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Federal Court of Australia |
Last Updated: 14 January 2000
Maritime Union of Australia v Geraldton Port Authority [2000] FCA 16
INDUSTRIAL LAW - prejudicial alteration to the position of applicants by removal of prospect of overtime - whether orders for relief appropriate - whether relief should extend to employees other than second applicants - whether penalty precluded by reasons - whether penalty to be assessed on multiple or global basis - whether penalties should be paid to first applicant - whether penalty appropriate
INDUSTRIAL LAW - costs - whether proceeding instituted vexatiously or without reasonable cause - relevance of period prior to addition of federal claims - whether costs recoverable in respect of conceded wrong claim for statutory compensation
Workplace Relations Act 1996 (Cth) ss 298, 298B, 298D, 298F, 298K, 298L, 298T, 298U, 298V, 347
Maritime Union of Australia v Patrick Stevedores Number 1 Pty Ltd (1998) 153 ALR 602, followed
Gibbs v City of Altona (1992) 37 FCR 216, followed
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No. 2) [1999] FCA 1714, considered
Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd (1988) AC 1, considered
Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439, cited
Byrne v Australian Airlines Ltd (1994) 47 FCR 300, cited
Shackley v The Australian Croatian Club Limited (1996) 141 ALR 736, cited
Grout v Gunnedah Shire Council (1995) 129 ALR 372, cited
Geneff v Peterson (1986) 19 IR 40, cited
Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570, cited
Thompson v Hodder (1989) 21 FCR 467, cited
Joye v Beach Petroleum (1996) 137 ALR 506,cited
Standish v University of Tasmania (1989) 28 IR 129, considered
Stack v Coast Securities (No. 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261, cited
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457, cited
Re Wakim; Ex parte McNally and Another [1999] HCA 27, cited
Heidi v Chrysler Australia Ltd (1976) 26 FLR 257, cited
General Steel Industries v Commissioner of Railways (NSW) [1964] HCA 54; (1964) 112 CLR 12, cited
MARITIME UNION OF AUSTRALIA, PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN AND STEVE PENNEY v GERALDTON PORT AUTHORITY, ERIC CHARLTON AND MURRAY CRIDDLE
WAG 98 & 101 OF 1998
R D NICHOLSON J
14 JANUARY 2000
PERTH
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
1. The respondents file and serve any written submissions on the draft orders tabled in Court by close of business on Monday 17 January 2000.
2. The applicants file and serve any response thereto by noon on Wednesday 19 January 2000.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
JUDGE: |
R D NICHOLSON J |
DATE: |
14 JANUARY 2000 |
PLACE: |
PERTH |
1 On 5 July 1999 I delivered reasons in this matter. It is necessary to return to a portion of those reasons to consider submissions now received in relation to the formulation of such relief as the applicants may be entitled to. Definitions used in the prior reasons are utilised in these reasons.
2 In the course of the reasons I was required to consider whether the first respondent had acted in a way which contravened s 298K of the Workplace Relations Act 1996 (Cth) (the "WR Act"). Specifically, I was required to consider the application of the following statutory provisions to the facts in issue:
Section 298K, so far as relevant, reads:
"(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) .....
(b) .....
(c) alter the position of an employee to the employee's prejudice;
(d) .....
(e) ....."
It is to be read with s 298L which relevantly provides:
"(1) Conduct referred to in subsection 298K(1) ... is for a prohibited reason if it is carried out because the employee, ... or other person concerned:
(a) is ... [a] member of an industrial association; or
... ...
(h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or ..."
Section 298V provides, so far as is relevant,:
"If:
(a) in an application under this Division relating to a person's conduct ... it is alleged that the conduct was, or is, being carried out for a particular reason ...; and
(b) for the person ... to carry out the conduct for that reason ... would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason ..., unless the person ... proves otherwise."
In the course of considering the evidence I made the following finding:
"It is more probable than not that the overtime able to be earned by the second applicants and the MUA employees in the future will be reduced below that which they earned to 26 March 1999. It is not possible to quantify the extent of the reduction with certainty because of at least the following factors:
(a) the month by month variation in the availability of overtime work at the Geraldton Port exemplified in particular by February 1999.
(b) the fact that there will be a lesser number of persons sharing in the overtime.
(c) the continuing effect of the undertakings given in this proceeding in the figures for February and March 1999.
(d) the fact that MUA employees are able to participate in earning overtime stevedoring.
(e) the uncertainty concerning the likely extent of overtime available in respect of mooring and unmooring work."
3 I then turned to address the question whether the finding in relation to overtime established an injury in the employment or prejudicial alteration to position as provided for in s 298K (1)(c). On this issue the reasons stated:
"Clause 24 of the Award does not guarantee any particular level of overtime. There is therefore no definite benchmark derivative from the Award against which to measure injury or prejudice.The evidence of the overtime in the above Table gives some guidance. On the authorities previously referred to it is likely that the probable reduction will reduce the earnings of the second applicants and the MUA employees from overtime below the average levels earned during the 21 month period prior to the changes for which figures are available as reflected in the Table.
In my opinion the prospect of reduction in overtime earnings of the second applicants and MUA employees comes within the understanding in the case law of the concept of prejudicial alteration to their positions. The change in that respect is one which qualifies therefore as conduct pursuant to s 298K(1)(c)."
