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Federal Court of Australia |
Last Updated: 25 February 2000
CFMEU v Master Builders' Association of Victoria (No 1) [2000] FCA 168
INDUSTRIAL RELATIONS - Interlocutory injunction - protected action - anti-suit injunction - proposed action for damages by employers against Union - whether proposed proceeding will include protected action - intent to coerce Union not to make certified agreement.
Workplace Relations Act 1966 (Cth): s 166A, s 170MT, s 170NC
Australian Workers' Union v Yallourn Energy Pty Ltd [2000] FCA 65 considered
National Workforce Pty Ltd v Australian Manufacturing Workers' Union [1998] 3 VR 265 cited
Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 cited
Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 cited
CONSTRUCTION FORESTRY MINING AND ENERGY UNION v MASTER BUILDERS' ASSOCIATION OF VICTORIA & ORS (No 1)
V 59 of 2000
GOLDBERG J
25 FEBRUARY 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
UPON the applicant by its counsel undertaking to the Court:
(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory undertaking or any continuation (with or without variation) thereof; and
(b) to pay the compensation referred to in (a) to the person there referred to.
AND UPON the fourth to ninth respondents undertaking by their counsel that they will not, pending the hearing and determination of the application herein, commence any proceeding in tort against the applicant pursuant to the certificate given by the Australian Industrial Relations Commission dated 14 February 2000 without giving the applicant seventy-two hours notice in writing of the nature of the proposed proceeding and their intention to commence the proceeding by serving on the applicant a draft statement of claim.
1. The application for interlocutory injunctions against the fourth to ninth respondents restraining them from commencing legal proceedings against the applicant, its officers, employees and members is adjourned sine die with liberty to bring it on for hearing on twenty-four hours' notice to the fourth to ninth respondents.
2. The costs of the application be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
JUDGE: |
GOLDBERG J |
DATE: |
25 FEBRUARY 2000 |
PLACE: |
MELBOURNE |
1 The applicant, Construction Forestry Mining and Energy Union ("the Union"), has commenced a proceeding against the Master Builders' Association of Victoria ("the MBAV") and eight construction companies seeking declaratory relief in relation to industrial action taken by the Union and in relation to bans on overtime imposed by the respondents. It seeks injunctive relief restraining the MBAV from procuring the eight construction companies from imposing bans on working overtime and restraining six of the construction companies from taking certain legal proceedings against the Union, its officers, employees and members. Compensation and damages are also sought by the Union.
2 The matter for immediate determination is an application by the Union for interlocutory injunctions against the fourth to ninth respondent construction companies restraining them from commencing legal proceedings against the Union, its officers, employees and members pending the final hearing of the proceeding. The Union also sought an interlocutory injunction restraining the MBAV and all respondent construction companies from procuring or imposing bans on working overtime. That issue has been dealt with in a separate hearing as a result of an order made on 18 February 2000, pursuant to O 29 of the Federal Court Rules, setting down for determination the separate question whether the respondents' conduct, pursuant to the notices in which they directed employees not to attend for or perform any work at specified times in the period commencing 12 February 2000 and concluding 25 March 2000, is protected action under s 170MT of the Workplace Relations Act 1996 (Cth) ("the Act").
Background
3 The application for interlocutory relief needs to be placed in the wider context from which it has developed. The Union and the second to ninth respondents ("the employers") and the subcontractors retained by the employers to work on building sites are bound by the National Building and Construction Industry Award 1990 ("the Award") made under the Act by the Australian Industrial Relations Commission ("the Commission"). Over the past three years the Union has entered into certified agreements with many building contractors in the building and construction industry, which agreements have been registered with the Commission under the provisions of the Act. Most of those certified agreements passed their nominal expiry date by 30 November 1999 but in accordance with s 170LX of the Act they remain in operation until replaced by another certified agreement.
