Australasian Meat Industry Employees' Union v Peerless Holdings Pty Ltd

affidavit evidence 16 Though a body of affidavit material was read, little of it has much bearing on the issues that actually were in contention before me. I would note in passing that a large part of the applicants' case was abandoned at the commencement of the hearing. 17 The two officers of Peerless - Mark Greenberg, the Human Resources Manager, and Julius Rath, an Executive Director - who were responsible for Peerless' decisions to send the various lockout notices provided affidavit evidence in the following, common terms. I would preface my reference to it with the observation that the production of standard form or boilerplate affidavits is a practice to be deprecated. It is a practice calculated to diminish the weight to be given to evidence so contrived and packaged. 18 Each affidavit stated: "At all times prior to 7:00am on 20 April 2000, I and the company intended to enter into a certified agreement with the AMIEU. In serving the Notice of AWA industrial action, I and the company indicated our intention to induce employees to enter into the proposed AWA from 20 April 2000 onwards (and not before). If the AMIEU had accepted the company's offer of a certified agreement at any time prior to 7:00am on 20 April 2000, the company would have agreed to enter a certified agreement. The company would then have revoked its Notice of AWA Industrial Action and not sought to rely on it. If an employee had approached the company prior to 7:00am on 20 April 2000 and indicated their willingness to enter into the proposed AWA, I would have advised them that: (a) the company's present intention was to enter into a certified agreement with the AMIEU; (b) the company would only enter into AWAs with the employee after 20 April 2000; (c) even then, the company would not enter into an AWA until it had met the requirements for approval of the AWA (such as providing a full verbal or written explanation of the terms of the agreement, providing a copy of the Information Statement from the Employment Advocate to the employees, and allowing 14 days to pass before entering the agreement)."

the statutory setting 19 The object of the Act (see s 3) bespeaks a legislative scheme aimed amongst other things at (i) ensuring that primary responsibility for determining matters affecting the employment relationship rests with the employer and employees in question: s 3(b); (ii) enabling employers and employees to choose the most appropriate form of agreement for their circumstances whether or not that form is provided for by the Act: s 3(c); and (iii) providing a framework of rights and responsibilities for employers and employees, and their organisations, that supports fair and effective agreement-making: s 3(e). 20 Whatever the relative advantages and disadvantages of the various agreement options countenanced by the Act as they apply to the circumstances of a particular employment relationship, the Act does not accord preference or priority to one form of agreement over another. As will be seen, the circumstances of this present proceeding illustrate this devolution of choice to employers and employees. 21 The AWA industrial action in this case having been taken in a setting in which the employment relationship continued to be governed by a certified agreement, it is necessary first to make some reference to the provisions dealing with certified agreements before turning to those that relate to AWAs.

certified agreements 22 Only that part of the Act dealing with "protected action" requires mention for present purposes. Where an employer, employee or organisation of employees wants to negotiate what will become a certified agreement, notice initiating what is referred to as the "bargaining period" for negotiating the proposed agreement is to be given in writing to each of the negotiating parties and to the Commission: s 170MI. The Act prescribes the particulars that must accompany the notice: s 170MJ; and specifies the date from which, after notice, the bargaining period begins: s 170MK. 23 The Act permits what it describes as "protected action" to be taken during a bargaining period if the party taking the action has given the written notice of intention to take that action as required by s 170MO. 24 Section 170ML of the Act, insofar as relevant for present purposes describes "protected action" and its effects in the following way: "170ML(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply. … 170ML(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of: (a) supporting or advancing claims made by the employer in respect of the proposed agreement; or (b) responding to industrial action by any of the employees whose employment will be subject to the agreement; to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action. 170ML(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts. 170ML(5) If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout. 170ML(6) The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees' employment for such purposes as are prescribed by the regulations is not affected by the lockout." 25 Insofar as presently relevant, the immunity provisions of s 170MT stipulate: "170MT(1) An order made by the Commission under section 127 does not apply to protected action. 170MT(2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial 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. 170MT(3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action." 26 I merely note in passing that s 127 of the Act empowers the Commission to make orders to stop or to preclude industrial action. The Commission's order in the present case on 30 May 2000 was made under this section though not in relation to protected action.

