Di Felice, Victor --- "Stopping or Preventing Industrial Action in Australia" [2000] MelbULawRw 12; (2000) 24(2) Melbourne University Law Review 310

Stopping or Preventing Industrial Action in Australia

VICTOR DI FELICE[*]

[The ‘bargaining chip’ of industrial action can often be decisive in the outcome of industrial disputes. The opposing ability to stop or prevent such action then assumes equal significance. This article discusses the extent to which industrial action in Australia can be hindered. Decisions of the Australian Industrial Relations Commission and the Federal Court, in exercising their respective powers under the Workplace Relations Act 1996 (Cth), are considered; also examined are the inherent powers of the common law courts to restrain industrial action. This examination shows both forums use very similar reasoning to reach their decisions. The article then considers the extent to which these decisions are reconcilable, and discusses the interaction between injunctive and statutory relief. The recent phenomenon of the ‘anti-suit injunction’ is an example of this interaction. The article concludes with an assessment of the ‘right to strike’ provided by international conventions.]

INTRODUCTION

The ability of employees to negotiate working conditions which are favourable to them, within legislative boundaries, is very much dependent upon their actual or perceived ability to withdraw their labour. The ‘bargaining chip’ of industrial action is most effective where such action is taken en masse, usually through the medium of a labour union. Even the most obstinate employer may be willing to compromise in the face of the possibility that much, if not most, of its workforce refuses to work. Therefore, the way in which industrial action is controlled, if not curtailed, is arguably the most important aspect of labour law.

This article examines the extent to which industrial action can be stopped or prevented under Australian law today. This is done by considering decisions of the Australian Industrial Relations Commission (‘Commission’) and the Federal Court, in exercising powers granted under the Workplace Relations Act 1996 (Cth) (‘WRA’). Also examined are the inherent powers of common law courts to order injunctive relief to restrain industrial action, with a particular focus on the decisions of the Victorian Court of Appeal. The article then endeavours to answer the question of whether the decisions of the Commission can be reconciled with those of the common law courts. In doing so, the article examines the manner in which the Commission has interpreted and exercised its discretion to stop or prevent industrial action under s 127 of the WRA. The decision of the Victorian Court of Appeal in National Workforce Pty Ltd v Australian Manufacturing Workers’ Union[1] is then analysed, and the interrelationship between injunctive relief and relief under the WRA is discussed. A consideration of the right to damages at common law, although relevant, is beyond the scope of this article and will therefore only be noted in regard to its bearing on injunctive relief.

Having examined the approaches of the Commission and the common law courts in this way, the question then remains to be answered: Under the present system of regulating industrial action, are the approaches of the two forums really any different? If there are in fact no substantive differences, do s 127 orders provide simply a codification of equitable injunctive relief, at least upon their enforcement by the Federal Court? If differences do exist, which forum is more suited to preventing industrial action? Finally, the article considers whether, despite its rejection in past legal actions, a ‘right to strike’ provided by international conventions may be relevant given developments in other areas of the law.

II THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION — STOPPING OR PREVENTING INDUSTRIAL ACTION

Section 127 of the WRA grants the Commission power to stop or prevent industrial action where the requirements of the provision are satisfied. The emphasis of this article is on the discretion exercised by the Commission upon its satisfaction that the jurisdictional requirements contained in s 127(1) and (2) are met.

The aim of s 127(1) is to ‘provide effective legal remedies ... to those who suffer harm from illegitimate industrial action.’[2] Despite clearly enunciating the jurisdictional requirements upon which the Commission may issue a s 127 order, the provision gives no indication as to how the Commission’s discretion is to be exercised.

A Section 127 — Jurisdiction

The Commission must make various findings of fact before it can consider exercising its discretion pursuant to s 127. These will now be considered. It is, however, important to note two issues relating to the Commission’s jurisdiction to make s 127 orders. First, both the Federal Court[3] and the Commission[4] have been prepared to interpret the jurisdictional requirements expansively. Secondly, the satisfaction of the jurisdictional requirements for the granting of a s 127 order does not automatically result in the issue of the order — the order is discretionary and the onus is on the applicant to satisfy the Commission that the order should be made, except where the matter commences on the Commission’s own motion.[5] According to Williams SDP in Gordon & Gotch Pty Ltd v National Union of Workers, ‘[t]he applicant must do something more than merely rely on an entitlement [to a s 127 order] to seek such an order.’[6]

1 Industrial Action

Before a s 127 order can be made, sub-s (1) requires that the Commission find that ‘industrial action’ is ‘happening, or is threatened, impending or probable’. The WRA provides its own definition of ‘industrial action’ in s 4. For the purposes of proceedings brought under the WRA, particularly in relation to applications for s 127 orders, the Commission[7] and Federal Court[8] have held that the term ‘industrial action’ is to be widely defined. Amongst other things, s 4(1) of the WRA defines ‘industrial action’ to include:

(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work ...

(b) a ban, limitation or restriction on the performance of work ... in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or an [Australian Workplace Agreement] ...

(c) a ban, limitation or restriction on the performance of work ... that is adopted in connection with an industrial dispute;

(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work ...

There are various exceptions to the statutory definition of ‘industrial action’, most notably action taken by employees ‘based on a reasonable concern by the employee about an imminent risk to his or her health or safety’.[9] As a result of this exclusion, ‘industrial action’ taken by employees over workplace health and safety concerns is outside the scope of a s 127 order, and is regulated by various State-based legislative schemes.[10] The breadth of the definition of ‘industrial action’ in s 4(1) has also recently been examined by the Federal Court in relation to picketing.[11]

2 Stopping or Preventing Industrial Action

Section 127 empowers the Commission to issue an order to stop or prevent industrial action that is ‘happening, or is threatened, impending or probable’ and that is taken or threatened in the course of an ‘industrial dispute’. ‘Industrial dispute’, as defined in s 4(1), includes industrial action taken in the course of negotiations for a certified agreement[12] or in relation to work regulated by an award or certified agreement.[13] The Commission may make such an order of its own motion or on the application of a person who is ‘directly affected’.[14]

Section 127 provides that the Commission may make two distinct types of orders: to ‘stop’ industrial action or to order that it ‘not occur’.[15] It is conceivable that the Commission may make both types of orders in a single order. Where an order is made to stop industrial action, it may be accompanied by an order stipulating that such future conduct ‘not occur’. Where an applicant applies for an order that industrial action not occur in future, it may be that there is a higher evidentiary burden on that party, although the requirement that such action need only be ‘threatened, impending or probable’ provides express approval for the grant of an order in such a case. An instance in which the Full Bench of the Commission found that industrial action was ‘probable’ was in Pryor v Coal & Allied Operations Pty Ltd.[16] The Full Bench held that there was ‘evidence of the existence of industrial action sufficient to support ... [Harrison SDP’s conclusion at first instance] that industrial action was probable.’[17] The Full Bench’s reasoning indicates that although the existence of industrial action at the time of the s 127 application is not required, the applicant must be able to point to some objective evidence that would indicate a likelihood (not simply a possibility) of industrial action in the future.

3 Categorising Industrial Action to Which a s 127 Order May Apply —

Is There a Dichotomy or Trichotomy of Industrial Action?

According to the Full Bench of the Commission in Coal & Allied,[18] the seminal case on s 127 orders, industrial action can be categorised as one of three types: ‘prohibited action’, ‘protected action’, or ‘unprotected action’, where the category of ‘unprotected action’ contains two sub-types, ‘legitimate’ and ‘illegitimate’ industrial action. The Full Bench held that, although the ‘line of distinction [between the latter two categories] may sometimes be difficult to draw in a particular case ... there is a real difference based upon the purpose and intended effect of the industrial action.’[19]

The Full Bench decision in Coal & Allied remains the leading case in discussing and delineating these categories. In that case the applicant employer sought s 127 orders against various unions to prohibit future industrial action inconsistent with the dispute resolution procedure in the relevant award, after producing evidence of numerous past stoppages in breach of these procedures.

(a) Prohibited Action

‘Prohibited action’ is the least contentious category of industrial action developed by the Commission in Coal & Allied. ‘Prohibited action’ refers to what the Commission described as ‘industrial action of the kind ... prohibited by the Act.’[20] The WRA expressly provides that such action is unlawful and is subject to a penalty provision. The example given by the Commission in Coal & Allied is that of s 170MN, which provides that an employee or employee organisation ‘must not’ engage in industrial action during the term of a certified agreement or award, the contravention of which can lead to the imposition of a fine by an eligible court.[21] Although many provisions providing for prohibited action will themselves state penalties for breaches, a s 127 order can be issued stopping any such industrial action provided all other requirements are met.[22]

In line with the less legalistic approach to interpreting the effect of the ‘protected action’ provisions, discussed below, the Commission has evinced an intention to consider the fact that prohibited action has taken place as one of the many factors relevant to the exercising of its discretion under s 127. In AG Coombs the Full Bench of the Commission stated that, upon hearing the application, the Commissioner was ‘taking into account all of the circumstances before him and ... not simply relying on the narrow view that all industrial action in contravention of s 170MN [a prohibited action provision] would justify an order’ and that, in their opinion, ‘we do not think there is anything in the approach adopted by the Commissioner in this case which is inconsistent with the decision in Coal & Allied.’[23] Despite the fact that this decision indicates that prohibited action will not automatically be subject to a s 127 order, the discussion below will show that such action would most likely be considered ‘illegitimate action’.[24] Furthermore, as noted above, prohibited action provisions usually provide for their own penalty and enforcement procedures.

(b) Protected Action

The second category of industrial action identified by the Full Bench in Coal & Allied was ‘protected action’. Like prohibited action, protected action is specifically provided for in the WRA. Section 170MT(1) of the WRA provides that a Commission order under s 127 does not apply to protected action.

Section 170ML prescribes the conditions which must be fulfilled before an employee or employer can contend that such action constitutes ‘protected action’ in relation to the negotiation of a proposed certified agreement or Australian Workplace Agreement (‘AWA’). This article does not consider the impact of protected action on the negotiation of AWAs.[25]

In Coal & Allied the Full Bench briefly summarised the requirements of s 170ML as follows:

Protected industrial action must be organised or engaged in by an eligible organisation or employee who is, or who is connected with, a negotiating party ‘for the purpose of supporting or advancing claims made in respect of the proposed [certified] agreement [s 170ML(2) of the Act]’.[26]

Section 170MO provides further conditions which must be fulfilled for the taking of protected action, relating to notice being given of the intended action. Other requirements include that negotiation must precede the industrial action,[27] and that the action must not be taken in concert with parties who are not ‘protected persons’.[28] Where all of the relevant preconditions have been met, the industrial action is ‘protected action’ within the meaning of the WRA.

A finding by the Commission that industrial action is protected action can obviously be crucial to a respondent’s case, when it opposes a s 127 order. The wording of s 170MT(1) is that an order under s 127 ‘does not apply’[29] to protected action. The provision seems to indicate that no discretion may be exercised in relation to the application of a s 127 order to protected action — if there is a finding of fact that the action is protected, a s 127 order cannot be issued.

