United Firefighters Union of Australia v Country Fire Authority
[1997] FCA 1227
•4 JULY 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Injunction under s 334 Workplace Relations Act 1996 (Cth) for alleged discrimination on the basis of refusing to enter into individual employment contracts - Application for summary dismissal on basis of not disclosing a reasonable cause of action - onus on party seeking to dismiss the proceeding to show proceeding is hopeless or unarguable - Whether essential elements of application pleaded - Totality of the applicant’s documents adequate - Whether application based on entering into agreements under s 9 Employee Relations Act 1992 (Vic) or entry by individual employees into a form of employment agreement - Effect of repeal of s 9 Employee Relations Act 1992 (Vic) - Effect of repeal of s 334 Workplace Relations Act 1996 (Cth) - Whether remedy of injunction available to prevent conduct that is no longer unlawful - Accrued right to remedy of an injunction.
INDUSTRIAL LAW - Injunction under s 334 Workplace Relations Act 1996 (Cth) for alleged discrimination on the basis of refusing to enter into individual employment contracts - Application for discharge on injunction - Whether injunction should no longer be sustained - Whether need for evidence of future conduct
Workplace Relations Act 1996 (Cth), ss 334, 431
Employee Relations Act 1992 (Vic), s 9
Acts Interpretation Act 1955 (Cth), ss 8(c), 8(e)
Trade Practices Act 1974 (Cth) s 45
General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125 applied
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied
Trade Practices Commission v Milreis Pty Ltd (No 2) (1977) 32 FLR 234 considered
UNITED FIREFIGHTERS UNION OF AUSTRALIA v COUNTRY FIRE AUTHORITY
VI 2797 of 1996
JUDGE: NORTH J
PLACE: MELBOURNE
DATE: 4 JULY 1997`
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2797 of 1996
BETWEEN:
UNITED FIREFIGHTERS UNION OF AUSTRALIA
APPLICANTAND:
COUNTRY FIRE AUTHORITY
RESPONDENTJUDGE(S):
NORTH J
DATE OF ORDER:
4 JULY 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The motion, notice of which was filed by the Respondent on 12 May 1997, is dismissed.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2797 of 1996
BETWEEN:
UNITED FIREFIGHTERS UNION OF AUSTRALIA
APPLICANTAND:
COUNTRY FIRE AUTHORITY
RESPONDENT
JUDGE(S):
NORTH J
DATE:
4 JULY 1997
PLACE:
MELBOURNE
EX TEMPORE REASONS FOR JUDGMENT
HIS HONOUR: On 23 December 1996, the applicant, the United Firefighters Union of Australia, applied to the Court under s 431 of the Workplace Relations Act 1996 (Cth) (the Act) for an injunction to restrain the respondent, the Country Fire Authority, from contravening various subsections of s 334 of the Act. The application was accompanied by an affidavit which set out the circumstances in which the application was made. On 24 December 1996, I made orders by way of interlocutory relief which, in part, provided that the respondent was restrained, pending the hearing and determination of the proceeding or further order, from:
(a)entering into individual employment agreements with members of the applicant who are performing the duties or appointed to the position of Operations Officer, including some named persons; and
(b)transferring or removing the relevant Operations Officers from their present duties or positions; and
(c)according to the relevant Operations Officers terms and conditions of employment inferior to the terms and conditions of employment of other Operations Officers employed by the respondent who have signed individual employment agreements with the respondent.
On 12 May 1997, the respondent filed a notice of motion seeking:
an order that the proceeding be dismissed as not disclosing a reasonable cause of action;
that the orders made by me on 24 December 1996 be discharged; and
such further or other orders as the Court considers appropriate.
Mr Kaufman, who appeared as counsel for the respondent, advanced a number of arguments which I intend to deal with in order. He rightly accepted that the relief sought in the first paragraph of the notice of motion, namely dismissal of the proceeding, imposed a high onus upon the respondent. Although he did not refer to the relevant authorities, it is well accepted that the moving party must establish that the proceedings are hopeless or unarguable for an application of this sort to succeed. The authorities normally referred to for that proposition are General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125 and Dey v Victorian Railways Commissioners (1949) 78 CLR 62. With that onus in mind, I turn to each of the respondent’s arguments on this aspect of the motion.
First, Mr Kaufman contended that the application under s 431 of the Act did not plead the essential elements of the causes of action alleged under s 334 of the Act. The application was supported by an affidavit and contentions were subsequently filed on behalf of the applicant which set out at length the basis of the applicant's case. In those circumstances, I have no doubt that the documents filed in the case have provided the respondent with a clear view of all the elements contended for by the applicant. It is, in my view, quite wrong to focus on the application document separately and to pinpoint any deficiencies in it when the totality of the applicant's documents do not disclose such deficiencies. I am not prepared to strike out the proceeding on this basis.
Next, Mr Kaufman argued that the application was based upon an allegation that the conduct in contravention of s 334 was concerned with the respondent’s behaviour at the time in concluding individual employment contracts under s 9 of the Employee Relations Act 1992 (Vic). Section 9 has, since the commencement of these proceedings, been repealed. He says, consequently, that the basis of the application in that respect has disappeared and the application must, therefore, fail.