Turning to the issue of relief I stated:
"A form of order is proposed in the application in the following terms:" (a) that the first respondent:
(i) continue to employ the second applicants to perform stevedoring work at the Port on the conditions prescribed by the Award and Agreement;
(ii) allow the second applicants and the MUA employees (as defined in paragraph 28 of the further amended statement of claim) to undertake shift work and overtime work and to make them available for stevedoring work"
I do not presently see any basis for making orders in respect of the MUA employees. However I consider that the position of the second applicants should be protected against the prejudicial alteration found. Whether that requires an order for continuance in stevedoring work of the second applicants on an irregular shift basis with eligibility for overtime without prejudice to redeployment on terms and conditions which do not injure them in their employment or prejudicially alter their position within the meaning of s 298K(1) is a matter for submission. The right should also be reserved for the GPA to make a further offer of voluntary redundancy. Counsel should be heard as to the form of these orders and whether these objectives can be achieved in ways other than that in the application. One difficulty to be addressed in submissions is that I do not consider the prejudicial alteration is presently quantifiable."
4 Submissions in relation to relief now having been filed it is necessary to address a number of issues.
Statutory Provisions for Relief
5 Section 298K appears in Part XA in Division 3 of the WR Act. Remedies for breach of Part XA appear in Division 6. Subsection 298T(1) provides that, subject to subs (4) - which has no relevant application here - "an application may be made to Court for orders under s 298U in respect of conduct in contravention of this Part".
Section 298U provides:
"In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all circumstances of the case, make one or more of the following orders:(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i) in the case of a body corporate - $10,000; or
(ii) in any other case - $2,000;
(b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;
(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;
(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f) any other consequential orders."
Orders Sought
6 In the light of the findings made, it is contended for the applicants that the following paragraphs of the Further Amended Application remain alive and are to be dealt with:
"7. Injunctions under section 298U(e) of the Act, restraining the first respondent by itself, its servants or agents, from continuing to contravene section 298K of the Act as referred to in paragraph 6 above.8. Further or in the alternative under section 298U(e) and (f) of the Act orders
(a) that the first respondent remedy the effects of the contravening conduct referred to in paragraph 6 by the first respondent
(i) continuing to employ the second applicants to perform stevedoring work at the port on the conditions prescribed by the Award and Agreement;
(ii) allowing the second applicants and the MUA employees (as defined in paragraph 28 of the further amended statement of claim) to undertake shift work and overtime work and to make them available for stevedoring work;
(iii) making available to stevedores at the Port of Geraldton, the MUA casual employees, as defined in paragraph 29 of the further amended statement of claim, to undertake stevedoring work when required and to engage such casual employees when necessary; and
(iv) such further or other orders under section 298U or otherwise as to the Court seem appropriate in respect of the contravention of section 298K referred to in paragraph 6 above.
9. An order under section 356(b) of the Act that any penalty imposed on the first respondent be paid to the MUA."
The "paragraph 6" referred to in the above passage is the claim for the imposition of a penalty on the first respondent under s 298U(a) of the Act for contravention of s 298K. It is relevant only to the extent of the finding.
Appropriateness of Relief
7 It will be observed that s 298U provides for the Federal Court to make orders by way of relief, "if the Court considers it appropriate in all the circumstances of the case". For the first respondent it is submitted that it is not appropriate for any orders to be made to provide relief to the second applicants.
GPA's contentions
8 The arguments for the GPA run as follows: it is said the possible prejudice or deleterious alteration identified by the Court was the prospect of diminution in overtime. It is said the availability of overtime cannot be predicted in advance with any degree of accuracy because the circumstances at the Port including the number, type and timing of vessel movements may change such that the amount of overtime available to employees is substantially reduced.
9 In addition, it is said that it was a common position between the parties that excessive amounts of overtime were being worked by employees of the GPA prior to the decisions of the GPA on 3 July 1998. Consequently, it is submitted, orders should not be made which might have the effect of continuing this situation.
10 Furthermore, it is contended that negotiations in relation to a certified agreement to replace the existing certified agreement have been taking place and are not yet concluded. One of the proposals under consideration in relation to the negotiations of that agreement include a proposal for an "annualised salary". This expression refers to an arrangement whereby the amount of remuneration paid to employees as overtime is reduced but the amount of money paid to employees for "base hours" is increased. Implementation of the proposal would have the effect of reducing the amount of overtime available to employees, including the second applicants, although it is not anticipated the arrangement would have the effect of reducing the total remuneration paid to employees.
11 Then it is also submitted that the decision of the Court was made in relation to specific decisions, namely those made on 3 July 1998. Consequently, it is said, it is open to the GPA to reconsider the manner in which its operations are carried on and to make decisions which would impact adversely upon the amount of overtime available to employees of the GPA. In support of this it is said the GPA could determine to enter into an arrangement with a labour hire firm to provide labour to the GPA for work done out of hours or alternatively could determine to let a contract for performance of all mooring and unmooring work. Either of these decisions it is submitted, would reduce the amount of overtime available to employees at the GPA. Provided these decisions were made for reasons which did not include the reasons prescribed by s 298L, those decisions would, it is submitted, be lawful. Accordingly, orders of the Court ought not to be made which might impact upon conduct of the GPA which is lawful and on the discharge by the GPA of its statutory functions in relation to the Port.
12 It is submitted for the GPA that the application for relief should therefore be dismissed.
Applicants' contentions
13 The response on behalf of the applicants is as follows: first, it is said that the Court did not just find a "possible" prejudice but actually found on the balance of probabilities that there would be a reduction of overtime as a result of the actions by the GPA. I accept the submission - it correctly states the nature of the finding.
14 As to the difficulty of predicting the availability of overtime in advance it is said for the applicants that it is undoubtedly true the activity of the Port may change for reasons other than the implementation of the first respondent's plans. However, it is said the reduction in overtime complained of occurs directly as a result of the cessation of the offering of stevedoring labour. It is therefore said that if stevedoring labour is offered again, overtime will become available to the extent that stevedoring labour is required.
