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

4 At [7] of the 12 December judgment the Court said as follows: "In its written submissions filed subsequent to the judgment of the Full Court, the respondent contended that as the 1992 Agreement "ordains an entirely different method of calculating … wages, a method which assumes the existence of a particular system of recording and evaluating workload for work groups in an abattoir - the 'tally system'", the applicants must persuade the Court that the respondent should have employed that system. If the 1992 Agreement applies, employees of the respondent should now be no worse off financially under that agreement because of a change in the employer's method of recording of its employees' work. It would be inappropriate for an employer to avoid its obligations under industrial law simply by reorganising the way in which it remunerates its employees." 5 In the 12 December judgment I found at [4] that: " … there is a serious issue to be tried whether the respondent has applied duress to each personal applicant in connection with an Australian Workplace Agreement." 6 At [9] I observed that: " … [the] balance of convenience considerations in this matter overwhelmingly favour the applicants." 7 As indicated in [5] of the 12 December judgment I was concerned that the "1992 Agreement" apply to the personal applicants pending the hearing and determination of the proceeding for the reasons there stated. I was also concerned, as is evident from [7] of the 12 December judgment, that the personal applicants not be disentitled to the benefit of the 1992 Agreement as a result of the respondent's choice of method of remuneration ie. by a "tally system" or otherwise. 8 On 25 January 2001, the applicants and the respondent respectively issued notices of motion. In the amended version of the respondent's notice of motion the respondent sought an order that: " … the interlocutory injunctions ordered by the Court on 12 December 2000 as varied by the Full Court on 18 December 2000 be discharged." 9 At the conclusion of the hearing of that part of the respondent's motion (paragraph 2A thereof) and paragraph 3 of the applicants' motion (which also related to the orders of 12 and 18 December 2000) I was not prepared to grant the respondent the relief sought in its motion as referred to in the preceding paragraph of these reasons. I now give my reasons for coming to that view. 10 The main basis upon which the respondent sought the discharge of the interlocutory injunction was that it no longer intended to offer an Australian Workplace Agreement ("AWA") to any of the personal applicants. It followed, so the argument ran, that it was no longer, if it ever was, applying duress to any personal applicant in connection with an AWA. 11 During the course of its reasons for judgment given on 5 December 2000 a Full Court in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1760 ("the 5 December judgment") referred to an undertaking offered by the respondent on 20 November 2000 that, "except with the leave of the Court, O'Connor will not make an AWA with any of the 30 employee applicants": see [97] of the 5 December judgment. The Full Court concluded that paragraph of its reasons by saying, of counsel for the respondent, that: "His argument is that this undertaking necessarily means his client is no longer (if it ever was) applying duress "in connection with an AWA"; any continuing duress has no connection with making an AWA." 12 At [98] of the 5 December judgment the argument was answered in the following way: "The argument has a superficial attraction but does not withstand analysis. The applicants claim O'Connor has engaged in conduct amounting to duress by denying them, over a period of at least twelve months, their proper remuneration, all with the intent that they have no realistic alternative other than to make an AWA on O'Connor's terms, regardless of their own wishes. If those allegations are correct, the duress is not abated by O'Connor's undertaking not to enter into an AWA except by leave of the Court. If the applicants' assertions are correct, they would each remain subject to the same economic pressure, each applicant's only means of escape being to consent to the Court granting leave to O'Connor to make with him or her the AWA which the applicant has not hitherto wished to make and to which he or she does not give genuine consent. In any event, it is difficult to say by what criteria the Court might grant, or refuse to grant, leave to the employer to make an AWA." 13 In my view, the thrust of the Full Court's reasoning can be applied to the new argument of the respondent based on its stated current intention. If the interlocutory injunction is discharged each personal applicant will have no realistic alternative but to press the respondent to change its position and offer him or her an AWA on the respondent's terms, regardless of the personal wishes of each personal applicant, that is, if they desire to remain in the employ of the respondent. The only other realistic alternative would be for them to resign. The initial duress and continuing duress would be, and remain connected with, an AWA being the AWA which was offered on the basis of "take it or try to live on a so-called safety net award". 