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Federal Court of Australia |
Last Updated: 15 May 2000
Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union & Ors [2000] FCA 629
CONTEMPT OF COURT - Whether breach of a court order is deliberate in that it is not merely casual, accidental or unintentional - Whether contempt can be established where there is no breach on one of two possible meanings of the order - Consideration of circumstances in which an order restraining conduct requires that positive action be taken - Whether breach is technical and does not warrant the imposition of a penalty
Workplace Relations Act 1996 (Cth) ss 4(1), 127, 127(6), 127(7) and 298B(1)
Evidence Act 1995 (Cth) ss 69(1) and 87(1)(c)
Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees Union (No 2) (1987) 15 FCR 64 - distinguished
A.M.I.E.U. v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 - applied
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 - applied
Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585 - considered
Iberian Trust Ltd v Founders Trust and Investments Co [1932] 2 K.B. 87 - cited
Redwing Ltd v Redwing Forest Products Ltd (1947) 177 L.T. 387 - cited
John Fairfax & Sons Pty Ltd v Australian Consolidated Press Ltd (1960) SR (NSW) 413 - cited
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1964) 112 CLR 483 - applied
Re Bramblevale Ltd (1969) 3 All ER 1062 - cited
Repatriation Commission v Nation (1995) 57 FCR 25 - cited
Waterside Workers' Federation of Australasia v Burgess Brothers Ltd [1916] HCA 2; (1916) 21 CLR 129 - cited
Commonwealth Steamship Owners' Association v Federated Seamen's Union of Australia [1923] HCA 40; (1923) 33 CLR 297 - cited
GTS Freight Management Pty Ltd v Transport Workers Union (1990) 38 IR 26 - cited
R v Macraild BC 9707215 Butterworths Unreported Judgments, Court of Criminal Appeal (NSW) - considered
RPS v The Queen [2000] HCA 3; (2000) 74 ALJR 449 - applied
CEPU v Laing (1998) 159 ALR 73 - cited
Matthews v Australian Securities and Investments Commission [2000] FCA 288 - cited
Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 - cited
THE AUSTRALIAN INDUSTRY GROUP v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
N 1357 of 1999
JUDGE: MERKEL J
PLACE: MELBOURNE
DATE: 12 MAY 2000
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
1. The motion of the applicant that the respondents be adjudged guilty of contempt for breaches of paragraph 1 of the orders made by Whitlam J on 22 November 1999 be dismissed.
2. The applicant pay the taxed costs of the first, second and third respondents.
AND THE COURT DECLARES THAT:
3. The fourth respondent, Craig Johnston, the fifth respondent, Dean Mighell and the sixth respondent, Cesar Melhem are guilty of contempt of this Court by their conduct in breaching paragraph 2 of the orders made by Whitlam J on 22 November 1999 by failing to provide to the applicant by 10.00 am on Tuesday, 23 November 1999 or at all, a written notice on the letterhead of the MTFU in the terms set out in cl 3.2 (second occurring), of the Order of the Australian Industrial Relations Commission made on 20 November 1999 in proceeding C No 24275 of 1999.
AND THE COURT
4. Adjourns the further hearing of the motion of the applicant that the fourth, fifth and sixth respondents be fined for their contempt constituted by their breaches of paragraph 2 of the orders made by Whitlam J to a date to be fixed.
5. Reserves the question of costs of the applicant and the fourth, fifth and sixth respondents.
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 |
Introduction
1 The applicant ("the AIG") has moved the Court for orders that the first respondent ("the AMWU"), the second respondent ("the AWU"), the third respondent, ("the CEPU"), the fourth respondent ("Johnston"), the fifth respondent ("Mighell") and the sixth respondent ("Melhem") be fined for contempt. The AIG alleges that the contempt is constituted by the respondents' failure to comply with the orders made herein by Whitlam J on 22 November 1999 ("the Court orders").
2 The alleged breaches of the Court orders relate to the omission by each of the respondents to take any steps to cancel, discontinue or withdraw their authorisation of or support for mass stopwork meetings of workers employed under the Metal Industry Award. The meetings, which had been called for Wednesday, 24 November 1999, were to consider a log of claims to be served on employers in the metal industry to advance an industry wide campaign called Campaign 2000.
Background
3 The AMWU, the AWU, the CEPU and several other Unions, with members covered by the Metal Industry Award, were members of an unincorporated association called the Metal Trades Federation of Unions ("the MTFU"). The MTFU, which was established in 1948, operated under Rules which provided for its activities to be managed by its executive officers. One of the initiatives undertaken by the MTFU was the organisation of Campaign 2000.
4 In order to prepare for Campaign 2000, notice was given by the MTFU to the Victorian members of the unions comprising the MTFU of the mass stopwork meetings proposed to be held on 24 November 1999 ("the MTFU notice"). The MTFU notice was distributed amongst employees, who were members of the unions, at their workplaces throughout Victoria.
5 Mighell, who was President of the MTFU (and also Secretary of the Electrical Division of the CEPU) sent a letter on CEPU and Electrical Trade Union of Australia (Victorian Branch) letterhead to union members which stated:
"Dear Member,RE: WAGES CAMPAIGN 2000
As part of the Metal Trades Federation of Unions (MTFU) push for wage justice in the Metal Industry, we need to ensure that the campaign has the support of all members in all workplaces to ensure that we have a decent outcome.
It is vital that all members in the Metal Industry support this campaign and make it a success; your future wages and conditions of employment depend on it!
The attached notice outlines the meeting dates and times in your area. Please attend and have your say. Ensure that everyone from your workplace attends and lets make this campaign a great one.
Our future depends on it.