15 A further point made for the applicants is that there is no evidence before the Court on which it could form the view that the operations of the Port are likely to change and that there is evidence directly to the contrary. While that is the case, it does not remove the difficulty of predictability, as the reasons given on 5 July 1999 made apparent.
16 The GPA's submissions concerning the allegedly excessive character of overtime attract a submission on behalf of the applicants that this constitutes a cavilling at the Court's finding. I do not consider that the issue of excess in overtime would arise if orders can be appropriately crafted. For the applicants it is accepted they do not seek a specific level of overtime.
17 In relation to negotiation of a certified agreement, it is said for the applicants that any such agreement will no doubt take into account any order the Court makes concerning overtime but otherwise that cannot affect the position. I accept that submission.
18 In relation to future decisions which may be taken by the GPA, it is pointed out on behalf of the applicants that the reverse onus of proof provided for in s 298V of the WR Act would result in them being deemed to have taken such action for a prohibited reason unless it can be shown otherwise. However, the relevance of possible lawful future action by the GPA is that it adds to the difficulty of predicting what it is the second applicants, and, arguably, the MUA employees, should be granted relief in relation to.
19 Finally, it is submitted for the applicants that the submission that no relief should be granted is in effect a reprise of the constitutional immunity argument rejected by the Court.
20 The position facing the Court is that it has made a finding in relation to which the second applicants and, arguably, the MUA employees, are entitled to relief. I therefore approach the matter on the basis it is appropriate that relief be granted if the proposed relief can be crafted in a way which is workable, without exceeding the ambit of the relief allowed under the Act, namely, to protect those entitled to relief against the specific unlawful activity found. Only if it becomes evident that appropriate orders cannot be practicably formulated will I approach the matter on the basis that relief is not appropriate.
Nature of the Prejudicial Alteration
Further Submissions for GPA
21 It is submitted for the GPA that if the Court is inclined to grant relief, the relief should be confined to addressing the injury or prejudicial alteration found by the Court - namely the prospect of a reduction in overtime. I accept that submission.
22 The submissions for the GPA then go on to say that it was not the finding of the Court that there was an injury or prejudicial alteration because work to be allocated to employees of the GPA did not involve the provision of labour to stevedores in the Port. Rather it is submitted the prejudicial alteration found by the Court only arose by virtue of the fact that associated with the decisions of the GPA there was a reduction in the "prospect of overtime". This submission is supplemented by a further submission that there is no plea in the Amended Statement of Claim that the denial of stevedoring labour as such to employees was an injury or alteration. In particular it is said that s 298K of the WR Act does not give employees the right to perform particular duties. It is only directed to the types of conduct identified in it.
Further Submissions for applicants
23 In response to these later submissions it is submitted for the applicants that what the Court found was that overtime capable of being earned by the second applicants and the MUA employees would be reduced. It is said that overtime was reduced because stevedoring labour would no longer be made available. It is argued this is the case that was pleaded, the way the case was run and the case that the GPA attempted to meet.
24 I accept the submissions for the applicants. Reference to the reasons and the citation in them of the "Table of Average Overtime" in par 252 shows that the determination of prejudicial alteration in relation to overtime was argued and decided in relation to availability of stevedoring work as a source of overtime. The finding of the Court in relation to prejudicial alteration is a finding that there was "a prospect" in reduction of overtime as a consequence of the cessation of stevedoring work. That, of course, falls short of a finding (which was not sought in the pleading) that the denial of stevedoring labour as such to employees was itself an injury or alteration.
The MUA Employees
Whether relief precluded by reasons
25 It is submitted for the GPA that insofar as the applicants seek relief in relation to the MUA employees, the relief is beyond the scope of the decision of the Court and the leave granted by the Court to make submissions.
26 As has been seen, the reasons stated that I did not "presently see any basis for making orders in respect of the MUA employees". The directions made on 5 July 1999 gave leave to the applicants to file and serve submissions to address the form of order, if appropriate, to provide relief to the second applicants. By the use of the word "presently" in the reasons it is apparent no final view had been formed on the question of whether the MUA employees were entitled to relief and it was open to the parties to persuade the Court that relief in respect of them might be appropriate. The parties not having moved for orders in terms of that opportunity does not in my view now result in the applicants being precluded from arguing the position in that respect.
Whether relief precluded for non-party
27 In the reasons (at par 353) it was stated "the MUA employees are not a party to this proceeding so that no relief is pleaded on their behalf". For the applicants it is said the pleas in par 8(a) of the Further Amended Application subpar (iii) (as quoted above) make it clear that the applicants have always sought relief in respect of the MUA employees.
28 Furthermore, it is submitted for the applicants that it is sufficient that the first applicant is a party to the action. Section 298T(2)(b) provides that an application may be made by "an organisation of which the person is a member" in the case of a contravention of Part XA by virtue of the operation of ss 298D, 298E or 298F. Reliance is placed on s 298F(2) which provides that Part XA applies to conduct carried out with a purpose or intent relating to (a) the fact that an award, or a certified agreement applies to a person's employment or (b) the fact that the person is bound by an award or a certified agreement (relevantly).
29 Therefore, for s 298T(2)(b) to apply it is necessary that there be a purpose or intent relating to the matters falling within s 298F(2).
30 The pleaded purpose or intent of the GPA's conduct was set out in pars 28 and 29 of the second Further Amended Statement of Claim. The effect of these paragraphs was described in the reasons as follows:
"By par 28 of the second further amended statement of claim the applicants plead that the GPA's conduct referred to in pars 13 to 18 inclusive, constitutes a contravention of s 298K in that the GPA has(a) Threatened to dismiss the employees (the second applicants) and other employees who are members of the MUA ("the MUA employees", sometimes in the evidence described as "the maintenance employees");
(b) Threatened to injure or has injured them in their employment;
(c) Threatened to alter or has altered their position to their prejudice; or
(d) Refused to employ as casual employees, employees who were customarily employed as such and who are members of the MUA ("the MUA casual employees") -
For the reason or for reasons that include the reason that they are entitled to the benefits of the Award and/or the Agreement.
