Tighe v Watson
[1998] FCA 1100
•7 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – rule to show cause – whether serious question to be tried – whether applicant must have taken all reasonable steps to resolve the matter within the union before seeking relief – balance of convenience – whether the Court has jurisdiction to grant relief in the nature of an injunction against a person who holds office under the Workplace Relations Act 1996 (Cth)
Federal Court of Australia Act 1976 (Cth) s23
Judiciary Act 1903 (Cth) s39B
Workplace Relations Act 1996 (Cth) ss170LJ, 209, 412
Conciliation and Arbitration Act 1904 (Cth) s141
Baird v Kingham and Ors (1993) 51 IR 264, followed
Anderson v Johnson (1990) 22 FCR 326, followed
R v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194, applied
Darroch v Tanner (1987) 16 FCR 368, applied
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, applied
PETER TIGHE –v- PAUL WATSON, COLIN COOPER, BRIAN BAULK, V HORREX, I MCLEAN, J PERIGILLY, B RISELEY, J COFFEY, L COOPER, M SWAN, P COLLINS, E VERVAART, D IRONS, E MURIC, J BROWN, K MALLIS, G THOMAS, G STURGESS, A ABSOLOM, L CHALKER, N KINNIBURGH, R ROE, B WATKINS, D DWYER and K DOREN; WAYNE BLAIR; and VISIONSTREAM PTY LIMITED (ACN 062 604 193)
VG 416 of 1998
MARSHALL J
MELBOURNE
7 SEPTEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 416 of 1998
BETWEEN:
PETER TIGHE
ApplicantAND:
PAUL WATSON, COLIN COOPER, BRIAN BAULK, V HORREX, I MCLEAN, J PERIGILLY, B RISELEY, J COFFEY, L COOPER, M SWAN, P COLLINS, E VERVAART, D IRONS, E MURIC, J BROWN, K MALLIS, G THOMAS, G STURGESS, A ABSOLOM, L CHALKER, N KINNIBURGH, R ROE, B WATKINS, D DWYER and K DOREN
First Respondent
WAYNE BLAIR
Second RespondentVISIONSTREAM PTY LIMITED (ACN 062 604 193)
Third RespondentJUDGE:
MARSHALL J
DATE OF ORDER:
7 SEPTEMBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
Pending the final determination of the rule to show cause or further order the second respondent refrain from signing any order for the certification of the Visionstream Certified Agreement 1998 dated 17 June 1998.
Liberty to apply on not less than 48 hours written notice to each other party.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 416 of 1998
BETWEEN:
PETER TIGHE
ApplicantAND:
PAUL WATSON, COLIN COOPER, BRIAN BAULK, V HORREX, I MCLEAN, J PERIGILLY, B RISELEY, J COFFEY, L COOPER, M SWAN, P COLLINS, E VERVAART, D IRONS, E MURIC, J BROWN, K MALLIS, G THOMAS, G STURGESS, A ABSOLOM, L CHALKER, N KINNIBURGH, R ROE, B WATKINS, D DWYER and K DOREN
First Respondent
WAYNE BLAIR
Second RespondentVISIONSTREAM PTY LIMITED (ACN 062 604 193)
Third Respondent
JUDGE:
MARSHALL J
DATE:
7 SEPTEMBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 25 August 1998 the Court granted the applicant a rule to show cause in the following terms:
“That the First Respondents and each of them perform and observe the rules of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the union”):
(1)by treating the execution by the First Respondent, Paul Watson, of the Visionstream Certified Agreement 1998 dated 17 June, 1998 as null and void and of no effect;
(2)by treating the Visionstream Certified Agreement 1998 dated 17 June, 1998 as null and void and of no effect;
(3)by forthwith informing the Second Respondent that the Visionstream Certified Agreement 1998 dated 17 June, 1998 has not been entered into or executed by the union in accordance with its rules and its certification is not consented or agreed to by the union;
(4)by forthwith applying to the Second Respondent to withdraw the application for certification of the Visionstream Certified Agreement 1998 dated 17 June, 1998 from the Commission.”
The applicant also sought a declaration in the proceeding that “the Visionstream Certified Agreement 1998 dated 17 June 1998 is null and void and of no effect.”
On 31 August 1998 the first directions hearing in the matter and a hearing of the applicant’s claim for interim relief occurred. The interim relief sought by the applicant included the following terms:
“…that pending the final determination of the proceedings or further order:
(1)the First and Third Respondents and each of them, by themselves, their servants or agents, or otherwise, treat the Visionstream Certified Agreement 1998 dated 17 June, 1998 as null and void and of no effect; …
(4)the Second Respondent refrain from signing any order for the certification of the Visionstream Certified Agreement 1998 dated 17 June, 1998.”