The Full Bench in Coal & Allied did not follow such a simple approach when they considered the effect of protected action taken by a respondent. They rejected the respondent union’s submission that upon finding the industrial action in question to be protected, the Commission was not vested with the jurisdiction to make a s 127 order. Instead, the Full Bench held that a finding that the industrial action in question is or will be protected is simply a factor to be considered in the exercise of the discretion under s 127:

The categorisation of the relevant industrial action [as protected] does not go to the existence of jurisdiction to exercise the power in s 127 ... There is no indication that industrial action that might be held to be protected action is not within jurisdiction under s 127 when a direction is framed ... [J]urisdiction is available under s 127 to direct the cessation of apparent protected action.[30]

Of itself, this statement by the Commission is not particularly convincing, considering the specific wording of s 170MT(1). However, the Full Bench then provided reasons for this stance, agreeing with the statement of principle by Munro J in Minister for Education for Victoria v Australian Education Union that:

The ascertainment or determination of whether particular industrial action is protected or not will sometimes be a complex task. Moreover it will be a determination that effectively can only be made at Court level. Of course the Commission will have need on occasion to form a view about whether particular industrial action is likely to be protected action ... [and] that view is likely to be [a] powerful consideration weighing in the balance of considerations relevant to the exercise of various discretions under the WR Act. In particular it would weigh heavily against the power under s 127 being applied to industrial action that the Commission considered is, or should be, protected.[31]

Munro J then explained what would occur if the Commission wrongly considered that industrial action was not protected and issued a s 127 order. In such a case ‘the order would have no application if it transpired that the industrial action against which it was directed is protected action.’[32] The Full Bench in Coal & Allied echoed this view, stating that ‘s 170MT prevents the application of an order to any such protected action. Section 170MT is not concerned with the jurisdiction to make a s 127 order. It is concerned with the legal effect of a s 127 order when made.’[33]

The result is that the protected action provisions of the WRA are dual faceted. First, they are intended by the WRA to be an issue considered antecedent to the exercise of the discretion to make a s 127 order. Secondly, a finding that industrial action is protected is simply a discretionary factor to be considered together with other factors before a s 127 order is made.

Therefore, although the Full Bench in Coal & Allied went on to say that ‘as a general rule in the exercise of the discretion under s 127, an order should not be made in relation to industrial action that is considered to be protected action, or plainly likely to be protected action,’[34] the possibility remains that it may. The Full Bench was of the opinion that suspending the bargaining period for the certified agreement (and thereby no longer allowing the industrial action to be protected) would be preferable to making a s 127 order in such circumstances,[35] and that, therefore, the chances of a s 127 order being made are in fact limited. There are certain circumstances where it has been suggested that a s 127 order will be granted to stop or prevent purported protected action, for instance, where there is an absence of good faith negotiations by the party claiming the protection, or where a bargaining period is initiated and used as a ‘ploy’ to protect an underlying claim.[36] The Commission has not ruled on this matter; hence, this question remains unanswered.

What is clear, however, is that regardless of the limited scope for making a s 127 order over industrial action which the Commission considers may be protected, it is still a possibility. Accordingly, the Commission’s recognition of ‘protected action’ is not as clearly defined as that of the Victorian Court of Appeal.[37] This is not surprising given Munro J’s statement in Minister for Education for Victoria v Australian Education Union that ‘it will be a determination that effectively can only be made at Court level.’[38]

4 Unprotected Action

In Coal & Allied the Full Bench recognised that protected and prohibited action were both expressly provided for by the WRA, but that there was no provision dealing with ‘unprotected action’. The applicant in Coal & Allied had argued that the scheme of the WRA provided a dichotomy of industrial action — leaving aside prohibited action, it was either protected or not. If that were the case, any finding that industrial action was not protected would lead to the automatic exercise of the discretion under s 127.

The Full Bench could not so easily differentiate between ‘protected’ and ‘unprotected’ action, because ‘the clarity of any dichotomy ... is blurred by a number of considerations’; however it held that ‘a relatively wide range of industrial action may fall outside the class of protected action.’[39] As such, the Commission was left with a situation where it conceded that unprotected action existed, but that it had no statutory basis. The Full Bench commenced its discussion on the character of unprotected action by acknowledging that the WRA in no way required that all unprotected action be the subject of a s 127 order:

The scheme of the Act does not in our view clearly imprint the discretion granted by s 127 with any guiding requirement to the effect that any industrial action that is not protected action should be directed to cease. The norms of the system reflected in the Act are not so specific that all unprotected industrial action must be taken to be of itself unjustifiable.[40]

Thus, the Full Bench was then required to espouse the principles by which unprotected action would become subject to a s 127 order. In a now oft-cited passage, the Full Bench categorised unprotected action as either ‘legitimate’ or ‘illegitimate’, with only the latter being susceptible to a s 127 order:

The exercise of the discretion is predicated upon the Commission itself imposing a prohibition on the industrial action to make it unlawful. Thus, for the Commission to exercise the discretion, it will usually need to be satisfied that the industrial action to be made subject to the order is illegitimate in a sense warranting that it should attract appropriately a direction by the Commission that it should cease or not occur.[41]

Therefore, the Commission will not consider unprotected action to be illegitimate per se. The Full Bench argued that if Parliament had intended that all unprotected action contravene the WRA, there was nothing to prevent it from enacting a provision which would prohibit action of this kind.[42] As a result, only industrial action which is ‘illegitimate’ in the manner described by the Commission[43] will be the basis of a s 127 order. The types of action which may come under this very wide spectrum remain to be decided. Consequently, a substantial amount of case law has developed which examines the factors considered by the Commission when it determines whether industrial action passes the threshold test for exercising the discretion under s 127. In Coal & Allied the Full Bench made the following statement as to the way in which the industrial action is to be assessed:

The character of the industrial action is evaluated for purposes of establishing whether in the Commission’s view the industrial action is illegitimate, to a degree that the commencement or continuation of it should be subject to a direction causing it to be unlawful.[44]

In AG Coombs, a case in which the applicant company sought a s 127 order to prevent the continuing breach of a certified agreement, the Full Bench was slightly more specific as to the considerations that would influence the exercise of the discretion, stating that ‘[t]he discretion is to be exercised on normal principles taking into account all of the relevant circumstances including, but not limited to, the nature and extent of the industrial action.’[45]

The factors which have been assessed by the Commission in exercising the s 127 discretion are now examined, with a view to comparing these with the reasoning of the common law courts in determining whether to grant discretionary relief in the form of an injunction.

B Section 127 — The Discretion

In Coal & Allied the Full Bench of the Commission considered that ‘[t]he discretion is apparently at large.’[46] The term ‘at large’ indicates that the discretion is not fettered and emphasises the fact that the WRA does not state the matters that the Commission must take into account when exercising its discretion. The apparent breadth of the discretion has been criticised,[47] and the following section of the article discusses this issue.

1 The Traditional Administrative Law Test for Exercising Discretion

The Commission is not a court of law. It is an administrative body and, as such, is subject to the principles relating to administrative decision-making. The leading Australian case on the principles to be considered when exercising a discretionary decision-making power is the High Court decision of Minister for Aboriginal Affairs v Peko-Wallsend Ltd.[48] In discussing the relevant factors to which an administrative body must have regard when deciding whether or not to exercise its discretion, Mason J stated that:

[T]he decision is determined by the construction of the statute conferring the discretion ... If the relevant factors [which the decision maker is bound to consider] ... are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.[49]

The Commission has applied this statement as outlining the general approach for the Commission to follow when assessing those factors relevant to a s 127 application. In Coal & Allied the Full Bench said that ‘the identification of considerations relevant to the exercise of any such discretion should be guided by the objects of the Act and an understanding of the relationship of the power and the effect of its exercise to the scheme of the Act.’[50] French J in the Federal Court confirmed in Commissioner Laing that the Commission may take into account only those considerations that are relevant to the objects and purposes of the WRA, as ‘no statutory discretion transcends the object of the statute which creates it.’[51]

In Peko-Wallsend it was held that where the discretion is unconfined, ‘the factors that may be taken into account in the exercise of the discretion are similarly unconfined.’[52] The result is that the discretion of the Commission is apparently unlimited, provided that the considerations are referable to the objects and purposes of the WRA. The considerations taken into account by the Commission have been many and varied, and the Full Bench has been loathe to overturn exercises of discretion by single Commissioners.[53] The factors which the Commission has considered important in exercising the s 127 discretion are discussed below.

C Exercising the s 127 Discretion — The Relevant Factors

Having asserted its jurisdiction to hear the matter at hand, and having made the relevant findings of fact in deciding the nature of the industrial action in question, it then remains for the Commission to consider whether the discretion in s 127 ought to be exercised. The Commission has, quite rightly, been reluctant to suggest a ‘list’ of factors which may be relevant in considering the exercise of the s 127 discretion in any given case. Instead, following the approach outlined by Mason J in Peko-Wallsend in relation to the exercise by an administrative body of a discretion in the absence of considerations defined by legislation, the Commission has adopted a wide-ranging approach, ‘taking into account all of the relevant circumstances’ in each case.[54] Despite this, employers or employer representative groups rely in applications for s 127 orders on similar factors.

1 Purpose of the Action

One of the primary factors that the Commission considers is the purpose of the industrial action.

In Coal & Allied the Full Bench discerned a real difference between the classes of industrial action, based largely on their purpose. This purpose is, therefore, frequently relevant to finding whether industrial action is protected and, hence, becomes a relevant factor in determining whether the s 127 discretion is exercised. As noted above, the Full Bench held that the status of the industrial action as protected action was a factor in the s 127 discretion. The Full Bench considered that protected action was action taken for the purpose of advancing claims made in respect of a proposed certified agreement; however, industrial action directed towards disciplinary decisions by the employer against workers did not constitute protected action.[55] The Full Bench considered that although the ‘line of distinction may sometimes be difficult to draw in a particular case ... there is a real difference based upon the purpose and intended effect of the industrial action.’[56] The Full Bench considered that this factor was so important that the s 127 order should be made ‘[o]n the basis that there is such a difference’[57] between the classes of industrial action.

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Emwest Products Pty Ltd[58] the Full Bench of the Commission considered that the purpose for which the industrial action was taken was a relevant consideration in determining whether to issue a s 127 order. The Full Bench stated that:

The specific focus of the relevant industrial action on a policy issue about an award right to accident pay, and the relative imminence of the expiry of the certified agreement applying to Emwest were relevant considerations in determining the merits of the s 127 application.[59]

However, the purpose of the industrial action will not only be relevant where it is considered in the context of a protected action argument. In Freight Rail Corporation[60] the respondent union argued that its members, a train crew, had refused to cross a picket line set up by another union due to health and safety concerns and that this action was therefore excluded from the definition of ‘industrial action’ in s 4(1) of the WRA. Harrison SDP concluded that although there was a combination of reasons why the train crew would not cross the picket line, there were occasions when the refusals to cross were not motivated by health and safety concerns.[61] As such, the industrial action was within the definition in s 4(1) and the Commission could consider making a s 127 order. Harrison SDP considered that the purpose for which the action was taken was an important factor:

I do not find it illegitimate for a crew to decide to place a restriction or limitation on performing their normal duties because they have formed the view, one that is reasonable in the circumstances, that it is not safe to do so. ... If however that is not a view reasonably held or is being used and expressed as a view in circumstances in which something else is in fact motivating the crew that is not legitimate.[62]

The health and safety of employees was also a consideration in Redbar Excavations Pty Ltd v Construction, Forestry, Mining and Energy Union, where Williams SDP in obiter considered that this factor, combined with the lack of economic loss to the applicant, meant that a s 127 order should not be made.[63]

2 Economic Impact

At common law the economic impact of industrial action on an employer is a very important factor in determining whether an injunction should be granted to restrain industrial action.[64] The Commission, surprisingly, has not expressly considered this to be the case in relation to s 127 orders. Despite recognising that the economic impact upon the party applying for a s 127 order can be seen as a component of many of the other factors, the Commission has rarely regarded it as a factor in its own right.