Paragraph 29 of the statement of claim is identical to par 28 except that it pleads that the GPA has done or threatened to do the matters outlined in (a) - (d) " for the reason, or for reasons that include the reason that the employees are members of the MUA"
31 The purpose pleaded in par 29 is not one which falls within s 298F(2). The purpose which is pleaded in par 28 is one which relates to entitlement to the benefits of the Award and/or Agreement. In my view that is a purpose "relating to" either the fact that the Award or Agreement applies to a person's employment or the fact that the person is bound by either of those instruments. Each of those agreements comes within the definition of "industrial instrument" found in s 298B and thus falls within par (h) of s 298L(1) in relation to which s 298K has application.
32 I therefore accept the submission for the applicants that the first applicant has properly brought a claim on behalf of the MUA employees so that the Court is properly vested with jurisdiction to make orders remedying the effect of any conduct complained of in breach of s 298K in relation to those employees.
33 Consequently, I also accept the submission for the applicants that the Court cannot therefore infer that a member of the first applicant does not wish to seek to have a prejudicial alteration to his or her employment rectified because that member is not a party to the proceedings.
Whether relief appropriate
34 It is further contended for the GPA that in the exercise of its discretion the Court ought not to make orders granting relief in respect of the MUA employees. In support of this it is contended that the factors which should weigh in favour of the discretion being so exercised are that the MUA employees chose not to commence proceedings and that none of them gave evidence so that it must be assumed they did not seek relief in respect of their employment. Additionally, reliance is placed on evidence that the circumstances of some of the MUA employees had improved as a result of the restructure of the Port operations.
35 The applicants accept as correct the evidence of Mr Durant that the GPA could continue to offer the services of such stevedoring labour as it retained to stevedores in the Port and that stevedores would find that attractive. However, the case for the GPA places reliance on a claim there has been a reduction in the number of employees available to perform maintenance work. Consequently it is said, any order requiring the GPA to provide the labour of the MUA employees to stevedores operating in the Port would impose a disproportionate hardship on the GPA given the uncertain and unquantifiable nature of the prejudicial alteration found to exist.
36 The applicants' case challenges the factual assertions relied upon for the GPA. It is contended that any improvement in the circumstances of some of the MUA employees is not inconsistent with the relief now sort by the applicants. Further, the applicants return to the evidence of Mr Durant and make the point that the GPA did not seek to address in its evidence any difficulty concerning re-establishment of the stevedoring labour in the Port. What the evidence did show in a later affidavit of Mr Durant was that of the 13 employees of the GPA as at 7 June 1998 primarily engaged in providing labour to stevedores, only 5 (the second applicants) were still employed. Additionally, the total workforce is now 27 compared with 41 prior to the restructuring on 3 July 1998.
37 I consider that both as a matter of law and in the exercise of the Court's discretion it is open to the Court to provide relief in respect of the MUA employees. The determinative question for the exercise of the discretion in addition to the other factors advanced in the above arguments will be whether orders can be crafted appropriate to those circumstances.
Penalty
Whether assessment precluded by reasons
38 The case for the GPA contends the issue of the imposition of a penalty is beyond the scope of the decision and the leave granted by the Court to make submissions.
39 It will have been observed that the reasons stated that I considered "the position of the second applicants should be protected against the prejudicial alteration found". For the GPA it is submitted the Court has already concluded that no penalty should be imposed. That is a conclusion to which the GPA is not entitled because to its knowledge the Court had not at the time of delivery of reasons received any submissions in relation to the issue of relief. It is a question for submission whether the requisite protection should include provision of a penalty.
Whether penalty can be assessed on multiple or global basis
40 For the GPA it is submitted the Court should conclude that only two relevant acts occurred, namely the decision to enter into a lease in respect of the BHF facility and the decision to cease to provide labour to stevedores operating in the Port. It is said it cannot be the case that where a single act has an impact on more than one employee, that single act amounts to numerous contraventions of s 298 of the Act. Rather, it is submitted that where a number of employees are adversely affected, their interests can be adequately addressed by the commencement of representative proceedings under Part IXA of the Federal Court Act and an award of compensation in respect of each of the employees. It is said that if this were not the case it would lead to the absurd suggestion that in Maritime Union of Australia v Patrick Stevedores Number 1 Pty Ltd (1998) 153 ALR 602 there had occurred approximately 1400 separate contraventions of s 298K of the Act (see at 606).
41 To resolve this issue it is necessary to examine s 298K of the WR Act. In subs 298K(1)(c) the prohibition on the employer is the doing of an act which will "alter the position of an employee to the employees prejudice". The proscribed conduct is not addressing the issue of employees generically but rather the particular position of a particular employee. In my opinion s 298K(1)(c) requires the Court to look to the occasions on which the prohibited conduct has been engaged in. There is no equivalent of subs 178(2) which provides in respect of penalties and other remedies for contravention of awards that where (a) two or more breaches of a term of an award, order or agreement are committed by the same organisation or person; and (b) the breaches arose out of a course of conduct by the organisation or person; the breaches shall be taken for the purposes of the section to constitute a single breach of the term. I therefore do not accept submissions for the GPA on this issue.
