TransportEdge Inc v Swan Transit Services (South) Pty Ltd
[2019] FCCA 2812
•3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRANSPORTEDGE INC v SWAN TRANSIT SERVICES (SOUTH) PTY LTD | [2019] FCCA 2812 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – whether arguable case. PRACTICE AND PROCEDURE – Injunction – principles for grant of. |
| Legislation: Associations Incorporation Act 2015 (WA) Fair Work Act 2009 (Cth), ss.12, 346, 347, 361, 539, 540, 570 Fair Work Bill 2008 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 75 Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02 |
| Cases cited: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; (1981) 33 ALR 578; (1981) 55 ALJR 107 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 |
| Applicant: | TRANSPORTEDGE INC |
| Respondent: | SWAN TRANSIT SERVICES (SOUTH) PTY LTD |
| File Number: | PEG 224 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 7 August 2017 and 17 October 2017 |
| Date of Last Submission: | 17 October 2017 |
| Delivered at: | Sydney (via video-link to Perth |
| Delivered on: | 3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr G Maclean |
| Solicitors for the Applicant: | Maclean Legal |
| Counsel for the Respondent: | Mr O Fagir |
| Solicitors for the Respondent: | Meridian Lawyers |
ORDERS
That the respondent’s application in the Response filed 26 May 2017 for summary judgment or summary dismissal of the originating application be dismissed.
That the applicant’s application in the originating application filed 19 April 2017 be dismissed.
That the matter be referred to a Registrar of this Court for mediation on a date to be fixed by the Registrar.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 224 of 2017
| TRANSPORTEDGE INC |
Applicant
And
| SWAN TRANSIT SERVICES (SOUTH) PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed in this Court on 19 April 2017 (“Application”) the applicant, TransportEdge Inc (“TransportEdge”) seeks declarations that the respondent, Swan Transit Services (South) Pty Ltd (“Swan Transit”), contravened s.346 of the Fair Work Act 2009 (Cth) (“FW Act”) and that pecuniary penalties be imposed and made payable to TransportEdge.
The Application also sought interlocutory orders (“Injunction Application”) as follows:
1. The Respondent must not prevent or hinder any of its employees, who are also members of the Applicant, from:
a. distributing;
b. displaying on a private vehicle; or
c. otherwise making available to other employees of the Respondent,
any non-offensive pamphlet material of the Applicant, at the Respondents’ work places.
2. This injunction extends to the pamphlet attached to the Form 4 Claim under the Fair Work Act 2009 alleging contravention of a general protection (marked GSM 1), filed in support of this Application.
3. The injunction remains in place until the substantive application is heard or otherwise resolved.
In a response filed on 26 May 2017 Swan Transit sought that there be summary judgment in their favour pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”), or alternatively that the Application be summarily dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) (together the “Dismissal Application”). In orders made by consent on 2 June 2017 the Court ordered that the Injunction Application and the Dismissal Application be heard together and directed the filing of evidence and submissions.
The evidence pertaining to the Injunction Application and the Dismissal Application was heard on 7 August 2017, and the Court reconvened on 17 October 2017 for closing submissions.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has read each of the following:
a)the Originating Application, Statement of Claim and Response;
b)each of the affidavits filed;
c)the Transcript of both days of hearing;
d)all of the exhibits; and
e)the outlines of written submissions which were filed by the parties.
These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”).
Background
TransportEdge is an association incorporated under the Associations Incorporation Act 2015 (WA) on 27 October 2016, but is not an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). TransportEdge adopted the Model Rules (“Rules”) promulgated by the Department of Commerce (WA), which indicated the “object or purpose of the association” fell into the categories of “Promotion of interests for a trade or industry” and “Political activities”, and had the following relevant “Objects”:
1. To uphold the rights of the organisation of labour and to improve, protect and foster the best interests of its members, and to subscribe to and/or co-operate with policies for improving the cultural and living standards of its members.
2. To protect the interests of members in the regulation of the conditions of labour by engaging in the political public debate related to labour.
3. To provide industrial advice and other assistance to financial members whenever and wherever considered necessary.
4. To establish a fund for the purpose of advancing the best interests of its members.
5. To seek affiliation/ membership with any organisation that will advance the objects of the association
It suffices to note for present purposes that in the Application it is alleged that Swan Transit took adverse action against John Fawkes (“Mr Fawkes”) and Walter Parker (“Mr Parker”), both representatives of TransportEdge and employees of Swan Transit, in taking disciplinary action and issuing warnings because Mr Fawkes and Mr Parker were engaging in an industrial activity. Taking adverse action against a person as a result of engaging in industrial activity contravenes one of the general protections provisions, specifically s.346 of the FW Act.
Between December 2016 and 25 January 2017 Mr Fawkes and Mr Parker both purported to represent the views of TransportEdge in the Swan Transit workplace in respect to a proposed enterprise agreement. Both posted, discussed or distributed pamphlet and brochure materials or posters (collectively the “Brochures”) pertaining to TransportEdge and Mr Fawkes and Mr Parker were directed to cease posting or distributing these materials, and received written warnings upon failing to comply with those directions.
It is Swan Transit’s case that the there is a blanket policy prohibiting the distribution of any materials without management consent, and the reason for taking the disciplinary action was because this policy had been breached, and not because of a person partaking in an industrial activity. It also drew attention to the fact that the Brochures being distributed and one poster displayed by Mr Parker were highly critical and denigrated Swan Transit.
An application was made by TransportEdge in early 2017 to the Fair Work Commission (“FWC”) for various orders, including that Swan Transit be directed to allow its employees to circulate its promotional materials, including the Brochures, during non-work times. The application in which TransportEdge was seeking that direction, amongst others, was dismissed by the FWC on 13 April 2017, and shortly after the Application in this Court was lodged, and included the Injunction Application which seeks seemingly the same directions as were sought in the FWC.
At the hearing on 7 August 2017 the Court heard the parties’ objections to the evidence and made a number of rulings on the admissibility of the evidence the subject of those objections. It is necessary to indicate that in the preparation of these reasons the Court has had regard to the affidavit materials read into evidence subject to those parts or paragraphs that the Court indicated were struck out. The following materials are therefore before the Court:
a)the Application and supporting Statement of Claim;
b)an affidavit of Walter Parker affirmed 3 July 2017 (“Mr Parker’s Affidavit”);
c)the affidavits of Glenn Ferguson (“Mr Ferguson”) affirmed 30 June 2017 (“First Ferguson Affidavit”) and 24 July 2017 (“Second Ferguson Affidavit”);
d)an affidavit of John Fawkes sworn 3 July 2017 (“Mr Fawke’s Affidavit”);
e)an affidavit of Michael Kent (“Mr Kent”) sworn 17 July 2017 (“Mr Kent’s Affidavit”);
f)the document headed “The Swan Agreement 2017 – Why did it happen?” which was marked as Exhibit 1 (“Exhibit 1”);
g)the document headed “TransportEdge Inc News Update Swan Agreement 2017”) which was marked as Exhibit 2 (“Exhibit 2”);
h)the document headed “Swan 2017 Agreement Part 2” which was marked as Exhibit 3 (“Exhibit 3”);
i)written outlines of submissions filed by TransportEdge on 3 July 2017 and 24 July 2017 and Swan Transit on 17 July 2017 and 17 October 2017; and
j)the transcript of proceedings on 7 August 2017 (“Transcript Day 1”) and 17 October 2017 (“Transcript Day 2”).