In Southcorp Australia Pty Ltd v Australian Workers’ Union[65] the Commission did, however, analyse the damage being done to the employer’s (applicant’s) business. From a respondent’s perspective, it is close to impossible to mount a defence to this important factor as, arguably, all industrial action is intended to have some economic impact on the other party, in order to exert pressure on them in their current dispute.

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Visionstream Pty Ltd[66] the applicant sought a s 127 order restraining the respondent from restructuring part of its workforce. Holmes C, initially in determining whether the conduct in question constituted ‘industrial action’, considered that he could ‘not accept that the motivation of commercial considerations alone is sufficient of itself to render ... [such] action not industrial action’, as in reality ‘[t]here would be few actions of companies which are not motivated by commercial considerations.’[67] Having made this finding, Holmes C went on to state that the respondent’s conduct, regardless of its commercial motivation, was sufficient to require the making of a s 127 order. As a result, commercial justifications for taking industrial action will not prevent the issuing of a s 127 order to prevent that action. Such an approach recognises the practical motivation for the taking of industrial action in the corporate environment, and is consistent with the reasoning that all industrial action is generally intended to harm the other party financially. If one was to consider the circumstances in Visionstream, the industrial action taken by the company was financially motivated in the sense that, by restructuring its workforce, it hoped to reduce its expenses. This reduced expenditure would come at the cost of its employees (members of the applicant), who were to be replaced by subcontractors. In such a case, the Commission’s approach to the factor of ‘economic impact’ was twofold: firstly, Visionstream’s financial motivation did not preclude the Commission from having jurisdiction to make and, indeed, making the s 127 order; and secondly, the applicant’s financial hardship as a result of the respondent’s conduct was relevant.

It is of interest to note, given that most s 127 applications will be made by employers to prevent industrial action by unions and employees, that another case in which the financial impact of industrial action was a significant factor involved a s 127 application by a union to prevent the industrial action of an employer. The Full Bench of the Commission in Australasian Meat Industry Employees Union v G & K O’Connor Pty Ltd considered that as a consequence of the fact that ‘the relevant employees had been locked out for more than eight months ... there was evidence as to financial and other hardships being suffered by the appellant’s workforce.’[68]

3 Public Interest

Another factor, which is also clearly itself a component of other factors, is the consideration of ‘public interest’. In Coal & Allied the Full Bench considered that the particular industry involved in the dispute, and its national importance, were relevant factors in deciding that a s 127 order should be made:

Where ... [industrial action] occurs, as it has here, in an industry of national importance, a public interest is attracted in restraining future occurrence of such action. That is not to deny the reality and extent of the ... [applicant’s] private interest ... That relative private interest augments, but must also be balanced with, the public interest.[69]

This statement indicates that where the public interest is great enough, no other private interest will automatically override it. This would be a particularly important factor in those industries with international, national or statewide significance, such as public utilities or aviation. It would be very difficult for a party encouraging or organising industrial action which interferes with such a function to overcome any presumption in favour of the public interest, which would normally require a return to work. This accords with the Full Bench’s approach in Coal & Allied: that an application for a s 127 order requires the Commission to look to the regulation of industrial action generally, beyond the interests of the parties themselves.[70]

4 History of Industrial Action

One of the more recurrent and seemingly influential factors in the exercise of the s 127 discretion is the history of industrial action by the respondent. Coal & Allied provides the best example of the Commission’s thorough approach to assessing past industrial action by the respondent with a view to preventing it in the future. After analysing at great length the history of industrial action by the Construction, Forestry, Mining and Energy Union (‘CFMEU’) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union in particular, the Full Bench made absolutely no attempt to conceal its condemnation of their history of industrial action:

That characteristic of the past relationship between the parties, and the likelihood of it persisting in future infects the legitimate use of industrial action. In other words the characteristics of the industrial relationship are a basis from which an inference may be drawn that protected industrial action may be abused.[71]

The Full Bench considered that the taking of industrial action in the past, which the CFMEU’s representative did not deny was in breach of accepted disputes procedures, was a weighty factor in exercising its discretion to make a s 127 order.

In the recent case of CBI Constructors Pty Ltd v Australian Manufacturing Workers Union the Full Bench noted, with regard to assessing the jurisdiction of an order under s 127, that ‘a pattern of intermittent but continual industrial action’ could be relevant in deciding whether to exercise the discretion, although it was not a factor in that particular case.[72] In Freight Rail Corporation Harrison SDP considered that a history of industrial action was relevant to a jurisdictional finding, and that such findings were also relevant to exercising the s 127 discretion.[73]

5 The Parties’ Conduct

From a pragmatic perspective, all of the factors considered thus far relate to the parties’ conduct. However, in various cases the Commission has specifically considered the parties’ conduct, or misconduct, in relation to a particular incident as a relevant factor to the exercise of the s 127 discretion.

In Coal & Allied the Full Bench was especially scathing in its assessment of the union’s conduct in not abiding by recognised dispute resolution procedures and its defiance of Commission orders:

We do not consider that such industrial action [as that taken] can reasonably be defended. Industrial reaction to disciplinary measures is not defensible or legitimate when review and grievance procedures are now so readily available. Resort to industrial action in a manner that pays little or no regard to dispute procedure obligations, and in some instances to Commission directions and recommendations, is not reasonably justifiable. Such industrial action is symptomatic of a kind of industrial conflict that no longer commands a respectable place in Australian industrial relations, if it ever had one.[74]

This factor, together with the history of industrial action by the union, was determinative in the Full Bench’s finding that the industrial action was illegitimate and, consequently, that a s 127 order be made. Similarly, in refusing to grant a s 127 order in Coca-Cola Amatil (Aust) Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Williams SDP considered that ‘the employer may have been better advised to have followed the dispute resolution procedure in the [parties’ certified] Agreement.’[75]

Misconduct on the part of the applicant has also been considered an important factor in many other Commission decisions. In Patrick Stevedores No 1 Ltd v Maritime Union of Australia Ross VP considered that the conduct of the parties prior to and during the industrial action may be relevant and drew specific attention to ‘[a]ctions by the applicants ... which may have provoked or exacerbated the industrial action in question.’[76]

Such an approach is certainly reasonable, but the extent to which it was taken in Telstra Corporation Ltd v Community and Public Sector Union[77] strains any notion of reasonableness. In this case Telstra, the Community and Public Sector Union (‘CPSU’) and other unions were involved in negotiations for a certified agreement to replace an agreement that was soon to expire. The unions purported to serve a notice on Telstra relating to upcoming industrial action, in conformity with the legislative requirements for protected action. Telstra, in turn, wrote to its employees stating that it considered any industrial action to be unlawful and that it would take ‘all reasonable steps’ in that regard. The employees proceeded to take the industrial action indicated in the notice. Duncan DP held that the industrial action was not protected on two bases: first, the correct notice period had not been given and, second, the notice was void for lack of specificity.[78] As such, the action taken was not protected and was therefore open to a s 127 order provided all other requirements were met. Nevertheless, the order was not issued, as Duncan DP held that Telstra’s letter to its employees was insufficient warning of its decision to rely on its right to challenge the union’s notice. Duncan DP considered that ‘the behaviour of Telstra in not taking the point when it had the first opportunity ... and thus letting the CPSU assume that its notice was not challenged goes against Telstra when the Commission has to consider the issue of the order as a matter of discretion.’[79]

There is little doubt that the conduct of the parties should be relevant, but in this case the Deputy President used the s 127 discretion in a manner which effectively imposed further conditions on the granting of a s 127 order — that an application for an order be made immediately, or that a party expressly reserve the rights it may intend to assert at a later stage.[80] The WRA makes no reference to a s 127 application running out of time, nor does it impose a limitation period. If not making an application is seen as misconduct, such that the discretion will not be exercised, any opportunity of a negotiated settlement or agreement between the parties, before resorting to the Commission, would be fraught with danger for a potential applicant. As such, resort to the courts becomes a more favourable option.

6 Freedom of Expression

Two of the more innovative arguments made by respondents in relation to a s 127 application were encountered in Commissioner Laing.[81] The case involved various incidents of industrial action, with the union and its members protesting against proposed changes to industrial legislation in Western Australia. None of the action taken was in response to the conduct of the employer affected, Western Power. The applicant employer sought and was granted a s 127 order by Laing C, preventing further industrial action. The respondent union commenced proceedings in the High Court (remitted to the Federal Court), arguing that the s 127 order granted by Laing C was invalid on two bases: first, the order interfered with the union’s freedom of expression and, second, the order was subject to an implied constitutional limitation.[82]

French J of the Federal Court, in hearing the appeal, conceded that s 127 orders ‘may interfere unduly with basic liberties’ and that, regardless of any constitutional limitation that may also apply

[w]hen the conduct ... involves a significant element of communication about matters of public interest ... the value attached by democratic societies, by the common law and by developing norms of international law to freedom of expression should be respected and given weight in the exercise of the discretion to stop or prevent the conduct.[83]

His Honour went so far as to ‘mandate a conservative approach to the exercise of ... [the] discretion’, so that ‘the effect of a particular order on freedom of action and specifically on freedom of expression is a matter relevant to and properly to be taken into account in the exercise of the discretion.’[84] The ambit of this factor is undoubtedly wide and basically undefinable. Most, if not all, industrial action is motivated at least to some extent by an attempt to disseminate information to the public regarding the reasons for the action. As such, the freedom which should be accorded to such expression will be a relevant factor when considering the s 127 discretion.

7 A Constitutional Limitation?

The second limb of the union’s argument in Commissioner Laing was that the Commission’s power under s 127 was curbed by the implied freedom of communication with respect to public affairs and political discussion, developed particularly by the High Court in cases such as Australian Capital Television Pty Ltd v Commonwealth [No 2].[85] French J, in rejecting the respondent union’s submission, noted Mason CJ’s statement in Australian Capital Television that although such a constitutional limitation did apply, it was not absolute in the sense that it was subject to competing public interests.[86] French J noted that s 127 was directed towards controlling industrial action, not political or other communications and, as such, the following statement of Mason CJ in Australian Capital Television was on point: ‘A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted.’[87]

The manner in which French J rejected the union’s argument did not invalidate their argument absolutely. Although the industrial action in Commissioner Laing may have been more akin to a mode of communicating information than being information itself, any future action which is justifiably intrinsic to the information being expressed may well come within the limitation.

D Summary

The discussion above at the very least indicates that the Commission is not taking a narrow approach when exercising its discretion under s 127. Although many of the factors overlap, their combined effect is to analyse many matters relating to the industrial action in question. After a similar analysis is made of the factors considered by a court in granting injunctive relief for industrial action, the similarities or otherwise between those and the factors considered by the Commission will be examined.

