Re Her Majesty R In Right of Victoria and the Honourable Don Hayward Mp, Minister of Education of Victoria v Australian Teachers' Union [1993] FCA 229 (13 May 1993)

FEDERAL COURT OF AUSTRALIA

Re: HER MAJESTY THE QUEEN IN RIGHT OF THE STATE OF VICTORIA and THE HONOURABLE
DON HAYWARD MP, MINISTER OF EDUCATION FOR THE STATE OF VICTORIA
And: AUSTRALIAN TEACHERS' UNION
Nos. VI24 and 26 of 1993
FED No. 300
Number of pages - 13
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J (1)

CATCHWORDS

Industrial law - award - breach - wilful - whether jurisdiction to grant injunction to restrain.

Industrial law - award - interpretation - whether jurisdiction to grant injunction to make interpretation effective.

Words and phrases - "wilfully".

Industrial Relations Act 1988 s. 61, s. 311, s. 51

Conciliation and Arbitration Act 1904 s. 109, s. 33, s. 122

Federal Court of Australia Act 1976 s. 23

Trade Practices Act 1974

Judiciary Act 1903 s. 64

Victorian Teachers Redundancy Interim Award 1992

Australasian Meat Industry Employees' Union v. Frugalis Pty. Ltd. (1987) 14 FCR. 535

Medcraft v. Federated Engine Drivers and Firemen's Association of Australia (1984) 8 IR 211

Royal Insurance Co. Ltd. v. Mylius [1926] HCA 49; (1926) 38 CLR 477

Mudge v. Attorney-General for the State of Victoria (1960) VR 43

Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150

QIW Retailers Ltd. v. Davids Holdings Pty. Ltd. (No. 1) (1992) 36 FCR 386

Automatic Fire Sprinklers Pty. Ltd. v. Watson [1946] HCA 25; (1946) 72 CLR 435

HEARING

MELBOURNE, 3 May 1993
13:5:1993

Counsel for the Applicant: Mr. Phipps QC with Mr. Bromberg

Solicitors for the Applicant: Holding Redlich

Counsel for the Respondent: Mr. Dalton QC with Mr. Green

Solicitors for the Respondent: Australian Government Solicitor

DECISION

On 24th December 1992, a Full Bench of the Australian Industrial Relations Commission made an award entitled the Victorian Teachers Redundancy Interim Award 1992. On 21st April 1993, the State of Victoria and its Minister for Education applied to this Court for an interpretation of the award. That application was made pursuant to s. 51 of the Industrial Relations Act 1988 ("the Industrial Relations Act"). The application is proceeding No. VI24 of 1993.

2. Because of the need for expedition, proceeding No. VI24 of 1993 was heard and determined on 28th April 1993. On that day, I made an order, dismissing the application of the Minister of Education and giving an interpretation of the award. That interpretation was contrary to the interpretation sought by State of Victoria. I reserved my reasons for judgment, which I published on 4th May 1993. Reference should be made to those reasons for judgment for the terms of the award, the terms of the interpretation sought by the State of Victoria, and the terms of the interpretation which I gave.

3. On 29th April 1993, two internal communications, apparently by electronic means, were sent from an officer named Ken Lynch at the head office of the Department of School Education in the Rialto Building, Melbourne, to various regional officers of the department. The first communication, at 9.15 a.m., read as follows:-
"As you are aware, articles about VSPs for teachers in the

press today are generating a significant number of
enquiries.
The implications of the decision for teachers in the various
stages of VSP processing are being examined as a matter of
priority. At this time, teachers should be advised that the
DSE is clarifying the situation and that they should enquire
again tomorrow. Furthermore, it should be mentioned that
the situation has been caused by teacher union action and is
not the result of any initiative by the DSE.
I will advise you further as soon as more detailed
information is available. Because of the volume of expected
calls, it may be necessary for us to advise teachers to
contact regional offices."

4. The second message, at 10.42 a.m., was in the following terms:-

"Further to my message earlier this morning, I advise that
the Director has indicated that the DSE interpretation of
the Federal Court decision permits the continued processing
of VSPs for teachers.
Teachers should be advised that they should cease duty on
their designated resignation dates, VSP payments will
continue to be processed and further offers may still be made."

