Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd

EX TEMPORE REASONS FOR JUDGMENT INTRODUCTION 1 In this matter the applicant seeks an interlocutory injunction to restrain the respondent from taking any further steps towards making an agreement with certain of its employees under s 170LK of the Workplace Relations Act 1996 (Cth) ("the Act"). The employees concerned are described as "meat room employees". The applicant alleges that, by seeking to make the proposed agreement, the respondent has engaged and is continuing to engage in conduct that contravenes ss 170NB, 170NC and 298M of the Act.

factual and procedural background 2 At this stage there is very little disagreement between the parties about the facts of the matter. The following recitation of those facts is based on what appears to be common ground. 3 On 24 August 2000, the applicant, representing those of its members who were meat room workers employed by the respondent, reached agreement under s 170LJ of the Act about the terms and conditions of employment of those employees. I shall refer to that agreement as the "Meat Agreement". That agreement was subsequently certified by the Australian Industrial Relations Commission ("the Commission"). It came into operation on 1 September 2000 and had a nominal expiry date of 1 September 2002. 4 On a date which the evidence does not disclose, the respondent reached agreement with the Shop Distributors and Allied Employees Association ("the SDA") in relation to the terms and conditions of employment of those other employees in its supermarkets who were not meat room employees. That agreement was also certified by the Commission (on 28 November 2001) and had a nominal expiry date of 1 September 2002. 5 On or about 26 March 2002, the applicant served a Notice of Initiation of Bargaining Period on the respondent. That document referred to the applicant's intention to try and make an agreement under Division 2 of Part VIB of the Act with the respondent. 6 On or about 1 May 2002, the applicant became aware that the respondent was facilitating meetings between the SDA and all current non-members of the SDA employed by the respondent in all departments including the meat room. 7 On 14 May 2002, the applicant lodged a notification of industrial dispute, under s 99 of the Act, with the Commission. In that document the applicant identified the dispute as a demarcation dispute with the respondent in relation to a circular which it had distributed on 1 May 2002, confirming that it had given permission to SDA representatives to conduct meetings with all the respondent's store personnel including meat room employees. 8 That matter has been before the Commission on two occasions (22 May 2002 and 23 August 2002). 9 On 3 August 2002, the applicant filed and served an application under s 118A of the Act, seeking to bring before the Commission what was said to be a dispute between the applicant and the SDA over which union was entitled to represent the interests of the respondent's meat room employees. Both of those matters are still pending before the Commission. 10 On 27 August 2002, the applicant filed an application in this Court alleging contraventions by the respondent of ss 170NB and 298M of the Act. The relevant orders sought at that stage were as follows: "1. An order that Respondent cease contravening s 298M of the Act in inducing those of its employees who chose to be members of the AMIEU, or are eligible to be members of the AMIEU, to stop being members of the AMIEU; 2. An order that the Respondent cease negotiating a Division 2 agreement with the Shop, Distributive and Allied Employees Association ("the SDA") that purports to cover the Applicants members covered by the respondent (sic); 3. An injunction preventing the SDA and the Respondent from registering a Division 2 agreement that purports to apply to the applicants (sic) members employed by the Respondent and/or those employees eligible to be members of the Applicant." 11 The applicant also sought, again at that stage, the following orders by way of interlocutory relief: "1. An interim injunction directed at the Respondent to cease negotiating a Division 2 agreement with the SDA that is intended to apply to the employees of the Respondent who are eligible to be members of the AMIEU; 2. An interim injunction preventing any Division 2 agreement negotiated between the Respondent and the SDA and applying to members of the AMIEU from being registered by the Australian Industrial Relations Commission". 12 Between 2 September 2002 and 23 September 2002, meetings were held between representatives of the applicant and the respondent to discuss a new agreement to replace the Meat Agreement. They were attended by Mr David Hopperton, Branch Secretary of the applicant and Mr Graeme Haynes, its Assistant Branch Secretary. Ms Robyn Atkinson, the respondent's Regional Human Resources Manager, represented the respondent at all meetings and a Mr Peter Manucci, a human resources specialist employed by the respondent, attended the first two meetings. There were also telephone discussions during that period between the parties on the same subject matter. 13 It would appear from Mr Hopperton's affidavit sworn on 20 November 2002 that, as a result of those negotiations, there remained only one outstanding issue between the parties which prevented the conclusion and certification of a new agreement between them under s 170LJ of the Act. That was a clause, apparently required by the respondent, known as a "savings clause". The effect of the savings clause was to preserve for current meat room employees a 25% loading for work performed on Saturdays, but on the basis that such a loading entitlement would not be made available to new employees of the respondent. The applicant refused to agree to the savings clause. 