Mr Parker, Mr Ferguson and Mr Kent were each cross-examined on their evidence while Mr Fawkes was not required though his affidavit was read. Swan Transit chose not to read or rely on an affidavit of Mr Brian Thompson and therefore the Court has not had regard to that affidavit.
The Court will first consider the Dismissal Application as the determination of that application will consequentially determine if the Court is required to consider if an injunction is necessary.
Dismissal Application
The determinative issue in the Dismissal Application turns upon the Court finding that TransportEdge is an “industrial association” with standing pursuant to s.539 of the FW Act. Section 539 of the FW Act is subject to the provisions of s.540 of the FW Act, and of particular relevance in this matter is s.540(6) of the FW Act:
540. Limitations on who may apply for orders etc
…
Industrial associations
(6) An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:
(a) the industrial association is affected by the contravention, or will be affected by the proposed contravention; or
(b) if the contravention is in relation to a person:
(i) the person is affected by the contravention, or will be affected by the proposed contravention; and
(ii) the industrial association is entitled to represent the industrial interests of the person.
(Emphasis in original)
It was not in dispute that the issue of standing was to be determined with reference to s.540(6) of the FW Act and the Court has proceeded on this basis. In the course of closing submissions Counsel for Swan Transit indicated that for the purposes of the Dismissal Application, it was accepted that TransportEdge was an “industrial association”: Transcript Day 2, p.3 at [20]-[23].
Swan Transit’s Submissions
The submissions of Swan Transit filed on 17 October 2017 repeat, and build upon, the submissions filed on 17 July 2017, while the oral submissions at hearing again expanded upon those matters. The Court summarises the general submissions as follows:
a)there is a paucity of evidence illuminating the character of TransportEdge, there is no register of members or any resolution authorising action, and nothing to demonstrate that TransportEdge involving itself in bargaining at Swan Transit and that commencing these proceedings was properly authorised. While TransportEdge has adopted the Rules, those Rules do deal with the way in which legal action may be authorised, and there is no evidence of TransportEdge taking steps to comply with those Rules to create the necessary authority;
b)the use of “only if” in s.540(6) of the FW Act imply some form of sensible boundary to the circumstances in which an industrial association can commence proceedings in a non-costs jurisdiction and engage the powers of this Court in pursuit of the imposition of a penalty;
c)the Court cannot be satisfied on the evidence that any view, claim or interest claimed to be that of TransportEdge is in fact a view, claim or interest held by TransportEdge nor that any activity alleged to have been an activity organised, and any request, by TransportEdge was lawful, being that it was properly authorised and consistent with the rules of TransportEdge; and
d)critically, TransportEdge has not demonstrated that it is entitled to represent the industrial interests of Mr Parker and Mr Fawkes who were affected by the alleged contravention or that TransportEdge is affected by that contravention.
Swan Transit submitted that TransportEdge proceeded on the assumption it was “entitled to represent the industrial interests of an employee” which was “without foundation” as:
a)in Regional Express Holdings Ltd v Australian Federation of Air Pilots [2016] FCAFC 147; (2016) 244 FCR 344 (“Regional Express-Full Court”) the Full Court concluded that the respondent was entitled to represent the industrial interests of pilots eligible to be members, however the respondent was a registered industrial association which enjoyed various privileges;
b)by means of those privileges a registered organisation is entitled to represent the industrial interests of employees in the area covered by its rules and for those reasons in Regional Express-Full Court at [62] per Jessup J noted that the phrase “entitled to represent the industrial interests” has a special meaning in relation to registered organisations and such a meaning cannot be extended to industrial associations;
c)an industrial association prima facie has no special status for the purposes of the FW Act and has none of the entitlements of registered organisations, rather an industrial association only has an entitlement in particular circumstances, including where it is appointed a bargaining representative or an employee’s representative pursuant to a dispute procedure in an enterprise agreement and in those circumstances and to that extent, it is “entitled” to represent the industrial interests of an employee;
d)the definition of entitled is to “give someone a legal right or just claim” and therefore involves, on the text of the statute itself, something more than an absence of prohibition but rather involves a legal right or claim to do something;
e)accepting on one alternate view that the industrial association by its rules is “entitled” to pursue its objectives and exercise a certain right to things in the interests of its members, it does no more than permit the association to do it. It is a removal of a prohibition as opposed to the grant of a privilege or a right and an entitlement is a privilege beyond that enjoyed by the rest of the world, thus the fact rules allow it to represent the industrial interests of a person only bring it up to the starting point;
f)it follows that an industrial association is “entitled to represent the industrial interests” of an employee to the limited extent that a statute or enterprise agreement have extended a privilege and such persists for only so long as the privilege continues to operate;
g)the entitlement must be an entitlement to do something above and beyond that which any other person is entitled to do in representing or advancing the industrial interests of the particular person, thus the concept of entitlement is what introduces a requirement of some special status or privilege in the industrial association beyond that which exists generally and which the rest of the world does not have in respect of the representation of the industrial interests of an employee;
h)the establishment and registration of an association with objects to represent the labour, employment and industrial interests of members is a necessary condition, of the association representing the industrial interests of a person, but it is not sufficient to entitle it to represent the industrial interests of its members in the statutory sense until something else happens such as the association being appointed as a bargaining representative;
i)the entitlement to apply for an order in respect of a contravention, insofar as an unregistered association is concerned, depends on the existence of an entitlement which arises elsewhere in the FW Act, an “entitlement” is something beyond the mere existence and capacity to lawfully pursue industrial interests;
j)this view is supported by the text of the legislation and consideration of the consequences of the contrary construction, and in these circumstances TransportEdge’s rules do not confine it to any particular industry or occupation and on their face suggest TransportEdge is entitled to enrol any employee in Australia and any person at all who supports its objectives. That is, it is entitled to represent the industrial interests of every employee in Australia and the outcomes of that construction are so extreme that the construction must be wrong; and
k)TransportEdge had no special privilege, rather it was Mr Ferguson as opposed to TransportEdge who was the bargaining representative at the relevant times and therefore there is no standing to bring the proceedings as TransportEdge has no entitlement to represent the industrial interests of an employee.
Submissions were also made in writing and orally as to the question of whether TransportEdge was “affected by the allegedly unlawful conduct”:
a)TransportEdge submits that it has standing to bring the proceeding on the basis that it is affected by the alleged contravention as the prohibition of the distribution of the Brochures has affected it and, therefore, it has standing in its own right to bring the proceeding;
b)what is required by s.540(6)(a) of the FW Act is that the adverse action affect TransportEdge and the adverse action pleaded in the Application is the disciplinary action taken against Mr Fawkes and Mr Parker and not the policy prohibiting disclosure of any material without management approval;
c)given that the policy was in place some months before TransportEdge appeared, there is little prospect that it could demonstrate that the establishment of the policy was adverse action, hence the decision to plead the adverse action as the disciplinary action, rather than the policy, is unsurprising in the circumstances however the result is that demonstrating that the policy affected TransportEdge would not demonstrate that it was affected by the pleaded contraventions; and
d)in any case, there is no admissible evidence that Swan Transit’s policy, or the issuing of the written warnings and disciplinary action against Mr Fawkes and Mr Parker, has affected TransportEdge and if it is suggested that the issue of the verbal and written warning affected TransportEdge then that is a matter that should have been dealt with in evidence and should have been put squarely.