III THE COMMON LAW COURTS — STOPPING OR PREVENTING INDUSTRIAL ACTION

The introduction of s 127 of the WRA did not oust the jurisdiction of the common law courts to provide injunctive relief for industrial action. As discussed below, the common law courts consider that the purpose and function of injunctive relief are different from that of a s 127 order. The case which comprehensively considered the role of common law courts in granting relief for industrial action in today’s industrial climate is National Workforce,[88] which was determined by the Victorian Court of Appeal. The plaintiff, the Labour Hire Contractors Group, was a labour supply business negotiating new certified agreements with various unions, during which time the three unions involved took strike action. The plaintiff sought damages and interlocutory injunctions against the unions. At first instance Harper J of the Supreme Court of Victoria granted interlocutory injunctions against two of the unions, but not against the third. The plaintiff appealed the decision not to grant injunctive relief against the third union, the Australian Manufacturing Workers’ Union (‘AMWU’).

A A Court’s Jurisdiction to Stop or Prevent Industrial Action

The courts have an inherent jurisdiction to grant injunctive relief.[89] Section 166A of the WRA imposes a barrier to the bringing of tortious claims against those involved in industrial action. This provision requires that a certificate must be issued by the Commission prior to bringing such a claim, and that the certificate must state certain matters relating to the dispute. The courts have accepted that the clear wording of s 166A only imposes a barrier to ‘an action in tort’, and is not relevant to the granting of injunctive relief.[90]

B Remedies Available from a Court

A plaintiff (usually an employer) has a number of options when bringing an action for damages in relation to loss occasioned by industrial action. Commonly, these include actions for interference with contractual relations, intimidation, conspiracy and unlawful interference with trade or business.

Such actions can often be drawn out over a long period of time. More important for a plaintiff employer, whose primary concern is loss of production or business as a result of industrial action, is the resumption of work for which the most useful remedy may be an injunction, particularly at an interlocutory stage. The relevant form of injunction is prohibitory, preventing the commencement or continuation of the industrial action. The practical effect of an injunction being granted is often that, upon the resumption of work, only the highest losses will be sought to be compensated, with the parties more concerned about reaching agreement on whatever differences may exist to remove the possibility of further industrial action.[91] The granting of an injunction, therefore, can be a very serious step in the progress of an industrial dispute as it may effectively act as a determination of that dispute. The breadth of action against which an injunction can be granted is therefore also very important, and this is discussed below.[92]

Much like a s 127 order, the granting of an injunction is a discretionary remedy. The discretion requires the court to look to the ‘balance of convenience’ in applying the remedy and, when considering whether to grant an interlocutory injunction, requires the court also to determine that there is a serious question to be tried.[93] In the exercise of the court’s discretion, particularly when assessing the balance of convenience, the court will weigh up the ‘risks and benefits’[94] of granting injunctive relief, a task that requires the court to look both to the past conduct of the parties in question and also to their anticipated conduct.

C The Courts and Protected Action

The WRA expressly provides in s 170MT(2) that no action lies under the written or unwritten laws of any state or territory in respect of protected industrial action, except in certain defined circumstances. This provision applies to the granting of an injunction, being an ‘unwritten law’ of a common law court. The immunity is lost where the industrial action has or is likely to involve personal injury, wilful or reckless destruction or damage to property, or the unlawful taking or keeping of property.[95] The result of s 170MT in relation to anticipated action taken in common law courts is that where injunctions are sought to stop or prevent industrial action, or claims such as interference with contractual relations are taken to recover financial losses, the immunity provisions protect such industrial action from being impugned.

In National Workforce the Court of Appeal held that the actions of the respondent union, the AMWU, were not protected. This was because the AMWU had acted ‘in concert’ with two other unions who were not ‘protected persons’ under s 170MM. They had not given notice of a bargaining period under s 170MI and were therefore not negotiating parties entitled to take protected action under s 170MT. In both the Court of Appeal[96] and at first instance[97] this finding was absolute, in the sense that having come to this conclusion it was not simply another factor to be weighed up in the balance of convenience. This is discussed further below, where the Court of Appeal’s approach to protected action is contrasted with that of the Commission.

D Balance of Convenience

On hearing an application for an injunction the court must consider the balance of convenience. As noted above, this requires the court to weigh up the risks and benefits[98] of granting injunctive relief. This may involve exploring the possibility of a negotiated settlement[99] or, where an interlocutory injunction is sought, it may also require the court to consider whether irreparable harm would be done to the party restrained if, on the ultimate hearing, it were vindicated.[100] Various court decisions since the introduction of the WRA have made this assessment in relation to industrial action, and the following factors have been considered by courts to be relevant.

1 Economic Damage Caused by the Industrial Action

In National Workforce the single factor considered by the Court of Appeal to be determinative in deciding to grant an injunction was the economic damage caused by the industrial action. The Court found that the evidence indicated that ‘substantial loss and damage, either actual or threatened, was — and is — being occasioned to the appellants by these strikes ... [t]heir rights are being severely infringed, if the strike cannot be justified.’[101] The Court found no evidence of justification, and considered that loss of profits, unfulfilled contracts and loss of clients all justified the granting of injunctive relief.

In Shell Refining (Australia) Pty Ltd v Australian Workers’ Union[102] Beach J considered the financial implications of industrial action for the plaintiffs. In a wide-ranging judgment which considered many of the factors relevant to the granting of an injunction to prevent industrial action, his Honour was generally scathing of union conduct, both generally and of the particular respondent unions in this case. His Honour was prepared to say that ‘as to the balance of convenience ... it is all one way. The plaintiffs have suffered substantial losses to date by reason of the strike action, and will suffer more significant losses if the strike action were to continue’ and, further, that ‘to grant the interlocutory relief sought can cause no financial loss or damage to the defendants.’[103] Having made such a finding, his Honour proceeded to grant an injunction preventing the industrial action. Beach J’s reasoning can be contrasted with that of Holmes C in Visionstream. In the latter case Holmes C’s approach recognised the reality of the situation, that the respondent’s conduct would result in financial loss to the applicant union. Beach J in Shell Refining, however, failed to recognise, or chose to disregard, that in granting the injunction the respondent unions’ bargaining power was significantly reduced. Consequently, although the financial impact on the unions may not have been immediate, their ability to negotiate with the employer in the future would be similarly impaired.

2 Bargaining Power

In reasoning that looked at the industrial reality of the action at hand, the Court of Appeal in National Workforce conceded that the balance of convenience was not solely to be determined by reference to the relative financial loss occasioned to the parties and that, as a result, the balance was not ‘all one way’. This was because:

Obviously, if the injunctions go, what is presumably an important element in the present bargaining process between employer and employee will be lost ... to the unions and their members, and it cannot be said that that loss would occasion them no damage.[104]

Despite the fact that the plaintiff’s financial loss was determined to have outweighed the damage done to the union’s bargaining power, it was at the very least refreshing to see the Court look to the reality of the situation, and in so doing, consider factors incapable of being quantified as ‘financial loss’.

3 Conduct of the Parties

The conduct of the parties has assumed significance in many industrial action matters. In Shell Refining Beach J considered it relevant that the plaintiffs had ‘done nothing whatsoever to cause the dispute’,[105] and noted the respondent union’s past conduct as an important factor in the decision to grant the injunction.[106]

In Citipower Pty v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Chernov J considered that the defendant union’s conduct, in not placing any material before the court justifying the industrial action taken, was also an element to be considered in weighing up the balance of convenience.[107] In a similar decision of the New South Wales Supreme Court, Dunford J in Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union considered that the earlier granting of an ex parte injunction should not have been obtained ‘on account of the failure [of the plaintiff] to make relevant disclosure.’[108] The emphasis on the conduct of the parties, even at the stage of the hearing, indicates the courts’ willingness to consider as many and varied a number of factors as possible.

4 Freedom of Communication

Another example of a more expansive view of the issues to be considered in granting discretionary relief is the apparent acknowledgment by Chernov J in Citipower of freedom of communication as a factor weighing against the granting of an injunction. Agreeing with the submissions of the defendant union, the Court stated:

Mr. Borenstein [for the defendant] pointed out, I think correctly, that there has been a balance struck between the right of the union to make its views known to the world ... and more relevantly to people that are more concerned with the plaintiff on the one hand and the ability of the plaintiff freely and safely to conduct its business.[109]

This passage shows that Chernov J was prepared to frame the defendant’s argument in terms of a ‘right of the union’, undoubtedly giving it considerable weight in assessing the balance of convenience and requiring significant evidence to the contrary to outweigh it.

5 Public Interest and Safety

An overriding consideration in granting injunctive relief has often been the public interest, as well as public safety issues. In Citipower the plaintiff’s function as a public utility — distributing and supplying electricity in and around Melbourne — meant that ‘the necessity for the plaintiff to be able to conduct its business and the provision of the services to the community in absolute safety’,[110] tipped the balance of convenience in the plaintiff’s favour. In Shell Refining Beach J noted that if the industrial action were to continue, ‘eventually there is bound to be a confrontation likely to involve personal injury to either picketers or persons attempting to enter the ... facility or both.’[111]

E Summary

Much like the Commission, the common law courts have taken an expansive approach to the elements considered relevant to the exercise of their power to stop or prevent industrial action. The issue of which, if either, is more expansive, will be considered next. Also, the question of whether the functions and processes of the Commission and courts are the same is discussed.

IV THE COMMISSION AND THE COURTS — TRULY ALTERNATIVE AVENUES?

This Part questions whether, in effect, the decisions of the Commission and common law courts are consistent, examining these decisions from the following perspectives:

• their functions and the effect of their decisions;
• the reach of their remedies, particularly in relation to picketing;
• their stance on protected action; and
• the factors considered when exercising their discretions.

A Functions and Effect of Decisions

The functions and purposes of the Commission and common law courts influence both the decisions they make on industrial action and the effect of their decisions. The courts are vested with the power to stop industrial action and order damages to compensate any loss occasioned by the action. Employers have a wide range of sanctions which they can visit upon an employee or union engaging in industrial action, and there are few legitimate defences that the courts have been prepared to recognise. On the other hand, the objects of the WRA impose on the Commission an obligation under s 3 to ‘prevent and settle industrial disputes as far as possible by conciliation and, where appropriate ... by arbitration’.[112] As such, the Commission’s role is as much to find a conciliated or arbitrated settlement between the parties as it is to determine the issue between them. In that light, the expansive discretion afforded by s 127 is crucial to such a function.

1 The Effect of a s 127 Order and Court Injunction

The effect of a s 127 order is obviously different from the effect of an injunction granted by a common law court. An order of the Commission under s 127 is not an injunction. In Coal & Allied the Full Bench indicated that the exercise of s 127 was a ‘serious step’ in that it resulted in the industrial action in question being both illegitimate, such that the order should be made, and also unlawful, in that any continuation or commencement of the impugned action was in contravention of the WRA.[113] As a result, any contravention of a s 127 order made by the Commission is unlawful, and only then can an injunction be sought from the Federal Court to prevent continuation of the industrial action under s 127(6). One problem for an applicant is that this process takes time, as noted by the Victorian Court of Appeal in National Workforce.[114]

Another difficulty is that the Federal Court has not been prepared to issue injunctions to prevent industrial action in contravention of s 127 in all cases, as the granting of the injunction is discretionary. The Federal Court has declined to grant injunctions mainly on the ground that some s 127 orders lacked specificity,[115] but has also indicated that the factors upon which the Commission relied in originally issuing the s 127 order will be relevant.[116] The result for applicants availing themselves of the s 127 procedure is that even if they are successful before the Commission, they are then required to duplicate their argument in the Federal Court before injunctive relief is granted, with the added possibility that such relief may be withheld.

