Australasian Meat Industry Employees' Union v Frugalis Pty Ltd

REASONS FOR JUDGMENT This application raises a question as to the remedies available for breach of a "certified agreement" certified under the Workplace Relations Act 1996, and whether the same remedies are available in the case of an agreement which was certified under the earlier form of the Act, the Industrial Relations Act 1988. By the application, the applicant seeks an interlocutory order restraining the respondent employer from contravening clause 24 of an enterprise agreement entered into between the respondent and the applicant union on 23 April 1996, which came into force as from 13 August 1996, and so as to remain in force until 1 April 1998, upon its certification by the Australian Industrial Relations Commission on 21 October 1996 under s 170MC of the Industrial Relations Act. Clause 24 of this agreement provided, under the heading "REDUCTION IN HANDS": "Should the need arise, the parties will endeavour to agree how any reduction in hands will be achieved. If agreement is not possible, a reduction will be according to 'last to come, first to go' in respective streams and sub-streams according to length of service at the mine." The employer, the evidence shows, is dissatisfied by the performance of the mine. For some time, discussions have gone on between it and representatives of the union, which have centred upon a proposal of the employer to dismiss its workforce with a view to the re-engagement of a much smaller number of employees in a reduced and reorganized mining operation. That proposal being insisted upon, this application was launched. But even as the case was pending, there was a further development in the situation. On 26 September 1997, the employer sent the following advice to representatives of the union: "I am writing to confirm our intention to retrench the entire Production and Engineering workforce on Wednesday, 1 October 1997. I would also like to make you aware that Gordonstone Coal Management [the operator of the mine] has made a recommendation to the Gordonstone Joint Venture [the owners of the mine] that the mine be placed on care and maintenance for an indefinite period, and the Joint Venture partners have agreed to consider that recommendation." This step, if actually taken, would, the respondent says, be an action entirely outside the scope of clause 24. But a preliminary point has been argued - whether, even if a contravention of the certified agreement has been established, the Court has jurisdiction to grant the remedy sought. The respondent, in submitting that the Court does not have such jurisdiction, relies on a line of authorities in which no breach appears. I take, as the starting point, the decision of Pincus J in Australasian Meat Industry Employees' Union v Frugalis Pty Ltd (1987) 14 FCR 535. There, his Honour held, with some regret, that the legislative history of the Conciliation and Arbitration Act 1904 required him to conclude, despite the literal terms of a grant of injunctive power by s 109(1)(b), read in combination with s 122, that the Court lacked jurisdiction to restrain a breach of an order of the Conciliation and Arbitration Commission. This decision was followed by Gray J in The Queen in Right of the State of Victoria v Australian Teachers Union (No 2) (1993) 48 IR 109 at 112, where his Honour made clear his view that "the reintroduction of the use of injunctions to restrain breaches of awards" would circumvent "a specific code designed to deal with such breaches". He considered that the repetition in the Industrial Relations Act, when it was enacted in 1988, of provisions similar to those of the earlier Act construed by Pincus J, "demonstrate[d] the intention of Parliament that the remedy of injunction should continue to be unavailable in respect of breaches of awards." An argument that s 23 of the Federal Court of Australia Act 1976 supplied the power otherwise lacking was rejected at 113-114. This argument is also refuted by several other authorities: Dunham v Randwick Imaging Pty Ltd (1994) 122 ALR 323 at 329-330 (though there the question was complicated by the terms of s 170EH of the Industrial Relations Act); RAIA Insurance Brokers Limited v FAI General Insurance Co Limited (1993) 41 FCR 164 at 176, per Beaumont and Spender JJ; Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1981) 148 CLR 150 at 160-161; and Jackson v Sterling Industries Limited (1987) 162 CLR 612. As Wilson and Dawson JJ said in the lastmentioned case (at 619), "[t]he power given by s. 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court." The line of authority to which I have referred ends in Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203. In that case, Madgwick J, sitting in the Industrial Relations Court of Australia, dismissed an application for interlocutory injunctions to compel compliance with certified agreements. The Industrial Relations Act then conferred jurisdiction on the Court by s 412(1)(a) in terms which remain unchanged in the same section of the Workplace Relations Act: "The Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act ... ." Section 23 of the Federal Court of Australia Act was also in force. These provisions, now relied on for the applicant together with s 178 to which I shall come, were of no avail. That was so despite the fact that the Industrial Relations Act then contained, as the Workplace Relations Act does not now, an express power conferred by s 419 "in relation to matters in which it [ie the Court] has jurisdiction, to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate", and an express power conferred by s 431 to "grant an injunction requiring a person not to contravene, or to cease contravening, this Act". Madgwick