4 Since October 1999 the Union has been engaged in an industrial campaign to obtain a thirty-six hour working week, a nine day fortnight and a pay increase of 24% over three years. The MBAV and the employers in the building construction industry have resisted these claims. Negotiations commenced in October 1999 between representatives of the Union, the MBAV and the Construction Employers' Planning Forum ("the CEPF"), a body representing the interests of a number of large construction companies.
5 On 7 December 1999 the Union served notices on the employers who were parties to the certified agreements which had passed their nominal expiry date, pursuant to the provisions of s 170MI of the Act, initiating a bargaining period and giving notice of intention to try to make new agreements. The notices set out the matters which the Union proposed should be dealt with by the proposed agreements which included, relevantly for present purposes, a thirty-six hour week to be worked over a nine day fortnight.
6 Subsequent to the service of the notices negotiations have been conducted between the Union, the MBAV and the CEPF. Those negotiations have not yet led to any agreement between any of the parties.
7 On 5 January 2000 the Union gave notices to those employers with whom agreements had expired of the intention of officers, employees and members of the Union to take industrial action. The notices were given in accordance with s 170MO of the Act. Since 11 January 2000, members of the Union have taken industrial action in accordance with those notices. The industrial action specified in the notices included, inter alia, rolling bans and bans on various aspects of construction activity. These bans have affected the employers at their construction sites and they claim to have suffered significant losses, as a result of the work bans imposed by the Union and its members, which losses are continuing.
8 On 14 February 2000 the Union gave the relevant employers a further notice, pursuant to s 170MO of the Act, of the intention of officers, employees and members of the Union to take industrial action, which notice replaced and superseded the previous notice. The notices provided that commencing on 21 February 2000 the Union, its officers, employees and members would engage in the specified aspects of industrial action which included, inter alia, rolling bans and bans on various aspects of construction activity. The Union believes that such action will be protected action under s 170MT of the Act but a number of employers have raised doubts about this. It is for this reason that the Union seeks declaratory relief.
9 On 9 February 2000 the MBAV published a media release which, inter alia, stated that:
"The industry has resolved to implement an overtime ban commencing from Saturday, 12 February.Workers on various sites will be given notice of the `lockouts' and notified that if they turn up for work they will not be paid.
Similarly sites will operate from the core hours of 7.00 am to 3.30 pm Monday to Friday and there will be no overtime worked out of those hours."
The employers have served notices on the Union giving notice of what is, in effect, a ban on overtime. They claim that the conduct specified in the notices is "protected action" within s 170ML(3) of the Act and the determination of that issue has been formulated as a separate question to be answered by this Court. Its determination does not form part of these reasons.
10 On 9 February 2000 the fourth to ninth respondents gave notice to the Registrar of the Commission, pursuant to s 166A(3) of the Act, of their intention to commence an action in tort against the Union in relation to conduct engaged in or organised by the Union between 1 December 1999 and 8 February 2000. The Commission listed a hearing in relation to the notice on 10 February 2000. On 11 February 2000 a Commissioner decided not to issue a certificate pursuant to s 166A(6) of the Act in respect of that notice.
11 Early in the morning on 11 February 2000 the fourth to ninth respondents gave a further notice to the Registrar of the Commission, pursuant to s 166A(3) of the Act, giving notice of their intention to commence an action in tort against the Union in respect of conduct and industrial action from 1 December 1999 onwards at a number of construction sites on which the fourth to ninth respondents were carrying on construction activities. The notice was in the following form:
"Under Section 166A of the Act each of the Notifiers set out in Schedule A give you notice of their intention to commence an action in tort against:the CFMEU (whether by their officers, agents, delegates, shop stewards or employees (the `Union').
in respect of all or any conduct or industrial action at any or all of the Sites listed in Schedule B from 1 December 1999 onward which was or is organised, procured, directed, encouraged, induced, engaged in or incited by the Union including but not limited to the following:
1. Direct employees of the Notifiers engaging in or participating in conduct or industrial action including but not limited to:
(a) Bans or limitations on the performance of work including but not limited to bans or limitations on deliveries, induction, wall tiling, concrete pours, painting, working above ground or first level, excavation, installation of planks, stripping of form work, demolition, top coating plasterboard, balcony installation, removal of skirting and scaffolding, relocation of fencing, sanding of plasterboard, external cladding, concrete pumping and/or plant movements.