The applicant is the National Secretary of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the Union”) and the Divisional Secretary of the Electrical Division of the Union. The other divisions of the Union are the Communications Division and the Plumbing Division. The first respondents, with the exception of Mr Watson, comprise the majority of the members of the Divisional Executive of the Communications Division. The second respondent is a Commissioner of the Australian Industrial Relations Commission (“the Commission”). The third respondent is an employer of members of the Union attached to the Communications Division and the Electrical Division.
On 22 June 1998 the second respondent dealt with an application before him, which had been lodged by the third respondent, seeking certification of an agreement between it and the Union pursuant to s170LJ of the Workplace Relations Act 1996 (Cth) (“the WR Act”). In his decision, recorded in transcript, the second respondent decided to certify the agreement as from 22 June 1998.
The applicant did not become aware of the application for certification of the agreement until 23 June 1998. He sought a re-listing of the matter. He wished to raise his concern that the internal processes required by the rules of the Union had not been complied with and that accordingly there was no consent given by the Union for the agreement to be certified. The applicant wished to address the second respondent on that matter prior to the second respondent’s signing of an order certifying the agreement. The matter was re-listed by the second respondent on 19 August 1998 but that listing was cancelled on 18 August 1998. Solicitors for the third respondent have advised the Court that the matter has now been re-listed by the second respondent for further hearing at 9.30 am on 11 September 1998.
The applicant contended through his counsel, Ms Young, that the certified agreement did not become operative until the second respondent signed an order certifying the agreement. Ms Young submitted, in effect, that in the event that the second respondent signed such an order the applicant would be unable to progress his application pursuant to s209 of the WR Act because the subject matter of the rule to show cause would disappear. Counsel for the first respondents (other than Paul Watson and N Kinniburgh), Mr Staindl, submitted that the agreement was certified on 22 June 1998 and that no further action is required by the second respondent in the matter. Mr Rinaldi, counsel for the third respondent, agreed with Mr Staindl’s submission in that regard.
There was no appearance for the second respondent. On the afternoon of the last working day before the application for interim relief was heard a solicitor acting for the second respondent wrote to the Court and said so far as is material:
“I note that the Applicant does not appear to have sought any specific order against my client. Commissioner Blair does not wish to make submissions (except if necessary on the question of costs) or to appear and will abide the Order of the Court.
Unless I hear from you further I shall assume that an appearance by my client is not necessary on 31 August 1998.”
My associate attempted to contact the solicitor on the morning of 31 August 1998 to point out that interim relief was indeed sought by the applicant against the second respondent. Despite some communication between my associate and the solicitor concerned on 31 August 1998 the second respondent was not represented on that day.
Ms Young and Mr Staindl made competing submissions on the question of whether the rules of the Union had been complied with in relation to the second respondent’s action on 22 June 1998. In the context of this application for interim relief it is not necessary to determine which of the competing submissions is the correct one. Ultimately the Court may receive further evidence and more detailed submissions on that issue as well as other issues relevant to the application. As Heerey J said in Baird v Kingham and Ors (1993) 51 IR 264 at 264:
“The Court has to make a decision which is the fairest and most convenient temporary arrangement, pending a full trial of the proceeding.”
Mr Staindl submitted that the Court should exercise its discretion, pursuant to s209(3) of the WR Act, to refuse to deal with the application on the basis that the applicant has not taken all reasonable steps to have the matter resolved within the Union. He noted that the applicant had not attempted to have the matter resolved by the Union’s National Council or National Executive. In reply Ms Young submitted that the particular voting strength required to pass a motion by either of these bodies meant that a motion moved with the support of the Electrical Division to which the applicant is attached would be unlikely to receive support from members attached to the Communications Division, and thus, according to the rules of the Union, would not be carried.
I am not satisfied that I should exercise my discretion to refuse to deal with the application for interim relief. If the applicant is correct in his view that the certified agreement has yet to become operative, in the absence of the signature of the second respondent, and, if he is also correct in his view that there has been a material breach of the rules of the Union in the steps leading up to the events of 22 June 1998, then unless the Court entertains the grant of interim relief on an urgent basis the subject matter of the application may dissipate. This is especially so in the absence of an undertaking by the second respondent that he will refrain from signing any order, if necessary, to give effect to the agreement pending the outcome of this proceeding.
Whilst it has been open to the applicant to raise his concerns with the National Council and / or National Executive of the Union this should not, in the circumstances, result in him being denied access to the Court. As Gray J said in Anderson v Johnson and Ors (1990) 22 FCR 326 at 335:
“An applicant is not to be denied relief simply because there was open to him or her some step under the rules which might conceivably have led to a resolution of the issue which he or she seeks to raise before the Court. An applicant is not required by s209(3) to engage in conduct the result of which is purely speculative.”