14 The applicant sought an urgent hearing of its claims for the interlocutory injunctive relief to which I have referred. The matter came on for hearing on 2 October 2002. After a little prompting from me, the respondent undertook through its counsel to give the applicant two weeks written notice of its intention (if it should form such an intention) to apply to the Commission for certification of any agreement with the SDA, before making such an application. On that basis the matter was adjourned indefinitely with liberty to the applicant to apply for urgent interlocutory relief on 48 hours written notice. 15 No further steps were taken within the application until 11 November 2002. On that date the applicant wrote to the Court requesting that the application be re-listed as a matter of urgency to enable it to make an application for an interim injunction. 16 It is apparent that this request arose out of the fact that on 8 November 2002, the respondent wrote to its meat room employees referring to recent negotiations with the applicant, stating that the respondent had been unsuccessful in concluding a mutually satisfactory agreement with the applicant, and also stating its intention to make a collective certified agreement directly with the meat room employees under s 170LK of the Act. 17 The applicant's claim for interlocutory relief was listed for hearing on 21 November 2002 (last Thursday). The applicant chose to file and serve a further affidavit (sworn by Mr Hopperton) on the eve of that hearing. 18 When the matter came on for hearing the respondent sought and was granted a short adjournment until today to enable it to file and serve answering affidavits. I made directions for the filing and service of those affidavits and written submissions by each party. The applicant had not sought leave to file and serve any further affidavits but, nonetheless, filed a further affidavit last Friday. 19 The respondent's evidence is to the effect that it has been unsuccessful in its efforts to reach an agreement with the applicant or the SDA under s 170LJ of the Act and, as I have mentioned, has elected to attempt to reach an agreement with its meat room employees under s 170LK. 20 From this evidence it can be seen that there has been a major shift, at least for interlocutory purposes, in the basis upon which the applicant seeks relief from the Court. Initially that relief was sought on the basis that the respondent was contravening ss 170NB and 298M of the Act by negotiating with the SDA rather than with the applicant. Now the applicant asserts that the respondent is contravening ss 170NB, 170NC and 298M of the Act by attempting to reach a collective agreement directly with its meat room employees under s 170LK of the Act. 21 The applicant has undertaken to file an amended application to reflect these changed grounds and the different relief which it seeks. The interlocutory relief which it now seeks is set out in a minute of proposed orders which is in the following terms: "1. The respondent, Woolworths Supermarkets WA Pty Ltd and/or Woolworths Ltd be restrained from offering, entering in to (sic) or taking any steps (including any ballot of employees to be conducted by the Australian Electoral Commission) to make, formalise or certify an agreement made pursuant to Section 170LK of the Workplace Relations Act 1996, or any contract of employment conditional upon the making of such an agreement with any of its employees whose employment is regulated by the Woolworths Supermarkets (WA)/ AMIEU Enterprise Agreement 2000, and 2. The question of costs be reserved." 22 That minute has been treated as the applicant's motion. 23 There are various steps required by s 170LK before an application may be made to the Commission for certification of an agreement made under s 170LK. The evidence before the Court indicates, at least on a prima facie basis, that the respondent has taken the following steps: · it has notified (by written notice dated 8 November 2002) each meat room employee of its intention to make an agreement under s 170LK. That is a requirement of s 170LK(2); · the notice states, in purported compliance with s 170LK(4), that any employee has the opportunity to request their union to represent them in meetings with and conferring with the respondent, and that should any employee wish to have that representation they are requested to contact the union; [I interpolate here that the evidence is that Mr Hopperton has been contacted by some 40 of the applicant's members and has represented 34 of them at a meeting with the respondent last Friday]; and · reasonable steps have been taken to ensure that all employees whose employment is to be covered by the proposed agreement have, or have ready access to, the proposed agreement in written form [see s 170LK(3)]. 24 The respondent has retained the Australian Electoral Commission ("the Electoral Commission") to conduct a vote to ascertain whether there exists a valid majority of its meat room employees who are prepared to make the proposed collective agreement with it. The Electoral Commission is in the course of conducting a secret ballot for that purpose. The evidence shows that the Electoral Commission has probably posted out the ballot papers to the meat room employees because it has told the respondent that it intended to do that by today. The meat room employees will then have until 10 December 2002 to cast their votes. 25 There is evidence that the original cost quoted by the Electoral Commission to conduct this ballot was $4,500 but due to certain steps taken by counsel for the applicant, that cost is likely to be increased. Ms Atkinson's evidence is that if, as a result of orders made today, the ballot were suspended and then recommenced, the total cost of the ballot would be increased by approximately two-thirds or more.