TransportEdge’s Submissions
The Court received two sets of submissions from TransportEdge in addition to the oral submissions at hearing. Given that it was accepted that TransportEdge was an “industrial association” for the purposes of the Dismissal Application the Court will disregard the submissions made on that issue. The following submissions on the issue of standing were made:
a)it is apparent from the Brochures and the objectives that were provided in support of TransportEdge’s application to become an incorporated association that TransportEdge has been created with the fundamental objective of advancing the employment interests of its membership and is an association of employees having a purpose to protect and promote the interests of those employees in matters concerning their employment;
b)in the absence of some indication that any request or activity were in some way unlawful then these requests or activities will as a matter of logic be lawful, there is no requirement to establish some positive authorisation, rather lawfulness in this context simply requires that such does not require the commission of some unlawful activity;
c)as an industrial association TransportEdge has standing under s.539(2) of the FW Act to bring a proceeding alleging that a breach of s.346 of the FW Act has occurred and TransportEdge is directly affected by the alleged contravention of s.346 of the FW Act in that it is TransportEdge’s activities and the Brochures that are impacted by the contravention;
d)a representative of an industrial organisation is an “officer” of that entity by virtue of the definition in s.12 of the FW Act thus providing the Brochures to other drivers is an aspect of representing TransportEdge, and therefore constitutes conduct engaged in as officers of TransportEdge;
e)the factual circumstances involve publications produced by TransportEdge as an attempt by TransportEdge to communicate with members, and potential members, at the Swan Transit workplace, thus the relevant prohibition is centrally concerned with preventing the distribution of that document which is effectively a TransportEdge document, while its representatives are directly impacted upon as they are prohibited from distributing the Brochures;
f)it is not the case that TransportEdge has initiated these proceedings in relation to a potential breach of s.346 of the FW Act which impacts its members but has no direct impact upon TransportEdge, rather TransportEdge has standing to maintain these proceedings as it has been affected by the breach, and also because it is entitled to represent the industrial interests of its affected members;
g)an industrial association has a protected and legislated role in relation to industrial activity, and while it is conceded that the protected role does not apply to many other areas within the industrial employment landscape more generally, s.346 of the FW Act presupposes that an industrial organisation has a role in terms of the enforcement and protection of industrial activities;
h)it is counterintuitive to assume or conclude that although the protection is afforded in ss.346 and 347 of the FW Act, and despite the fact that the activity itself is generated from the interaction between members and the industrial association, that the industrial association would have no role or standing in the enforcement of a prohibition against industrial activity;
i)the need to establish that an industrial association is entitled to represent the industrial interests of a member pursuant to s.540(6)(b) FW Act applies to registered organisations which are also industrial associations, it does not apply to other types of industrial associations such as TransportEdge and the FW Act assumes that industrial associations will have standing to represent members in relation to s.346 FW Act and other matters. Restricting an industrial association’s right to represent the industrial interests of its members is counterintuitive given that an “industrial association” does not require any formalities; and
j)the restriction of industrial associations is not in respect to who can join and it can represent, but in what that industrial association is authorised to do, and in this case TransportEdge is attempting to protect its right to enforce and protect industrial activity which it itself has generated. The requirement that an industrial association is entitled to represent the industrial interests of its members would prohibit a registered organisation, assuming its alternative capacity as an industrial association, representing a category of employees it is otherwise constitutionally banned from representing, thus s.540(6) of the FW Act applies as a restriction to registered organisations.
Consideration
Swan Transit sought the Application be dismissed pursuant to s.17A of the FCCA Act or r.13.10(a) of the FCC Rules on the basis that it had no reasonable prospect of success because TransportEdge lacks standing to apply for the orders sought in the Application. The Court notes that r.13.10 of the FCC Rules replicates part of s.17A of the FCCA Act, and both are in relatively the same terms as r.26.01 of the Federal Court Rules 2011 (Cth) and s.31A of the Federal Court of Australia Act 1976 (Cth), therefore the principles and authorities considering any of those provisions are instructive: Manday Investments Pty Ltd v Commonwealth Bank of Australia (No.3) [2012] FCA 751 at [8] per McKerracher J.
In C v Commonwealth [2015] FCAFC 113; (2015) 234 FCR 81; (2015) 327 ALR 195; (2015) 252 IR 471 at [59] per Tracey, Buchanan and Katzmann JJ the Federal Court stated:
In circumstances in which, as a matter of law, an applicant lacks the necessary status or standing to commence or prosecute a particular proceeding that person’s application for relief can have no reasonable prospect of success. That is the position here. The parties should not be forced to incur the costs of preparing for and conducting what is likely to be a lengthy trial.
Where the Court is satisfied that a lack of standing is established as a matter of law, it should exercise the power to dismiss the proceedings as having “no reasonable prospect of success”, that term appearing in both s.17A of the FCCA Act and r.13.10(a) of the FCC Rules.
In Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118; (2010) 84 ALJR 612; (2010) 269 ALR 233 at [25] per Gummow and Hayne JJ the High Court cautioned that a summary dismissal proceeding ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On matters of law, as standing is, an inquiry as to merit should not be for the purpose of resolving such and not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial.
In Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; (2006) 157 IR 470 (“CPSU-2006”) the Full Court of the Federal Court heard an appeal from a single judge dismissing an application for an interlocutory injunction on the basis there was no serious question to be tried, one basis for the finding having been that the Community and Public Sector Union (“CPSU”) was not eligible to bring the proceedings as it was not a “person affected by the contravention”. The Court noted in CPSU-2006 at [21]-[22] per Branson, Tamberlin and Madgwick JJ that:
As the application with which the primary judge was dealing was an application for interlocutory relief, his Honour could only deal provisionally with both factual and legal issues. The matter had not been listed for final hearing. The parties, as his Honour was apparently advised, had not filed all of the affidavit evidence upon which they intended to rely at the final hearing. Additionally, some evidence adduced on the interlocutory hearing before his Honour may not have been admissible at trial.
For the above reasons it is appropriate, we think, to regard the primary judge’s five findings as provisional findings made on the basis that his Honour concluded that, on the evidence then before him, each of them was appropriate to be made in the sense that the contrary position had not been shown to be seriously arguable.
The Dismissal Application is a form of interlocutory relief, and further the principles which govern s.17A of the FCCA Act and r.13.10 of the FCC Rules emphasise the need for the Court to be cautious in exercising the discretion. In CPSU-2006 at [23]-[26] per Branson, Tamberlin and Madgwick JJ, the Full Court of the Federal Court found there was evidence illustrating the support and involvement of the CPSU in organising a rally for members to attend, although not “industrial action”, and when having regard to the scope and purpose of the then Workplace Relations Act 1996 (Cth), there was a serious question to be tried as to the entitlement of the CPSU to pursue the action as a “person affected by the contravention”.
The Court is required to consider if TransportEdge meets sub-s.540(6)(a) or (b) of the FW Act. Should it meet one of those sub-sections then it will have standing. The questions before the Court are then:
a)was TransportEdge affected by the alleged adverse action taken against Mr Fawkes and Mr Anderson (s.540(6)(a) of the FW Act)?
b)is TransportEdge entitled to represent Mr Fawkes and Mr Anderson’s industrial interests (s.540(6)(b) of the FW Act)?
Was TransportEdge affected by the alleged adverse action taken against Mr Fawkes and Mr Anderson?