(b) Refusal to perform any work at all on an ordinary working day;
(c) A strike;
(d) A refusal to work overtime;
(e) A work to rule or award, including strict adherence to break times;
(f) A refusal to operate cranes;
(g) A refusal to operate excavators;
(h) A refusal to operate scissor lifts;
(i) Bans or erection of form work and placement of concrete;
(j) Bans on painting, carpentry or non-trades work;
(k) Bans on ladders;
(l) Bans on mobile scaffolds;
(m) Holding a stop work meeting.
2. Employees of sub-contractors engaging in or participating in conduct or industrial action on any or all building sites of the Notifiers as listed in Schedule B including but not limited to:
(a) Bans or limitations on the performance of work including but not limited to bans or limitations on deliveries, induction, wall tiling, concrete pours, painting, working above ground or first level, excavation, installation of planks, stripping of form work, demolition, top coating plasterboard, balcony installation, removal of skirting and scaffolding, relocation of fencing, sanding of plasterboard, external cladding, concrete pumping and/or plant movements.
(b) Refusal to perform any work at all on an ordinary working day;
(c) A strike;
(d) A refusal to work overtime;
(e) A work to rule or award, including strict adherence to break times;
(f) A refusal to operate cranes;
(g) A refusal to operate excavators;
(h) A refusal to operate scissor lifts;
(i) Bans or erection of form work and placement of concrete;
(j) Bans on painting, carpentry or non-trades work;
(k) Bans on ladders;
(l) Bans on mobile scaffolds;
(m) Holding a stop work meeting.
But not including in paragraphs 1 or 2 above, any protected action as defined in the Workplace Relations Act 1996. (emphasis added)
The Notifiers, in reliance on the following intend to seek damages on the grounds that the Union organised, procured, directed, encouraged, induced, engaged in or incited the unprotected industrial action by (emphasis added):
(a) procuring each of their members who are employee [sic] of the Notifiers to fail or refuse to perform work as required by their contracts of employment;
(b) arranging the imposition of work bans on the performance by their members of work for the Notifiers in accordance with their contracts of employment;
(c) inciting or encouraging any or all of their members employed by the Notifiers to fail or refuse to perform work as required by their contracts of employment, and/or to fail or refuse to remove work bans
(d) unlawfully inducing one or more of the Notifier's employees, and employees of sub-contractors engaged by the Notifiers, to breach their contracts of employment; and
(e) Interfering with the trade or business of the Notifiers by unlawful means;
..."
The sites listed in Schedule B are sites on which the fourth to ninth respondents are presently carrying on construction activities.
12 On 14 February 2000 the Commission certified, pursuant to s 166A(6)(c) of the Act, that the Commission had not stopped the conduct to which the notice dated 11 February 2000 related and that seventy-two hours had passed since the notice was given under s 166A(3) in respect of that conduct. The certificate was expressed to have effect from 9.54 am on 14 February 2000.
13 Accordingly, the prohibition on the fourth to ninth respondents bringing an action in tort under the laws of the State of Victoria against the Union provided for in s 166A(1) no longer applies because the certificate provided for in that subsection has been given. Subject to any injunction which might be granted, the fourth to ninth respondents are free to bring an action against the Union in tort under the laws of the State of Victoria in the Supreme Court of Victoria in respect of the conduct set out in the notice. However, by virtue of the provisions of s 170MT(2) of the Act, no action lies under any State law in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve personal injury, wilful or reckless destruction of, or damage to, property or the unlawful taking, keeping or use of property.
14 It is in these circumstances that the Union seeks an interlocutory injunction restraining the fourth to ninth respondents from threatening to commence or commencing any proceedings against the Union in relation to the industrial action taken between 11 January 2000 and the date on which the application for interlocutory relief is determined.