Where action is taken in the common law courts, however, the same time-consuming duplication of hearings does not exist. Even where the injunction is granted at an interlocutory stage, any breach of an injunction is attended by the consequences normally visited upon the breach of a court order — which is not the case where a s 127 order is contravened. As a result, the potential advantages of seeking to prevent industrial action in the common law courts are the availability of injunctions on short notice and their direct enforcement upon breach. Employers were quick to point out these benefits following the National Workforce decision.[117]

2 The Role of the Commission and the Common Law Courts

A position often argued by respondents in industrial matters before the common law courts is that it is ‘generally desirable for industrial disputes to be dealt with by negotiation or by specialist tribunals rather than by the common law courts.’[118] In Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia Murphy J conceded that this was generally the correct principle, except in the case where a plaintiff had exhausted all possibilities within these specialist tribunals.[119] This principle was accepted by Chernov J in Citipower.[120]

There is no longer a presumption that this is the case.[121] This is very much a consequence of both the Commission and the common law courts recognising that their roles within the industrial relations system are different. In AG Coombs the applicant union argued that because injunctive relief was available to the respondent under another section of the WRA, it would be inappropriate for the Commission to issue a s 127 order. The Full Bench rejected this approach, stating that ‘the mere availability of injunctive relief ... does not preclude the Commission exercising a discretion to make an order under s 127 of the Act if an appropriate case is made out.’[122]

This position is directly consistent with that of the Victorian Court of Appeal in National Workforce. The issue there was whether the existence of s 127 as an alternative remedy to the Court’s injunction was a relevant factor to be considered when assessing the balance of convenience. The Court of Appeal recognised that, although the existence of an alternative remedy can sometimes be relevant to the exercise of a discretion, it was not relevant here.[123] The Court cited various reasons for this approach. First, it considered that the process required by the WRA, with a s 127 order being made by the Commission but only then being enforceable by the Federal Court upon contravention, could cause some delay.[124] As such, the Court may be in a better position to provide a more timely response. Second, the Court cited the WRA itself as granting a party truly alternative avenues of recourse, evidenced by the existence of s 166A. The Court expressly distinguished cases decided before the enactment of the relevant provisions in the WRA ‘on the ground that it now is that industrial legislation itself thrusts the parties towards the common law courts.’[125] This specific issue is considered in the following section. Third, the Court acknowledged that the facts before it may not be the same as those before the Commission in a s 127 application. The Court considered Lockhart J’s decision in Industrial Enterprises Pty Ltd v Federated Storemen and Packers Union of Australia,[126] a case on the Trade Practices Act 1974 (Cth), as the most helpful. In that case Lockhart J said:

One does not know whether the facts before this Court which may come before the Commissioner are the same or substantially the same, whether the issues have anything in common, whether the parties are or will be the same, when the Commissioner will hear the matter or what the result of the hearing will be ... [I]t is a fundamental misconception of the [Trade Practices Act] to assume that merely because there is a dispute to be heard by the ... Commission which may (and for that matter, may not) involve substantially the same facts, this Court would not exercise its powers under the Act.[127]

The Victorian Court of Appeal came to the fundamental conclusion that the jurisdictions and functions of the Court and the Commission are altogether different — on the one hand the function of the commission is to ‘resolv[e] industrial disputation’, while on the other, the ‘jurisdiction and function of this court [is to] ... vindicat[e] private rights.’[128] Ultimately, the Court considered that there was no reason why the plaintiff should be ‘prejudiced in their attempt at vindicating their rights in this court by the continued existence of contemporaneous power in the commission ... in substance, the Act itself provides that they may.’[129] In Herald and Weekly Times Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Beach J was prepared to go as far as to say that where the industrial action was not protected:

If members of a union engage in activity which has the potential to cause significant damage to a company’s business and reputation ... then it is as much the responsibility of this court to take action ... as it is that of the Australian Industrial Relations Commission.[130]

The Court found that in the case of the WRA, the statute cannot be seen to override the Court’s powers at common law, as the WRA expressly recognised the rights of the parties to go to the law where the requirements in s 166A are met. As this was an important element in the Court’s finding, it is now considered in more detail.

3 The Significance of s 166A

The Court in National Workforce considered that the WRA itself contemplated a party’s recourse to the common law courts, mainly through the existence of s 166A. The Court stated:

[T]he express contemplation by s 166A of action in tort should be understood for what it is; that at the point allowed a party may go to law without further impediment. That is not to say that there is then no longer any role for the commission ... [I]f an aggrieved employer seeks to vindicate his common law rights, the Act no longer puts a barrier in his way ... [In] that ... context s 166A should be regarded as authorising actions in tort once the effect of its prohibition has been spent.[131]

The importance of s 166A is apparent. As discussed above, however, an industrial dispute is often more effectively retarded, from an employer’s perspective, through the granting of an injunction than drawn out proceedings where tortious claims are made. In that context the decision of Beach J in the Victorian Supreme Court in Patrick Stevedores No 1 Pty Ltd v Maritime Union of Australia[132] is significant. His Honour was of the opinion that the requirements of s 166A did not have to be fulfilled where an applicant applies solely for injunctive relief. This was because an

application for injunctive relief is not an action in tort under the law of the State of Victoria. It is an application seeking that the Court exercise its equitable jurisdiction to prevent the union ... committing the tort of intentionally interfering with the performance by the members of the union of their contracts.[133]

His Honour confirmed this approach in Tenix Defence Systems Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.[134] The effect will be that s 166A is irrelevant not only where permanent injunctions are sought, but also where an interlocutory injunction is sought at the opening stages of proceedings for actions in tort. As such, s 166A has no bearing upon the granting of injunctive relief beyond indicating the parties’ rights to turn to the common law courts as an alternative to the Commission.

(a) The Anti-Suit Injunction

The decisions of Beach J in Patrick Stevedores and Tenix may be seen as reducing the importance or relevance of s 166A. This may be the case in relation to situations where plaintiffs are seeking injunctions only, although where a plaintiff’s intention is to recover losses incurred as a result of industrial action, the Federal Court has imposed an additional potential obstacle — ‘the anti-suit injunction’.

In Australian Workers’ Union v Yallourn Energy Pty Ltd[135] and Construction, Forestry, Mining and Energy Union v Master Builders’ Association of Victoria [No 1][136] the Federal Court was asked by the applicant unions in each case to consider applications for interlocutory relief in the form of ‘anti-suit injunctions’ against the respondent employers who had been issued s 166A certificates. The potential effect of granting the injunctions sought was that the respondents would be prevented from pursuing the proceedings authorised by the s 166A certificates until the time or conditions imposed by the injunctions had elapsed.

In both cases the unions sought injunctions restraining the respondents on the grounds that the s 166A certificates were: (a) in respect of protected action, and therefore prohibited by s 170MT; and (b) in breach of s 170NC, in that they represented an attempt to coerce the union into making a certified agreement.

In Yallourn Energy Merkel J considered that simply because the applicant union’s industrial action was, at least prima facie, protected action, it did not automatically follow that the applicant was entitled to an injunction.[137] Instead, his Honour considered that the relevant question was as to the nature of s 170MT, for only if it were a ‘substantive [provision] ... in that [it provides] a defence to an action that may properly be brought’[138] could its breach provide the basis for the anti-suit injunction. Upon examining the terms of s 170MT, his Honour considered that it was

consistent with the terms of s 170MT(2), and its purpose, to construe it as providing that ... no action lies in respect of protected action falling within the terms of the section as the cause of action said to found the action has been extinguished. The legal immunity granted in respect of protected action is granted for the purpose, inter alia, of ensuring that such action is not fettered by the threat, or the commencement, of legal proceedings ... [T]hus, it is consistent with the terms of the section and its purpose to construe it as a substantive provision operating as a bar to action rather than only a defence that might be waived ... [although] the extinguishment of the cause of action does not prevent the court from exercising jurisdiction in a matter concerning protected action in order to determine whether the cause of action is extinguished.[139]

However, in the present case Merkel J was not required to exercise his jurisdiction to determine whether the industrial action was protected. His Honour was satisfied on a prima facie basis that the action was protected, so that ‘an anti-suit injunction can, properly, be sought in respect of protected action in a suit for a declaration of non-liability.’[140]

No doubt aware of Merkel J’s judgment in Yallourn Energy, the respondent in Master Builders sought a s 166A certificate from the Commission in respect of industrial action ‘[b]ut not including ... any protected action’.[141] The rationale for seeking a more limited s 166A certificate was that, if an anti-suit injunction were later sought, the applicant could not claim relief on the basis that the s 166A certificate involved conduct which would contravene s 170MT. The respondent contended that Goldberg J need not consider the nature of protected action as a basis for granting the anti-suit injunction. Given the more limited basis of the s 166A certificate in this case, Goldberg J considered it inappropriate to infer that the respondent would commence proceedings in respect of protected action. As such, his Honour did not consider that there was a ‘serious question to be tried as to whether any proceeding brought in reliance upon the s 166A certificate will be in respect of protected action.’[142]

On that basis it would seem that, provided the applicant for a s 166A certificate gives an undertaking to the Court that it does not intend to pursue action in tort in relation to protected action, the Federal Court will not grant an anti-suit injunction based on s 170MT.

In both Yallourn Energy and Master Builders the applicant unions also contended that the respondent companies’ actions in seeking s 166A certificates breached s 170NC of the WRA. Section 170NC(1)(a) provides that a person must not ‘take or threaten to take any industrial action or other action’ with the intent to coerce a person to agree or, as in the present case, not agree to make a certified agreement.

In Yallourn Energy Merkel J considered that there was a ‘degree of unreality’[143] in the respondent’s submission that the proceedings contemplated by the s 166A certificate were ‘extraneous to ... and unconnected’[144] with the respondent’s bargaining position in relation to a certified agreement being negotiated at that time. His Honour stated that the reality was that ‘each step appears to be integrally related to each party’s position in the bargaining process. ... [T]he proposed proceeding is another step to assist the position of Yallourn Energy in the bargaining process.’[145] His Honour based his judgment upon the following considerations:

• the Court’s stance on protected action;
• the proceedings were likely to have an intimidatory or coercive effect on the applicant;
• the effect was likely to assist the respondent’s bargaining position;
• the losses claimed by the respondent would be substantial, but the respondent had not enquired as to the applicant’s capacity to satisfy any judgment;
• the s 166A certificate was only sought against the applicant union, not the employee members of the union;
• notwithstanding that the employees’ industrial action could be classed as protected action, the respondent could have commenced a proceeding against that protected action, but did not do so; and,
• if the respondent’s objective was only to avoid further losses, it would have sought a s 127 order.[146]

On this basis Merkel J stated that ‘the commencement of the proceeding ... has the propensity to undermine the protection intended by the Act not to fetter the bargaining process by such litigation in respect of protected action.’[147]

Despite distinguishing the facts in Master Builders from those in Yallourn Energy, particularly in relation to protected action, Goldberg J’s discussion of the issues concerning s 170NC were consistent with those of Merkel J in Yallourn Energy. Goldberg J held that ‘the conduct referred to in the [s 166A] notice was but one part of a continuous pattern of conduct during the bargaining period’,[148] and that, had the respondent’s sole intention been to stop or prevent industrial action, it would have applied to the Commission pursuant to s 127. Ultimately, Goldberg J was of the opinion that ‘save for the application for, and the receipt of, the s 166A certificate there is no evidence which supports the inference of an intent to coerce.’[149] The result of this finding was that, although his Honour considered that the case made out was ‘weak’, there was a serious question to be tried as to whether the respondent had breached s 170NC.

