point to a persuasive and more innocent explanation for what has taken place and is continuing to occur. The plaintiff union took steps to retire from the EBA. This led to the cancellation order and the resurrection of the 1973 Award. Westrail is now, by law, required to treat Award employees and WPA employees separately. The classifications of enginemen, and the shifts and duties under the two separate regimes are
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- not the same, with the result that Westrail could be criticised if it failed to prepared rosters making allowances for this state of affairs.
125 This view of the matter has not been seriously contested by the plaintiff. It therefore becomes difficult for the plaintiff to argue that particular employees are being singled out and being made the target of discriminatory conduct because of Westrail's determination to have them enter into WPAs. Westrail submits that all employees are being dealt with indiscriminately and in accordance with their entitlements, that is to say, depending upon whether they are Award employees or WPA employees. For example, there may be members of the plaintiff union who have not yet entered into a WPA, but wish to do so. Nonetheless, for the time being, employees of that inclination will have to be rostered as drivers or as driver's assistants. Employees are not being singled out because of their failure to enter into WPAs. The differentiation effected by the rostering flows from the necessities of Westrail having to administer two separate regimes. Thus, it is difficult to establish as a serious issue to be tried that the conduct associated with the rostering issue or the alleged request or requirement that certain employees enter into WPAs is causally connected to a purpose on Westrail's part which is to be advanced by threatening or intimidatory means.
126 Westrail is entitled to select the employees it requires to provide services on particular routes and to do so with an eye to commercial efficiency. It is also entitled to enter into WPAs with those employees who approach Westrail and wish to make a choice of that kind. It is not obliged to provide overtime or work at penalty rates. In my view, intimations to the Westrail employees that WPAs are available to employees who wish to enter into them cannot be regarded as intimidation or a threat of adverse consequences in circumstances where it is open to the employee to accept or reject the offer. It follows from the reasoning in Geraldton Port Authority (supra) and BHP (supra) that in such circumstances the relative changes in wages and conditions, or in duties being performed, is brought about not by unlawful conduct on the part of Westrail, but by the acceptance by some employees and the rejection by others of an opportunity to enter into WPAs which is being made available to all employees indiscriminately.
127 If a mood of unease does exist, then it seems, upon careful analysis, that such a mood flows from the steps taken by the plaintiff union to cancel the EBA, with the result that two separate regimes now have to be administered which has inevitably given rise to a sense of differentiation between the circumstances of various employees. It follows from my
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- earlier observations, that to some extent the present case resembles the situation in Ratanyake (supra) where the so-called adverse consequences arise not from wrongful conduct by Westrail, but from external circumstances brought about by the ongoing industrial dispute.
128 Similar considerations apply when I turn to the issues arising under s 70(1)(b) and (d) of the Workplace Agreements Act. The plaintiff must establish, as a serious issue to be tried, that Westrail has arguably altered the employees' position disadvantageously or otherwise injured the employees when "the" reason for doing so is that the employee refused to enter into a workplace agreement.
129 I have already noted that unlike the federal legislation, the presence of the definite article "the" highlights the importance of establishing a causal connection between allegations that the employer has singled out or discriminated against the employee because of a refusal to enter into a workplace agreement and the disadvantage or detriment complained of. The refusal to enter into the workplace agreement must be the operative cause of the disadvantage complained of. It must be possible to say that the disadvantage would not have occurred "but for" the particular employee's refusal to enter into a WPA. When the matter is looked at in this way, the provision also suggests that there must be some "singling out" or discrimination aimed at the particular employee which is referable not to his qualities as an engineman but simply to his failure to enter into a WPA.