Yours sincerely,
DEAN I MIGHELL
STATE SECRETARY"
6 The MTFU notice stated that it was authorised by Mighell as President of the MTFU, Johnston as Secretary of the MTFU (he was also Assistant State Secretary of the AMWU (Victorian branch)) and Melhem as Assistant Secretary of the MTFU (he was also an organiser employed by the AWU (Victorian branch)). Mighell, Johnston and Melhem admitted, for the purposes of the proceeding, that they authorised the printing of the MTFU notice in the form in which it appears.
7 The MTFU notice was headed "MASS MEETINGS" and stipulated that there were to be meetings on 24 November 1999 at six locations in the Melbourne Metropolitan area (which were to start at 10.00 am), seven locations in Victorian country areas (which were to start at 10.00 am) and two additional locations in Victorian country areas which were to start at 2.00 pm. The notice concluded:
"STOPWORK Mass Meetings for all workers['] employed under the Metal Industry Award have been called for Wednesday 24th November, 1999. These meetings will consider a [log] of claims to be served on the employers as the basis of Campaign 2000. It is vital all workers attend the meetings.
BE THERE"
8 An industry wide log of claims proposed by the MTFU was also circulated in Victoria to employee members of the unions.
9 A substantial number of employers in the metal industry had entered into certified agreements under the Workplace Relations Act 1996 (Cth) ("the Act") which were not due to expire until 30 June 2000. Section 170MN(1) of the Act provides that, prior to the nominal expiry date of a certified agreement, individual employees and organisations of employees bound by that agreement "must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement" engage in "industrial action". The stopwork meetings scheduled for 24 November 1999 involved employees of those employers who had entered into certified agreements proposing to cease work, for a period during working hours, in order to attend the meetings. If their attendance at the mass stopwork meetings during working hours was without the lawful authorisation of their employer, their cessation of work for that purpose would constitute "industrial action", as defined in s 4(1) of the Act.
10 The MTFU had been active in authorising and organising the stopwork meetings proposed for 24 November 1999. The AMWU, acting primarily through Johnston, and the ETU, made arrangements for the booking of venues at which the various meetings were to be held. Although the AMWU and the ETU may have also undertaken liability for payment for the bookings, under a resolution of the MTFU the AMWU, the AWU, the CEPU and the other members of the MTFU were generally liable to contribute their proportionate shares of the costs incurred by the MTFU, which costs would include the costs of booking venues for stopwork meetings organised by the MTFU.
11 The MTFU notice was placed on union notice boards at a number of workplaces and various representatives of the respondent unions were involved in distributing the MTFU notice to employees in the course of encouraging workers to attend the meetings.
12 After service of the Court orders on 23 November 1999, employers at a number of workplaces in Victoria were informed by employees and shop stewards of the respondent unions that the mass meetings were proceeding. Evidence was given that in some instances shop stewards had communicated with their union's office as to whether the meeting was proceeding. There is no evidence that any steps were taken by any of the respondents to remove, or cause the removal of, the MTFU notice from union notice boards prior to the stopwork meetings.
13 The AIG, which represents in excess of some 3,000 employers in the metal industry who were likely to be affected by the stopwork meetings, applied to the Industrial Relations Commission ("the IRC") for orders under s 127 of the Act to prevent the stopwork meetings from taking place. On 20 November 1999 Justice Munro made orders under s 127 of the Act ("the s 127 orders") which were binding on, inter alia, the three respondent unions and the three individual respondents. The s 127 orders applied in relation to work regulated by the Metal Industries Award and provided that all of the parties bound by the s 127 orders:
"...shall themselves or through their respective officers, employees, agents and delegates comply with this Order."
14 The industrial action that was required by the s 127 orders "to stop" was defined in cl 3:
"3. Industrial action to stop3.1 Industrial action as defined in clause 3.2 of this order shall not occur, or where occurring shall stop, be discontinued, or cancelled and withdrawn.
3.2 For the purposes of this order, the expression `industrial action' means:
(a) action by the parties bound by paragraph 2.1(a) and their respective officers, employees, agents and delegates to authorise, direct, organise, encourage or incite employee members to fail or refuse to attend for work and perform work as required by their contracts of employment without lawful authorisation on 24 November 1999 for any purpose arising out of or in relation to organising or advancing an industry-wide campaign for a pattern agreement called Campaign 2000;
(b) action by the parties bound by paragraph 2.1(a) and their respective officers, employees, agents and delegates to authorise, direct, organise or conduct any stopwork meetings of any employee members without lawful authorisation on Wednesday 24 November 1999 for any purpose arising out of or in relation to organising and advancing an industry-wide campaign for a pattern agreement called Campaign 2000;
(c) action by the parties bound by paragraph 2.1(a) and their respective officers, employees, agents and delegates to authorise, direct, place, support or encourage any ban, limitation or restriction on employee members attending for and performing work on 24 November 1999.
3.2 The [Fourth, Fifth and Sixth] Respondents or any one of them, shall provide a written notice on the letterhead of the `Metal Trades Federation of Unions' in the following terms:
`The AIRC has ordered that the unions and officials cannot authorise, direct or organise stoppages of work to advance Campaign 2000 on 24 November 1999. That Order is attached.
Accordingly, in compliance with that Order, all forms of authorisation of stopwork meetings by the MTFU or the respondent unions and officials are hereby withdrawn and cancelled.'
This notice is to be provided to The Australian Industry Group by 10.00a.m. Monday 22 November 1999"
15 In these reasons, for ease of reference, I will refer to cl 3.2 (second occurring) as cl 3.3.
16 Clause 4 provided for service of the Order on the parties bound by it, inter alia, by facsimile to the addresses set out in paras (b) to (k) of the order, those addresses being premises of the respective unions. Clause 5 provided:
"This Order shall come into effect at 5.00 pm on Saturday, 20 November 1999 and shall remain in force for a period of one week."