The judgments in Yallourn Energy and Master Builders have, at least on their face, the potential to undermine seriously the ability of parties subjected to unlawful industrial action to assert their common law rights. In these cases the Federal Court did not ultimately grant the injunctions sought, on the basis that the respective respondents undertook not to commence the proceedings contemplated by the s 166A certificates. Had the undertakings not been given, however, the court in both cases was prepared to grant the anti-suit injunctions sought.[150] It must be remembered, however, that the issue of anti-suit injunctions has so far only arisen in relation to the prevention of proceedings in tort. In Yallourn Energy Merkel J’s orders prevented the respondent from commencing ‘any action in tort’, while in Master Builders Goldberg J’s orders related only to ‘any proceeding in tort’. As noted above, industrial action is usually better curtailed through the seeking of an injunction as opposed to the commencement of proceedings in tort to recover damages. In that context anti-suit injunctions are yet to be tested, although the irrelevance of a s 166A certificate (according to the Supreme Court of Victoria),[151] where an applicant seeks an injunction to stop or prevent industrial action, may remove an important basis upon which the anti-suit injunction is determined.

4 Summary

The Commission and the courts have recognised that each performs a distinct, but interrelated function within the Australian industrial relations system. The granting of s 127 orders and injunctions are not mutually exclusive, and in various circumstances, such as where relief is sought from the courts or anti-suit injunctions are sought, the WRA and the common law courts anticipate the interaction of the forums. Looking at their own perceptions of their roles within the industrial relations system, it is clear that the Commission and the common law courts have a very different function and purpose. There is a risk, however, that plaintiff employers will shun the traditional avenues of industrial relations dispute resolution. This is because, apart from the possibility that employees may seek anti-suit injunctions, there are fewer obstacles to the use of injunctions in industrial disputes. Such a result strongly favours employers.[152]

B The Ambit of Their Remedies — Picketing

This section looks at a specific issue which affects the utility of the remedies provided by the Commission and the common law courts — that is, the activities orders or injunctions that can be made. Earlier, it was noted that s 127 orders can only apply to ‘industrial action’ as defined by s 4(1) of the WRA.[153] Common law remedies encounter no similar restrictions; however, not all forms of industrial action will be impugned by the common law. One particular type of industrial action which has often posed problems for both the Commission and the common law courts is picketing.[154]

The Commission has had difficulty assessing the nature of picketing, with the Full Bench in Coal and Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union divided as to whether picketing constitutes industrial action.[155] The leading case discussing the interpretation of ‘industrial action’, as defined in s 4(1), in relation to picketing is the Federal Court judgment in Davids Distribution Pty Ltd v National Union of Workers.[156] The Federal Court began by noting that the determination of ‘whether picketing falls within the statutory definition of “industrial action” ... is not free from difficulty.’[157] As a result, the Court in Davids Distribution sought to clarify the law in this area. The issue of the nature of picketing arose in the context of a claim by the respondent union, the National Union of Workers, that its picketing constituted protected action. As noted above, certain action can only be designated ‘protected action’ within the definition of ‘industrial action’ under s 4(1) of the WRA. The appellant, Davids Distribution, contended that, had picketing been intended to be within the definition of ‘industrial action’ in s 4(1), this would have been expressly stated. It is interesting to note that the appellant was not seeking a s 127 order in this case, and so was not concerned with the consequence that a s 127 order would not be available (as it can only be directed towards ‘industrial action’) if its argument were successful.

One difficulty in assessing the nature of picketing is the breadth of conduct which the term ‘picketing’ may encompass. In this regard, the Federal Court stated:

‘Picketing’ may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress.[158]

Given the varying conduct which constitutes picketing, the Federal Court went on to categorise the types of picketing and their effect:

Activity that merely involves communication of information to persons entering or leaving a site is not ‘industrial action’, within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a ‘ban, limitation or restriction on the performance of work’ [under s 4(1)] by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work.[159]

Although the Federal Court conceded that the latter type of picketing may ‘literally’ come within paragraph (c) of the definition of ‘industrial action’ in s 4(1), it believed that the definition was intended to be directed only to the limitation of work by those imposing the ban, not those whose work is in fact affected.[160] As such, the definition of ‘industrial action’ did not encompass picketing in this way.

The Federal Court, relying on the presumption that in the interpretation of a statute there should be no intention to interfere with common law rights unless the words of the statute expressly require that result,[161] was not prepared to confer protected action status on industrial action which at common law would constitute tortious conduct. The Federal Court held that picketing which was not unlawful at common law would not come within the literal definition of ‘industrial action’ under s 4(1) and, therefore, would have no need for the protected action provisions, because s 127 orders or common law remedies would not impugn it anyway.[162] However, the Federal Court went on to say that the type of picketing which may require the protected action provisions, being picketing which was unlawful at common law and which may also come within the definition of ‘industrial action’ in s 4(1), would not be protected because to do so would

authorise interference with rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right [under s 127] to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption [stated above] ... we do not think the definition [of ‘industrial action’] should be interpreted in that way.[163]

The Federal Court could not discern ‘a clear indication’ that Parliament had intended to abrogate these common law rights, and was not prepared to confer protected action status on this type of picketing. As such, not only do the protected action provisions of the WRA not apply to picketing, but neither does s 127 unless the picketing also constitutes some other form of ‘industrial action’ under s 4(1). The Federal Court did, however, indicate that picketing would not be an irrelevant consideration when the Commission was deciding whether or not to grant a s 127 order in relation to industrial action that did come within the definition in s 4(1).[164] Accordingly, the presence of picketing may be another factor for the Commission to consider in its exercise of discretion under s 127.

Another result of the Federal Court’s decision in Davids Distribution is that the common law approach to picketing assumes paramount importance. This is because the only avenue open to a party wishing to restrain unlawful picketing will be through the common law courts, the Federal Court having denied relief under the WRA in Davids Distribution. Generally, the common law does not regard picketing as unlawful per se, unless it goes beyond the distribution of information and communication of grievances to include the commission of ‘industrial torts’ — such as obstruction, intimidation and interference with contractual relations.[165] In such cases, a court may order interlocutory injunctive relief preceding the hearing of the underlying claims, and as noted above, this may often end the matter in the applicant’s favour.

A further basis upon which an injunction may be granted is where the picketing involves a nuisance by ‘besetting’. In the context of picketing that at times may become volatile, ample proof of ‘besetting’ may be available. In Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia Murphy J decided that the picketing which occurred

[c]annot be considered to be a lawful form of picketing, but amount[s] to a nuisance involving ... obstruction, harassment and besetting ... the latter meaning, in this context, to set about or surround with hostile intent. Besetting is appropriately a term applied to the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their own safety or the safety of their property.[166]

Consequently, any type of picketing which involves physically obstructing those entering or exiting premises or preventing such entry or exit by use of threats of harm, verbally or by conduct, can be restrained by the grant of an injunction. In this respect the ambit of the common law injunction not only surpasses the remedy provided by s 127 of the WRA, but in fact provides the only civil recourse.

C Protected Action

As noted above, the Commission and the Victorian Court of Appeal in National Workforce have treated the ‘protected action’ provisions of the WRA differently. The approach of the Full Bench in Coal & Allied showed that a finding that action is protected does not automatically mean that a s 127 order will not be made. Instead, it is simply a factor that goes towards the Commission’s discretion in making the order. Despite this, in reality it would be rare (and following appeal, possibly ineffective) for the Commission to issue a s 127 order against industrial action that is protected.

The Court of Appeal in National Workforce acknowledged the Full Bench’s recognition that there was more than one category of unprotected action, but stated that it was enough that the action was not protected for the immunity to be lost.[167] The Court indicated that where a party takes action in accordance with the protected action provisions of the WRA, an immunity from civil suit automatically applies, so that an action can only be brought where the dictates of the WRA have not been followed.

The curious result is that s 170MT, which equally provides that protected action is immune from both civil suit and s 127 orders, will operate differently (if only slightly in effect) depending upon whether the Commission or a common law court is making the assessment. The effect may be that in cases where the status of action as protected is in issue, a potential claimant may press their claim in the Commission with the knowledge that any such finding that the industrial action in question is protected will not guarantee that the claim fails, as would be the result on such a finding by the Victorian Court of Appeal.

D The Decision-Making Process

As the above comparisons between the Commission and the common law courts indicate, each has its own function, the performance of which is dictated by its powers and purposes. Although the effect of their decisions is decidedly different, the manner in which each is reached can be seen to be broadly analogous. The first step for each is to assume jurisdiction — for the Commission, the jurisdictional requirements in s 127(1) and (2) must be met; for the common law courts where injunctive relief is sought, the normal questions of standing apply. The second step for each is to consider the nature of the industrial action, if it is in issue — if the action is protected, it is simply another element for the Commission to consider when exercising its discretion. According to the Victorian Court of Appeal, however, a finding that the action is protected will preclude the common law courts from granting injunctive relief. Third, the exercise of discretionary powers is considered — the Commission considers factors going towards the classification of unprotected industrial action as legitimate or illegitimate; the common law courts consider much the same factors in assessing the balance of convenience as to whether an injunction should be granted.

Not only are the similarities in the processes of the Commission and common law courts apparent from this step-by-step analysis, they are equally evident in their approach to the final step — the factors considered. In fact, many of the factors noted earlier are shared between the two forums: both consider economic impact, conduct of the parties, the public interest and freedom of communication. Ultimately, it may be that the Commission does consider a slightly broader range of factors.

The Commission has itself conceded that much of its discretionary reasoning under s 127 is informed by traditional common law concepts in relation to industrial action. In Coal & Allied the Full Bench considered that ‘[t]he main features of the common law as to industrial action ... is not much altered by recent statutory changes,’ and that ‘recent changes [introducing s 127 of the WRA] in the rationale of the statutory schemes of industrial regulation are not associated with any major change to the fundamental unlawfulness of industrial action in Australia.’[168] In fact, the Full Bench went so far as to interpret s 127 ‘[v]iewed in perspective with the provisions of the Act generally and the common law.’[169] The use of the common law to assist in decision-making in relation to s 127 has not been limited to the Full Bench’s espousal of principle, however, and traditional concepts used in the determination of applications for injunctions have also made their way into s 127 applications. In Patrick Stevedores No 1 Ltd v Maritime Union of Australia Ross VP used the fact that the industrial action had not been ‘reasonable and proportionate’[170] as a basis for deciding to issue a s 127 order; a test sounding very similar to ‘balance of convenience’ and the equitable maxim of ‘equity is equality’, both of which are considered in the granting of an injunction. Another equitable maxim argued by the respondent union, though unsuccessfully in this case, was that the applicant was not entitled to a s 127 order because of the absence of ‘clean hands’.[171]

This analysis indicates that not only will the same factors be relevant in the exercise of discretion by both the Commission and the common law courts, but that the reasoning and processes of both are similar. The result is that the merits of claims brought before the Commission or common law courts should not affect either outcome. Consideration must then be given to other factors, such as the jurisdiction or powers of the respective forums, in deciding which is the more appropriate for a particular claim. These factors may include the jurisdictional requirements of the forums, the cost of applying in each forum, as well as any intention an applicant may also have to seek damages for the relevant conduct, in which case the only option is the courts. A further factor which may assist in the applicant’s election, depending upon its acceptance by the forums in the future, is the recognition of Australia’s international obligations. This issue is discussed in the next section.