The heavy onus which lies upon the respondent in this application means that the respondent must establish that the repeal of s 9 of the Employee Relations Act renders the present application hopeless or unarguable. In my view, that is not the case. The application depends on allegations of conduct concerning the entry by individual employees into a form of employment agreement. Its precise statutory nature is not central to the allegation of contravention. In any event, and additionally, engaging in conduct prior to the repeal of the Employee Relations Act 1992 (Vic) may be sufficient to contravene s 334. In my view, the repeal of the Employee Relations Act 1992 (Vic) does not render the existing application doomed to failure.
Next, Mr Kaufman argued that the application must now fail because s 334 has been repealed and, therefore, the basis of the application has gone. He pointed to the fact that the relief sought in this application was relief by way of injunction. The injunction, if granted, would apply to conduct which would occur after s 334 has been repealed and, therefore, could not amount then to a contravention of that section. Against that argument, Mr Bromberg, who appeared on behalf of the applicant, United Firefighters Union of Australia, argued that the right to proceed with the application and to have it determined in accordance with the law as it existed at the date of the application was preserved by s 8 of the Acts Interpretation Act 1955 (Cth), which relevantly provides that:
“Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the appeal shall not:
......
(c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or
......
(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed.”
Mr Bromberg relied, in particular on the decision of Frankie J in Trade Practices Commission v Milreis Pty Ltd (No 2) (1977) 32 FLR 234, at 238-239, where his Honour said, in relation to an issue arising under s 45 of the Trade Practices Act 1974 (Cth):
“The writ and statement of claim were filed on 5 December 1975, so that at the date of the repeal of s 45, if the plaintiff could establish its case, including the relevant conduct of the defendants, subject to the discretion of the court, it could obtain a penalty on behalf of the Commonwealth under ss 76 and 77, and a suitable injunction under s 80 and costs. The service of the writ and statement of claim on the defendants was an assertion of that right. Section 8(e) ensures that legal proceedings may still be continued in respect of any right which is accrued and in respect of any corresponding liability. I am of the opinion that the plaintiff had such a right before the introduction of the amending Act and that that right has been preserved by the provisions of s 8(c) of the Acts Interpretation Act. In my opinion this is in accord with Director of Public Works v Ho Po Sang [1961] AC 901, Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541, at 552, Mekol Pty Ltd v Baulkham Hills Shire Council [1971] 2 NSWLR 54 at 58-59, Robertson v City of Nunawading [1973] VR 819 at 825-826 and Walton v Baffsky [1975] 2 NSWLR 565 at 576-577.”
Mr Bromberg contended that the approach of Frankie J was directly relevant to the present argument. Providing the applicant proves a contravention of s 334 before it was repealed, it has acquired the right to an injunction in respect of future conduct of the type which s 334, when it existed, proscribed.
In my view, in light of the authority of Milreis, the applicant's position is at least arguable. Both this question and the question of the repeal of s 9 of the Employee Relations Act 1992 (Vic) are complex questions deserving further argument and consideration. They are rejected now in the context of proceedings for the summary dismissal of the application which requires, as I have previously said, that the application is hopeless or unarguable.
Mr Kaufman then argued that, if I came to the conclusion that the application should not be dismissed, then at least I should discharge the orders made on 24 December 1996. He relied upon a short passage in an affidavit filed today in Court, sworn by Matthew Salthouse, who is the solicitor for the respondents, which states, in paragraph 6:
“I am informed by Mr Peter Watson and verily believe that all Operations Officers are employed on terms and conditions of employment that are relevantly the same as, and in any event not less favourable than those provided to Operations Officers employed on the basis of Individual Employment Agreements or Australian Workplace Agreements.”
Mr Kaufman referred to the fact that the interlocutory orders were made a considerable time ago and that they were made under what he described as quite different circumstances, as s 9 of the Employee Relations Act 1992 (Vic) and s 334 of the Workplace Relations Act 1996 (Cth) no longer exist. Mr Bromberg responded by contending that the evidence of Mr Salthouse said nothing about the future position of Operations Officers employed by the respondent. In answer to that argument, Mr Kaufman announced to the Court that he had been instructed that the respondent had no present intention of treating Operations Officers differently whether they were employed on the basis of individual employment agreements, Australian Workplace Agreements, or otherwise.
The position in relation to the application for discharge may be regarded as unsatisfactory, as the applicant has not had the opportunity to respond to the affidavit of Mr Salthouse and the evidence in Mr Salthouse's affidavit is brief and limited. The onus which the respondent bears in an application for discharge of an injunction is to show that the injunction should no longer be sustained. In the circumstances of this case, that might require an undertaking, or at least an indication, as to a commitment by the respondent for the future treatment of its Operations Officers. I am not persuaded, on the material presently before me and in the light of the circumstances in which the injunction was granted, that it is appropriate to discharge the existing interlocutory injunction. I therefore refuse to do so and refuse the relief sought in the notice of motion.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North
Associate:
Dated: 21 October 1997
Counsel for the Applicant: Mr M. Bromberg Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: Mr L. Kaufman Solicitor for the Respondent: Corrs Chambers Westgarth Date of Hearing: 4 July 1997 Date of Judgment: 4 July 1997
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