australian workplace agreements (awas) 27 An AWA is a written agreement, signed by the parties to it, that "deals with matters pertaining to the relationship between an employer and employee": s 170VF(1); s 170VO(1)(a). The Act regulates in part matters that must, may, or must not be, included in an AWA: s 170VG. 28 An AWA that has been signed by the parties is in effect required to be filed with the Employment Advocate: s 170VN; and is then subjected to an approval process: s 170VPBff; s 170VPFAff. The prescribed filing and approval requirements indicate that a variety of matters must occur before an AWA is signed. The filing requirements provision (s 170VO) provides for present purposes: "170VO(1) The filing requirements for an AWA are: (a) the AWA must be signed and dated by each of the parties, and the signatures must be witnessed; and (b) the AWA must be accompanied by a declaration by the employer: (i) declaring that the AWA complies with section 170VG; and (ii) declaring that, before the employee signed the AWA, the employer gave the employee a copy of an information statement prepared by the Employment Advocate; and (iii) declaring whether or not the employer has offered an AWA in the same terms to all comparable employees; and (c) the employer must have provided any other information that the Employment Advocate requires, by notice published in the Gazette, for the purpose of performing his or her functions." 29 Insofar as presently relevant, the approval requirements provision (s 170VPA) requires that: "170VPA(1) The additional approval requirements for an AWA are: (a) the AWA complies with section 170VG; and (b) the employee received a copy of the AWA at least the required number of days before signing the AWA; and (c) the employer explained the effect of the AWA to the employee between: (i) the time the employee first received a copy of the AWA; and (ii) the time when the employee signed the AWA; and (d) the employee genuinely consented to making the AWA; and (e) in a case where the employer failed to offer an AWA in the same terms to all comparable employees - the employer did not act unfairly or unreasonably in failing to do so. For the purposes of this subsection, the required number of days is 5 for a new employee and 14 for an existing employee." I should indicate the above two "requirements" provisions loom large in the applicants' case. 30 As with certified agreements, the Act provides some level of immunity for industrial action taken for the purposes of making an AWA. Section 170WB defines "AWA industrial action" (insofar as presently relevant) and "lockout" in the following terms respectively: "170WB(1) In this Division: AWA Industrial action means: … (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. … lock out, in relation to an employee, means prevent the employee from performing work under a contract of employment without terminating the contract." 31 Subject to compliance with the prescribed notice requirement: s 170WD; the taking of AWA industrial action attracts such limited immunity as is conferred by s 170WC. That section (which mirrors the immunity provisions of s 170MT(2) and (3) and s 170ML(4) and (5) in relation to certified agreements) provides: "170WC(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. 170WC(2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action. 170WC(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. 170WC(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." 32 The one significantly important potential difference between the level of immunity given AWA industrial action and that given protected action taken for the purpose of a certified agreement is that, subject to the jurisdictional conditions that must be satisfied: see s 127(1); the Commission may be able to make an order under s 127 in relation to the former (as happened in the present case) but it cannot do so in relation to protected action: s 170MT(1). 33 Of no little significance in the present case (at least on one version of the applicants' submissions) is the issue as to when an AWA is made. Their contention is that it is made when it has force and effect under the Act consequent upon its approval. The scheme of the Act belies this. It is in my view clear that the Act contemplates an AWA having been made notwithstanding that it has not come into operation: s 170VJ; that it has not been filed with the Employment Advocate: s 170VN(3); or that it has not been approved under Division 5 of Part VID. 34 The Act expressly recognises the difference between an AWA and a "proposed AWA" by providing in s 170VB(1) that, so far as the context permits, a reference to an AWA includes a reference to a proposed AWA. The pivotal date on which the Act's scheme of filing and approval build: see s 170VN(3); and which provides one reckoning date for the expiry date of an AWA: s 170VH; is what it stipulates to be "the AWA date". That date is defined in s 170VA to mean "the date on which the employer and employee sign the AWA or, if they sign on different dates, the later of those dates". In my view, once such signing occurs an AWA has been made under the Act notwithstanding that it has not become operative and may never be filed or approved: see Schanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663 at 676. Even if I am incorrect in this, and that an AWA that merely has been signed remains to be characterised as a "proposed AWA", the view I have expressed has no operative significance in the instant case. No AWA having been signed, all that can be in question is a "proposed AWA". I have noted above what s 170VB(1) provides in relation to proposed AWAs.