14 Additionally, I have some reservations about the respondent's sincerity when it asserts that it would not offer AWAs to any of the personal applicants. In the absence of interlocutory relief, on the current state of the evidence, each such person would have to approach the respondent for an AWA or seek alternative employment. It is extremely hard to believe that if any personal applicant pressed the respondent for an AWA it would refuse. Its approach since the AWA lockout which it engaged in in 1999 and which is referred to at [15] to [19] of the 5 December judgment has been, at the very least, to "encourage" all its employees to sign an AWA of its choosing. The Court has no reason to believe that the respondent would prefer to be bound by some other industrial regime with respect to any of its employees eligible to join, or traditionally members of, the first applicant. Like the argument put to the Full Court in November 2000, it is an argument which has "superficial attraction but does not withstand analysis". 15 There is evidence before the Court from each personal applicant. Whilst the hardship experienced by each of them as a result of being paid pursuant to the so-called safety net award varies, one thing is clear, and that is that with one exception, each of them has experienced a substantial reduction in accessible disposable income directly as a result of the actions of the respondent, in paying them according to the safety net award, thereby reducing substantially their take home pay. The one exception is Mr Sheean who was paid in accordance with the AWA rates although he did not enter into an AWA. Mr Sheean withdrew his consent after initially indicating that he wished to be bound by an AWA. He is now being paid according to the 1992 Agreement as interpreted by the respondent. 16 The state of the evidence with respect to the varying hardship being experienced by individual applicants was relied upon by the respondent as a second basis for the discharge of the interlocutory orders. I do not consider that the variations in the degree of hardship being experienced by individual applicants is a sound reason for the discharge of interlocutory relief especially in circumstances where each of them has experienced a reduction in accessible disposable income and consequently living standards as a result of the method of their work and rate of their remuneration for work performed by them for the respondent. 17 In rejecting the respondent's request to discharge the interlocutory orders, I do not find it necessary to determine whether the orders can be supported other than by reference to the claims made in the application pursuant to s170WG(1) of the Workplace Relations Act 1996 (Cth). 18 There is one aspect in which it was agreed by counsel that the interlocutory order should be varied. It should no longer apply to the 11th, 25th and 28th applicants as they have resigned their employment. 19 The next issue raised by the competing notices of motion is whether the interlocutory injunction should be varied so that precise rates of pay are set rather than the prevailing situation where the respondent is compelled to comply with the 1992 Agreement and does so according to its view of the effect of that Agreement. There is a dispute between the parties as to what compliance with the 1992 Agreement entails. In the 12 December judgment I was concerned to ensure that the individual applicants were not pressured into signing AWAs as a result of being placed on an inferior remuneration regime. That difficulty can be overcome and certainty given to the parties by the Court ordering precise rates of pay for individuals. The harm sought to be avoided by the 12 December judgment can be avoided if the individual applicants who remain in employment are paid no less than they would be paid if they had signed an AWA. An order of that type would also ameliorate the undesirable industrial relations consequences of persons working side by side in the same classifications being paid disparate rates of pay. It has further benefits in that no separate working arrangement for the personal applicants is necessary ie. the separate small boning room which has been established for them need not continue. Further, such an order should provide a better remuneration outcome for the personal applicants than the current position based on the respondent's view of its obligations under the 1992 Agreement. 20 I announced to the parties that I had formed the view that such an order should be made immediately at the conclusion of argument. Counsel informed me that they wished to have an opportunity to seek to prepare appropriate orders and report back to me on the outcome of their discussions. I will now proceed to hear that report back and entertain any submissions on any differences between the parties on the wording of any appropriate order. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Applicant: Mr S Rothman SC with Mr E White

Counsel for the Respondent: Dr C Jessup QC with Mr B Mueller

Solicitor for the Respondent: Blake Dawson Waldron

Date of Hearing: 6, 7, 8 and 12 February 2001

Date of Judgment: 12 February 2001 (ex-tempore revised from transcript)