As noted, most evidence on the nature and character of TransportEdge was led by Mr Ferguson, and this itself was limited. Mr Ferguson provided the following evidence in cross-examination as to how TransportEdge was affected by the banning of distribution of its material:
…We have stopped distributing information in the workplace as a result of the threats that were made to two of my members, and we are not distributing material which has had a major effect on our ability to communicate with our members.
(Transcript Day 1, p.34 at [20]-[23])
In Australian Manufacturing Workers’ Union v ResMed Limited [2015] FCA 788 at [44] per Buchanan J the Federal Court observed that:
Furthermore, it appears to me to be the case that the alleged contraventions are “in relation to a person” within the meaning of s 540(6)(b) so that the opening words of s 540(6) confine any right of an industrial organisation to apply for an order to an organisation entitled under its rules to represent the person(s) (s 540(6)(b)(ii)).
It appears that TransportEdge are contending that they are “affected by” the contravention as they are unable to promote their presence or distribute the Brochures to communicate, or increase their visibility, to members or potential members. The alleged contravention is adverse action taken against Mr Fawkes and Mr Parker, that is adverse action that “is in relation to a person”. It is arguable that Transport Edge is “affected by” the adverse action taken against Mr Fawkes and Mr Parker, because of the potential prophylactic effect upon the means and manner of communication constituting industrial activity when disciplinary action is being taken against members in relation to industrial activity, notwithstanding that there are doubtless any number of methods by which TransportEdge might communicate with its members and distribute materials in the Swan Transit work sites.
The Court is satisfied that it is arguable that TransportEdge is “affected by” the contravention in the sense that was intended by s.540(6)(a) of the FW Act.
Is TransportEdge entitled to represent Mr Fawkes and Mr Anderson’s industrial interests?
In Regional Express-Full Court at [60] per Jessup J the Full Court of the Federal Court held that in the case of an industrial association that is an organisation:
… coverage of a person under its eligibility rules will be sufficient of itself to bring the organisation under the provisions of the FW Act which operate by reference to the formula, “entitled to represent the industrial interests of”, apropos the person.
On appeal, the High Court in Regional Express Holdings Ltd v Australia Federation of Air Pilots [2017] HCA 55; (2017) 92 ALJR 134; (2017) 276 IR 454; (2017) 350 ALR 567; (2017) 69 AILR 102-901 (“Regional Express-High Court”) unanimously upheld the Full Court’s finding that the eligibility of a person for membership of an association was sufficient to entitle the association to represent the industrial interests of the person. If the Court was to apply what was held in Regional Express-Full Court and Regional Express-High Court, it appears that TransportEdge is entitled to represent the interests of Mr Fawkes and Mr Parker. However, in Regional Express-Full Court at [62] per Jessup J cautioned:
The special meaning which that phrase has come to have over the years related only to registered organisations. I would not hold it to apply to industrial associations, as defined, generally. But it does not follow that the meaning has no role in the context of s 540(6). The respondent is an industrial association because it is an organisation. As such, the special meaning of the phrase applies to it, in the context of this subsection no less than elsewhere. How the subsection operates in the setting of an association which is not an organisation is a matter best left to a case in which the question directly arises.[Emphasis added]
In Regional Express-Full Court, Jessup J at [62] noted that there may be circumstances where an industrial association does not have eligibility rules and for that reason it may not be that the principle that those eligible for membership by an organisation would extend to an industry association generally. TransportEdge does not have “eligibility rules” in the sense that any person can be a member if they pay the appropriate fee. If the Court was to apply Regional Express-Full Court, TransportEdge would have standing under s.540(6) of the FW Act to represent any person as, in effect, any employee from any industry can be a member.
In Regional Express-High Court at [49]-[50] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ it was said that:
[49] … not all industrial associations referred to in s 540(6) would necessarily have rules of eligibility for membership. But Jessup J was alive to that possibility. As the Full Court in effect concluded, the fact that the Dunlop Rubber principle sense of entitlement to represent the industrial interests of a person may not fit precisely with industrial associations that do not have eligibility rules is not a sufficient reason to doubt that the established sense of the expression is applicable to an industrial association which, like the Federation, is a registered organisation and therefore does have eligibility rules. It makes sense that the Dunlop Rubber principle conception of entitlement to represent should apply to registered organisations in the same way that it applied to registered trade unions, and, contrary to Rex’s submission, s 540(7), by emphasising the requirement in s 540(6) that an organisation be entitled to apply for an order, reinforces that conclusion.
[50] That is not to say that s 540(6) is necessarily limited to registered organisations. It may be that the Dunlop Rubber principle sense of entitlement to represent the industrial interests of persons applies, mutatis mutandis, to other forms of industrial organisation having a real interest in ensuring compliance with civil remedy provisions in relation to a particular class of persons. Contrary to Rex’s submission, so to conclude would not be inconsistent with the objects of freedom of choice for which Pt 3-1 of the Fair Work Act provides. They are directed to the rights of an employee to choose his or her representative in relation to a matter affecting the employee. By contrast, as was emphasised in the Explanatory Memorandum, s 540(6) is concerned with the standing of an organisation to bring in its own right civil remedy proceedings for contraventions of the Act affecting a designated class of persons in relation to whom the organisation has industrial coverage.
(Emphasis Added)
It appears the question raised in Regional Express-Full Court at [62] per Jessup J has directly arisen in the matter before the Court at present. The evidence before the Court concerning TransportEdge was provided by Mr Ferguson and includes:
a)TransportEdge was incorporated so that it could provide a representative service to workers engaged in the transport industry and “the whole purpose” was to provide an alternative to the Transport Workers Union (“TWU”): First Ferguson Affidavit at [6]-[8] and Transcript Day 1, p.37 at [29]-[34];
b)one of the primary objectives of TransportEdge is to represent the employment of bus drivers: First Ferguson Affidavit at [10];
c)the ultimate strategy of TransportEdge is to be able to “communicate with drivers, recruit new members and represent the employment interests” of members and the more members in a particular workplace the greater the ability of TransportEdge to bargain on their behalf: First Ferguson Affidavit at [44];
d)current members have indicated they are “very keen” to have TransportEdge represent them generally, specifically however in relation to the Agreement negotiations: First Ferguson Affidavit at [67] and [71];
e)the application for incorporation indicated the “objects or purposes of the association” were “Political activities” and “Promotion of interests for a trade of industry”: Second Ferguson Affidavit, Annexure 2; and
f)any employee or sub-contractor in any industry can join TransportEdge, the current membership is 84 members of which approximately 80 per cent are bus drivers, however TransportEdge also has members from Prosegur Australia, Qantas, two sub-contractors and an aged care worker.
It is clear from the evidence provided by Mr Ferguson that TransportEdge’s representation is of some breadth and the objectives of TransportEdge at no time specifically advert to the transport industry, however, Mr Ferguson’s affidavit evidence was that the “primary objective” was to represent bus drivers. If it was the “primary objective” to represent bus drivers, it might have been included in the “Objects” of the association, but as the majority of the members are employed bus drivers there is doubtless some room for argument about the “primary objective” of TransportEdge.
Members of TransportEdge seek their services for the purpose of being represented in employment and industrial related matters, however, on the evidence of Mr Ferguson, there is no designated class of persons in relation to whom TransportEdge has industrial coverage. Were TransportEdge confined to the transport industry, or there were an identifiable attribute of the persons, such as to be a “class”, it endeavours to represent in industrial related matters, it could be that it had standing, under s.540(6) of the FW Act. However, in the Court’s view if it were to extend the principle such that any person who can be a member of TransportEdge is entitled to have their interests represented by that association, as was held in Regional Express-Full Court with respect to registered organisations, this would potentially result in absurdity.