1 the alleged preconditions for a valid s 170WD notice 35 Put compendiously the applicants' submission is that an employer cannot issue a s 170WD notice of intention to lock out employees for the purpose of compelling or inducing them to make an AWA unless and until it has taken all steps it can, and has done all things required to be done by it, to make an AWA that can be approved under the Act. What this requires in practical terms is that the AWA contents requirements of s 170VG having been satisfied: cf s 170VPA(1)(a); the employer must have (i) explained the effect of the AWA to the employee: cf s 170VPA(1)(c); (ii) provided the employees with a copy of an information statement prepared by the Employment Advocate: cf s 170VO(1)(b)(ii); and (iii) allowed the employees the required number of days (here 14 days) to consider signing or negotiating the terms of the proposed AWA: cf s 170VPA(1)(b). 36 The Act does not in express terms impose these requirements as "preconditions" to the issue of a notice. But it is contended that, having regard to the scheme of the Act and its objects, they are implicit preconditions to the taking of AWA industrial action under Part VID of the Act on its proper construction. To the extent that reliance is placed on the objects of the Act as an aid to construction particular emphasis is placed on s 3(c) and (e) and their promotion of fair and deliberative decision-making. It is contended that until the employee has been put by an employer into the position envisaged by the statute in which he or she can properly be expected to make a decision on the matter (ie by providing the information, time, etc referred to above), it is not open to the employer to take action for the purpose of compelling or inducing the employee to make the AWA. 37 In my view the submission is, in substance, an invitation to judicial legislation under the guise of statutory interpretation. It is plain that the AWA industrial action contemplated by the Act, is action that will occur prior to the making of an AWA. It is, after all, action taken for the purpose of compelling or inducing an employee to make it. Apart from the action needing to have the prescribed attributes of AWA industrial action: s 170WB(1); the only statutory precondition expressly required before such action is taken relates to the giving of notice: s 170WD. There is no proper or permissible basis for inferring from, or implying into, the Act further preconditions of the type alleged by the applicants. 38 While the Act clearly requires that certain steps be taken by an employer and that a certain period elapse before an AWA is signed by an employee, it does not prescribe that those steps be taken (even though for the employee's benefit), or that that period elapse, before industrial action is taken. Rather, the provisions of s 170WB, s 170WC and s 170WD together are consistent with that action being taken prior to those steps being taken or that time elapsing. 39 AWA industrial action is a statutorily mandated instrument of compulsion that a negotiating party can bring to bear on the other for the purpose of securing the agreement proposed. It may be that in given circumstances resort to it is or appears to be unfair. Compulsion readily can be seen to have that attribute or appearance. And it may be that, if the jurisdictional limitations of s 127(1) can be overcome in a given case, the Commission may direct that the action cease because of perceived unfairness. But whether or not the Commission is able to police the AWA industrial action taken, no basis exists for implying into the Act a precondition preventing the giving of notice of intended AWA industrial action because it could conceivably in a given instance operate unfairly on employees (or for that matter an employer) because certain steps that needed to be taken before signing had not by then been taken or because the permitted time for signing had not arrived. 40 It should not be assumed though that unfairness will occur as of course if the preconditions propounded by the applicants are not required to be satisfied. In a given instance it may seem anomalous and potentially unfair not only that an employee is provided with a lockout notice at the same time as he or she ascertains an AWA is proposed, but also that he or she cannot sign it for at least fourteen days thereafter though wanting to do so: see s 170VPA(1)(b). But such is not the invariable or, I venture, the usual case. In different circumstances against a background of pre-existing industrial disputation over proposed terms and conditions, the contemporaneous service of a proposed AWA and of a lockout notice may amount to no more than another manoeuvre in a dispute the essence of which is well known and well understood by the parties concerned and in which the 14 day requirement stands as no artificial impediment to the resolution of the dispute: cf the factual setting in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 1217. 