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[2002] FCA 1515
Federal Court of Australia
2002-11-26
Carr J
Original judgment source is linked above.
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.
the statutory framework 26 Section 170NB is headed "Employers not to discriminate between unionist and non-unionist". Relevantly s 170NB(1) provides that an employer must not, in negotiating an agreement of the type proposed in this matter, discriminate between employees because some of those employees are members of a union while others are not members of a union or because some of those employees are members of a particular union, while others are not members of that union or are members of a different union. Section 170NC relevantly provides that a person must not take any action with intent to coerce another person to agree to making an agreement of the type proposed, or approving that agreement. 27 Section 298M of the Act relevantly provides that an employer must not induce an employee to stop being an officer or member of an industrial association.
the applicant's case 28 In relation to the alleged breach by the respondent of s 170NB, the applicant contends that the respondent is attempting to exclude it from the further negotiation of a certified agreement. It says that by doing so, the respondent has discriminated against its employees who are members of the applicant because they are members, and that it has done this by not negotiating an agreement with them through the applicant. 29 The following basis for that alleged discrimination is put forward: (i) If the agreement is certified then, over time, those employees that are members of the applicant will be less attracted to being members; (ii) Those employees who are members of the applicant will have a "reduced ability" to enforce the respondent's obligations to them; (iii) Those employees who are members of the applicant "will have lost the opportunity" for the union to be consulted by the respondent in terms of the operation of the proposed agreement generally; (iv) The effect of the respondent's conduct will be to ensure a substantial number of its employees will stop being members of the applicant; (v) The terms and conditions in the proposed agreement and/or in any future agreement affecting employees who are members of the applicant will be the subject of decisions by the respondent only on a "take it or leave it" basis; (vi) The concept of union membership within the respondent's stores would be devoid of any meaningful benefit to the employees who retain it because they would be unable to exercise their rights as members to engage in collective bargaining through the union of their choice as to their terms and conditions; (vii) The attempt by the respondent to pursue an agreement under s 170LK rather than s 170LJ will result in an agreement which is not the product of free bargaining in that employees who are currently members of the applicant will have lost the opportunity to have it collectively bargain on their behalf; (viii) The proposed agreement undermines the support the applicant can give to its members when they have grievances with the respondent; (ix) If sufficient numbers of its members employed by the respondent terminated their membership of the applicant, this would diminish the power to protect the interests of the remaining members, especially relating to their working conditions; (x) The respondent's attempt to have employees who are members of it accept the s 170LK agreement has denied those employees (and only them) the opportunity to have representation of their choice in collective bargaining with the respondent, being an advantage they would reasonably have expected to enjoy simply because they are members of the applicant. 30 In relation to the alleged breach by the respondent of s 170NC, the applicant submits that the respondent has engaged in conduct to coerce members of the applicant to enter into the s 170LK agreement. This is put on the basis that the abandonment by the respondent of the proposed agreement under s 170LJ, solely on the basis that the applicant would not agree to the savings clause, constituted coercion against its members to enter into the proposed agreement. 31 Finally, in relation to the alleged breach of s 298M the applicant says that the respondent's conduct in refusing to continue to negotiate with it simply because the applicant opposes the savings clause, and in attempting to reach an agreement under s 170LK directly with its employees, and (so it is alleged) intentionally excluding the applicant from that process, is engaging in conduct that induces those of the respondent's employees who are members and/or delegates of the applicant to stop being members and/or delegates. This is said to be because that conduct results in the ten alleged outcomes to which I have just referred. 32 For all of the above propositions, the applicant relies upon authorities which include five decisions of this Court being the first five cases listed in its amended list of authorities. I will not cite those authorities at this stage. 33 In relation to the balance of convenience, the applicant submits that if the status quo is not preserved, those of its members who are meat room employees of the respondent will suffer irreparable harm as a result of the certification of an agreement under s 170LK. The applicant contends that the respondent is unlikely to suffer any irreparable harm if injunctive relief is given.