15 The Union submitted that an injunction should be granted against the MBAV and the employers on two bases:
(a) the Union and its members have a right not to be proceeded against in respect of any protected action by virtue of the provisions of s 170MT of the Act and that an injunction should lie restraining the bringing of any proceeding in respect of such protected action, relying on CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345; Australian Workers' Union v Yallourn Energy Pty Ltd [2000] FCA 65; Construction Forestry Mining and Energy Union v Multiplex Constructions Pty Ltd [2000] FCA 101;
(b) the threatened tort action and the ban on overtime constitutes conduct in contravention of s 170NC of the Act as the fourth to ninth respondents are threatening to take legal proceedings with intent to coerce the Union not to make an agreement of the kind which it seeks.
As s 170NC(1) does not apply to action that is protected action (s 170NC(2)), any consideration of whether an injunction should be granted in relation to the ban on overtime must await the determination of the question set down for separate determination.
16 The Union's factual basis for its submission that the proposed tort proceeding is coercive within s 170NC of the Act is set out in an affidavit by the Union's solicitor in the following terms:
"31. The [fourth to ninth] respondents have made no application under section 127 of the Act to prevent the industrial action.
32. Martin Kingham [Secretary, Victorian Divisional Branch, Construction and General Division, CFMEU] and Dave Noonan [Vice President, Victorian Divisional Branch, Construction and General Division, CFMEU] believe that the respondents intend, by taking action in the Supreme Court of Victoria, to coerce the CFMEU not to agree to make an agreement under Division 2 or 3 of Part VIB of the Act in contravention of section 170NC of the Act. The prospect of Supreme Court litigation is experienced by those officials to be coercive in that
(a) the conduct of proceedings requires the sustained attention and devotion of time by senior officials of the union, diverting them from their ordinary duties and in particular the conduct of bargaining and industrial campaign activities; and
(b) the potential risk of damages to the union or to individuals is intimidating;
(c) the litigation is likely to become a significant additional factor in negotiations, in that the employers will have obtained an additional source of leverage with which to influence the CFMEU's determination to maintain its claims for 36 hour week (among other claims).
33. The coercive effect cannot be compensated in damages. If the [fourth to ninth] respondents maintain threats to pursue injunctions or actions for damages in the Supreme Court, then that will have an impact upon the conduct of negotiations. The CFMEU may be coerced into signing certified agreements on terms less favourable than it otherwise may have achieved. If this occurs, the CFMEU will not be able to precisely identify the extent to which the terms were less satisfactory than they otherwise might have been.
34. Martin Kingham and Dave Noonan have told me that they believe that the purpose of any Supreme Court litigation initiated by the [fourth to ninth] respondents would be to obtain a bargaining chip, rather than to cause industrial action to stop. Those officials have noted that, were the [fourth to ninth] respondents primarily interested in stopping industrial action, then they could have made an application to the AIRC, under section 127 of the Act, at any time after receiving the 170MO notice."
The fourth to ninth respondents denied any intention to harm the Union and denied any intention to harm their employees because the employees are dissatisfied with their conditions of employment or are seeking better conditions of employment.
17 The fourth to ninth respondents submitted the application for injunctive relief was premature because all they had done was apply for, and receive, a s 166A certificate. They submitted that they were obliged to apply for the certificate at the time they did and that they could not wait until the relevant conduct complained of had concluded to apply for the certificate. They submitted, in effect, that whether or not they wanted to commence a proceeding in tort forthwith, the structure of s 166A required the application to be made whilst the conduct complained of was being carried on and had not stopped. For present purposes, that is an interlocutory proceeding, I am prepared to accept that submission. It seems to follow from the fact that the pre-conditions to be satisfied before a certificate can be given are set out in subs (6) of s 166A. These are that either the Commission is not likely to be able to stop the conduct promptly, or that it would cause substantial injustice to the person applying for the certificate if that person was prevented from bringing the action while the Commission is exercising conciliation powers in relation to the industrial dispute (that is to say while the conduct is still alive) or the Commission has not stopped the conduct by the end of seventy-two hours after the notice was given (that is to say while the conduct is still continuing). This construction of s 166A received the approval of the Victorian Court of Appeal in National Workforce Pty Ltd v Australian Manufacturing Workers' Union [1998] 3 VR 265 at 278.