5. The abbreviation "VSP" appears to stand for "voluntary separation package", a phrase defined and used in the award and at the heart of the question of construction of the award. It is inconceivable that any rational person could have interpreted the order of the Court made on 28th April as permitting the continued processing of voluntary separation packages for teachers, to the extent that teachers could be advised that they should cease duty on their designated resignation dates. In particular, the order made it clear that the termination of employment of any teacher pursuant to a scheme known as the resignation incentive scheme for temporary teachers or the scheme known as the Voluntary Separation Package - Phase II amounted to a breach of the award.

6. On 30th April 1993, the Australian Teachers Union filed an application, which became proceeding No. VI26 of 1993. By that application, the union sought injunctions, interim, interlocutory and permanent, that the respondent:-

"(a) be restrained by its servants or agents or otherwise
from terminating the employment of any employee
subject to the Victorian Teachers' Redundancy Interim
Award 1992 ("the Award") by accepting, acting upon or
treating as valid any resignation of an employee in
acceptance of a redundancy package pursuant to a
scheme known as the Voluntary Separation Package -
Phase II;
(b) treat as null and void and of no effect any
termination of employment of an employee covered
by the Award consequent upon the acceptance by
that employee of an offer made in accordance
with the redundancy scheme known as "Voluntary
Separation Package - Phase II";
(c) be restrained by its servants or agents or
otherwise from processing in any way, whether by
making offers or acting upon acceptances of
offers or terminating employment or otherwise,
the redundancy scheme known as the "Voluntary
Separation Package - phase II"'
(d) be restrained by its servants or agents or
otherwise from terminating the employment of any
employee subject to the Award by accepting,
acting upon or treating as valid any resignation
of an employee in acceptance of a redundancy
package pursuant to a scheme known as the
"Resignation Incentive Scheme for Temporary Teachers";
(e) treat as null and void and of no effect any
termination of employment of an employee covered
by the Award consequent upon the acceptance by
that employee of an offer made in accordance
with the redundancy scheme known as "Resignation
Incentive Scheme for Temporary Teachers";
(f) be restrained by its servants or agents or
otherwise from processing in any way, whether by
making offers or acting upon acceptances of
offers or terminating employment or otherwise,
the redundancy scheme known as the "Resignation
Incentive Scheme for Temporary Teachers."

7. On the same day, the union made an oral application to Heerey J, seeking interim injunctions in both proceeding No. VI24 of 1993 and proceeding No. VI26 of 1993. Some notice of the making of the oral application was given to those acting for the State of Victoria, which appeared by counsel and made submissions in opposition to the application. In each proceeding, Heerey J granted an injunction substantially in the terms of those sought in proceeding No. VI26 of 1993, expiring at 4.15 p.m. on 3rd May. His Honour adjourned the applications until 3rd May. On that day, they came on before me. The union filed a notice of motion in each proceeding, seeking a continuation of the injunctions. The State of Victoria filed a notice of motion in proceeding No. VI26 of 1993, seeking that the injunction granted by Heerey J be dissolved, that the application be dismissed and that the union pay the State of Victoria's costs. I abridged the times for service of each of the notices of motion and proceeded to deal with them.

8. Counsel for the State of Victoria raised as a preliminary point the question whether the Court had jurisdiction to grant the injunction sought in either proceeding. After hearing argument on that point, I ruled that the Court had no jurisdiction. I therefore dissolved the injunction granted by Heerey J in each proceeding and dismissed each of the union's motions. I also dismissed the application in proceeding No. VI26 of 1993, but declined to order costs. Apart from my reasons on the question of costs, I reserved my reasons for judgment, which I now give.

9. When the Conciliation and Arbitration Act 1904 ("the CandA Act") was amended to create the Commonwealth Industrial Court, that court was endowed with specific jurisdiction to grant injunctions. Section 109(1)(a) empowered the court to order compliance with an award proved to have been broken or not observed. Section 109(1)(b) empowered the court to enjoin an organisation or person from committing or continuing a contravention of the Act or a breach or non-observance of an award. By Act No. 53 of 1970, s. 109(1)(a) was repealed altogether and the words "or a breach or non-observance of an award" in s.109(1)(b) were repealed. There was added to the CandA Act in s. 33 a new procedure, involving the exercise of the conciliation and arbitration powers of a presidential member of the Australian Conciliation and Arbitration Commission, before recourse could be had to the court in respect of breach of a "bans clause" in an award. The clear legislative intention was that there should no longer be the remedy of injunction in respect of breach of an award.