V A ‘RIGHT TO STRIKE’ ENSHRINED IN INTERNATIONAL CONVENTIONS?

A ‘right to strike’ granted by Australia’s obligations under international conventions has been argued in various industrial action cases, including Coal & Allied (before the Commission) and National Workforce (in the Victorian Court of Appeal). In the former, such a right was not determinative; in the latter, any such right was flatly denied. Since then, however, the High Court has dramatically increased the significance of such a right, particularly in relation to decisions made by tribunals or administrative decision-makers. Australia has obligations under various International Labour Organisation conventions that it has ratified, as well as the International Covenant on Economic, Social and Cultural Rights,[172] article 8(d) of which expresses a ‘right to strike’.

A The Commission — Coal & Allied

The issue of a right to strike granted by international convention was not pursued to any large extent in Coal & Allied. Despite this, the Full Bench indicated that the existence of such a right may have been influential in the drafting of the WRA. The Full Bench stated that the reason why a discretion was included in the s 127 process may have been ‘[t]he international recognition of rights to take some forms of industrial action not covered by the immunity conferred by s 170MT.’[173] As such, the Full Bench displayed a preparedness to consider Australia’s international obligations as relevant, and may invite further arguments on this ground following the High Court’s reasoning.[174]

B The Victorian Court of Appeal — National Workforce

The Victorian Court of Appeal in National Workforce disagreed with the opinion of the judge at first instance, Harper J, that Australia’s international obligations were a relevant consideration in granting an injunction. Harper J conceded that the right to strike was ‘hedged about with qualifications’, but noted nevertheless that the right to strike was ‘recognised in international law ... [and] recognised as a fundamental element of industrial relations in Australia.’[175]

The Court of Appeal rejected this approach. They agreed that the right to strike was ‘generally recognised in the civilised world’, however, such a right could only exist in Australia in so far as it was consistent with the WRA.[176] That there may be a right outside the ambit of the WRA was irrelevant. The Court considered that a defence by the respondent of ‘what might have been, had the Act not intervened’[177] was unconvincing. Consequently, the Court was not prepared to expand the influence of Australia’s international obligations beyond that expressly provided for by the WRA.

C The High Court

An argument curiously missing from that of the respondents in both Coal & Allied and National Workforce was that Australia’s international obligations should be recognised consistently with the High Court’s decision in Minister of State for Immigration and Ethnic Affairs v Teoh.[178]

The issue in Teoh did not relate to an industrial relations matter; however, the reasoning is relevant to all administrative decision-making, including matters heard by the Commission. Although the utility of the reasoning in common law courts may be reduced, the decision could still respectably be argued in relation to the discretionary granting of injunctive relief.

In Teoh the appellant, a Malaysian citizen, applied for permanent resident status in Australia. Whilst his application was pending, he was convicted on drug offences and thereafter received notice that his application had been refused on the basis that he was not of good character. The Immigration Review Panel decided that even though ‘Mrs Teoh and ... [her seven children] are facing a very bleak and difficult future ... if resident status is not granted ... the applicant has committed a very serious crime and failed to meet the character requirements.’ On appeal, firstly to the Federal Court and then the High Court, Mr Teoh submitted that in making its decision, the Panel failed to have regard to Australia’s international obligations relating to children’s welfare and that, as a result, the decision to deny permanent residency should be reviewed.

The Court considered the importance of these international obligations. Despite acknowledging that such conventions did not have the force of law in Australia, Mason CJ and Deane J dramatically increased the importance of conventions to which Australia is a signatory, by recognising that they gave rise to a ‘legitimate expectation’ that these would be taken into account by the decision-maker:

The fact that the provisions of the Convention do not form part of our law is a less than compelling reason [for denying that a legitimate expectation arises] — legitimate expectations are not equated to rules or principles of law. ... [R]atificaton by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. ... [R]atification ... is a positive statement ... to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.[179]

Toohey J agreed, stating that ‘by ratifying the Convention Australia has given a solemn undertaking to the world at large’[180] that it will abide by its international obligations. Although this all bodes well for an argument based on Australia’s international obligations, Mason CJ and Deane J were quick to explain that simply because the right may exist in an international convention, an administrative decision-maker is not bound to follow it blindly or without question, because ‘[to] regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law.’[181] As a result, ‘the existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way.’[182] Instead, the requirement is simply that the obligations must be considered.

The result is that, at least in the Commission, the parties may argue a point based on an international obligation assumed by Australia with the knowledge that the Commission must consider it as a relevant factor in the exercise of its discretion under s 127. A related issue is how such a ‘legitimate expectation’ can be applied as a collective expectation with respect to a representative organisation of employees. In the past the courts have not been willing to recognise that a decision which affects the public at large can attract the requirements of a legitimate expectation. In Botany Bay City Council v Minister for Transport and Regional Development, after reviewing the relevant authorities, Lehane J considered that:

[t]here is a clear distinction ... between decisions affecting the rights or interests of [the person or corporation individually] and those affecting the interests, indiscriminately, of the members of the public at large or of the members of a section of the public ...[183]

Taking the test set out by Lehane J, which his Honour derived from the seminal High Court legitimate expectation case of Kioa v West,[184] the legitimate expectation must belong to a person or corporation in an individual sense; the decision must not merely affect them as a member of the public at large. In FAI Insurances Ltd v Winneke the High Court was prepared to apply the principles of natural justice to a corporation.[185]

There is no reason why the concept of ‘legitimate expectation’ could not apply in the circumstances of an industrial dispute. There are two bases for this assumption. Firstly, the orders made to stop or prevent industrial action set out against whom the order is made. Even if it is contended that a s 127 order which is operative against ‘the employees’ of an applicant refers merely to an innominate section of the public at large, not an identifiable affected group for the purposes of giving rise to a legitimate expectation, the making of the same order against a union or a corporation refers then to a specific legal person. Section 192 of the WRA itself provides that an ‘organisation’ (a registered union) ‘is a body corporate’ and ‘may sue or be sued in its registered name’. This thereby contemplates that actions may be brought both by a registered union and against a registered union. As a result, it becomes almost irrelevant that a union is a representative body, as the legitimate expectation it may claim is no longer sought in a collective sense, and the normal principles would apply.

The second basis for a legitimate expectation is also provided by the WRA. The objects of the Act ensure both ‘freedom of association’[186] and ‘giving effect to Australia’s international obligations.’[187] Any conclusion that the concept of legitimate expectation did not apply to a party seeking to enforce its rights, at least those granted pursuant to the WRA, must therefore be contrary to the objects of the Act, and in effect may weaken the general freedom of association rights which are protected in other circumstances elsewhere in the Act.[188]

VI CONCLUSION

Any consideration that the amendments to the WRA in 1996 spelt the end of the common law courts’ jurisdiction to hear matters involving industrial action were soundly rejected by the Victorian Court of Appeal in National Workforce. Consequently, employers, in particular, are left with the full range of potential avenues of recourse against unlawful industrial action. This does not mean the end of lawful industrial action, however, as both the Commission and the common law courts have shown a willingness to accept the lawfulness of the action where it abides by the dictates of the WRA. Even where action is not ‘protected’ under the WRA, the granting of relief in the form of a s 127 order or an injunction is not automatic, and in many cases similar factors will be relevant in both forums. Another advantage for a potential claimant is the knowledge that, even where one application is unsuccessful, the claimant may pursue action in the other forum. The ability of respondents to obtain an anti-suit injunction, however, substantially undermines the ability of claimants to assert their rights in another forum. As to which forum is more suited to preventing industrial action, the potential certainly exists for the Commission, through the broad approach to its discretion under s 127 and the future importance of the Teoh reasoning, to provide a more expansive hearing. Despite this, the clear message from the Victorian Court of Appeal is that its function is altogether different from that of the Commission, and it therefore provides another option for those wanting to stop or prevent industrial action. As such, the decision as to which forum is most suited to the matter at hand (most often from a plaintiff employer’s perspective) will usually only be able to be decided on the facts of the particular case.

[*] BA, LLB (Hons) (Deakin); Articled Clerk, Price Higgins Solicitors.

[1] [1998] 3 VR 265 (‘National Workforce’).

[2] Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1996, 1302 (Peter Reith, Minister for Industrial Relations).

[3] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission (1998) 86 IR 142, 155 (French J) (‘Commissioner Laing’).

[4] Coal & Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311, 321 (‘Coal & Allied’).

[5] Ibid 317.

[6] (1999) 95 IR 34, 35.

[7] Coal & Allied (1997) 73 IR 311, 321.

[8] Commissioner Laing (1998) 86 IR 142, 155.

[9] WRA s 4(1)(g)(i).

[10] The Occupational Health and Safety Act 1985 (Vic) s 26(2) provides that where the ‘threat [to the health and safety of any person] is immediate’ and other preconditions are satisfied, employee representatives can direct that work ceases. Similar provisions are contained in: Occupational Health and Safety Act 1989 (ACT) s 56; Work Health Act 1986 (NT) s 32(1); Occupational Health, Safety and Welfare Act 1986 (SA) s 36; Workplace Health and Safety Act 1995 (Tas) s 17; Occupational Safety and Health Act 1984 (WA) s 26(1).

[11] See below Part IV(B).

[12] As set out in the WRA pt VIB div 2.

[13] WRA s 127(1)(a)–(c).

[14] WRA s 127(2).

[15] WRA s 127(1).

[16] (1997) 78 IR 300.

[17] Ibid 309.

[18] (1997) 73 IR 311.

[19] Ibid 342.

[20] Ibid 322.

[21] WRA s 170NF(1).

[22] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v AG Coombs Fire Protection (1998) 87 IR 110 (‘AG Coombs’).

[23] Ibid 111.

[24] See, eg, Patrick Stevedores Holdings Pty Ltd v Maritime Union of Australia (1998) 88 IR 34.

[25] For a detailed discussion of protected action in relation to AWAs, as well as comparative analysis of those provisions and those relating to certified agreements, see Australasian Meat Industry Employees Union v G & K O’Connor Pty Ltd (Unreported, Australian Industrial Relations Commission, Giudice J (President), Ross VP and Lewin C, 12 January 2000).

[26] (1997) 73 IR 311, 342.

[27] WRA s 170MP.

[28] WRA s 170MM.

[29] Emphasis added.

[30] Coal & Allied (1997) 73 IR 311, 330–1.