42 The GPA's case then moves on to submit that nevertheless the contravention should not be considered in isolation from each other in that a penalty should be assessed "globally" having regard to the matters previously referred to. In the exercise of the Court's discretion regard must be had to all the circumstances and hence to the number of offences and total penalty.
43 However, the provision for penalties and other orders is hinged on its application "in respect of conduct in contravention of this Part." An order imposing a penalty is required by s 298T(a) to be in respect of "a person or industrial association whose conduct contravened or is contravening the provision in question." Even though regard must be had to all the circumstances, ultimately the Court is required to fix a penalty for each particular offence.
Whether penalties can be paid to MUA
44 A further issue arises, namely, whether it is open to the Court to order that any penalty which it imposes be paid to the MUA. The case for the applicants urges that course on the basis that the WR Act is designed to encourage the taking of action to enforce its provisions, particularly by registered organisations. It is said where the registered organisation has launched the proceedings and undertaken the expense of prosecuting them it is appropriate that the penalty imposed be paid to the organisation pursuant to provision 356 of the WR Act. That section provides a Court that imposes a monetary penalty (other than a penalty for an offence) may order that the penalty, or part of it, be paid either into consolidated revenue or to a particular organisation or person. Gray J observed in Gibbs v City of Altona (1992) 37 FCR 216 at 223 (relied on by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No. 2) [1999] FCA 1714):
"Section 356 of the Act (then entitled the Industrial Relations Act 1988) empowers the court to order payment into the Consolidated Revenue Fund or to a particular organisation or person. The usual order, when the proceeding is not brought by an inspector appointed under the Act, is for payment to the person or organisation applying for the penalty. The reasons for this are canvassed in Vehicle Builders' Employees' Federation of Australia v General Motors Holdens Pty Ltd (1977) 32 FLR 100 at 111-114 and Seymour v Stawell Timber Industries Pty Ltd (1985) 9 FCR 241 at 245-246 in the judgment of Northrop J."
45 For the GPA, the submissions for the applicants concerning the power of the Court to order payment to the MUA are not challenged. Rather, it is said that in the exercise of its discretion, the Court ought not to so order because such payment would reinforce the first applicant's perception that s 298K was directed towards conduct having the intention or effect of diminishing the power and influence of unions. The case for the first applicant responds by asserting that its case was conducted on behalf of its members and that it has borne the trouble and expense of the proceeding.
46 I accept that payment to the first applicant is not precluded at law and falls for consideration in relation to its appropriateness in connection with the crafting of orders.
Whether penalty appropriate
47 On the question of the appropriateness of a penalty, the submissions for the GPA then turn to a number of matters relevant to the appropriateness of any penalty being imposed.
48 The first matter relied upon is the effect of the reverse onus of proof in s 298V of the WR Act. The submission is to the effect that the Court did not find the "primary reason" for the decisions made on 3 July 1998 was one of the proscribed reasons. Furthermore, it is said there was uncontroverted evidence that each of the members of the GPA had other "valid operational reasons" for making the relevant decision. In my opinion this entirely overlooks the effect of s 298V. There it is provided that if the preconditions for the application of that section apply (as they did) "it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise". In other words, if it is not proved otherwise the presumption stands. The presumption is that the conduct was carried out for the alleged prohibited reason. It is not necessary for the Court to find what was the "primary reason" of the decision maker nor is it relevant that the decision-maker had (if that was the case) other "valid operational reasons". All that the Court was required to find was whether the reverse onus of proof provided for in s 298V had been discharged. For the reasons then given, it found it had not been. The result was that the presumption stood in terms of the allegations of proscribed conduct in the application.
49 Then it is said for the GPA that it proffered undertakings which preserved the situation of the employees pending resolution of the proceedings. The contentions for the applicants dispute the circumstances under which these were given and point to the fact that the MUA employees have not been protected by any undertakings since January 1999.
50 Next, it is said for the GPA that the conduct of the proceedings by the applicants has imposed a substantial unnecessary financial burden on the GPA, particularly due to the unsuccessful cause of action in relation to conspiracy and the length of time developing cross-examination relevant to it. For the applicants it is accepted that whilst the conspiracy action extended the case to a limited extent, most of the material covered was relevant to the s 298K claim in any event and it is disputed that the cross-examination of Mr Durant was principally relevant to the cross-examination allegation. I do not accept other contentions for the applicants based on their own assumption that the GPA made a conscious decision to hide the true reasons of its decision makers, a matter on which there has been no finding.
Applicants' Proposed Orders
51 The orders sought for the applicants are in the following form:
"1 That the first respondent pay a penalty of $ ______ pursuant to s. 298U(a) of the Workplace Relations Act for contravention of s.298K of the Act by altering the position of the second applicants and the MUA members [hereafter "the employees"] in their employment to their prejudice for a prohibited reason namely because the employees are and were at all material times entitled to the benefit of the Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award 1995 and the Geraldton Port Authority Integrated Port Labour Force Agreement 1995.2 Pursuant to s.356(b) of the Workplace Relations Act such penalty be paid to the first applicant, the Maritime Union of Australia.
3 Pursuant to ss.298U(e) and (f) of the Workplace Relations Act the first respondent remedy the effects of the contravening conduct identified in order 1 hereof by
(a) Making the labour of the employees available for hire to stevedores (including those licensed to undertake stevedoring at the Port by the first respondent) to undertake stevedoring work at the Port, including at Berth Number 4, on the same basis as existed prior to 3 July 1998.
(b) Rostering and classifying the employees as irregular shift workers under the Award and Agreement."
52 In relation to these draft orders it is submitted for the GPA that they would prevent the GPA from engaging in conduct in which it is lawfully entitled to engage. It is said that the GPA should not be compelled to carry on the business or activity of providing labour to stevedores because it is lawfully entitled to cease that activity provided it does not do so for reasons which include prohibited reasons.