17 After the AIG had served the s 127 orders it became concerned that the orders would not be complied with by the respondents. As a consequence, the AIG applied to Whitlam J in the Federal Court at Sydney on 22 November 1999 for the grant of injunctions, pursuant to ss 127(6) and (7) of the Act, requiring the respondents to comply with the s 127 orders. On 22 November 1999 Whitlam J made the following orders:
"1. Until the hearing and determination of the Application or until further Order pursuant to section 127(7) of the Workplace Relations Act 1996, the Respondents be restrained, in the case of the corporate Respondents...by their officers, servants, delegates, agents or as otherwise described, from engaging in conduct which constitutes a contravention of the Order made by the Australian Industrial Relations Commission on 20 November 1999, in proceeding C No 24275 of 1999.2. That the [Fourth, Fifth and Sixth] Respondents or any of them, shall provide a written notice on letter head of the MTFU in the terms set out in clause [3.3]...of the Commission's Order and that such notice be provided to the Applicant by 10.00 am on Tuesday, 23 November 1999.
3. ...
4. The terms of the above Orders be served on the Respondents by facsimile to the addresses shown in paragraphs (b) to (k) of clause 4 of the Order made by the Commission."
18 No appeal was brought by any of the respondents against the s 127 orders or against the Court orders.
19 The mass meetings called for 24 November 1999 proceeded. The evidence suggests that up to 40,000 workers may have stopped work and a substantial number of workers attended the meetings. The AIG then moved the Court for orders that each of the respondents be:
"fined for its or his contempt constituted by breaches of the Orders made by Whitlam J herein on 22 November 1999."
20 The motion was supported by a detailed statement of charge against each of the respondents. Relevantly, each union respondent was charged with contravening the Court orders in that:
* after service of the Court order it did not cancel or withdraw the stopwork direction;
* after service of the Court order it did not discontinue authorising, directing, encouraging and inciting its members to stop work in their employment on 24 November 1999;
* after service of the Court order it did not discontinue, cancel and withdraw all authorisation and organisation of stopwork meetings of its members on 24 November 1999;
* after service of the Court order it did not discontinue, cancel and withdraw all bans, limitations and restrictions on its members attending for and performing work on 24 November 1999.
21 The charges against the individual respondents were in similar terms but included the additional charge that, in contravention of the Court orders, the individual respondents failed to provide the written notice ("the AIG notice") that was required to be provided in accordance with cl 2 of the Court orders, or at all.
22 The AIG did not allege that any of the respondents had engaged in any specific conduct after the service of the Court orders which authorised, directed, organised, encouraged or incited workers either to attend the mass stopwork meetings or to cease work on 24 November 1999. Rather, the AIG alleged that the respondents' omissions to act in the manner set out in its statement of charges resulted in contraventions of the Court orders.
23 There is no evidence that, after the service of the Court orders by facsimile between 9.36 pm and 9.54 pm on 22 November, the respondents:
* took any steps to withdraw or cancel any authorisation or encouragement that they had previously given in respect of the mass stopwork meetings;
* took any steps to discourage employees from attending the meetings;
* took any steps to encourage employees to attend at their workplace and carry out their normal duties on 24 November 1999.
24 The AIG did not receive the notice directed to be provided by the individual respondents to the AIG.
25 The contempt alleged against the respondents in respect of the breach of cl 3.1 and cl 3.2 of the s 127 orders, and therefore of cl 1 of the Court orders ("the restraining orders") is based upon a construction of those orders which required the respondents to take positive steps to stop, discontinue, cancel and withdraw their previous authorisation, direction, organisation, encouragement or incitement of employee members to cease work without lawful authorisation on 24 November 1999 in order to attend the mass stopwork meetings to be held on that date. Thus, the AIG contended that, as was the case in Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees Union (No 2) (1987) 15 FCR 64, the contempt in the present case was constituted by omissions to act in circumstances where the restraining orders required positive action to be undertaken.
26 The additional contempt alleged against the individual respondents is based upon their failure to provide the AIG notice in accordance with cl 2 of the Court orders ("the AIG notice orders").
27 The AIG adduced extensive evidence in support of the charges it brought against the respondents and also tendered certain agreed admissions by those respondents. The respondents did not cross-examine any of AIG's witnesses and, save for tendering certain documents, did not adduce any other evidence in opposition to the charges.
Contempt
28 Wilful disobedience of a court order in the sense that "the disobedience is not casual, accidental or unintentional" has generally been regarded as a civil contempt (A.M.I.E.U. v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106-107 and 113). Notwithstanding the nomenclature of "civil contempt", it is well established that a substantial purpose of punishment for such a contempt is to discipline the defendant and vindicate the authority of the court (Mudginberri Station at 113). Where the disobedience is wilful, such as where it is contumacious or constitutes a "public defiance", the resulting contempt has been regarded as involving a public injury which "calls into play a penal or disciplinary jurisdiction to deal with criminal contempt" (Mudginberri Station at 108).
29 The basis for the longstanding distinction between civil and criminal contempt was recently considered to be "in significant respects, illusory" (Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 534). As all proceedings for contempt are now regarded as criminal in nature, "all charges of contempt must be proved beyond reasonable doubt" (Witham v Holloway at 534 and 548).
30 The present case, based on disobedience of a court order, involves charges of civil, rather than criminal, contempt. Thus, defiant or contumacious conduct is not required to be established, although such matters can be relevant on the question of penalty. As was pointed out by Kiefel J in Australian Competition and Consumer Commission v Goldstar Corporation Pty Ltd [1999] FCA 585 at [39], a finding that a civil contempt was wilful requires that the act or omission which breaches the Court's order be deliberate in the sense that it is not merely casual, accidental or unintentional.
