Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd

Factual background 3 These reasons for judgment should be read in conjunction with those contained in a previous judgment of the Court in a related matter between the same parties. See Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 310, ("AMIEU No 1"). 4 In AMIEU No 1 the Court refused to grant to the applicants an interlocutory injunction to restrain a lockout which O'Connor effected on 19 March 1999. The circumstances relevant to that lock out are set out in those reasons. The March 1999 lockout was effected pursuant to the provisions of Div 8 of Part VIB of the Workplace Relations Act 1996 (Cth)("the Act"). The lockout was protected industrial action taken by O'Connor in support of its demands regarding the content of a new proposed certified agreement. 5 On 13 May 1999 in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 617 ("AMIEU No 2") the Court dealt with a residual issue arising from the judgment in AMIEU No 1, that is, whether certain of O'Connor's employees had received lockout notices within the time provided by the Act. Certain persons were held not to have been validly locked out. Those persons were subject to further valid lockout notices. The reasons for judgment in AMIEU No 2 should also be read in conjunction with these reasons. 6 Since the March 1999 lockout some employees of O'Connor have resigned from their employment to access their accrued entitlements. Others have not done so and remain employees of O'Connor. There are now 145 persons who are processing employees of O'Connor at Pakenham. 7 Conciliation conferences were held in the Australian Industrial Relations Commission ("the Commission") in late June and early July 1999 but no resolution of the issues dividing the Union and O'Connor was achieved. On 12 July 1999, subsequent to those conferences, O'Connor held a meeting with the processing employees at the plant to discuss the basis upon which the plant would resume operations. 8 On 16 July 1999 O'Connor held a meeting with some of its former employees with a view to informing them of its position concerning a possible resumption of operations. A further meeting was held with current employees on 19 July 1999. At each of those two meetings O'Connor sought to gauge the preparedness of attendees to resume work on O'Connor's terms. Further on 4 August 1999 O'Connor placed an advertisement in a local newspaper, the Pakenham Gazette, inviting expressions of interest from prospective employees. The advertisement contained an outline of the terms and conditions of employment prepared by O'Connor. 9 On 13 August 1999 O'Connor decided that it would offer Australian Workplace Agreements ("AWAs") to its 145 processing employees in accordance with the terms and conditions discussed with those employees who attended the 19 July meeting. On the weekend of 14 and 15 August 1999 O'Connor delivered to each of the 145 processing employees the following documents: · a Notice of AWA Industrial Action pursuant to Div 8 of Pt VID of the Act, dated 14 August 1999; · a letter dated 14 August 1999 bearing the heading "NEW LOCKOUT NOTICE"; and · a letter dated 14 August 1999 headed "G & K O'CONNOR WISHES TO RECOMMENCE PROCESSING", enclosing a proposed AWA.

10 AWAs have, at this stage, only been offered by O'Connor to existing employees. In an affidavit filed in the proceeding. Mr Allen, the Operations Manager of O'Connor said that: "O'Connors has offered AWAs to all of its current employees and has work for as many of the employees who are prepared to accept the terms of the AWA and return to work on that basis." 11 On 17 August 1999 solicitors acting for O'Connor wrote to the Union in the following terms: "G & K O'Connor Pty Ltd gives notice that it no longer wishes to make a certified agreement under Division 3 of the Workplace Relations Act 1996 with the Australasian Meat Industry Employees Union." 12 As a consequence of that letter the March 1999 lockout ceased to be protected industrial action in accordance with Div 8 of Pt VIB of the Act. Section 170MV(b) of the Act provides, so far as is material, that: "The bargaining period ends if any of the following events occurs: … (b) the initiating party tells the other negotiating party … in writing that the initiating party no longer wants to reach an agreement under Division … 3 with that other party …." 13 The new lockout was sought to be effected pursuant to the provisions of Div 8 of Part VID of the Act. The notice advised that the nominal expiry date of the proposed AWA for each employee was 1 August 2002. It concluded by making the following two points: · "The lockout will commence on Thursday 19 August 1999 and will continue until you make an AWA with O'Connors in accordance with the terms and conditions of the AWA accompanying this notice.