Are proceedings in respect of protected action threatened?
18 Division 8 of Pt VIB of the Act provides for a bargaining period to enable the negotiation of certified agreements pursuant to Divs 2 and 3 of Pt VIB. It also provides that certain industrial action taken during a bargaining period shall be protected action in respect of which no action lies under any law so long as the provisions of Div 8 are complied with. The legislative scheme in Div 8 was the subject of comprehensive analysis by Merkel J recently in Australian Workers' Union v Yallourn Energy Pty Ltd (supra) and I adopt with respect his Honour's analysis. His Honour also concluded that the Federal Court has jurisdiction, in a proceeding brought for a declaration that conduct is protected action, to grant an anti-suit injunction restraining the commencement of proceedings in respect of protected action. In that case his Honour found, on a prima facie basis, that there were reasonable grounds for concluding that the proposed action in tort was likely to be in respect of protected action. His Honour was also prepared to infer, on a prima facie basis, that the proposed proceeding, in respect of which a s 166A certificate had been given, was another step to assist the position of the employer in the bargaining process. For the reasons to which I shall refer I consider that the facts and circumstances before me can be distinguished from those in Australian Workers' Union v Yallourn Energy Pty Ltd (supra).
19 I do not consider there is a serious question to be tried as to whether the fourth to ninth respondents are threatening or proposing to take proceedings against the Union, its members or officers in respect of protected action. The notice given to the Commission disavows any such intention by specifically excluding protected action from the conduct the subject of the complaint. The Union submitted that because it was seeking declaratory relief in relation to the protected action which it was undertaking, there was doubt as to what might be the subject matter of any proceeding brought by the fourth to ninth respondents. Mr Borenstein, who appeared for the Union, pointed out that the notice which gave rise to the s 166A certificate specified the conduct in respect of which a proceeding was proposed, which conduct was virtually a mirror image of the proposed industrial action which was set out in the Union's initial notice of initiation of a bargaining period given pursuant to s 170MI of the Act.
20 Nevertheless, according to the terms of the notice, the fourth to ninth respondents do not intend to bring a proceeding in respect of protected action. It does not appear that such a restriction appeared in the notice given pursuant to s 166A(3) in Australian Workers' Union v Yallourn Energy Pty Ltd (supra). In the course of argument Mr Borenstein submitted that the Union's principal claim for the anti-suit injunction was that because the Union's industrial action was protected action, the Union should not be exposed to the pressure of having to deal with a proceeding in relation to that protected action. The Act gives the Union protection from such action, but the fourth to ninth respondents do not propose to bring a proceeding in respect of protected action.
21 It is true that the notice to the Commission does not specify in any detail what is the nature or substance of the proposed proceeding, although it does state that conduct which is protected action is not intended to be the subject of the proceeding to be commenced. Although some difficulties may arise as to drawing a clearly defined line between what is protected action and what is not protected action, without knowing what the precise cause of action relied upon in the proposed proceeding and the particulars of it, I do not consider it appropriate to infer that there is a threat by the fourth to ninth respondents to commence a proceeding in respect of protected action. They have disavowed this intention in their notice. It may possibly occur that they may particularise the conduct on which they rely in any proceeding in such a way as to transgress into forbidden territory. But that is a matter in respect of which they will have to exercise care, and that possibility does not necessarily indicate that they have an improper intention. The fact that there may be concerns about whether the fourth to ninth respondents will be able to delineate sufficiently the dividing line between protected action and action which is not protected does not mean that there is a threat to bring a proceeding in respect of protected action. Nor does it mean that an injunction should be granted in respect of such a proceeding.