10. There remained in the CandA Act s. 122, by virtue of which it was an offence wilfully to make default in compliance with any award. In Australasian Meat Industry Employees' Union v. Frugalis Pty. Ltd. (1987) 14 FCR 535, the question arose whether the combination of s. 122 and the remainder of s. 109(1)(b) of the C and A Act empowered the Court to grant an injunction to restrain a wilful breach of award. After an examination of the legislative history, and of my comments in Medcraft v. Federated Engine Drivers and Firemen's Association of Australia (1984) 8 IR 211, at p 218, Pincus J reached the conclusion that this Court had no jurisdiction under the C and A Act to grant an injunction to restrain a breach of award. At p 540, his Honour said:-

"The main foundation of the argument, to which I am grateful
to Mr Hall for having referred me, that s 109(1)(b), in
combination with s 122 does not permit the court to grant
injunctions for breaches for orders or awards is a
historical one. It may be that, if one were to read s
109(1)(b) and s 122 literally, without reference to this
history, the conclusion would have to be in accordance with
Mr Hall's submission.
Apart from the history, however, there is a circumstance
which makes one pause before adopting the literal
construction, namely that, if it is the case that a wilful
breach of an order or award can be punished by the two stage
procedure referred to by the Minister in the passage I have
read, then that procedure would be as applicable to breaches
by the union as to breaches by an employer.
That would seem to make the safeguards which are presently
to be found in s 33 applicable only to instances in which
the breach was otherwise than wilful. It appears to me,
therefore, that there is no jurisdiction to make the order
which is sought - a conclusion which I reach, I must
confess, with regret - and the application will be dismissed
without costs."

11. I respectfully follow the view of Pincus J, not merely because of the doctrine of precedent, but because I have a firm opinion that his Honour's view is correct. There is no warrant for the reintroduction of the use of injunctions to restrain breaches of awards, thereby circumventing a specific code designed to deal with such breaches, merely because such breaches could be characterised as having occurred or being threatened "wilfully". According to current fashion, an interlocutory injunction may be granted on a finding that there is a serious question to be tried. The mere allegation of a breach might be regarded as raising a serious question to be tried as to whether the breach alleged was, or would be, wilful. Alternatively, the element of wilfulness could be supplied by knowledge that a threatened or intended act would be a breach of the award. Thus, there are few breaches of award which could not be brought within the ambit of the power to grant injunctions.

12. On 1st March 1989, the C and A Act was repealed and replaced by the Industrial Relations Act. What had been s. 109(1)(b) of the C and A Act became s. 61 of the Industrial Relations Act and what was s. 122 became s. 311 of the Industrial Relations Act, which makes it an offence wilfully to contravene an award. The enactment of those provisions without significant amendment, in the light of the reasoning in Frugalis, together with the retention of the code of provisions dealing with the consequences of breaches of awards in Division 1 of Part VIII of the Industrial Relations Act, demonstrate the intention of Parliament that the remedy of injunction should continue to be unavailable in respect of breaches of awards.

13. The injunctions sought in proceeding No. VI26 of 1993 were sought in reliance on ss. 61 and 311 of the Industrial Relations Act. For the reasons which I have given, I took the view that those sections do not give the Court jurisdiction to grant injunctions in respect of breaches of awards.

14. The injunctions sought in proceeding No. VI24 of 1993 were said to be based on a power of the Court to supplement a declaration by an injunction if the declaration has proved an ineffective remedy. The authority for the existence of such power was said to be found in Royal Insurance Co. Ltd. v. Mylius [1926] HCA 49; (1926) 38 CLR 477 and Mudge v. Attorney-General for the State of Victoria (1960) VR 43. In the former case, at p 497, Isaacs J said:

"Every order for declaration of right carries with it
liberty to apply, and, if the defendant acts contrary to it,
the Court on a proper application, and on proper notice may
enforce it...".

In the latter case, at p 54, Smith J referred to the availability of a statutory mandamus as ancillary relief in respect of a right of action for a declaration.