53 Further it is submitted for the GPA, that orders in the form proposed for the applicants would require the GPA to carry on the business or activity of providing labour to stevedores for as long as the employees remain employed by the GPA and to do so on terms that might give rise to dispute. The result, it is submitted, would be that the Court would be making mandatory orders raising the possibility of repeated applications for rulings on compliance over an extended period of time.
54 In support of the latter submission, the submissions for the first respondent refer to Patrick Stevedores at 670. Examination of that passage and the reasons of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ show that while reservations concerning constant supervision have been expressed in decisions of the High Court, questions of degree rather than absolute restrictions upon the scope of curial relief are involved. In particular, those members of the High Court held that the significance of the reasons of Lord Hoffmann in Co-Operative Insurance Society Ltd v Argyll Stores Holdings Ltd (1988) AC 1 at 12-15 was that the House of Lords accepted the concept of "constant supervision by the Court" by itself is no longer an effective or useful criterion for refusing a decree of specific performance. Furthermore, those members of the Court emphasised that reference to constant court applications should not be misunderstood when courts were well accustomed to exercise of supervisory jurisdiction. The passage therefore does not assist the GPA's submission other than by directing attention to the question of degree. The possibility of the need for future supervision will be relevant but not decisive.
GPA's Proposed Orders
55 For the GPA it is proposed that orders be made in the following form:
"(1) If the GPA does not during the period of operation of this Order, offer 144 hours of overtime to each of the second applicants, the GPA shall make payment in respect of any shortfall a the rate of 1.5 times the ordinary rate of pay for each hour by which the number of hours actually offered falls below the minimum amounts specified in respect to each individual affected.(2) Order 1 shall operate in respect of each of the second applicants until the first of the following events occurs:
(a) The second applicant ceased to be employed by the GPA on the terms and conditions set out in:
(i) The Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award, 1995 ("the Award"); and
(ii) The Geraldton Port Authority - Integrated Labour Force Agreement, 1995 ("the Agreement");
(b) The second applicant is redeployed on terms and conditions no less favourable than the Award and the Agreement; or
(c) The expiration of 6 months from the date of making of these orders.
(3) After Order 1 has ceased to operate those of the second applicants who continue to be employed by the GPA shall be offered overtime on the basis of the operational requirements of the GPA as they exist from time to time and in accordance with its usual practices.
(4) There be liberty to apply in respect of the operation of Orders 1,2 and 3.
(5) The application be otherwise dismissed.
56 In its submissions, it is said for the GPA that the 6 month time limit for the operation of proposed Order 1 is somewhat arbitrary and is intended to take into account the external contingencies which impact on the operation of the Port.
57 For the applicants, it is submitted that the GPA's proposed Order 1 goes nowhere near addressing the prejudicial alteration to the second applicants' employment or that of the MUA employees. It is said to be arbitrary both as to the amount of overtime payments and as to its period of operation. Furthermore, it is said that it would no doubt have the effect of encouraging the GPA to allocate overtime to the second applicants in preference to the MUA employees with consequent aggravation of the prejudicial alteration in respect of the MUA employees. It is submitted any time limitation other than one which depends on a voluntary act of the employee in relation to whom the prejudicial alteration has occurred, would be inappropriate.
Conclusions on Orders
58 My conclusions are as follows:
(1) The nature of the injury or prejudicial alteration to be addressed is the prospect of a reduction in overtime. Provided relief dates from the point in time when that prospect arose, there is no actual injury or prejudicial alteration to the second applicants or the MUA employees.(2) The date on which overtime ceased was 26 March 1999. Any appropriate relief should therefore date from and include 27 March 1999.
(3) Having regard to the submissions previously set out and because relief can apply from that date so that no injury or prejudicial alteration becomes actual, it is not appropriate that the Court's discretion be exercised so as to impose a penalty.
(4) There is no proper basis on which to exclude the MUA employees from receiving the same relief as the second applicants.
(5) The GPA's proposed orders contain an arbitrary expiration period of 6 months. They are founded on submissions which on occasion overlook the finding that the GPA is responsible for the prospective injury or prejudicial alteration as a consequence of the decisions on 3 July 1998. The finding to that effect suggests the position should be restored to what it was in respect of overtime. Thereafter the GPA would be entitled, as submitted, to cease to carry on its business or activity of providing labour to stevedores if it does so lawfully, including acting for reasons not including a prohibited reason.
(6) Such evidence as there is of any difficulties occasioned to the GPA by this approach is not sufficiently strong to make that course inappropriate. Furthermore, Mr Durant's evidence upon which the applicants rely favours the course.
(7) While the Court does not wish to make orders leading to repeated applications, it should recognise that the supervisory jurisdiction of the Court can perform a proper role if it is necessary for it to be invoked.
(8) The injury or prejudicial alteration requires to be addressed between 27 March 1999 and the date of this order. The GPA's proposed order (1) provides the best available method of doing this.
59 I therefore consider the orders as to relief should be in the following terms:
(1) The contravening conduct for the purpose of these orders is the contravention of s 298K of the Workplace Relations Act by the first respondent, altering the position of the second applicants and the MUA members (hereafter "the employees") in their employment to their prejudice for a prohibited reason by prospectively reducing their entitlement to overtime, namely because the employees are and were at all material times entitled to the benefit of the Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award 1995 and the Geraldton Port Authority Integrated Port Labour Force Agreement 1995.(2) Pursuant to ss 298U(e) and (f) of the Workplace Relations Act the first respondent remedy the effects of the contravening conduct identified in order (1) hereof by:
(a) Making the labour of the employees referred to in order (1) available for hire to stevedores (including those licensed to undertake stevedoring at the Port by the first respondent) to undertake stevedoring work at the Port, including at Berth Number 4, on the same basis as existed prior to 3 July 1998;
(b) Rostering and classifying the employees as irregular shift workers under the Award and the Agreement.