J rejected, in emphatic terms (at 215), the notion "that this court can restrain a breach of an award". He made it plain (at 216) that he considered the statutory imposition of penalties for such breaches provided the means by which enforcement was to be secured. However, the applicant relies on s 178 of the Workplace Relations Act, some of the provisions of which I should set out in this judgment: "(1) Subject to section 182, where an organisation or person bound by an award, an order of the Commission or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction. ... (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an award, order or agreement is: (a) where the penalty is imposed by the Court: (i) if the breach is taken to have been committed under a provision included in an award or order under paragraph 111(1)(e) - $5,000 for a body corporate or $1,000 in other cases; and (iia) if the breach is of a term of a certified agreement and continues for more than one day - the total of: (A) $10,000 for a body corporate or $2,000 in other cases; and (B) $5,000 for a body corporate, or $1,000 in other cases, for each day for which the breach continues; and (iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; and (ii) in any other case - $10,000 for a body corporate or $2,000 in other cases; and (b) where the penalty is not imposed by the Court - $10,000 for a body corporate or $2,000 in other cases. (4A) A certified agreement may provide that subparagraph (4)(a)(iia) applies to specified breaches of the agreement as if sub-subparagraph (4)(a)(iia)(B) referred to a specified amount that is greater or less than $5,000 for a body corporate, or $1,000 in other cases. If such an agreement so provides, paragraph (4)(a) has effect accordingly. ... (5A) A penalty for a breach of a term of a certified agreement may be sued for and recovered by: (a) an inspector; or (b) an employee whose employment is subject to the agreement; or (c) a person or organisation that is bound by the agreement; or (d) an organisation: (i) that has at least one member whose employment is subject to the agreement; and (ii) that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement; or (e) an officer or employee of an organisation mentioned in paragraph (c) or (d), where the officer or employee is authorised, under the rules of the organisation, to sue on behalf of the organisation. (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an award, order or agreement, the court may order the employer to pay to the employee the amount of the underpayment." These provisions substantially mirror (with a few amendments) the terms of s 178 of the Industrial Relations Act. One difference is that s 178 now makes express reference to a "certified agreement", which was previously unnecessary since the definition of "award" in s 4 of the Industrial Relations Act included both "a certified agreement" and "an enterprise flexibility agreement". Although the new s 178 differentiates between awards and certified agreements, it still gives in relation to the latter a remedy of the same nature as that which it provides for the former. In my opinion, s 178 does not assist the applicant. On the contrary, it is an example of a special statutory mode of enforcement, not only of awards and orders made under the Act, but also of the special statutory species of agreement, created by the legislation and conferring new rights, known as a certified agreement. Long ago, in Josephson v Walker (1914) 18 CLR 691 at 701, Isaacs J said: "Prima facie, where the same Statute creates a new right and specifies the remedy, that remedy is exclusive. The natural presumption to begin with is that Parliament in creating the novel right attaches to it the particular mode of enforcement as part of its statutory scheme. To that extent the enactment is a code." Similarly, in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 425-426, Brennan CJ, Dawson and Toohey JJ, who rejected an attempt to add a claim for damages to proceedings for the imposition of penalties under s 178, relied on the exclusivity of "the enforcement mechanism provided by the Act". A complication which would arise in any attempt to apply s 178 to the present certified agreement was fairly drawn to my attention by counsel for the respondent. I was told that none of the transitional provisions of the Workplace Relations Act throws any light on it. The difficulty is that the definition of "certified agreement" in s 4 makes no reference to an agreement certified under the Industrial Relations Act, or indeed to an enterprise flexibility agreement under that Act. Thus, at first sight, s 178 would appear inapplicable. But s 179 refers expressly to a "certified agreement" as including one in effect "after the commencement of section 11 of the Industrial Relations Legislation Amendment Act (No. 2) 1990", ie prior to the enactment of the Workplace Relations Act. This gives added weight to the words of s 4 which introduce the definition of "certified agreement", namely, "unless the contrary intention appears". I think that a contrary intention does appear, and that s 178 refers to a certified agreement under the legislation, whenever it was certified. It is unnecessary to decide whether the section should also be construed as referring to an enterprise flexibility agreement by the same general appellation. In view of my conclusion upon the proper construction of ss 4 and 178 of the Workplace Relations Act, it is also unnecessary to consider whether, had I reached a different conclusion, it would have been appropriate to have resorted to s 8 of the Acts Interpretation Act 1901 (the application of which is also subject to the limiting words "unless the contrary intention appears").