15. Proceeding No. VI24 of 1993 was commenced in reliance on s. 51 of the Industrial Relations Act. That section does not, in terms, empower the Court to grant a declaration. It empowers the Court to give an interpretation of the award. The fact that such an interpretation is couched in the language of a declaration does not mean that it attracts all of the consequences of a declaration of right. A declaration of right will ordinarily be granted to establish the right of a person to some specific and tangible benefit. It is understandable that an injunction or mandamus could be granted subsequently to compel the delivery up of that benefit if the party subject to the declaration refuses to deliver it up. The procedure under s. 51 of the Industrial Relations Act is more akin to the old procedure under which the proper construction of a document was established by originating summons, asking the Court to declare the true meaning of the document. I know of no authority to suggest that an injunction or mandamus is automatically part of the relief which may be granted when such a determination is made.

16. Section 51 of the Industrial Relations Act also provides for a specific binding effect of an interpretation. It is to be binding on all parties to the award who have been given an opportunity to be heard. It was suggested that this in some way empowered the Court to grant an injunction to ensure that the binding effect of its decision was made good. This argument misconstrued the provision. All that the section does is to extend what would ordinarily be the binding effect of an order of the Court beyond the parties to the proceeding in which the order was made, to all parties to the award who could have participated in the proceeding but chose not to. An interpretation of award has no different effect on the parties to the proceeding in which it is given than does any other court order on the parties to the proceeding in which it is made.

17. Both in reference to ss. 61 and 311 and s. 51 of the Industrial Relations Act, reference was made to s. 23 of the Federal Court of Australia Act 1976. 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."

18. In Thomson Australian Holdings Pty. Ltd. v. Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150, at p 161, Gibbs CJ, Stephen, Mason and Wilson JJ, said with respect to s. 23:-

"The provisions of that Act, correctly understood, do not
empower the Court to grant injunctions restraining, or
relating to, contraventions of the Trade Practices Act in
situations falling outside the boundaries drawn by s. 80 of
that Act. Section 22 of the Federal Court of Australia Act
is a "Judicature Act" provision, designed to ensure that the
Court can grant relief which is appropriate to both legal
and equitable claims and to avoid multiplicity of
proceedings. Its effect is to enable the Court to dispose
of all rights, legal and equitable, in the one action, so
far as that is possible...... It does not confer authority
to grant an injunction in circumstances where a plaintiff
has no case for relief by way of injunction under the
general law or by statute. So also with s. 23; it arms the
Court with power to make all kinds of orders and to issue
all kinds of writs as may be appropriate, but it does not
provide authority for granting an injunction where there is
otherwise no case for injunctive relief."

19. See also QIW Retailers Ltd. v. Davids Holdings Pty. Ltd. (No. 1) (1992) 36 FCR 386, at pp 387-391. Like the Trade Practices Act 1974, the Industrial Relations Act provides for the circumstances in which injunctions may be granted. Section 23 of the Federal Court of Australia Act 1976 cannot be taken to give the Court a general power to grant injunctions in matters in which the Industrial Relations Act gives jurisdiction, but in respect of which the Industrial Relations Act does not provide the power to grant injunctions.

20. Counsel for the union attempted to rely upon s. 64 of the Judiciary Act 1903, under which in any suit to which a State is a party, the rights of parties are to be as nearly as possible the same as in a suit between subject and subject. That provision is of no assistance if, as I have held, no-one could obtain an injunction in respect of a breach of an award. There was also an attempt to suggest that a State is in a special position with respect to compliance with the law. I agree that, as a philosophical notion, the rule of law is of the utmost importance with respect to any government. Arguments of that kind cannot be relied upon, however, to provide jurisdiction to make orders where such jurisdiction does not exist otherwise.

21. Finally, counsel for the union suggested that purported action in breach of the award would be ineffective to bring about termination of the employment of teachers, because of the clear prohibition of such termination by the award. They relied on Automatic Fire Sprinklers Pty. Ltd. v. Watson [1946] HCA 25; (1946) 72 CLR 435, especially at pp 470-471 in the judgment of Dixon J, as he then was. This argument appears to me to be correct, but it does not follow from it that there is jurisdiction to grant an injunction to restrain any termination when the party applying for the injunction is the union, and not any person whose employment has been or is likely to be terminated. Indeed, the prospect that terminations will be ineffective in any event suggests that any injunction is unnecessary.

22. For those reasons, I made the orders which I made on 3rd May 1993.