· You will not be required to attend for or perform any work at O'Connors from the commencement date set out in this notice. You will not be paid any wages for the period of the lockout." 14 In the letter entitled "NEW LOCKOUT NOTICE" employees were advised that: "This AWA contains the terms and conditions of employment upon which G & K O'Connor Pty Ltd wishes to recommence processing. Due to legal requirements, the offering of new terms and conditions in an AWA means that a new Lockout Notice needs to be given to you. Please read the letter enclosed and, if you have any queries, contact Peter Allen or Steve Silberer on [telephone no. provided] within the next 14 days." 15 The letter headed "G & K O'CONNOR WISHES TO RECOMMENCE PROCESSING" contained general advice about the effect of the signing of an AWA. It concluded in the following way: "If you wish to accept our offer to recommence processing at G & K O'Connor Pty Ltd, we request that you: (a) Contact Peter Allen or Steve Silberer on 59 412 033 and advise them that you wish to accept the Company's invitation to recommence processing. Then, (b) bring your AWA to the plant at Pakenham. We will arrange for the AWA to be witnessed when you sign it. Please remember that the signing of the AWA cannot be done until you have had the AWA for 14 days. I look forward to you accepting our invitation to recommence processing under the terms and conditions in the G & K O'Connor Pty Ltd Australian Workplace Agreement."

The legislative context 16 Section 170WC of the Act provides as follows: "(1) Subject to subsection (2), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of AWA industrial action unless the action has involved or is likely to involve: (a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property. (2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action. (3) If an employer locks out an employee under subsection (1), the employer is entitled to refuse to pay any remuneration to the employee in respect of the period of the lockout. (4) An employer is not entitled to lock out an employee under subsection (1) unless the continuity of the employee's employment, for such purposes as are prescribed by the regulations, is not affected by the lockout." 17 So far as is presently material, s170WB(1) of the Act contains the following definition of AWA industrial action: "(b) an employer locking out an employee for the purpose of compelling or inducing the employee to make an AWA, on particular terms and conditions, with the employer." 18 Regulation 30ZL of the Workplace Relations Regulations provides that: "For subsection 170WD(1) of the Act, a notice must be in writing and must include, or be accompanied by, particulars of: (a) any matter that the party intending to take the action proposes as a matter that should be dealt with by the AWA; and

(b) the proposed nominal expiry date of the AWA; and

(c) the proposed date or dates on which the action will take place; and

(e) the proposed nature and form of the action. 19 Section 170WG(1) of the Act provides that, "A person must not apply duress to an employer or employee in connection with an AWA or ancillary document." Section 170VV of the Act allows the Court to impose a penalty upon a person who contravenes s170WG(1) of the Act. Section 170VZ of the Act allows the Court to grant an injunction requiring a person not to contravene or to cease contravening Part VID of the Act. 20 Section 298K of the Act prohibits an employer from taking discriminatory action against an employee for certain prohibited reasons set out in s298L of the Act.

The competing contentions 21 Mr Rothman SC, appeared with Mr White of counsel for the applicants. Mr Rothman submitted that the lockout, of which notice was purportedly given to employees on 14 and 15 August 1999 by O'Connor, did not give rise to an immunity from action under s170WC of the Act for two reasons. First, it was contended that it is not possible to have the requisite intention to engage in AWA industrial action during a bargaining period under Part VIB of the Act. Second, it was contended that the lockout notice did not comply with the provisions of s170WD(1) of the Act and reg 30ZL. Mr Rothman submitted that absent the immunity provided by s170WG there is a serious question to be tried concerning whether the conduct of O'Connor amounted to duress and/or constitutes a breach of s298K of the Act, having regard to s298L(1)(h) and 298L(1)(l). 22 Dr Jessup QC, appeared with Mr Harrington, of counsel, for O'Connor. Dr Jessup submitted that his client's intention to engage in AWA industrial action was a question of fact, irrespective of whether a bargaining period was in existence under Part VIB of the Act. Dr Jessup also submitted that reg 30ZL must be read in a common sense way and not in any narrow or technical manner. He contended that a "robust, reasonable and pragmatic construction" was appropriate. Dr Jessup submitted that the Union did not have the requisite standing to raise an issue under s170WG(1) of the Act and that in respect of the s298K claim, there was no evidence of the lockout having occurred for a prohibited reason. 23 Upon the assumption that the Union did possess the requisite standing to raise an issue concerning a breach of s170WG(1) of the Act, Dr Jessup contended that duress could not be presupposed from the fact that a lockout has occurred. He contended that "duress depends upon the quality of the consent which is thereby extracted from the other contracting party". 24 In reply Mr Rothman took issue with Dr Jessup's construction of reg 30ZL. He also submitted that the contravention of the Act for the prohibited reason, as identified in s298L(1)(h), was relevant to the instant circumstances and that the lockout was effected because O'Connor did not wish their employees terms and conditions of employment to be governed by an award or certified agreement which might otherwise apply. Mr Rothman further submitted that the prohibited reason contained in s298L(1)(l) was also made out having regard to the evidence of the employees' desire to seek a 3 per cent wage increase, being an increase which was also sought on their behalf by the Union.