31 Counsel for the individual respondents submitted that the charges against his clients, in truth, involve "criminal contempt" and that the AIG must therefore establish intent by the individual respondents to defy the Court orders wilfully or contumaciously. The submission was based upon a distinction between breach of orders where the Court's jurisdiction is said to be "remedial" and therefore civil, and a breach which can no longer be remedied, with the consequence that the jurisdiction is said to be punitive and therefore criminal. The distinction was said to be an unsatisfactory basis for distinguishing between civil and criminal contempt: see Witham v Holloway (at 532). It is also inconsistent with the acceptance that a "deliberate commission or omission which is a breach of an injunctive order or an undertaking will constitute...wilful disobedience unless it is casual, accidental or unintentional": see Mudginberri Station (at 113). Thus, I do not accept that wilful or contumacious defiance is required to be established before a finding of contempt can be made in the present case.
32 A contempt may be constituted by an omission to act. See for example Goldstar Corporation at [39] and Concrete Constructions at 74-75. An omission to act constituting a contempt raises no particular difficulties where an order requires that a positive step be taken. However, greater difficulty arises where it is argued, as it is in the present case, that an order, although framed in negative terms, requires that a positive step be taken. As Wilcox J observed in Concrete Constructions at 74-75:
"It cannot be argued that a negative order is, in principle, incapable of creating an obligation to take positive action. A respondent who is currently carrying out an action proscribed by an order may have to take some positive steps in order to avoid a continuance of the proscribed action. Thus, to take the example of the order in the Walthamstow case, it was necessary for the defendant council to take some positive action if it was, in the future, to comply with the order of the court that it refrain from discharging sewage into Leyton Level Brook, so as to cause a nuisance. Whether a particular order may be complied with by doing nothing at all depends upon the form of the order and the circumstances of the case."
33 Orders of the Court must be in "clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction" (ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 259 per Lockhart J). Although it is the duty of a defendant to ascertain the proper means of obeying an order, a defendant will not be committed for contempt where the order is not clear and therefore, on one construction of it, there may not have been a breach. In such cases the breach will not have been established beyond reasonable doubt: see Iberian Trust Ltd v Founders Trust and Investments Co [1932] 2 K.B. 87 at 95, Redwing Ltd v Redwing Forest Products Ltd (1947) 177 L.T. 387, John Fairfax & Sons Pty Ltd v Australian Consolidated Press Ltd (1960) SR (NSW) 413 at 416, Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1964) 112 CLR 483 at 503, 506, 515-516, Re Bramblevale Ltd (1969) 3 All ER 1062 at 1064, Concrete Constructions at 71-72 and Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [2002] VSCA 49; (1998) 4 VR 220 at 222-223.
34 However, as Wilcox J said in Concrete Constructions at 72:
"...there is a fundamental difference between an order which is uncertain and an order which, being certain in its meaning, leaves to the addressee a choice as to the manner of compliance. An example is furnished by the Walthamstow case, referred to by Luxmoore J in Iberian Trust. As Luxmoore J said, an order restraining a defendant from discharging sewage into a particular brook is `definite enough in its terms' notwithstanding that there may be a number of engineering solutions to the problem of compliance. Provided that the order specifies with certainty the result to be achieved it is not normally for the applicant to suggest, or for the court to prescribe, a particular method of complying with the order. As Chitty J said in Walthamstow, `it was the duty of the defendants to find out the proper means of obeying the order'."
The s 127 orders and the Court orders
35 A fundamental issue arose in relation to the proper construction of the s 127 orders and the Court orders. It was central to AIG's case that the restraining orders required the respondents to take positive steps to discontinue, cancel and withdraw their authorisation, direction, organisation, encouragement or incitement of employee members of the respondent unions to attend the mass stopwork meetings on 24 November 1999 and not to attend for and perform work as required by their contracts of employment.
36 The respondents disputed the AIG's construction of the restraining orders and contended that those orders operated to restrain the respondents from engaging in any conduct after the making of the orders that constituted an authorisation, direction, organisation, encouragement or incitement of the employee members of the unions to attend the stopwork meetings and not to attend for and perform work as required by their contracts of employment, unless they had lawful authorisation from their employer to do so. The respondents contended that the relevant orders were not contravened, as it has not been established that they engaged in any such conduct.
37 If the respondents' construction of the restraining orders is accepted, it must follow that the contempt charges against them for breach of those orders will fail because the AIG's case in that regard is based entirely upon the omission by the respondents to take the positive steps the AIG contends were required to be taken on its construction of the restraining orders.
38 Clause 1 of the Court orders restrained the respondents from "engaging in conduct which constitutes a contravention" of the s 127 orders. It can be accepted that, in some contexts (see for example, s 298B(1) of the Act), conduct is defined to include acts and omissions. Prima facie, unless an extended definition of conduct includes omissions, subject to the context and absent a contrary intention, the term will only relate to acts. The use of the term in cl 1 suggests that the order is intended to restrain acts which constitute a contravention of the s 127 orders, rather than omissions to act. I need not finally resolve that issue, as I am satisfied that, in any event, cl 3.1 of the s 127 orders leaves to the addressees a choice as to the manner of compliance: cf Concrete Constructions at 72. If "industrial action", as defined in cl 3.2, has occurred, it shall not thereafter occur. If it is occurring, the choice left open to each of the respondents is that the industrial action "stop, be discontinued, or cancelled and withdrawn". Thus, if a respondent no longer continues to authorise, direct, organise, encourage or incite employee members to attend the stopwork meetings and not to perform work as required under their contracts of employment, the respondent will have complied with the orders, because the industrial action which had occurred or was continuing to occur will have "stopped". Thus, one choice available to the respondents to comply with cl 1 of the Court orders was to "stop" engaging in any conduct that would contravene the orders.
39 The AIG argued that, as the respondents had taken steps to authorise and organise the stopwork meetings, the orders in cl 3.1 required that they take positive steps to withdraw and cancel the authorisation and organisation of the meetings by stating that they were no longer authorising and organising the meetings to be held on 24 November 1999.