That is not to say TransportEdge does not have standing in this matter. Rather, the Court is suggesting that s.540(6)(b) of the FW Act, in its application to industrial associations that are not organisations and are unrestricted in membership, seeks to confine the entitlement of the industrial associations to represent persons to those who are its members. It is unclear from the evidence when exactly Mr Fawkes and Mr Parker became members of TransportEdge. The membership forms of both are undated and it is merely stated they joined TransportEdge in “Early January 2017”: Mr Fawkes Affidavit at [2] and Annexure 1; Mr Parker’s Affidavit at [2] and Annexure 1.
With respect to Mr Fawkes, the alleged adverse action took place between 6-12 January 2017, while Mr Parker’s adverse action occurred on 25 January 2017.
The Court has determined that in order for TransportEdge to have standing pursuant to s.540(6)(b) of the FW Act, Mr Fawkes and Mr Parker must be members of TransportEdge and more so, have been members at the time of the contravention. On the material before the Court, it is reasonably arguable that Mr Fawkes and Mr Parker were both members at the time of contravention and therefore the Court does not consider it appropriate to summarily dismiss the Application.
Standing to bring the proceedings is not yet finally established, it will be a matter that TransportEdge will be required to satisfy the Court of if the matter proceeds to final hearing. However, on the evidence before the Court at present, the Court is of the view that it cannot be said there is no reasonable prospect of success on the basis that TransportEdge has no standing. It follows that there will be an order dismissing the Dismissal Application.
Injunction Application
TransportEdge is seeking an injunction compelling Swan Transit to allow the distribution of materials.
In Shepherd Homes v Sandham [1971] 1 Ch 340 at 351 per Megarry J (a passage subsequently approved by Gibbs CJ in State of Queensland v Australian Telecommunications Commission [1985] HCA 25; (1985) 59 ALR 243; (1985) 59 ALJR 562) it was stated with respect to mandatory injunctions:
“…the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.”
In determining if the Court has a “high degree of assurance” sufficient to warrant the exercise of the discretion to grant the injunction sought, it was said in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57; (2006) 80 ALJR 1672; (2006) 229 ALR 457 at [19] per Gleeson CJ and Crennan J (“O’Neill”) that:
… in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff’s entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed…
The Court notes the authorities have considered other matters when determining if the discretion to grant an injunction ought to be exercised, including delay, public interest, prejudice and the provision of an undertaking. These are often considered when addressing the balance of convenience, however the Court will address the matters as follows:
a)whether there is a prima facie case, or alternatively put a “serious question to be tried”;
b)what, if any, harm is likely to be incurred if the injunction were not granted and whether damages are inadequate to address that harm;
c)where the balance of convenience lies; and
d)other matters including the delay and the undertaking offered by TransportEdge.
The Court having referred to CEPU-2006 previously in these reasons wishes to distinguish it at the outset in respect of what arises in the Injunction Application. CEPU-2006 allowed the grant of an interim injunction in a somewhat analogous matter. In CEPU-2006 the matter was solely determined on whether there was a serious question to be tried as to the entitlement for the final relief sought, in contrast Swan Transit emphasised that the delay, or lack of urgency and pressing of the Injunction Application weighed against the grant of the injunction, so too did the balance of convenience.
Prima Facie Case
TransportEdge’s Submissions
The submissions in respect of this factor can be summarised as follows:
a)the basic contention advanced by TransportEdge in these proceedings is relatively simple: Mr Fawkes and Mr Parker, as members of TransportEdge, are entitled to distribute or post the Brochures advancing the industrial interests of TransportEdge, to other employees of Swan Transit on the basis that this is protected industrial activity. It is not TransportEdge’s case that Swan Transit has a positive obligation to facilitate the promotion of TransportEdge;
b)these activities are industrial activities on the basis that they each fall into the definition and situations provided for in s.347(b) of the FW Act and the distributing or making available of the Brochures to drivers is central to the process of a fledgling industrial association’s communication with or attempt to communicate with members and potential members;
c)as protected industrial activity, Swan Transit is obliged to permit this activity and cannot impede the performance of this right unless it is pursuing some other legitimate collateral purpose;
d)it is TransportEdge’s submission that Swan Transit’s employees, who attend Swan Transit’s premises for work are entitled to distribute TransportEdge’s materials incidental to the entitlement of employees to discuss employment matters with other employees while lawfully on Swan Transit’s premises;
e)there is an important distinction between the subject matter of the apparent policy and the activities of Mr Fawkes in January 2017 as Mr Fawkes was not “posting” the Brochures on Swan Transit worksites, whereas the policy purports to prohibit the “posting” of unauthorised documents, but the policy has nothing to do with one employee handing the Brochures to a second employee;
f)without some limitation on managerial prerogative, the right to engage in industrial activity would become obsolete and managerial prerogative simply does not extend to regulating the autonomy of employees to provide materials to one another in an effort to conserve their employment conditions, so long as these materials do not threaten the industrial harmony of the workplace;
g)to allow employers an unconstrained right to develop workplace policies that set aside the right of its employees to engage in industrial activity would be to undermine and essentially side step the protections afforded by s.346 of the FW Act;
h)Swan Transit’s policy of prohibiting the posting or distribution of materials at its workplaces without Swan Transit’s consent constituted a blanket prohibition which captured industrial type material, and arose in response to the posting of inappropriate material by the TWU, however when materials were posted making disparaging remarks against TransportEdge and its officers on a notice board it was allowed to remain on the notice board for an extended period of time. Thus, if it were the case that Swan Transit had a blanket policy of prohibiting the posting of material at its workplaces without its consent, there can be no explanation as to why those materials were not removed;
i)if an employer were able to simply develop a policy prohibiting otherwise lawful industrial activity he purpose of the protections under s.346 FW Act would be defeated and there is no evidence that what Mr Fawkes and Mr Parker engaged in would constitute a contravention of cl.15.1 of the Swan Transit Employment Agreement 2012 (“Agreement”) nor a trespass;
j)the evidence in respect of there being a policy is far from satisfactory and is “wishful thinking”, it is not referred to in any of the email communications to Mr Fawkes or Mr Parker concerning their actions and in those communications Swan Transit itself characterises what Mr Fawkes was undertaking in distributing the pamphlets as “industrial activity or workplace rights”; and
k)the content of the Brochures being distributed by Mr Fawkes was not even known to Swan Transit, but it was known that they were TransportEdge Brochures and it was assumed Mr Fawkes was acting as a representative of TransportEdge and the implication is that was why it was banned, not because of the content, but because Mr Fawkes was acting as a representative of TransportEdge.