Ms Young informed the Court that if it made the order numbered 4 of the interim orders sought by the applicant, as set out above, the applicant would not pursue the making of any of the other interim orders referred to in the rule to show cause. The making of an order compelling the second respondent to refrain from signing any order for the certification of the certified agreement cannot affect the third respondent if the third respondent is correct in its contention that the agreement is already operative as a matter of law. Similarly, the first respondents will not be adversely affected by any such order. The members of the Union being accorded the wages and conditions set out in the agreement will continue to have such wages and conditions. It seems reasonably clear therefore that “the fairest and most convenient temporary arrangement, pending a full trial of the proceeding” is to make the interim order numbered 4 as sought by the applicant in the rule to show cause.
Mr Staindl and Mr Rinaldi each submitted that the Court has no jurisdiction to make such an order. I reject that submission. The Court has wide power to grant interim relief as it considers appropriate in applications under s209 of the WR Act. As Mason and Murphy JJ said in R v Joske; Ex parte Shop Distributive and Allied Employees’ Association (1976) 135 CLR 194 at 212 in respect of a predecessor provision of s209 of the WR Act, namely s141 of the Conciliation and Arbitration Act 1904 (Cth):
“The judgments of this Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett make it perfectly clear that sub-s. (1) of s.141 is not confined to the making of orders directing the performance or observance of a particular rule or particular rules of the organization, as the prosecutors would have it, and that it extends, as its words explicitly state, to the giving of directions for the performance or observance of any of the rules of an organization, that is, for the doing of acts which will conduce to the performance or observance of such rules.”
Upon the assumption of the correctness of the applicant’s submissions concerning the first respondents alleged failure to comply with these rules, in my view it will be conducive to the performance and observance of the rules of the Union for the Court to make the interim order numbered 4 as sought by the applicant. The submissions of Ms Young raise a serious issue to be tried regarding whether the rules have been complied with. The balance of convenience supports the making of such an order as, in the circumstances, no prejudice to the first respondent or the third respondent can thereby arise. The first and third respondents’ submission that the certified agreement is operative without any further act of the Commission is equally arguable. They are entitled to act, in the interim, on the basis of the correctness of those contentions which they will have the opportunity to more fully ventilate at trial.
Mr Rinaldi submitted that s39B of the Judiciary Act 1903 (Cth) limits the power of the Court to grant relief in the nature of an injunction against a person holding office under the WR Act.
s39B of the Judiciary Act 1903 (Cth) provides as follows:
“(1)The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament.
(2)The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:
(a)a person holding office under the Workplace Relations Act 1996 or the Coal Industry Act 1946; or
(b) a Judge or Judges of the Family Court of Australia.”
It can be readily seen that it includes within the jurisdiction of the Court, inter alia, the jurisdiction to grant injunctive relief against an officer of the Commonwealth but not an officer such as the second respondent. However the section does not purport to deprive the Court of the jurisdiction it might otherwise have to grant relief in the nature of an injunction against a person who holds office under the WR Act. As Ms Young submitted the Court has jurisdiction to deal with s209 applications pursuant to s412 of the WR Act. The power which it may exercise in matters in which the Court has jurisdiction, including s209 applications, is broad as s23 of the Federal Court of Australia Act 1976 (Cth) indicates. That section provides as follows:
“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”
The final relief which may be granted in a s209 application is confined to the performance and observance of rules by persons currently under an obligation to perform and observe such rules. See, for example, Darroch v Tanner (1987) 16 FCR 368 at 373-374. However as Joske indicates, the Court’s power to grant interim relief in applications under s209 of the Act is not so confined. Section 23 of the Federal Court of Australia Act 1976 (Cth) reinforces that position. As the High Court said in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at pp 655-6:
“Once the jurisdiction conferred on the Federal Court by the Act is invoked, that court has power under s23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make “orders of such kinds, including interlocutory orders… as the Court thinks appropriate”. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s23 power to the court in that class of proceeding. It cannot be invoked to grant an injunction where the court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case.”
There has been no suggestion in this matter either that s209 of the WR Act or the WR Act itself provides “an exhaustive code of available remedies” which do “not authorise” interim relief in terms of an order of the kind sought in the order numbered 4 of the interim relief sought in this case.
The making of such interim relief will not be a bar to the matter being further considered within the internal organs of the Union. Further, it is open to the Union and / or the third respondent to take whatever steps it considers necessary to have the matter further dealt with by the second respondent provided that such action does not contravene the interim order which I now make.
In the circumstances the Court makes the following orders:-
Pending the final determination of the rule to show cause or further order the second respondent refrain from signing any order for the certification of the Visionstream Certified Agreement 1998 dated 17 June 1998.
Liberty to apply on not less than 48 hours written notice to each other party.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 7 September 1998
Counsel for the Applicant: Ms Melanie Young Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the First Respondents:
(other than Paul Watson and N Kinniburgh)Mr David Staindl Solicitor for the First Respondents:
(other than Paul Watson and N Kinniburgh)Holding Redlich Counsel for the Third Respondent: Mr Mark Rinaldi Solicitor for the Third Respondent: Lander & Rogers Date of Hearing: 31 August 1998 Date of Judgment: 7 September 1998
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