130 I have already noted, however, that in the circumstances of the present case factors are present that suggest the consequences complained of have been brought about essentially by cancellation of the EBA, with the result that Westrail is now required to administer two separate contractual regimes. The essential or operative reason why there is now an apparent differentiation between working conditions in a way which might seem to be a disadvantage to some employees is the fact that locomotive operators under the WPAs have greater flexibility in their terms of employment. This arises not from discriminatory action by Westrail, but from a choice made by certain employees to enter into the workplace agreements. It cannot be said that "but for" the alleged refusal to enter into a WPA by Messrs Currell, Steegstra and Selleck, and other employees like them, they would not have been rostered as drivers' assistants (qualified) with a consequent diminution of financial benefits. This conclusion can be tested by drawing together some of the considerations touched upon in an earlier discussion. First, in the case of each employee there is no direct or clear evidence that events have taken
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- place that add up to a refusal. The contemporary documentation which is structured so as to require the employee to approach the employee is not consistent with there being a moment of refusal of the kind alleged. Second, and in any event, the evidence shows that the Westrail conduct complained of, including the selection of the number of drivers required at each depot and consequential rostering, depends not upon an act of refusal but upon whether the employees in question have elected to enter into a WPA, with the result that the driver has the capacity to work more flexible hours and longer shifts. I have already noted that both the Geraldton Port Authority case and the BHP case establish that it is permissible for an employer in this context to make decisions aimed at improving efficiency and to arrange its affairs so that employees can make an election as to which of two employment regimes they wish to join. In such a case, any difference in benefits results from the decision made by the employee.
131 It follows from these findings that I am not satisfied that there is a serious issue to be tried in respect of these claims.
132 Further, and in any event, I am not satisfied that the balance of convenience favours the grant of an injunction to the plaintiff. North J in the Australia Paper case indicated that ordinarily justice will be best served if the court approaches the grant of an interim injunction in the context of ongoing industrial disputation with particular caution. This is because there are various distinct features of industrial disputes which make such caution necessary. The first is that, usually, the parties to litigation concerning an industrial dispute include persons or bodies who are professional negotiators. Their everyday function is resolving disputes between themselves about industrial issues. There is good sense in courts maintaining a degree of restraint against intervention between parties who are experienced in techniques for dispute resolution. Furthermore, the disputants usually have a relationship which has been built up over some time and must continue after the current issue between them is long past.
133 The second feature is related to the first. Often, an interim injunction is sought for predominantly tactical or strategic purposes in the course of a dispute. The injunction constitutes another bargaining chip which can be used to further the interests of the applicant. Whether this is so in a particular case will depend on the facts put before the court. However, if the court sees signs that an injunction is sought primarily for tactical reasons, there is good reason for the court to be particularly cautious about granting an injunction. It is not the function of the court to provide an
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- advantage to one side in an industrial dispute. To do so creates the risk that the court will be seen to be partisan. The necessary confidence in the court as an impartial adjudicator of disputes will be reduced.
134 In the circumstances of the present case, there are indications that the injunction applied for may have tactical implications. The plaintiff submits that the effect of employees signing WPAs is that the power of the plaintiff to negotiate a collective agreement with Westrail is compromised. Westrail has argued that the grant of an interim injunction would interfere with Westrail's legitimate entitlement to implement what it perceives to be efficiencies flowing from entry into the WPAs by those employees who wish to make the choice. Westrail says that the essence of the dispute between the parties is an industrial dispute arising out of the attempt by the plaintiff to establish a strong bargaining position for itself to negotiate a new s 41 industrial agreement. Westrail submits that controversies arising out of a dispute of that kind should be dealt with by the Industrial Relations Commission. I see merit in this submission. When one examines the balance of convenience, there does not seem to be a sufficient connection between the misconduct alleged against Westrail and injury to the plaintiff union to justify the grant of interim relief.
135 Different considerations apply when one turns to the position of individual union members who are allegedly affected by the conduct complained of. Some former EBA employees may wish to enter into workplace agreements and would be prevented or deterred from doing so by the presence of an injunction in the terms sought by the plaintiff without having been afforded an opportunity to be heard. On the other hand, if individual employees are in fact disadvantaged in the manner alleged, then it is open to them to obtain compensation pursuant to provisions of the Workplace Agreements Act.
136 For all these reasons, I am not satisfied that the balance of convenience favours the grant of an injunction in the terms sought by the plaintiff. Accordingly, even if I be wrong in the conclusions I expressed earlier concerning the lack of a serious issue to be tried, I am persuaded that the application for the order should be dismissed on the further ground that the balance of convenience weighs against the grant of any such order. I also feel obliged to say that, in my view, the form of the injunction sought in par 1 of the proposed minute is too broad, and for that reason could be regarded as oppressive. However, bearing in mind the conclusions I have come to generally, it is not necessary for me to give detailed consideration to this aspect of the matter.
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