my reasoning 34 I turn first to the question whether there is a serious question to be tried. 35 By way of a preliminary observation I note that the Parliament has seen fit to provide alternative courses for the reaching of an agreement under Division 2 of Part VIB of the Act. One involves making an agreement with a union. The other involves making an agreement directly with employees. Common to both processes is the condition that any such agreement must be approved by a valid majority of the employees who will be subject to the proposed agreement. 36 The evidence shows that the respondent has negotiated with the applicant, and indeed with the SDA, with a view to reaching an agreement under s 170LJ. The only reason why that agreement has not been reached with the applicant is the failure of the parties to agree to the savings clause. There is no suggestion from the applicant's side that the respondent has failed to act in good faith during the negotiations or that in negotiating with it the respondent was simply "going through the motions". 37 There is nothing in the Act which prohibits the making of a s 170LK agreement in the event that the parties to negotiations for a proposed agreement under s 170LJ fail to bring those negotiations to a satisfactory conclusion. 38 I shall first consider whether there is a serious question to be tried in relation to the alleged contravention of s 170NB. That is, has the respondent in negotiating the proposed agreement discriminated between its meat room employees because they are members of the applicant? 39 In my view, the applicant's conduct has to be assessed in the context of the history of recent events i.e. that the respondent has made serious endeavours to reach agreement through collective bargaining with the applicant. 40 I note that there is no suggestion that those of the meat room employees who are members of the applicant have in any way been treated differently to meat room employees who are not members. The affidavits show that the procedures involved in the negotiation, such as the explanatory meetings and the like have involved the members of the applicant and non-members alike without discrimination. 41 Secondly, the terms and conditions offered to the meat room employees are the same, regardless of membership of the applicant. 42 Thirdly, there are provisions in the proposed agreement which recognise the role of the applicant. Clause 1.8 specifically refers to the commitment of the parties to the recognition of the role of "the Union" which is a defined term. The Union is defined as meaning the applicant. In clause 5 of the proposed agreement the respondent recognises the employees' right to join the applicant as being the Union that has a right to represent them. There are clauses which require the respondent to facilitate the payment of union membership fees and permitting the applicant to use its noticeboards. There are also sub-clauses in clause 5 providing for employees to be granted paid time off to attend meetings of the applicant, like clauses in relation to elected representatives and the grant of leave to such representatives to attend training. I acknowledge that those sub-clauses are expressed in terms of the respondent's discretion. In clause 7, which provides a dispute resolution procedure, there is a paragraph enabling the parties to seek assistance from their respective representatives where a matter is not resolved within 48 hours. 43 I take into account Mr Hopperton's criticisms in his last affidavit of the various clauses in the proposed agreement. Mr L Gandini, counsel for the applicant, has taken me to the various differences between the meat agreement and the proposed agreement which at first glance appear to relegate the union to a less important role in the ongoing relationship between the respondent and its meat room employees, but there is a very real question whether that amounts to discrimination in negotiating the agreement. 44 It should also be borne in mind that s 170LK(4) and (5) provide a statutory mechanism for the applicant to meet and confer on behalf of its members with the respondent. 45 I have had regard to the ten factors upon which the applicant bases its assertion that there is a serious question to be tried in relation to s 170NB. 46 The state of the evidence before the Court to date is such that it is obviously not possible to form a concluded view on the matter. There are factual issues to be decided. For example whether the outcomes which the applicant fears - and which in some of the cases have been accepted as likely outcomes in advance of trial - are likely in fact to come about and whether the respondent intends such consequences or is deemed to have so intended. 47 On that basis (i.e. that there are factual issues to be tried), and on the basis that there may be an argument whether s 170NB is confined in its operation to the process of negotiation, I accept that there is a serious question to be tried in relation to s 170NB, but, as best I can, I would assess the applicant's case as not being a strong one. 48 I now turn to s 170NC. In my view, there is no serious question to be tried in relation to s 170NC on the basis of the evidence before the Court to date. I do not accept the submission made by the applicant that the abandonment by the respondent of the agreement proposed under s 170LJ, solely on the basis that the applicant would not agree to the savings clause, constitutes intentional coercion of the applicant's members to enter into the proposed agreement under s 170LK. 49 The applicant relies on Hanley v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1188 for that proposition. 