(3) Order (2) shall operate in respect of each of the employees until the first of the following events occurs:
(a) The second applicants cease to be employed by the GPA on the terms and conditions set out in:
(i) The Western Australian Regional Ports Integrated Labour Force (Geraldton Port Authority) Award, 1995 ("the Award"); and
(ii) The Geraldton Port Authority - Integrated Labour Force Agreement 1995 ("the Agreement");
(b) The employee is redeployed on terms and conditions no less favourable than the Award and the Agreement;
(4) For the period from and including 27 March 1999 to the date of this order the GPA shall pay to the employees in lieu of their entitlement to overtime for stevedoring work during that period a sum calculated at the rate of 1.5 times the ordinary rate of pay for 24 hours of such overtime for each calendar month of that period (proportionalised to the number of days in any incomplete month).
(5) There be liberty to apply in respect of the operation of these orders.
(6) The application be otherwise dismissed.
60 An opportunity will be provided to counsel to examine this proposed formulation prior to the orders being made.
(2) COSTS
61 Section 347 of the WR Act reads as follows:
"347(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 170CP) shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
(2) In subsection (1):
costs includes all legal and professional costs and disbursements and expenses of witnesses.
62 Prima facie, the section precludes an order for costs other than in the stated instances where the proceeding has been instituted vexatiously or without reasonable cause.
63 For the fourth respondent, application is nevertheless made for a costs order in the following terms:
"The First and Second Applicants do pay the Fourth Respondent's costs of Application Nos. WAG 98 of 1998 and WAG 101 of 1998, insofar as those Applications relate to:(a) the tortious conspiracy claim; and
(b) the claim for compensation pursuant to section 298U(c) of the Workplace Relations Act 1996 (Cth),
to be taxed."
Alternatively, the fourth respondent seeks an order in the following form:
"The First and Second applicants do pay the Fourth Respondent's costs of Application Nos. WAG 98 of 1998 and WAG 101 of 1998, insofar as those Applications relate to:(a) the tortious conspiracy claim, but only in respect of the Fourth Respondent's costs between 18 November 1998 and 16 February 1999; and
(b) the claim for compensation pursuant to section 298U(c) of the Workplace Relations Act 1996 (Cth),
to be taxed."
64 The third respondent seeks orders providing for an award of costs to be taxed in his favour as against the first and second applicants in the same terms as may be allowed by the Court in favour of the fourth respondent.
Power to award costs
65 For the fourth respondent it is acknowledged that there is authority in this Court that the expression in s 347 of the WR Act (and its predecessor provisions) reading "proceeding in a matter arising under this Act" comprehends not only the trial of a statutory federal claim but also the trial of a common law claim brought in the accrued or associated jurisdiction of the Court. That is, it is accepted for the fourth respondent that this authority establishes that the severance of different causes of action in the one proceeding is not possible for the purposes of s 347 of the Act. This acceptance is based on the following authorities: Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 (Full Crt) at 444 per Sheppard J (Heery J agreeing); and at 445 per Gray J; Byrne v Australian Airlines Ltd (1994) 47 FCR 300 (Full Court) at 351 per Beaumont and Heerey JJ (Keely J agreeing); and at 367 per Gray J (Black CJ agreeing) (on appeal to the High Court at [1995] HCA 24; (1995) 185 CLR 410, this point not considered); Shackley v The Australian Croatian Club Limited (1996) 141 ALR 736 per Wilcox CJ (von Doussa J agreeing) and North J (deciding that a "review" at 745 was caught by s 347). In addition, reliance is placed on decisions of single judges, namely Grout v Gunnedah Shire Council (1995 129 ALR 372 at 385 per Moore J (overturned on appeal to the Full Court at (1995) 134 ALR 156, this point not considered) and Geneff v Peterson (1986) 19 IR 40 at 90 per Gray J (obiter). Those authorities consider the construction of the words "proceeding" and "matter" as they are used in the relevant statutory costs provisions. As to the word "matter", the cases rely to a large extent on the accepted interpretation of that term in s 76 of the Commonwealth Constitution, being "a single justiciable controversy": Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 607 - 608 per Mason, Murphy, Brennan and Deanne JJ; Thompson v Hodder (1989) 21 FCR 467 at 469 per Keely, Gray and Ryan JJ; Joye v Beach Petroleum (1996) 137 ALR 506 at 516 per Beaumont and Lehane JJ.
66 The contentions of the fourth respondent endeavour to challenge the effect of this authority. Firstly it is said that the approach in Grout, Bostik, and Byrne "has not gone unchallenged". That is said to be supported by reference to Standish v University of Tasmania (1989) 28 IR 129 at 138 per Lockhart J. However, not only was that a decision of a single judge, it was decided prior to the decisions in Grout, Bostik, and Bryne. In Bostik at 444 per Sheppard J and at 445 per Gray J Standish was both distinguished and doubted. It provides no "challenge" to the decisions of the Full Court.
67 Secondly, it is said as a matter of principle that it is quite permissible to analyse the individual claims within a proceeding in order to determine whether there exists a single controversy: Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ where they stated "in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter". It is submitted such approach has repeatedly been endorsed by the High Court - see for example Stack v Coast Securities (No. 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 294 and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 and most recently in Re Wakim; Ex parte McNally and Another [1999] HCA 27 particularly at pars 73 - 78 per McHugh J; at pars 137 - 139 per Gummow and Hayne JJ; and Callinan J at par 272.