41 In the scheme of Part VID of the Act, I am not satisfied that there is such conflict between the provisions relating to AWA industrial action and those imposing requirements to be satisfied before an AWA can be signed and/or filed and/or approved, that would make it necessary to "adjust the meaning" of any of these provisions: cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382. Neither am I satisfied that to allow AWA industrial action to be taken in the manner I have indicated so departs from the legislative intention manifest in Part VID as would justify an implication into the s 170WB definition of AWA industrial action such as the applicants contend for: cf Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321-322. 42 While the Act speaks of advancing its object by providing a framework of rights and responsibilities for employers and employees which supports fair and effective agreement-making: s 3(e); the fact that an element in that framework is of its nature capable of working unfairness in given circumstances provides no basis for judicially legislating to preclude that possibility - the more so when so doing might itself impede effective agreement-making in other circumstances where no issue of possible unfairness exists. 43 The step the applicants seek me to take may or may not, as a matter of public policy, be a desirable one. That is for the legislature to decide. It is not for this Court so to do under the guise of statutory construction.

2 the overlap of notices 44 The applicants' case is that the effect of Peerless' giving notice of intended AWA industrial action while a period of certified agreement protected action was still running was thereafter to rob that protected action of the benefit of the immunity provisions of s 170MT of the Act. The rationale for this submission is, apparently, that by manifesting an intention to pursue AWA industrial action, the respondents' new purpose negated their earlier purpose and, in consequence, denied the lockout that was on foot for the purpose of a proposed certified agreement of its character of protected action. 45 As I have indicated earlier, on 7 April 2000 Peerless gave a notice of lockout from 7.00am 13 April to 7.00am 20 April for the purpose of advancing its proposed certified agreement. On 14 April 2000, a s 170WD notice of lockout was given from 7.00am 20 April to 22 June 2000 for the purpose of the proposed AWA. 46 There is a short answer to this submission and it is reflected in the uncontroverted evidence of Mr Greenberg that Mr Rath. It is their evidence that Peerless' intention to enter into a certified agreement continued up until 7.00am on 20 April and that it would have entered into such an agreement with the AMIEU if the union had by then accepted Peerless' offer. Though thereafter Peerless' intent was to propose an AWA and to take AWA industrial action in consequence, Peerless' purpose while the protected action continued up until 20 April was that required by s 170ML of an employer engaging in a lockout. I see no reason to reject this evidence. Neither witness was cross-examined. 47 That Peerless had separate purposes in respect of separate and sequential time periods in no way robs the character of its purpose in each period of the quality of being its sole purpose for that period if such it is shown to be on the evidence. For this reason it is unnecessary for me to enter upon the question whether for the purposes of s 170ML (or for that matter s 170WB) the required purpose in taking what is claimed to be protected action (or AWA industrial action) must be the party's sole purpose for the action: cf FH Transport Pty Ltd v Transport Workers' Union of Australia (1997) 74 IR 236; or whether it suffices that it is the party's dominant or substantial purpose: cf Transport Workers Union of Australia v Lee (1998) 80 IR 106. 48 I should add that I do not consider the giving of the s 170WD notice to the employees had the effect of terminating the bargaining period with the AMIEU under s 170MV for the purposes of the proposed certified agreement. Neither have the applicants argued that such was the case. Further, I do not consider that that period must formally be brought to an end after industrial action in respect of the proposed certified agreement has ceased before an employer can propose an AWA to its employees and take AWA industrial action in furtherance thereof. Again this was not a matter on which I have been addressed. 49 Having rejected the applicants' submission in relation to the period from 14 April to 20 April, I should note that I gave the applicants leave at the hearing to amend their Amended Statement of Claim so as to allege that: "19A Further and in the alternative by reason of the notices delivered 8 March 2000, 21 March 2000, 29 March 2000 and 13 April 2000, the lockout of the employees from 21 April 2000 was not AWA action within the meaning of section 170WB because it was not for the purpose set out in section 170WB." 50 I adjourned consideration of this ground at the request of the respondent as the claim has a factual dimension to it which had not been addressed in affidavits filed on the respondent's behalf. I would, though, say this much about the amendment. To the extent that it merely raises the same issue in substance as that raised in relation to the protected action from 14 April to 20 April (albeit in relation to a different period), its proper resolution would seem to require the application to it of the same principles as I have applied above.