40 I do not accept the AIG's argument. One obvious answer to it is that, if the restraining orders were intended to require positive acts, then those acts would have been specified. A second answer is that the AIG notice orders, rather than the restraining orders, required withdrawal and cancellation of the stopwork meetings by the individual respondents, who had authorised the meetings. The AIG notice required to be provided by those respondents was to state that they "hereby" withdraw and cancel the stopwork meetings organised for 24 November 1999. Furthermore, the stated premise for the AIG notice orders was that the IRC had ordered (in cl 3.1 and cl 3.2) that the unions and their officials "cannot authorise, direct or organise stoppages of work" to enable attendance of employees at the meetings on 24 November 1999. The clear and unambiguous requirement in the s 127 orders to undo what had been done in the past was set out in cl 3.3, rather than in cl 3.1 and cl 3.2.
41 In any event even if, contrary to my view, the AIG's construction of cl 3.1 and cl 3.2 is reasonably open, the contempt alleged by AIG based on an omission to act could not be established beyond reasonable doubt, because the breach alleged only arises on one of two possible constructions of the order said to have been breached: Australian Consolidated Press Ltd v Morgan at 503, 506 and 515-516.
42 Thus far I have construed the orders on the basis that they speak for themselves. The proper approach to the construction of orders was stated by Beaumont J (with whom Black CJ and Jenkinson J agreed) in Repatriation Commission v Nation (1995) 57 FCR 25 at 33. His Honour, citing authority, said that where the true meaning of an order is plain the terms of the order will speak for themselves. However, where that is not the case, "the true meaning may be ascertained according to ordinary rules of construction" which permit evidence of surrounding circumstances to be considered to assist in the interpretation of the orders if the language is ambiguous or susceptible of more than one meaning.
43 In the present case if, contrary to my view, it was unclear as to whether a choice was available to the respondents under cl 3.1 and cl 3.2 to "stop" the industrial action by ceasing to authorise, encourage, incite and so on, then the present case would be one where the language is susceptible of more than one meaning. In construing the s 127 orders the Court may have regard to the context, including matters stated in the reasons for decision: see Short v FW Hercus Pty Ltd (1993) 40 FCR 511, 517-520 and 523 and Australian Agricultural Company Ltd v Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272. Those reasons support the interpretation at which I have arrived. In para [5] Justice Munro stated that, in substance, the restraining orders sought would require those bound by the orders to "cease and desist" from engaging in industrial action. After observing that it was necessary to have regard to the fact that some workers may be lawfully authorised by their employers to attend the stopwork meetings, Justice Munro stated at [22]:
"...[T]he industrial action that is to cease or not occur is broadly that of the persons who are bound by the order, in respect of authorising or placing bans or supporting, or encouraging bans, limitations or restrictions by work on employee members."
44 Justice Munro was referring to the substance of what became cl 3.1 and cl 3.2 of the s 127 orders. His Honour then referred to the other element of the "command", which related to the order that the individual respondents provide a notice to the AIG that all forms of authorisation of stopwork meetings "are hereby withdrawn and cancelled". His Honour stated at [23]:
"That aspect of the command is in concept, a direction to make an effective withdrawal or cessation of the industrial action covered by the earlier paragraph of the sub-clause."
45 Thus, the reasons of decision of Justice Munro reinforce the view I have formed that his Honour was primarily concerned in cl 3.1 and cl 3.2 to prevent the unions, their officers and the individual respondents from engaging in any conduct after the date of the orders which would encourage, incite or authorise the stopwork meeting and cessation of work. Any specific acts required to be taken were set out in the AIG notice orders, in cl 3.3, against the three individual respondents. It is quite clear from the transcript of the proceedings before Justice Munro that the withdrawal and cancellation of the authorisation was required so as to enable the AIG to distribute the AIG notice to its members so that they could then inform their employees of the withdrawal and cancellation of the MTFU authorisation for the stopwork meetings.
46 It was also central to the AIG's submissions in respect of the restraining orders that they were made on the basis that all of the respondents had authorised and organised the stopwork meetings. In particular, the AIG adduced a substantial body of evidence in an endeavour to demonstrate that the AMWU, the CEPU and the AWU had authorised and organised the meetings. In reliance upon that evidence the AIG contended that the efficacy of the restraining orders would be seriously undermined if the respondents were not required to take positive steps to stop, cancel or discontinue their prior authorisation and organisation of the meetings.
47 The AIG submitted that the restraining orders were analogous to those made in Concrete Constructions where Wilcox J (at 75-76) observed that an order that a union be restrained from maintaining and enforcing a ban it had imposed required it to take away "the prop" it had created, by notifying the members affected by the ban that it no longer sought to maintain and enforce it.
48 The present case is distinguishable from Concrete Constructions in two critical respects. The first is that the mass stopwork meetings were organised and authorised by the MTFU, rather than by its member unions. The MTFU is an independently functioning association with its own rules and executive officers. I am not satisfied that conduct by it constitutes conduct by its member unions. Although the member unions, but in particular, the AMWU, the CEPU and the AWU encouraged their members to attend the meetings, the evidence does not establish that those unions authorised or organised the holding of the meetings. While some documentary evidence was adduced to establish union involvement in the meetings, I am not satisfied that the evidence establishes beyond reasonable doubt that the individual respondents, or any other particular officer or agent of the respondent unions, acted under the rules of the unions, or were authorised to act under those rules, so as to authorise or organise the stopwork meetings on behalf of the unions: see Waterside Workers' Federation of Australia v Burgess Brothers Ltd [1916] HCA 2; (1916) 21 CLR 129 at 133 and 135, Commonwealth Steamship Owners' Association v Federated Seamen's Union of Australasia [1923] HCA 40; (1923) 33 CLR 297 at 307-308, 311 and 315 and GTS Freight Management Pty Ltd v Transport Workers Union (1990) 38 IR 26 at 36-38. There were no minutes of any of the unions authorising the stopwork meetings other than a minuted endorsement of the Metal Division, Regional Council of the AMWU, which has no power under the rules of the AMWU to act for or bind the AMWU.