Swan Transit’s Submissions
Swan Transit’s submissions can be summarised as follows:
a)TransportEdge’s case relies wholly on the false premise that TransportEdge has a right, protected as an “industrial activity”, to conduct recruiting and promotional activities on Swan Transit’s premises, though identifies no source of the right;
b)TransportEdge has no right to post or distribute materials on Swan Transit’s premises and it is Swan Transit’s prerogative to determine what activities may occur at its premises and the effect of TransportEdge’s claim is that its members would have rights of entry more extensive than those of under the legislative scheme and the claim must be rejected;
c)references to the Court balancing the rights of Swan Transit to manage its business with the right of TransportEdge to recruit employees are misconceived as there is no right to be balanced against the rights of the employer to manage its business and the orders sought in this case are transparently designed to allow TransportEdge to recruit new members which Swan Transit is under no obligation to facilitate;
d)if TransportEdge has no extant right to post and distribute material on Swan Transit’s premises, the Court would not create that right by making orders to that effect. Even if adverse action were proven, the relief could not be granted;
e)the industrial activity which is protected by ss.346 and 347 of the FW Act is lawful activity and posting and distributing material contrary to Swan Transit’s direction is unlawful as a trespass, a breach of cl.15.1 of the Agreement, and a breach of contract therefore any adverse action taken in respect of such unlawful conduct is not prohibited by s.346 of the FW Act;
f)there was no suggestion anywhere in the evidence that Mr Parker putting posters on his vehicle was something that was done at the direction of TransportEdge or a suggestion that it was industrial activity in the sense that it was a lawful activity organised by TransportEdge, nor that Mr Fawkes was directed or asked to distribute the Brochures in his capacity as a representative, officer or member of TransportEdge;
g)having each been disciplined mildly for a contravention of the policy both Mr Parker and Mr Fawkes continued to participate in bargaining, supported the application for bargaining orders, supported the opposition to the approval of the Agreement and, carried on with activities as members of TransportEdge, including Mr Parker now taking to parking his vehicle with posters of TransportEdge outside of Swan Transit’s premises and facing no action; and
h)TransportEdge’s pleadings and submissions fail to identify with any precision the industrial activity said to have motivated the adverse action while Swan Transit’s evidence on this point is that the adverse action was taken because it disciplined Mr Fawkes because he contravened its policy and direction not to distribute the Brochures and to attend a disciplinary meeting, and disciplined Mr Parker because he breached the policy.
Consideration
An applicant seeking an interlocutory injunction is not required to show that it is more probable than not that they will succeed at final hearing, it is sufficient to show only an adequate likelihood of success: O’Neill at [65] per Gummow and Hayne JJ. The Application alleges Swan Transit breached s.346(b) of the FW Act which provides as follows:
A person must not take adverse action against another person because the other person:
…
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
It did not appear to be in contention that Mr Fawkes and Mr Parker were both the subject of “adverse action”. The issue was raised as to whether Mr Fawkes or Mr Parker were engaged in “industrial activity” as defined, and relevant to the present case, in s.347(b) of the FW Act:
A person engages in industrial activity if the person:
…
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or…
The Court notes that in Mr Ferguson’s evidence confirmed that neither Mr Fawkes nor Mr Parker were involved in establishing TransportEdge: Transcript Day 1, p.50 at [1]-[2]. Therefore it is only s.347(b)(v) of the FW Act that appears to have any application at present. In the written warning sent to Mr Parker on 25 January 2017, Swan Transit stated:
Should you wish to display or distribute any industrial activity-associated posters or material…
Swan Transit recognises your industrial activity or workplace rights…
(Mr Parker’s Affidavit, Annexure 4)
In cross-examination Mr Parker conceded that at [39] of his affidavit where he deposed to his motivation for attaching the Brochures to a notice board on his vehicle the words used were not his own, they were formulated by his lawyer but they were “basically what I wanted to do”: Transcript Day 1, p.63 at [1]-[3]. At [39] of Mr Parker’s Affidavit he states his motivation for posting the Brochures in words similar to, or directly correlative to s.347(b)(i) and (v) of the FW Act. That evidence can be accepted for present purposes.
As to Mr Ferguson, he gave differing evidence on whether he had asked Mr Fawkes or Mr Parker to post or distribute any material relating to TransportEdge: Transcript Day 1, p.47-49. He originally stated he had not done so and he only became aware that Mr Fawkes had done so when he received a call about the disciplinary action. Later, after “considering giving you a truthful answer”, he stated he had provided a “pile” of the Brochures to Mr Fawkes and asked him to distribute them to drivers, though did not instruct him to do so at the workplace. His evidence that Mr Fawkes and Mr Parker were not engaged in representing TransportEdge on any full time basis or official capacity at the time remained consistent, it was their personal choice to represent TransportEdge by distributing the Brochures at the workplace: First Ferguson Affidavit at [31]; Transcript Day 1, pp.48 at [28]-[29] and 49 at [41]-[43].
The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [1417] states:
Subparagraph 347(b)(v) (together with the expansion of the definition of industrial association to include informal associations) is intended to protect persons exercising a representative function in the workplace, even if the person is not a union member, officer or workplace delegate.
In the Court’s view, there is a prima facie case that the distribution of the Brochures was an “industrial activity” pursuant to s.347(b)(v) of the FW Act. Mr Fawkes and Mr Parker were arguably exercising a representative function to advance, in the workplace, the views of TransportEdge of which they were members. Further, Swan Transit itself in the warning letter referred to the posting of the Brochures as “industrial activity or a workplace right”. TransportEdge’s counsel conceded that the “industrial activity” sought to be protected must be lawful to begin with, however the Court notes s.347(b)(v) of the FW Act does not use the term “lawful” as is used in sub-ss.347(b)(ii)-(iv) of the FW Act. The Court need not address this point.
The lawful aspect turns upon the “policy” of Swan Transit that materials are not to be posted without management approval. Emphasis was placed on managerial prerogative however the Court need not address this extensively at present. The evidence before the Court is that Mr Fawkes and Mr Parker were aware from around January 2016 there was some prohibition on posting materials: Mr Fawkes Affidavit at [39]; Transcript Day 1, p.61 at [20]-[29]. Mr Fawkes had been cautioned, or reminded of the prohibition on posting materials without management approval in December 2016, prior to any involvement with TransportEdge and in circumstances where Mr Fawkes had posted material unrelated to TransportEdge: Mr Fawkes Affidavit at [41]-[42].
Swan Transit’s evidence was that the “policy” was not a written policy, rather it was better termed a “practice”. Mr Kent, the in-house General Counsel for Swan Transit, provided evidence that until Mr Fawkes made an inquiry about the “practice” that management approval was required to post materials in the workplace in December 2016, he had not been aware of its existence. His evidence was that advice was sought on the posting of material, not distribution of materials, but he could not clarify if there was a difference between those two activities for the purposes of the policy.
The evidence before the Court indicates there was a practice of prohibiting materials being posted without managerial approval and this practice had been enforced. Mr Fawkes and Mr Parker both adverted to knowing about the practice and Mr Fawkes had been given a direction to cease posting materials for having breached the practice at a time prior to TransportEdge being present. The Court is satisfied there was such a practice. Emphasis was placed on the fact that the practice applied to “posting”, and did not extend to “distribution” of materials. This is arguable, and is not a matter the Court needs to determine at present. Prima facie, it appears that Mr Fawkes and Mr Parker were engaged in an industrial activity, and whether that industrial activity was “lawful” is arguable and is connected to the Court’s determination of whether the adverse action was “because of” the industrial activity.
In respect of the reason for taking the adverse action being the industrial activity, the evidence at present indicates that the adverse action was not undertaken because of the industrial activity. Having found that there was a practice against the posting of the material, at no time was it adverted to that the content of the material posted by Mr Parker was the reason for the disciplinary action rather it was purely directed to his not having sought management approval, and that Mr Parker now continues to have the material on display, the Court finds, in circumstances where the reverse onus under s.361 of the FW Act is not yet applicable, this weighs against TransportEdge being granted an injunction.