3 the duress claim 51 This claim as pleaded relies simply upon the financial hardship suffered by the employees because they have been deprived of their income in consequence of the various lockouts that have occurred for the purposes both of the proposed certified agreement and of the proposed AWA. 52 Section 170WG of the Act provides (inter alia) that a person must not apply duress to an employee in connection with an AWA. I have already indicated that lockouts that are protected action or AWA industrial action are both countenanced by the Act and, subject to specified exceptions, attract immunity from suit: s 170MT(2); s 170WC(1). I would add both s 170ML(5) and s 170WC(3) authorise an employer to refuse to pay any remuneration to an employee in respect of the period of a lockout for the purposes of a certified agreement or proposed AWA respectively. 53 The applicants' case seemed in the end to be premised upon my finding one or more of the lockouts not to be protected by either s 170MT or s 170WC. The reason for this is that the pressure said to constitute duress must itself be "illegitimate pressure": see Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202. The pressure authorised by the Act in the case of both protected action and AWA industrial action may well be coercive. But it is, nonetheless, permitted to be applied. And the financial hardship it might occasion because of refusal to remunerate is a consequence which can inhere in the right the Act gives an employer to refuse to pay. The emphasis in the applicants' case in consequence is unsurprising. Neither is it surprising that, in construing s 170WC of the Act, it has been held that the protection there given precludes a claim for duress under s 170WG of the Act: see Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 794. 54 While not wishing to call into question the conclusion in the O'Connor case above, it is unnecessary for me to express a concluded view on the question of construction so raised. And I have not been addressed directly on the construction question. I would only make this comment. It is the case that while the pressure necessary to amount to duress must be "illegitimate", it need not be unlawful: see Westpac Banking Corporation v Cockerill (1998) 152 ALR 267; Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46; Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50; Mason and Carter, Restitution Law in Australia, s 519. Even assuming (i) that AWA industrial action could amount in given circumstances to illegitimate pressure notwithstanding that it was lawful action; and (ii) that a claim could be made on account of it notwithstanding the general immunity of s 170WC - there is simply not the evidence before me that the "economic pressure" said to have been applied here was so unconscionable in its setting as could warrant it being categorised as illegitimate and as amounting to economic duress. As Mason and Carter, above, rightly observe at s 519 lawful action will usually be held not to be improper pressure. Economic duress should not be found lightly. The evidence such as it is does not suggest that the pressure exerted has improperly compromised the exercise of free choice by the employees. Furthermore, there is no direct evidence of financial hardship. Material to that end that was prepared for an earlier interlocutory proceeding was not read before me. 55 I reject the duress claim.

conclusion 56 I have rejected all three claims so far prosecuted in this proceeding. The claim made in para 19A of the Further Amended Statement of Claim remains to be considered, assuming the applicants still intend to prosecute it. 57 I direct the parties to bring in minutes of order to give effect to these reasons. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 18 August 2000 Counsel for the Applicants: Mr E White