22 The fourth to ninth respondents have set out in a number of affidavits the loss and damage they claim to have suffered as a result of the conduct of the Union and its officers and members. Mr Borenstein pointed to these matters as evidence of the fact that any proposed proceeding would be for substantial damages. It does not follow that a proceeding will be brought in respect of all of that loss and damage. It will still be incumbent upon the fourth to ninth respondents to ensure that any proposed proceeding is not brought in respect of protected action.
23 For the reasons to which I have referred, I do not consider that there is a serious question to be tried as to whether any proceeding brought in reliance upon the s 166A certificate will be in respect of protected action. Once a proceeding is formulated by the fourth to ninth respondents the matter will crystallise and can be re-visited. At that point of time it would be possible to determine with a greater degree of certainty whether the proposed proceeding might be in respect of conduct which is protected action. In such circumstances, the Union's present concerns could be accommodated by the fourth to ninth respondents giving the Union notice of any proposed proceeding in tort before it is commenced. If the Union was given a copy of any proposed proceeding before it was issued it could consider whether it wanted to contend that such proceeding would be in respect of protected action and it could then apply to restrain the commencement of the proceeding. In the course of the hearing, counsel for the fourth to ninth respondents indicated that his clients would be prepared to consider giving an undertaking that they would not take any proceeding in tort pursuant to the s 166A certificate in relation to conduct described in the certificate without giving the Union seventy-two hours' notice of the nature of the proposed proceeding and intention to commence the proceeding. If such an undertaking was given, the Union would not be prejudiced if an injunction was not granted at the present time. Mr Borenstein submitted that if a proceeding was commenced in the Supreme Court of Victoria, the situation would be created where the determination of whether the industrial action of the Union is protected action would be occurring in two courts at the same time. But that submission depends upon knowledge of what is the content of the proceeding in the Supreme Court. If it relates to industrial action or conduct which is not protected action, the issue will not arise. If it does relate to protected action, consideration can then be given as to which is the appropriate forum in which the matter should continue.
Intent to coerce
24 Different considerations arise in relation to the claim that there is a serious question to be tried that the proceeding proposed in the notice dated 11 February 2000 constitutes the taking of action with intent to coerce the Union not to make an agreement of the kind which it seeks.
25 Section 170NC provides:
"(1) A person must not:(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).
(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
(3) ..."
26 In order to establish that there is a serious question to be tried, the Union must show that there is a serious question that the fourth to ninth respondents are intending to coerce the Union to agree to or not to agree making a certified agreement. As Merkel J pointed out in Australian Workers' Union v Yallourn Energy Pty Ltd (supra) at [72]:
"The issue of establishing corporate intent is often fraught with difficulty: see Krakowski v Eurolynx Properties Ltd [1994] HCA 22; (1995) 183 CLR 563 at 582-583 per Brennan, Deane, Gaudron and McHugh JJ."
In that case Merkel J was prepared to infer on a prima facie basis that the proposed proceeding was another step to assist the position of Yallourn Energy in the bargaining process by reasons of a number of factors (which he set out) warranting that inference. Accordingly, Merkel J found there was a serious question to be tried in respect of whether such a proceeding resulted in a contravention of s 170NC.
27 Mr Borenstein pointed out that no steps had been taken to apply to the Commission pursuant to s 127 of the Act to obtain an order that the industrial action stop or does not occur, which was open to the fourth to ninth respondents if the action was not protected action: National Workforce Pty Ltd v Australian Manufacturing Workers' Union (supra) at 277-278.