An interlocutory injunction will often be granted in aid of some legal or equitable right to final relief: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199; (2001) ALJR 1; (2001) 185 ALR 1; (2001) 54 IPR 161; [2001] Aust Torts Reports 81-627 at [11]-[12] and [16] per Gleeson CJ, at [60] per Gaudron J and at [88]-[91] and [105] per Gummow and Hayne JJ. TransportEdge has failed to satisfy the Court that the orders it seeks in the Injunction Application are of any aid to the final relief sought in the Application, nor could they provide the Court with a high degree of assurance that if the injunction were imposed it would do anything in the way of aiding the relief.
TransportEdge seek no final orders by way of a permanent injunction allowing the Brochures to be distributed, rather it appears to be that if the Court is satisfied that the distribution of the materials is an “industrial activity” and that it is not against Swan Transit’s practice then there would be no need for an injunction and the Brochures and other materials can be distributed freely.
In the circumstances, the Court finds that a prima facie case has been sufficiently established in the sense there is a question to be tried as to the “lawful” element of the industrial activity pursuant to s.347(b) of the FW Act, which is inextricably linked to the causal element of s.346 of the FW Act and the question of whether the disciplinary action was taken for the prohibited reason.
Adequacy of Damages
TransportEdge made the following submissions:
a)TransportEdge is likely to suffer irreparable injury, for which damages will not be adequate compensation, unless an injunction is granted;
b)the activity that Swan Transit has essentially banned is not the sort of activity that is intended to generate a financial revenue which can be quantified at some time in the future rather the protected activity is intended to advance collective bargaining and assist in establishing TransportEdge as an industrial association;
c)preventing this activity presents as an obstacle to both TransportEdge and to members and potential members, thus should the injunction be refused TransportEdge will suffer injury in that it will lose its ability to engage in protected industrial activities and to advance the interests of its members for a significant period of time; and
d)TransportEdge’s loss is not one that sounds in a commercial remedy. A payment in damages is neither an appropriate nor sufficient remedy for a loss of this nature.
Swan Transit made no submissions on the adequacy of damages to compensate TransportEdge, but maintained the position that there would be no damage to TransportEdge.
Consideration
The only evidence that was led on this point was the brief statement by Mr Ferguson in cross-examination referred to above. The Court hardly considers this “irreparable injury”. Mr Ferguson was able to promote and recruit members prior to the distribution of any materials at the worksite, his evidence was that he had distributed materials in Fremantle and Midland and that had led to phone calls: Transcript Day 1, p.42 at [7]-[12]. TransportEdge has a website, and Mr Parker has taken to parking his vehicle with TransportEdge’s Brochures outside of Swan Transit’s workplace such that persons can be made aware of, or be directed to, TransportEdge.
In the circumstances it may be that damages are not an adequate remedy if the case is ultimately proven, but the paucity of evidence as to the nature of, and the extent of, any damage, means that the Court is not of the view that the inadequacy of damages is sufficient, either of itself or in combination with other factors, to favour the grant of the injunction.
Balance of Convenience
TransportEdges’s Submissions
In arguing the balance of convenience fell in its favour TransportEdge submitted that:
a)the potential for TransportEdge to suffer harm as a result of its materials not being permitted onto workplaces operated by Swan Transit is significant in circumstances where TransportEdge is a newly formed industrial association which is in the process of establishing its operations and membership base, therefore to deprive TransportEdge of the means of communicating with its membership and with potential new members through the distribution of its written material can have a substantial impact on TransportEdge;
b)this impact applies to recruiting potential members, communication with actual members, and importantly communicating with drivers at Swan Transit’s workplaces in relation to employment matters;
c)both Mr Fawkes and Mr Parker describe a work cycle that impacts upon the ability of drivers to communicate effectively with each other during the work day and a sense of frustration with the level of representation provided to drivers prior to the arrival of TransportEdge, thus providing the Brochures to drivers is an effective and non-disruptive means of permitting communication to drivers who are, by the nature of that occupation, difficult to communicate with at a central location;
d)the prejudice or harm that may be caused to Swan Transit if the injunction is granted in the terms sought would only permit the distribution, displaying on a private vehicle or otherwise making available to other employees of Swan Transit non-offensive pamphlet material of TransportEdge and not permit the posting of any material on any property owned or controlled by Swan Transit;
e)the prejudice to Swan Transit is minimal or non-existent while what would ordinarily follow were the injunction granted includes that employees of Swan Transit will be permitted to distribute, display and make available to other employees non-offensive pamphlet material of TransportEdge at Swan Transit’s workplaces;
f)these consequences are consistent with fair democratic practices and do not imperil the profitability or industrial harmony of the workplace and clearly fit within the protections afforded to industrial activity, hence only protecting this entitlement at the completion of these proceedings will render these protections nugatory until then;
g)the evidence that there is no tension between the TWU and TransportEdge was unchallenged and ought to be accepted, such that the distribution of Brochures would not cause disharmony and the Court should not draw an adverse inference from any previous materials TransportEdge has posted about Swan Transit, or the evidence of Mr Ferguson, as those need to be considered as “part and parcel” of industrial activity. Mr Ferguson will not be on the premises, and much of the material was posted by frustrated members as a result of the prohibition of distribution in the first place; and
h)the Brochures are an innocuous and informative document that should be allowed to be distributed from one person to another.
Swan Transit’s Submissions
Swan Transit submits the balance of convenience lies in their favour as:
a)the Agreement was made on 10 March 2017 and approved on 28 July 2017 therefore bargaining is not “in train” and on TransportEdge’s evidence, the bargaining was the primary source of interest in TransportEdge among employees;
b)TransportEdge represents a very small minority of drivers;
c)there is a likelihood that the injunction if granted will lead to disputation and disruption at the workplace as Mr Ferguson’s conduct has been designed to maximise disputation and disruption, evidenced by his commencing with his demand at the first bargaining meeting that bargaining be rearranged, and continuing through his various attempts to stultify bargaining and prevent approval of the Agreement;
d)Mr Ferguson has consistently criticised Swan Transit, publicly and in florid terms, and indicated that he saw nothing wrong with his conduct to date, which indicates TransportEdge will do what it can to make itself relevant by maximising dislocation and industrial disputation. An invitation to TransportEdge to “campaign” on Swan Transit’s premises will inevitably cause serious disruption as the TWU will inevitably demand an equivalent license to post and distribute material, and it is possible that other individual bargaining representatives will do the same, hence there is great potential for discord if TransportEdge is granted carte blanche to campaign on Swan Transit premises;
e)a party the subject of an injunction is entitled to know exactly what is required of it. The injunction sought is one which prevents Swan Transit from hindering the distribution of “non-offensive pamphlet material” and determining whether material is “non-offensive” involves subjective judgment, one which the parties are likely to disagree upon given the evidence of Mr Ferguson; and
f)TransportEdge and Mr Ferguson’s conduct thus far disentitles TransportEdge to any indulgence and TransportEdge is likely to abuse any privilege which is granted.
Consideration
When considering the balance of convenience, in Bradto v State of Victoria [2006] VSCA 89; [2006] 15 VR 65; (2006) V Conv R 54-722 at [35] per Maxwell P and Charles JA it was said that:
…whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.
In the Court’s view the balance of convenience clearly lies with Swan Transit. The Court does not have a high degree of assurance that when the matter comes to final hearing it will appear that the injunction was appropriately granted.