49 While it is true that Mighell, acting as Secretary of the Victorian Branch of the Electrical Division of the CEPU, sent a letter to members encouraging them to attend the stopwork meetings, the letter made it quite clear that the meeting was part of the MTFU's, rather than the CEPU's, "push for wage justice in the Metal Industry".
50 The evidence establishes that the stopwork meetings were authorised by the three individual respondents in their respective capacities as President, Secretary and Assistant Secretary of the MTFU. Indeed, cl 3.3 of the s 127 orders and cl 2 of the Court orders were made on that basis. Thus, the removal of "the prop" for the stopwork meetings was to be brought about by the AIG notice orders that the individual respondents withdraw and cancel their authorisation and organisation of the stopwork meetings on 24 November 1999.
51 The second respect in which the orders in the present case differ from those in Concrete Constructions is that, as explained above, the restraining orders do not require the taking of positive steps. As Wilcox J noted (at 75) in Concrete Constructions, whether a particular order can be complied with by doing nothing at all, depends on the form of the order and the circumstances of the case. In the present case the form of the restraining orders and the circumstances of the case did not require the respondents to take any positive steps in order to comply with those orders.
52 The AIG also adduced evidence of statements made by Mighell and Johnston to representatives of the media on 23 and 24 November 1999. The statements, which were reduced to a written form, were admitted into evidence as business records under s 69(1) of the Evidence Act 1995 (Cth). The statements appear to have been made by Mighell and Johnston in their capacities as officers of the MTFU, rather than in their capacities as officers of the CEPU and the AMWU. In all the circumstances I am not satisfied that the statements were made by Mighell and Johnston in "furtherance" of any common purpose they had with any of the respondent unions. Accordingly, the statements are not admissible as admissions against the respondent unions under s 87(1)(c) of the Evidence Act: cf R v Macraild BC 9707215 Butterworths Unreported Judgments, Court of Criminal Appeal (NSW) at 5 per Dunford J.
53 In any event I am not satisfied that a "common purpose" between the individual respondents and the respondent unions has been established in the sense required by s 87(1)(c) of the Evidence Act: cf Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 at 7.
54 After service of the Court orders Mighell made statements on 23 November 1999 to a journalist, and on radio, to the effect that he would not let union members down by calling off the meetings. Johnston also made a statement to a journalist on 23 November 1999 that the meetings were proceeding, and on 24 November 1999 that the "laws are bad laws, they are crook laws. They need to be broken, they need to be rescinded". The statements were made by Johnston in the context of possible "litigation" that might be taken by the AIG.
55 For the purposes of s 87(1)(c) of the Evidence Act, I do not regard the statements as being made in furtherance of any common purpose between Mighell, Johnston and Melhem. Accordingly, the statements are only admissible as an admission by the person making the statement.
56 Considerable time was devoted during the hearing to the admissibility of the statements. Ultimately, I regard the statements as merely confirming the findings at which I would have arrived in any event.
Findings
57 My findings are that the evidence establishes beyond reasonable doubt that the respondent unions and the individual respondents took no steps to:
* prevent the mass stopwork meetings from being held on 24 November 1999 or to discourage workers from ceasing work to attend the meetings;
* withdraw or cancel any authorisation previously given for the stopwork meetings or the stoppages of work on 24 November 1999;
* provide a written notice to the AIG in the terms or to the effect of the AIG notice.
58 While the evidence adduced by the AIG, together with the admissions made by the respondents, justifies each of the above findings, in evaluating that evidence I take into account the failure of any of the respondents to give evidence that any such steps were taken by them, which is a matter within their own knowledge and not within the knowledge of the AIG.
59 In that regard in RPS v The Queen [2000] HCA 3; (2000) 74 ALJR 449 at 455-456 Gaudron ACJ, Gummow, Kirby and Hayne JJ said:
"...it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference to be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks. As was said in Weissensteiner v The Queen:`[I]n a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.'
60 My findings that the respondent unions and the individual respondents took no relevant steps must lead to the dismissal of the contempt charges against those respondents in respect of alleged breaches of the restraining orders, as a failure to take any steps is not a breach of those orders. However, the finding that the AIG notice was not provided to AIG must result in the contempt charges, founded on the AIG notice orders, being made out against the individual respondents, unless I accede to the submissions made on their behalf in opposition to the AIG's motion.
61 In view of the conclusions at which I have arrived in respect of the restraining orders it is unnecessary to consider the additional argument of the respondents that those orders did not relate to "industrial action", as defined in s 4(1), and were therefore ultra vires the power conferred by s 127(1), with the consequence that there was no "Order" made by the IRC that could be contravened. Plainly, the definition of "industrial action" in s 4(1), the extended definition in s 4(9) and the terms of s 127 are wide enough to embrace orders against organisations and their officers in connection with industrial action. However, although the term is widely defined and may extend to "hortatory" conduct by unions and their officers in respect of industrial action, it is essential that s 127 orders are directed to conduct falling within the definition (see CEPU v Laing (1998) 159 ALR 73 at 87). I would add that, even if the ultra vires argument succeeded, with the result that some of the s 127 orders were ultra vires, it does not follow that the Court orders have not been contravened. It is well established that an order of the Federal Court, as a superior court of record, is valid and binding until set aside, notwithstanding that it may later be found to be ultra vires: see Matthews v Australian Securities and Investments Commission [2000] FCA 288 at [20] to [24].
Failure to provide the AIG notice
62 Clause 2 of the Court orders was a mandatory order that Johnston, Mighell, Melhem "or any of them" provide a written notice on the letterhead of MTFU in the terms set out in cl 3.3 of the s 127 orders, and that such notice be provided to the AIG by 10.00 am on Tuesday, 23 November 1999.