Serious issue to be tried - The validity of the Notice 25 By its conduct in July and August 1999, culminating in its correspondence to its employees dated 14 August 1999, O'Connor evinced an intention to enter into AWAs with those employees. Such conduct is inconsistent with pursuing a certified agreement under Part VIB of the Act. It may have formed the basis for a cogent submission to the Commission that it terminate the bargaining period under s170MV(c) of the Act. Nonetheless, on the evidence presently before the Court, it cannot be said that on 14 August 1999 O'Connor lacked the requisite intention to compel or induce each employee to make an AWA. 26 The next question which arises is whether the lockout notice "was given to…[each employee]… in the manner and form required by the regulations". See s170WD(1) of the Act. 27 The lockout notice was in writing. It was accompanied by particulars of matters that O'Connor proposed should be dealt with by the AWA. It contained specific reference to the proposed nominal expiry date of the AWA. It contained particulars of the nature and form of the action, that is, a lockout. The question dividing the parties to this proceeding is as follows: Did the notice include or was it accompanied by particulars of - · "the proposed date or dates on which the action will take place; and… · the proposed duration of the action"? 28 The only assistance to be found in seeking to answer the question set out above is located in the portion of the lockout notice which states: "The lockout will commence on Thursday 19 August 1999 and will continue until you make an AWA with O'Connors in accordance with the terms and conditions of the AWA accompanying this notice." 29 The Court is of the opinion that a fair reading of that portion of the notice reveals to its recipients that the action will take place on 19 August 1999 and continue on 20 August 1999 and indefinitely thereafter until the employee agrees to enter into an AWA on O'Connor's terms.

30 The proposed duration of the action has been provided, that is, the action is to be of indefinite duration until an AWA is made. The proposed date or dates have also in effect been provided, that is, 19 August 1999 and every day thereafter. Consequently, it is the Court's view that on the evidence currently before it and the submissions made thus far no serious issue arises to support a finding that the lockout notices, the subject of this proceeding, were invalid.

Other issues 31 Having determined that the lockout notices provided to employees pursuant to Div 8 of Part VID of the Act were given in the manner and form required by reg 30ZL it follows that s170WC(1) of the Act provides O'Connor with an immunity from suit with respect to the lockout. It is unnecessary therefore to consider the following issues: · whether the balance of convenience favours the granting of injunctive relief; · whether s170WG(1) and/or s298K of the Act has been breached; or, · whether the Union in the circumstances of this case has the requisite standing to bring proceedings in which a breach of s170WG(1) of the Act has been alleged. 32 In AMIEU (No 1) the Court said, (at pars 59 and 60): "The result of this matter unfortunately perpetuates the stalemate in negotiations or at least does little to resolve the dispute. Should the applicants wish to revisit their claim for injunctive relief based on additional evidence or further submissions, I will reserve liberty to apply on short notice. I will also adjourn that part of the notice of motion which relates to employees who were not served with lockout notices 3 days prior to the commencement of the lockout as required by the Act. It also should be noted that the Court's judgment in this matter is not an approval of the tactics of either of the negotiating parties or an industrial vindication of the actions of an obviously hard-line employer. Rather it stems chiefly from the Court's view as to the legality of O'Connor's actions as distinct from any moral judgment about its seemingly extravagant demands." 33 The result of this matter also does little to resolve the underlying dispute. Essentially the Court has found that O'Connor has validly invoked the provisions of Part VID of the Act to lock out its workforce until those employees accept O'Connor's terms for the regulation of their employment. In his submission Dr Jessup contended that Div 8 of Part VID of the Act applies equally to employers and employees. He later refined that submission to contend that practically, it applies equally to employers and a handful of employees such as elite sportspersons. It is not for the Court to take into account in its judgment any perceived unfairness in the legislative provisions it is required to interpret. It is for the legislature and not for the Court to ask if it is fair and reasonable that an employer can effectively provide its own industrial prescription on the basis that its employees can accept those conditions or not be in remunerated employment with that employer.

Order 34 It is appropriate in the circumstances to order that the application for interlocutory relief be dismissed and that the directions hearing be adjourned to 10.15 am on 4 October 1999 to coincide with the timing of a directions hearing in a related proceeding. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 3 September 1999 Counsel for the Applicant: Mr S Rothman SC with Mr E White

Solicitor for the Applicant: Gill Kane and Brophy

Counsel for the Respondent: Dr C N Jessup QC with Mr N Harrington

Solicitor for the Respondent: Dunhill Madden Butler