On Mr Ferguson’s own evidence the involvement of TransportEdge with bus drivers thus far has been confined to seeking to influence or become a part of the negotiations concerning the new Agreement and most of the queries arose from such: First Ferguson Affidavit at [16], [23]-[24] and [33]-[35]. TransportEdge currently has approximately 85 members, almost 80 per cent of those were bus drivers. The Agreement was made and approved by the FWC prior to the hearing and without indication of further planned industrial activity seeking to promote the interests of its membership, the Court feels this weighs against the granting of an injunction.
Exhibits 1, 2 and 3 give the Court no confidence that TransportEdge will appropriately utilise an opportunity to distribute materials. The content of these materials, already published on TransportEdge’s website, included allegations that Swan Transit were misleading, “pedalling a snake oil agreement”, bullies and mistreated their employees. Mr Ferguson stated there was nothing disparaging and those comments were accurate. One of the materials Mr Parker posted on the notice board was made for the purpose of comparing Swan Transit to East Germany in the 1960’s and the Soviet Union. The Court does not consider it would be appropriate to prevent Swan Transit from prohibiting distribution of materials at the workplace that were plainly critical and vilifying.
It was the TransportEdge members who contributed to the production of the materials on the website and Mr Ferguson gave evidence that the Brochures and materials got workers “fired up” to the extent they would call him, though things never became “heated” but words of “bravado” were exchanged. The Court did not find Mr Ferguson or Mr Parker’s evidence compelling, they were both somewhat evasive when cross-examined, and in particular Mr Ferguson’s evidence on certain aspects did not appear credible or plausible. In light of the evidence given by Mr Ferguson and Mr Parker, in addition to Annexure MK-16 of the Kent Affidavit, the Court does not have a high degree of assurance that when the matter came on for final hearing it was necessary or appropriate for the Injunction Application to be granted
Finally, the Court observes that the injunction is predicate on the distribution of “non-offensive” material. It suffices to observe that offensiveness is a very subjective notion. The offensiveness of some of the existing material distributed appeared to escape those responsible for its production, and in such circumstances there is a likelihood of repetition of such material. Therefore, an injunction in the terms sought is likely to require supervision by the Court on an ongoing basis. That is a factor which weighs heavily against the grant of the injunction.
For the above reasons, the balance of convenience does not favour the grant of the Injunction Application.
Other Matters
TransportEdge’s Submissions
The following additional supporting submissions were made:
a)TransportEdge was not simply sitting on its hands in relation to its concerns, parallel proceedings were being pursued in the FWC;
b)the Injunction Application should be assessed in its own terms and should be clearly directed to the industrial activity and not the “legion of other matters” that were before the FWC in earlier proceedings;
c)in the absence of evidence from Swan Transit that it was prejudiced by the delay in instituting proceedings, TransportEdge’s tardiness was not a fatal obstacle to the grant of relief, and further any consideration of prejudice caused to Swan Transit by delay should extend only to prejudice caused by delay in these proceedings and not prejudice caused by delay in some other application that TransportEdge might have on foot against Swan Transit; and
d)TransportEdge undertook to pay any damages sustained by Swan Transit for any loss caused to it by grant of the Injunction Application if the Court finds that there is no basis to restrain Swan Transit from distributing the Brochures and materials to employees.
Swan Transit’s Submissions
Swan Transit emphasised the following points:
a)the conduct sought to be restrained by the Injunction Application occurred on 12 January 2017, yet these proceedings were commenced four months later on 19 April 2017 and at no time has TransportEdge sought expedition, thus as a result the hearing for the Injunction Application has occurred some six months late, and as things emerged the hearing date was jeopardised by TransportEdge’s delay in filing the material it was to rely upon and the unavailability of its principal witness, Mr Fawkes;
b)TransportEdge’s evidence offers no explanation for the delay in making the application and the lack of urgency in prosecuting it, delay, per se, is a basis for refusing injunctive relief and without more the Court could not be satisfied that the orders sought are of any serious importance to TransportEdge in circumstances where TransportEdge has shown no urgency in pursuing them;
c)it might be said that TransportEdge was not sitting on its hands, rather it was attempting to obtain relief in other places, however, that it decided it was going to first pursue the avenues in the FWC that ultimately failed does not then entitle it to come to the Court almost six months later and seek an injunction; and
d)the Court could not be satisfied that TransportEdge is in a position to make good on its undertaking as to damages as Mr Ferguson’s evidence is that TransportEdge has $2,000 at hand and TransportEdge has a small membership, making it unlikely that it has the capacity to meet any substantial award of damages.
Consideration
Delay, without reasonable explanation, is a sufficient reason for rejecting interlocutory relief, and an important discretionary consideration: Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing Co New South Wales Ltd (1987) 76 ALR 633 at 638-639 per Bowen CJ, Beaumont and Foster JJ; Williment & Ors v Commissioner of Taxation [2010] FCA 808; (2010) 190 FCR 234; (2010) 79 ATR 650 at [16]-[18] per Perram J.
The Court draws no adverse inference from TransportEdge pursuing other matters in the FWC and accepts that it was not sitting on its hands. Contrary to TransportEdge’s submissions, it is not for Swan Transit to produce evidence that it was prejudiced by the delay in instituting proceedings, it is for TransportEdge to provide a reasonable explanation for the delay. No explanation has been proffered. For those reasons the Court is further not satisfied the injunction ought to be granted.
Mr Ferguson deposed to the following at [72] of the First Ferguson Affidavit:
The Applicant undertakes to pay any damages sustained by the Respondent for any loss caused to it by the grant of the interim injunction in circumstances where the Court ultimately finds that there is no basis to restrain the Respondent from preventing the Applicant from distributing its material to employees of the Respondent at any of the Respondent’s workplaces.
On its face, TransportEdge has accorded with the requirement that a Court will not ordinarily grant an injunction without requiring an undertaking as to damages: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; (1981) 33 ALR 578; (1981) 55 ALJR 107. However the Court is critical of the genuineness of this undertaking in circumstances where:
a)Mr Ferguson’s evidence was there was “a few thousand dollars in our bank account”: Transcript Day 1, p.52 at [47];
b)the Model Rules require the “Committee” to authorise the Treasurer to expend funds, and also provide that it is the “Committee” who is responsible for the “proper management” of the association: Rules, cll.26 and 30. Mr Ferguson is the Secretary, there is no evidence as to who forms the “Committee” and Mr Feerguson was approved to make an undertaking on behalf of TransportEdge; and
c)that Mr Ferguson says that there are a number of “people” prepared tp provide support to cover any award of damages is not sufficient. The Court is not prepared to accept the “possibility” of support. There is authority for the proposition that an undertaking from a non-party should not be accepted when the Court cannot be satisfied, as is the case here, that the non-party has been advised of the consequences of the undertaking: De Boer v Williams [2004] NSWSC 351 at [27] per Einstein J.
Conclusion and Orders
The Court has concluded that the Dismissal Application must be dismissed. There will be an order accordingly.
The Injunction Application must be dismissed. The Court is not satisfied it is appropriate nor necessary to exercise the discretion to grant the relief sought. There will be an order accordingly.
Given each party has not succeeded in their respective applications, and bearing in mind this is a matter arising in what is generally a “no costs” jurisdiction: FW Act, s.570, each party is to bear their own costs. If either party wishes to raise an issue with respect to costs, an application is to be made: FCC Rules, r.21.02(1).
Finally, unless further application is made requiring the Court’s attention, the matter is to be referred to a Registrar for mediation. There will be an order accordingly.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 October 2019
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