[31] (1997) 74 IR 218, 226. See also George Weston Foods (t/a Tip Top Bakeries) v Transport Workers’ Union of Australia (Unreported, Australian Industrial Relations Commission, Merriman C, 12 July 2000).

[32] Minister for Education for Victoria v Australian Education Union (1997) 74 IR 218, 226.

[33] (1997) 73 IR 311, 330.

[34] Ibid 331.

[35] Ibid 331–2.

[36] ‘Clarifying s. 127 and Its Relationship to “Protected Industrial Action”’ (1997) 14(3) Industrial Relations and Management Letter 8, 9.

[37] See below Part III(C).

[38] (1997) 74 IR 218, 226.

[39] (1997) 73 IR 311, 322–3.

[40] Ibid 324.

[41] Ibid 327.

[42] Ibid 329.

[43] Ibid 327.

[44] Ibid.

[45] (1998) 87 IR 110, 111.

[46] (1997) 73 IR 311, 316.

[47] See, eg, ‘Confidence in AIRC Decision Making Beginning to Erode’ (1999) 16(4) Industrial Relations and Management Letter 2.

[48] (1986) 162 CLR 24 (‘Peko-Wallsend’).

[49] Ibid 39–40.

[50] (1997) 73 IR 311, 316–17.

[51] (1998) 86 IR 142, 157.

[52] (1986) 162 CLR 24, 40 (Mason J).

[53] See, eg, CBI Constructors Pty Ltd v Australian Manufacturing Workers Union (1999) 87 IR 82.

[54] AG Coombs (1998) 87 IR 110, 111.

[55] Coal & Allied (1997) 73 IR 311, 342.

[56] Ibid.

[57] Ibid 343.

[58] (1999) 95 IR 251.

[59] Ibid 259.

[60] (Unreported, Australian Industrial Relations Commission, Harrison SDP, 17 July 1997).

[61] Ibid [56].

[62] Ibid [59].

[63] (1999) 94 IR 212, 216.

[64] See, eg, National Workforce [1998] 3 VR 265, 271–2.

[65] (Unreported, Australian Industrial Relations Commission, Marsh SDP, 27 February 1997).

[66] (Unreported, Australian Industrial Relations Commission, Holmes C, 8 March 2000) (‘Visionstream’).

[67] Ibid [50].

[68] (Unreported, Australian Industrial Relations Commission, Giudice J (President), Ross VP and Lewin C, 12 January 2000) [50].

[69] (1997) 73 IR 311, 344.

[70] Ibid 330–1.

[71] Ibid 344.

[72] (1999) 87 IR 82, 90.

[73] (Unreported, Australian Industrial Relations Commission, Harrison SDP, 17 July 1997).

[74] (1997) 73 IR 311, 344.

[75] (1999) 95 IR 197, 199.

[76] (1998) 79 IR 239, 247.

[77] (1997) 76 IR 478.

[78] Ibid 482–3.

[79] Ibid 484.

[80] Ibid.

[81] (1998) 86 IR 142.

[82] Ibid 150–1. See below Part II(C)(7).

[83] Commissioner Laing (1998) 86 IR 142, 157.

[84] Ibid 158.

[85] (1992) 177 CLR 106 (‘Australian Capital Television’).

[86] Ibid 142; quoted in Commissioner Laing (1998) 86 IR 142, 158–9.

[87] Australian Capital Television (1992) 177 CLR 106, 143; quoted in Commissioner Laing (1998) 86 IR 142, 159.

[88] [1998] 3 VR 265.

[89] This is confirmed by statute, see, eg, Supreme Court Act 1986 (Vic) s 37.

[90] See, eg, Patrick Stevedores No 1 Ltd v Maritime Union of Australia (1998) 79 IR 268, 271.

[91] Ronald McCallum and Marilyn Pittard, Australian Labour Law: Cases and Materials (3rd ed, 1995) 818.

[92] See below Parts III(C), IV(B) and IV(C).

[93] American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, 406–7 (Lord Diplock); applied by the Full Bench of the High Court in Murphy v Lush [1986] HCA 37; (1986) 65 ALR 651, 653. See also Samantha Hepburn, Principles of Equity and Trusts (1997) 175.

[94] Hepburn, above n 93, 175.

[95] WRA s 170MT(2)(a)–(c).

[96] National Workforce [1998] 3 VR 265, 270–1.

[97] National Workforce Pty Ltd v Australian Manufacturing Workers’ Union (1997) 75 IR 200, 201.

[98] Murphy v Lush [1986] HCA 37; (1986) 65 ALR 651, 655. See also Hepburn, above n 93, 175.

[99] Woolley v Dunford (1972) 3 SASR 243, 295 (Wells J).

[100] Epitoma Pty Ltd v Australasian Meat Industry Employees’ Union [No 2] [1984] FCA 202; (1984) 3 FCR 55, 65 (Sheppard, Morling and Beaumont JJ); American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396, 408–9 (Lord Diplock); Queensland Industrial Steel Pty Ltd v Jensen [1987] 2 Qd R 572, 576 (Andrews CJ, Thomas and Ryan JJ agreeing). See also Hepburn, above n 93, 175.

[101] National Workforce [1998] 3 VR 265, 272.

[102] [1999] VSC 297 (Unreported, Beach J, 13 August 1999) (‘Shell Refining’).

[103] Ibid [64]–[65].

[104] National Workforce [1998] 3 VR 265, 272.

[105] Shell Refining [1999] VSC 297 (Unreported, Beach J, 13 August 1999) [12].

[106] Ibid [39].

[107] (Unreported, Supreme Court of Victoria, Chernov J, 6 June 1997) 5 (‘Citipower’).

[108] (1999) 91 IR 88, 91.

[109] Citipower (Unreported, Supreme Court of Victoria, Chernov J, 6 June 1997) 6.

[110] Ibid 7.

[111] [1999] VSC 297 (Unreported, Beach J, 13 August 1999) [60].

[112] WRA s 3(h).

[113] (1997) 73 IR 311, 327.

[114] [1998] 3 VR 265, 277.

[115] See, eg, Inner and Eastern Health Care Network v Health Services Union of Australia (1997)

76 IR 420; Metal Trade Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1997] FCA 1355; (1997) 77 IR 87.

[116] Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15.

[117] Andrew Farr, ‘Right to Strike and the Workplace Relations Act’ (1997) 3(5) Human Resources Law Bulletin 51, 52; Ron Baragry, ‘Legal Remedies against Industrial Action’ [1998] April/May MTIA Input 14, 16.

[118] National Workforce Pty Ltd v Australian Manufacturing Workers’ Union (1997) 75 IR 200, 202 (Harper J).

[119] [1986] VicRp 38; [1986] VR 383, 389.

[120] (Unreported, Supreme Court of Victoria, Chernov J, 6 June 1997) 5.

[121] AG Coombs (1998) 87 IR 110, 115; but see Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1999) 91 IR 88.

[122] AG Coombs (1998) 87 IR 110, 115.

[123] National Workforce [1998] 3 VR 265, 277.

[124] Ibid.

[125] Ibid 278.

[126] (1979) ATPR 40–100.

[127] Ibid 17,996–7.

[128] National Workforce [1998] 3 VR 265, 279.

[129] Ibid.

[130] [2000] VSC 15 (Unreported, Beach J, 25 January 2000) [16].

[131] National Workforce [1998] 3 VR 265, 278–9.

[132] (1998) 79 IR 268 (‘Patrick Stevedores’).

[133] Ibid 271.

[134] [1999] VSC 40 (Unreported, Beach J, 19 February 2000) [36]–[37] (‘Tenix’).

[135] [2000] FCA 65 (Unreported, Merkel J, 8 February 2000) (‘Yallourn Energy’).

[136] [2000] FCA 168 (Unreported, Goldberg J, 25 February 2000) (‘Master Builders’).

[137] [2000] FCA 65 (Unreported, Merkel J, 8 February 2000) [42].

[138] Ibid [46].

[139] Ibid [47]–[48].

[140] Ibid [56].

[141] Master Builders [2000] FCA 168 (Unreported, Goldberg J, 25 February 2000) [11].

[142] Ibid [23].

[143] Yallourn Energy [2000] FCA 65 (Unreported, Merkel J, 8 February 2000) [73].

[144] Ibid.

[145] Ibid.

[146] Ibid [74].

[147] Ibid [77].

[148] Master Builders [2000] FCA 168 (Unreported, Goldberg J, 25 February 2000) [28].

[149] Ibid [30].

[150] Yallourn Energy [2000] FCA 65 (Unreported, Merkel J, 8 February 2000) [87]; Master Builders [2000] FCA 168 (Unreported, Goldberg J, 25 February 2000) [41].

[151] See Patrick Stevedores (1998) 79 IR 268; Tenix [1999] VSC 40 (Unreported, Beach J, 19 February 2000). See also above nn 132–134 and accompanying text.

[152] Andrew Frazer, ‘Major Tribunal Decisions in 1998’ (1999) 41 Journal of Industrial Relations 80, 99–100.

[153] See above Part II(A)(1).

[154] The Federal Court in Davids Distribution Pty Ltd v National Union of Workers defined ‘picket’ in the industrial relations setting as ‘a person who stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment’: [1999] FCA 1108; (1999) 91 FCR 463, 490.

[155] (1998) 80 IR 14. Giudice J held that picketing did not constitute industrial action: at 32; Munro J held that picketing may constitute industrial action: at 53; Larkin C expressed no view. At first instance Boulton J held that picketing may constitute industrial action: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269.

[156] [1999] FCA 1108; (1999) 91 FCR 463 (‘Davids Distribution’).

[157] Ibid 482.

[158] Ibid 486.

[159] Ibid.

[160] Ibid.

[161] Ibid 491; see also Baker v Campbell (1983) 153 CLR 52, 123 (Dawson J).

[162] Davids Distribution [1999] FCA 1108; (1999) 91 FCR 463, 491.

[163] Ibid.

[164] Ibid 492.

[165] Nii Wallace-Bruce, Outline of Employment Law (2nd ed, 1999) 212.

[166] [1986] VicRp 38; [1986] VR 383, 388–9.

[167] [1998] 3 VR 265, 276.

[168] (1997) 73 IR 311, 326–7.

[169] Ibid 327.

[170] (1997) 79 IR 239, 261.

[171] Ibid 249.

[172] Opened for signature 19 December 1966, 993 UNTS 3, 6 ILM 360 (entered into force 3 January 1976).

[173] Coal & Allied (1997) 73 IR 311, 329.

[174] See below Part V(C).

[175] National Workforce Pty Ltd v Australian Manufacturing Workers’ Union (1997) 75 IR 200, 202.

[176] National Workforce [1998] 3 VR 265, 275–6.

[177] Ibid 276.

[178] [1995] HCA 20; (1995) 183 CLR 273 (‘Teoh’).

[179] Ibid 291.

[180] Ibid 301.

[181] Ibid 291.

[182] Ibid.

[183] [1996] FCA 1507; (1996) 66 FCR 537, 553.

[184] [1985] HCA 81; (1985) 159 CLR 550.

[185] [1982] HCA 26; (1982) 151 CLR 342.

[186] WRA s 3(f).

[187] WRA s 3(k).

[188] See WRA pt XA.