63 The AIG has adduced evidence which satisfies me beyond reasonable doubt that the terms of the Court orders were served on each of the individual respondents by facsimile, in the manner set out in Whitlam J's order, during the evening of 22 November 1999. The evidence also establishes beyond reasonable doubt that the AIG did not receive any written notice from any of the individual respondents in the terms or to the effect of the notice required to be provided by the AIG notice orders. Indeed, each of the individual respondents admitted that the AIG did not receive any written notice from the respondents in accordance with cl 2 of the Court orders by 10.00 am on Tuesday, 23 May 1999 "or at all".
64 If any endeavour was made by any of the respondents to comply with the terms of cl 2 of the Court orders, then that endeavour was a matter within the knowledge of the respondents. In that regard the present case is one where evidence, or an explanation, which contradicts the inferences I would draw from the proven facts can only come from the respondents. In such circumstances I am entitled to, and do, more readily draw the inference which the AIG seeks. Accordingly, I am satisfied beyond reasonable doubt that the individual respondents did not provide the AIG notice and that the failure to provide that notice was deliberate, in the sense that it was not casual, accidental or unintentional.
65 Counsel for the individual respondents made a number of submissions as to why his clients ought not to be adjudged guilty of contempt by reason of their failure to provide the AIG notice. The first submission was one with which I have already dealt, namely, that the contempt alleged is a criminal, rather than a civil, contempt. On this submission, it is said that the AIG must establish that the individual respondents engaged in wilful disobedience and defiance of the Court orders, rather than that the conduct was merely wilful in the sense of not being casual, accidental or unintentional. For the reasons set out earlier, I am satisfied that the criteria required to be established for a criminal contempt are not applicable to the present case where criminal contempt has not been charged or alleged. I would add that, in any event, the statements made by Mighell and Johnston to media representatives may well be capable of supporting an inference that their failure to comply with the AIG notice orders was wilful, in the sense of being deliberately disobedient and defiant. However, as no such allegation has been made, or is required to be made, so as to found the civil contempt charge in the present case, I need not make a finding on that question.
66 It was also submitted that there was no proof that the individual respondents were aware of the AIG notice orders. While it is not disputed that the mode of service provided for in cl 4 of the Court orders has been complied with, it was contended that, as the contempt was a criminal contempt, the applicant had to establish actual awareness to "prove either wilful disobedience or defiance" (T 278). As explained earlier I have not accepted the submission that a criminal contempt has been alleged or is required to be established.
67 In any event, in the absence of any evidence that the individual respondents were unaware of the content of such orders, the service provided for is to be treated as actual service on the respondents for the purposes of the present charges. I would add, if it be relevant, that I infer that the orders came to the notice of the individual respondents. The statements made by Mighell and Johnston to the media representatives appear to have been made on the basis that they had notice of the Court orders. Further, the notices were sent to addresses where each of the individual respondents could be expected to have notice of the orders. The individual respondents were represented at the hearing before Munro J and, at least as far as Johnston and Melhem were concerned, before Whitlam J. Finally, in the absence of any evidence from the individual respondents that they did not have notice of the Court orders, I can more readily arrive at the conclusion that they each had notice of those orders.
68 A submission was also made that the time for compliance with the AIG notice orders was, for some reason, too short. I found the submission difficult to follow, but I am satisfied that there is no proper basis for it.
69 The substantive submission made on behalf of the individual respondents was that the AIG notice orders were ambiguous, in that they did not state with sufficient clarity the persons who were to comply with the orders. It was contended that, as the orders provided alternative methods of compliance, in the sense that the three individual respondents may comply with the order or that "any of them" may do so, it would not be apparent to one respondent whether another respondent had complied with the orders or not. It was contended that "the order is ambiguous because it provides for a situation where the parties bound may not be in position to know whether they had complied with the Court order".
70 I am not satisfied that the AIG notice orders were ambiguous. The orders provided that the three individual respondents jointly, or any of them severally, provide the AIG notice and by doing so, comply with the orders. There is no ambiguity about the manner in which compliance was required. As with the restraining orders, the AIG notice orders provided a choice as to the manner of compliance. Thus, the orders will have been complied with if a joint notice was given by the three individual respondents, or a notice in the required form was given by any one of them. However, absent the provision of any such notice, it is plain that each of the respondents will have committed a breach of the orders constituted by their failure to take the requisite steps to comply with the obligations imposed upon them under the AIG notice orders.
71 If there was evidence that any of the individual respondents had failed to give the AIG notice because he believed that another respondent was giving the notice, then the breach by that respondent may not be deliberate if the failure is established to be accidental or unintentional. However, there is no evidence of any such circumstances, nor is there any proper basis for inferring that there is a reasonable possibility that such circumstances existed. Further, at least as far as Mighell and Johnston are concerned, their statements to the media representatives indicate an absence of any intent on their part to comply with the AIG notice orders.
72 Accordingly, I am satisfied that the contempt alleged against the individual respondents in respect of their breach of the AIG notice orders has been established beyond reasonable doubt.
73 The final submission made on behalf of the individual respondents was that any breach should be seen as a technical breach only, and not as sufficiently serious to warrant the imposition of a penalty. The main basis for the submission appears to be that the AIG notice orders were simply a notification that the restraining orders had been complied with. I do not accept that submission.