68 However, no point as to jurisdiction has ever been taken in this proceeding except at the time of the application for joinder when the Court determined that the third and fourth respondents should be joined. The proceeding was conducted throughout on the basis that the matters involved a single controversy.
69 Thirdly, the submissions for the fourth respondent refer to the facts in Grout, Bostik and Byrne drawing factual distinctions from the present proceeding. In my view there is no relevant distinction referred to such as would involve a different question of principle applying here.
70 I proceed therefore on the basis that this Court is bound by the decisions of the Full Court in Bostik, Byrne and Shackley to approach s 347 on the basis that it limits the power of the Court to award costs not only in respect of a statutory federal claim but also in respect of a common law claim brought in the accrued or associated jurisdiction of the Court.
Nature of the present proceedings
71 For the fourth respondent it is contended that in truth and substance the only claim put up against him was not a federal claim but one brought in the accrued or associated jurisdiction of the Court namely, the tortious common law action of conspiracy by unlawful means. That conclusion is said to be more than simply a matter of impression and practical judgment: it is a conclusion said to be revealed by the pleadings, the course the litigation has taken and the manner in which the trial was conducted.
72 It is not of course relevant to the application of the proper test whether a controversy was "the principal" controversy or not. What is important is whether as a matter of impression and practical judgment the federal and non-federal claims were within the scope of the one controversy and thus within the ambit of a matter. In my view that was overwhelmingly the case. There was a single justiciable controversy before the Court in the matters under consideration. It concerned the changes to the employment conditions of the second applicants and the MUA employees said to have occurred in breach of certain provisions of the WR Act. The allegations of conspiracy against the third and fourth respondents were allegations of the use of unlawful means constituting breaches of the same Act.
73 However, the case for the fourth respondent contends in the alternative that the fourth respondent should at least be entitled to an award of costs in respect of both applications for the period prior to the addition of federal claims. That is a reference to the period 18 November 1998 and 16 February 1999. During that period the only claim brought by the applicants as against the fourth respondent was for damages and injunctive relief arising out of the alleged participation by the fourth respondent in a tortious conspiracy.
74 The power to award cost arises pursuant to s 347(1). It arises for application at the conclusion of the proceeding. It applies to "a proceeding ...in a matter arising under this Act". No basis of principle is made evident in the submissions for the fourth respondent to support any notion or division of proceeding according to temporal steps taken in relation to it. There is therefore no evident basis upon which the alternative submission can be accepted.
75 The contentions of the fourth respondent then turn to the claim made against him for compensation pursuant to s 298U(c) of the WR Act. Leave to make that claim was given on 16 February 1999. In November 1998 the fourth respondent had been joined as a party to application numbers WAG 98 of 1998 and WAG 101 of 1998. At the commencement of the trial of these proceedings, the Court ordered the dismissal of application number WAG 98 of 1998 by consent. The costs of that application were reserved pending the hearing and determination of application number WAG 101 of 1998.
76 On 17 March 1998 senior counsel for the applicants, in the course of submissions relating to the fourth respondents no case submission, accepted that on a proper construction of s 298U(c) of the WR Act it was not open to the applicants to seek to recover compensation from the third or fourth respondents as they were not employers and therefore not the persons envisaged by the Act as those against whom such relief could be sought. Accordingly the statutory compensation claim was dismissed by the Court on 18 March 1999.
77 For the fourth respondent it is contended the statutory compensation claim brought by the applicants was so obviously untenable that it could never possibly have succeeded. The applicants through their senior counsel conceded as much in determining whether an action was instituted vexatiously or without reasonable cause, the test is an objective one, not subjective to the party instituting the proceed.: Heidi v Chrysler Australia Ltd (1976) 26 FLR 257 at 273 per Northrop J; General Steel Industries v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 per Barwick CJ. It is submitted for the fourth respondent that as it is clear the statutory compensation claim was instituted vexatiously or without reasonable cause, the limitation in s 347(1) of the WR Act has no application and the fourth respondent is entitled to his costs in respect of that claim.
78 In my opinion these contentions cannot succeed because they fail to identify "the proceeding" which was instituted vexatiously or without reasonable cause. The submissions rely on identification of part of a proceeding and consequently do not come within the ambit of the exception set out in s 347(1).
Application of exception in s 347(1)
79 There is no factual basis made out upon which the exception in s 347(1) could be found to apply in respect of the proceeding represented by either application number WAG 98 of 1998 or WAG 101 of 1998.
Conclusion
80 For these reasons I consider that no order should be made in favour of either the third or fourth respondents in respect of costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson. |
Associate:
Dated: 14 January 2000
Counsel for the Applicants: |
Mr RF Redlich QC with Mr W Friend and Mr P Rozen |
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Solicitor for the Applicants: |
Maurice Blackburn & Co |
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Counsel for the First Respondent: |
Mr R L Le Miere QC with Mr J R B Ley |
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Solicitor for the First Respondent: |
Freehill Hollingdale & Page |
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Counsel for the Third Respondent: |
Mr K J Martin QC with Mr C J Sweeney |
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Solicitor for the Third Respondent: |
McCallum Donovan Sweeney |
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Counsel for the Fourth Respondent: |
Mr G T W Tannin with Mr M G Lundberg |
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Solicitor for the Fourth Respondent: |
Crown Solicitor for the State of Western Australia |
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Dates of Hearing: |
10-12, 15-19, 22-25, 29-31 March; 1, 7-9, 19-23, 27-30 April 1999 |
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Date of first Judgment: |
5 July 1999 |
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Date of last written submission: |
30 August 1999 |
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Date of this Judgment: |
14 January 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/16.html