50 Hanley's case was, in my view, very different indeed from this case on the facts. In Hanley there was very clear evidence of coercion. That is not, in my view, the case here. The applicant's principal evidence is in the form of an opinion formed by Mr Hopperton based on unspecified conduct. The respondent's evidence is specific and almost entirely to the opposite effect. 51 In relation to the alleged contravention of s 298M, the applicant relies substantially on the ten factual assertions to which I have referred earlier. 52 Once again, I am prepared to accept that there is a serious question to be tried in relation to these factual allegations. However, I consider that the applicant's case, on the evidence before the Court to date, is far from strong. The present state of the evidence indicates that the respondent has not sought to induce any of the meat room employees to stop being an officer or member of the applicant. 53 I now turn to the question of the balance of convenience or, as I prefer to call it, the risk of doing an injustice to one or other of the parties by granting or denying the interim injunctive relief sought by the applicant. 54 The respondent's evidence indicates that, of the total number of meat room employees of the respondent, only 17% of them have their union subscriptions paid by wage deduction through the respondent to the applicant. That is about one in six. 55 The applicant hotly disputes that the membership rate is so low and sought to adduce oral evidence today from Mr Hopperton that the actual figure is much higher. For reasons of procedural fairness to the respondent, who had had no chance to verify or test that evidence, I refused leave. There is no way in which I can resolve this factual difference today, but it is common ground that there is a substantial number of meat room employees who are not members of the applicant. 56 If the interlocutory relief which the applicant seeks is granted, then all the meat room employees will, for the duration of the injunction, be denied the benefits to be provided under the proposed agreement. It should be remembered that the financial benefits are the same as offered during the negotiations with the applicant. For example, there is, as might be expected, a significant increase in pay to which the respondent has agreed because the meat room employees have not had a pay rise since September last year. In short, the interlocutory injunction sought will delay those pay rises for all of the meat room employees. 57 I have regard to other remedies. Section 170LU(3) provides that the Commission must refuse to certify an agreement if it is satisfied that an employer has, in connection with negotiating the agreement, contravened two sections, relevant to the present case, ss 170NB or 298M. The applicant says that there is no guarantee that it will be heard by the Commission if and when the proposed agreement goes to it for certification. However, in that event or rather, in the event that the Commission exceeds its jurisdiction in doing so, the applicant will have the right of recourse to this Court. 58 I respectfully agree with the observation of Branson J who said, in Construction, Forestry, Mining & Energy Union v CSR Limited [2000] FCA 1203 at [50]: "The framework established by the Act for the negotiation and certification of agreements discloses an intention, in my view, that the Commission, rather than the Court, should ordinarily be the forum in which the issue of whether certification of an agreement should be withheld because of an alleged contravention of s 170NB should be determined." 59 Although each case turns on its facts, I agree respectfully with the approach taken in relation to that consideration (i.e. the role of the Commission) in National Tertiary Education Industry Union v University of Technology, Sydney [2000] FCA 874 at [17] and [18] ("NTEIU"). 60 Kenny J in Professional Officers' Association (Victoria) v CSL Ltd [2001] FCA 628 at [39] ("POA") distinguished NTEIU on the basis that the negotiations in POA were not well advanced. I would in turn distinguish that case from the present circumstances. All that remains to be done in the present matter, assuming a valid majority, is for there to be an approach to the Commission for certification. This leads me to the next factor. 61 It will not, of course, be known whether there will be any agreement to certify until the declaration of the results of the ballot. 62 If there is no valid majority of the meat room employees who choose to vote being in favour of the agreement, then the immediate and allegedly irreparable harm which the applicant says it fears will not come about. 63 The process upon which the respondent has embarked is not only one which Parliament has expressly sanctioned, but one which enables all of the meat room employees, including without discrimination the applicant's members, to decide whether or not they are prepared to accept the proposed agreement. As Madgwick J observed in NTEIU, it is the rights of employees rather than unions themselves that the Act principally sets out in the relevant provisions to protect. In my view, in the context of prior negotiations between the applicant and the respondent which failed on one issue alone, and taking into account the factors which I have just mentioned, the balance of convenience lies very clearly in favour of allowing the ballot to proceed and for the Commission to deal with the issues of alleged contravention at the certification stage. 64 Thus, taking into account what I regard to be the weakness or the lack of strength in the two alleged contraventions in respect to which I have held there is a serious question to be tried, and on the other hand the very clear balance of convenience in my view in allowing the statutory process to continue, I propose for those reasons to refuse the applicant's motion. The motion will be dismissed. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.
Australasian Meat Industry Employees Union (WA Branch)
Woolworths Ltd