74 As explained earlier in these reasons, I have concluded that compliance with the restraining orders did not require that any positive steps be taken by any of the respondents. The main objective of those orders was to ensure that the respondents did not engage in any further conduct which would authorise or encourage employees to stop working in order to attend the stopwork meetings on 24 November 1999. However, as the meetings had largely been organised by the dates on which the Court orders had been made, it was considered that, for the orders to be effective, it was also necessary to procure the withdrawal and cancellation of the MTFU authorisation for the meetings. The withdrawal and cancellation of the authorisation for the meetings provided for in the AIG notice orders was an important aspect in securing the objective sought, being the cancellation of the prior authorisation of the MTFU for the meetings. The AIG notices were required to be provided to the AIG by 10.00 am on Tuesday, 23 November 1999 to enable the AIG to communicate the MTFU's withdrawal and cancellation of the prior authorisation to the relevant employees. Although counsel for the individual respondents disputed that objective, it is implicit in the terms of the orders and also plainly appears from the transcript of the proceedings before both Justice Munro and Justice Whitlam.
75 The individual respondents contended that there is nothing on the face of the AIG notice orders that identifies to the parties bound by it the mischief to which the orders are directed and thereby "the seriousness of any failure to comply with the order". In my view the submission is not correct. It is plain from the form of the notice required that it is not merely confirmatory of steps otherwise required to be taken. The notice summarises the earlier orders by the statement that the IRC had ordered that "the unions and officials cannot authorise, direct or organise stoppages of work to advance Campaign 2000 on 24 November 1999". The order that the notice state that "all forms of authorisation of stopwork meetings by the MTFU or the respondent unions and officials are hereby withdrawn and cancelled" ensures that the AIG notice will have the operative effect of withdrawing and cancelling all forms of prior authorisation for the proposed work stoppages. Plainly, the orders inform the individuals bound to comply with them that, in giving the notice, they are thereby withdrawing and cancelling the prior authorisation of the MTFU for the work stoppages, and the stopwork meetings.
76 Accordingly, the failure to provide the AIG notice is a substantive, rather than merely a technical, breach of the Court orders.
77 There is an additional answer to the submission that the breach by the individual respondents is merely a technical breach. As I endeavoured to explain, in a different context, in ACI Operations Pty Ltd v Automotive Food Metals Engineering, Printing and Kindred Industries Union [2000] FCA 393 at [31] to [33] and [58] to [59], the legislature has struck a carefully prescribed balance between the rights of employers, employer and employee organisations and employees in relation to the industrial bargaining process provided for under the Act. I stated at [58]:
"The respective actions, which otherwise might be unlawful, of employees to withdraw labour and of employers to withdraw access to employment, are immune as protected action. However, in an industrial relations context the immunity can give rise to responsibilities, one of which is to ensure that each party's conduct in relation to the industrial dispute falls within the procedures prescribed by the Act and is not otherwise unlawful."
78 Unions have sought, and obtained, injunctive relief from the Court to protect the rights conferred under the Act in respect of employees: see for example Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1, Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463, BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430. I pointed out in ACI Operations Pty Ltd at [63] that there is no special rule relating to injunctive relief in industrial disputes or actions. Plainly, the protection of legal rights is severely undermined if parties to a dispute act on the basis that they can apply for court orders to protect their rights, but ignore court orders which protect the rights of other parties to the dispute, simply because compliance with such orders is seen to be adverse to their interests or objectives, or that of their members.
79 The rule of law in a democratic society does not permit any member of that society, no matter how powerful, to pick and choose the laws or court orders that are to be observed and those that are not. Maintenance of the rule of law in our society does not only require that parties are able to resort to courts to determine their disputes (Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 31; (1998) 153 ALR 641 at [1] per Hayne J), it also requires that parties comply with the orders made by the courts in determining those disputes.
80 If the individual respondents believed that the orders of Whitlam J were wrongly made, then it was open to them to appeal, or apply for leave to appeal, against those orders. Instead, they breached them. The fact that the breaches are by union leaders holding important offices in a federation of national trade unions makes them more, rather than less, serious: see Gallagher v Durack [1983] HCA 2; (1983) 152 CLR 238 at 244.
81 If such breaches are treated as no more than "technical" breaches, then the carefully prescribed processes provided for under the Act, available to, or to be observed by, unions, employees, employers and employer organisations alike, will quickly erode. Also, if aspects of the statutory scheme or of the orders made by Whitlam J were seen to be contentious, the political and legal processes of our democratic society provide remedies other than those chosen by the individual respondents.
82 For the above reasons I do not accept the contention of the individual respondents that the breaches of the Court orders that I have found to be established are merely technical breaches and do not warrant the imposition of a penalty.
Conclusions
83 Accordingly, the motion of the applicant for punishment of the respondents for breach of the restraining orders is to be dismissed. The applicant is to pay the costs of the respondent unions of and incidental to the motion.
84 However, I am satisfied beyond reasonable doubt that the individual respondents, Johnston, Mighell and Melhem, breached the AIG notice orders. It is appropriate to grant declaratory relief to that effect but, otherwise, to adjourn the further hearing of the motion against those respondents to a date to be fixed to hear submissions on the question of penalty. I reserve all questions of costs of the applicant and of the individual respondents in respect of the motion.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. |
Associate:
Dated: 12 May 2000
Counsel for the Applicant: |
Mr F Parry with Mr M Rinaldi |
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Solicitor for the Applicant: |
Cutler Hughes & Harris |
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Counsel for the First Respondent: |
Mr WH Haylen QC with Mr WL Friend |
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Solicitor for the First Respondent: |
Taylor & Scott |
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Counsel for the Second and Third Respondents: |
Mr RW Hinkley with Mr P Rozen |
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Solicitor for the Second and Third Respondents: |
Gill Kane & Brophy |
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Counsel for the Eighth, Ninth and Tenth Respondents: |
Mr RAR Lewis on 2 and 3 May and Mr J O'Bryan on 4 and 5 May |
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Solicitor for the Eighth, Ninth and Tenth Respondents: |
Maurice Blackburn Cashman |
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Date of Hearing: |
2, 3, 4 and 5 May 2000 |
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Date of Judgment: |
12 May 2000 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2000/629.html