28 The s 166A notice was given to the Commission during an intensive bargaining period. Although the fourth to ninth respondents submitted that they gave the notice to the Commission and obtained the certificate so as to preserve their right to bring the proceeding in tort, I cannot ignore the fact that the conduct referred to in the notice was but one part of a continuous pattern of conduct during the bargaining period. Mr Wood, who appeared for the fourth to ninth respondents, submitted that the employers were compelled to give the notice whilst the conduct of which they complained was current as, on a proper reading of s 166A, the certificate could not be obtained once the conduct had ceased. That may be so, but it is still open to me to infer that the timing of the giving of the notice and obtaining of a certificate is related to the bargaining and negotiations which are still being undertaken. That inference is supported by the fact that although the fourth to ninth respondents complain of continuing losses they have not applied to the Commission to stop the industrial action which is not protected action pursuant to s 127 of the Act, nor have they sought, pursuant to s 170MW of the Act, to terminate the bargaining period.
29 As is common in such cases, there is no direct evidence of the intention of the fourth to ninth respondents in relation to the commencement of proceedings in tort. Although the application for the s 166A certificate is couched in terms of the fourth to ninth respondents' "intention to commence an action in tort" against the Union, that formulation is required by s 166A(3) as a pre-condition to the Commission giving the certificate. Thus, even if the fourth to ninth respondents do not wish to commence a proceeding in tort against the Union for the time being, but rather wish to preserve their right to do so depending upon the outcome of the bargaining process and the process of negotiation, they are still obliged to apply for and obtain a certificate whilst the conduct which they may wish to make the subject of a legal proceeding is still current and operative. It is no answer to a claim that damages have already been suffered as a result of conduct in respect of which tort proceedings may lie (that is, conduct which is not protected action) to say that application should be made to the Commission to stop the industrial action pursuant to s 127 of the Act. An application under s 127 may have an effect in futuro but it does not have effect in relation to conduct which has already occurred which is said to have caused loss or damage or given rise to tortious liability.
30 Save for the application for, and the receipt of, the s 166A certificate there is no evidence which supports the inference of an intent to coerce. The material referred to in the Union's solicitor's affidavit takes the matter little further. As noted earlier, Messrs Kingham and Noonan, officers of the Victorian Divisional Branch of the Union, believe that the intention of the fourth to ninth respondents, by taking action in the Supreme Court of Victoria, is to coerce the Union "not to agree to make an agreement" in contravention of s 170NC of the Act. I take this to be a reference to the Union agreeing not to make an agreement of the type it would otherwise wish to make. The coercion is said by Messrs Kingham and Noonan to be found in the attention needed to be given to the proceeding, the potential risk of damages to the Union and the fact that the litigation will become a factor in negotiations. These were, in effect, some of the factors relied upon by Merkel J in warranting an inference of coercion.
31 The difficulty with these propositions is that, in a sense, they are premature, until one knows the exact nature of the proceeding to be brought. The issue of the conduct of proceeding requiring sustained attention by Union officials can be met by an order restraining the fourth to ninth respondents from continuing or prosecuting any proceeding which is commenced any further than the issue of the writ or other initiating process until the current bargaining period and round of industrial negotiations are concluded and certified agreements are entered into.
32 Although the potential risk of damages to the Union or to individuals may be intimidating, that potential risk already exists by reason of the fact that the Commission has given a certificate under s 166A in respect of certain conduct, so that the fourth to ninth respondents have available to them a cause of action hitherto precluded by s 166A(1). That potential risk will not go away or be resolved by the granting of an injunction restraining the commencement of any proceeding. Any injunction so granted could only run until a bargaining period and round of industrial negotiations had concluded. Once that point has been reached and relevant certified agreements have been entered into, there is no basis for the continuation of any injunction preventing the commencement of any proceeding.
33 I make the same observations in relation to the proposition that the litigation is likely to become a significant additional factor in negotiations. The fourth to ninth respondents have already obtained what is said to be "an additional source of leverage" by the obtaining of the certificate and I do not consider that any further leverage is gained from the commencement, but not the prosecution, of any proceeding.
34 For the reasons to which I have referred, although I consider there is a serious question to be tried as to whether the fourth to ninth respondents are threatening to take action with intent to coerce the Union to make an agreement under Div 3 of Pt VIB of the Act, I consider that the case made out is weak.
Balance of convenience
35 The strength or otherwise of the serious issue to be tried is a factor to be taken into account in considering the balance of convenience.
36 In Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 Woodward J (with whom Smithers and Sweeney JJ agreed) said at 472:
"The only point I would wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants' case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises `a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it."
37 I also bear in mind the observations of North J in Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 24 where his Honour was considering the granting of injunctive relief in the context of industrial disputation. His Honour referred to the features which usually existed in the context of industrial disputation and said at 24:
"A number of such features immediately come to mind. The first is that, usually, the parties to litigation concerning an industrial dispute include persons or bodies who are professional negotiators. Their everyday function is resolving disputes between themselves about industrial issues. There is good sense in courts maintaining a degree of restraint against intervention between parties who are experienced in techniques for dispute resolution. Furthermore, the disputants usually have a relationship which has been built up over some time and must continue after the current issue between them is long past. The philosophy of the Act is to allow workplace relationships to be negotiated by the parties with the minimum of third party intervention."
38 I do not consider that there is a marked balance of convenience in favour of granting injunctive relief and I consider this to be an appropriate case in which to have particular regard to the observations of North J to which I have referred in par 37 above. As I have already observed, the concerns of Messrs Kingham and Noonan do not satisfy me that imminent irreparable harm will befall the Union if injunctive relief is not granted. More particularly is that so if the fourth to ninth respondents are prepared to offer the undertaking to which I referred in par 23 above.
39 Notwithstanding the protection given to unions and employees by the provisions relating to "protected action", the statutory scheme recognises and allows for the institution of proceedings in tort during the currency of an industrial dispute. As against that, section 170NC prevents the taking of action, other than protected action, with intent to coerce another person to agree to make an agreement under Div 2 or 3 of Pt VIB of the Act.
40 Because the precise nature of the proceeding which may be commenced as a result of the s 166A certificate is not yet known, the position may well be that when the fourth to ninth respondents have prepared the proposed proceeding the position may become clearer as to whether or not there can be inferred more strongly an intention to coerce the Union in contravention of s 170NC of the Act and therefore reasons why the balance of convenience is in favour of the granting of an injunction. If such a position was reached it might be appropriate, depending on the circumstances, to restrain the commencement of that proceeding. This matter can be dealt with under the rubric of the undertaking which counsel for the fourth to ninth respondents indicated might be forthcoming, to which I have already referred.
41 If the fourth to ninth respondents are prepared to give the undertaking outlined by their counsel I would not be disposed to grant any interlocutory relief at this stage. If they were not disposed to offer such an undertaking I would be prepared to grant an injunction but not in the form proposed by the Union. The form of interlocutory relief sought was as follows:
"An injunction that the [fourth to ninth] respondents by themselves, their servants or agents, be restrained until the determination of this Application, or further order, from:(a) threatening to commence or commencing any proceedings against the Applicant, its officers, employees or members involved in the industrial action taken in the interlocutory period; and
(b) threatening to commence or commencing any proceedings against the Applicant, its officers, employees or members claiming damages or injunctive relief relating to the industrial action taken in the interlocutory period; and
(c) taking any further steps in relation to any such proceeding already commenced at the date of this application."
Such an injunction is too wide having regard to the threat upon which the Union relies. If the undertaking is not forthcoming, I would be prepared to grant an injunction that the fourth to ninth respondents be restrained until the determination of the proceeding, or further order from commencing any proceeding in tort against the Union in respect of conduct which is the subject of the s 166A certificate.
42 I will hear the parties on the form of order to be made and any issue as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 25 February 2000
Counsel for the Applicant: |
Mr H Borenstein |
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Solicitor for the Applicant: |
Slater and Gordon |
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Counsel for the First, Second and Third Respondents: |
Mr F Parry |
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Solicitor for the First, Second and Third Respondents: |
Freehill Hollingdale & Page |
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Counsel for the Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: |
Mr S Wood |
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Solicitor for the Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: |
Deacon Graham and James |
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Date of Hearing: |
18 February 2000 |
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Date of Judgment: |
25 February 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/168.html