Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

Federal Court of Australia (Full Court)|2003-08-15|Before: Doussa JJ, Kenny J, Marshall JJ

REASONS FOR JUDGMENT French andvon Doussa JJ: Introduction 1 Emwest Products Pty Ltd (Emwest) entered into a certified agreement with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) which was certified under the Workplace Relations Act 1996 on 30 April 2001 with a nominal expiry date of 30 June 2003. The agreement applied to all production employees of Emwest at its Newport site. It did not contain any redundancy provision. That topic was left to be separately negotiated in 2001. Subsequent discussion in 2001 concerning a redundancy agreement gave rise to a dispute with the AMWU which threatened strike action. Emwest ultimately instituted proceedings in the Federal Court asserting that the threatened strike action was prohibited under s 170MN of the Workplace Relations Act. After interlocutory and final proceedings Kenny J dismissed the application. Her Honour did so substantially on the basis that the provisions of s 170MN of the Act prohibiting industrial action by an employee under a certified agreement do not apply to action in respect of matters not covered by the agreement. 2 Emwest settled the dispute with its employees but the construction of s 170MN adopted by her Honour led the Australian Industry Group to seek leave to be joined as a party and to appeal against the decision. Leave was granted on 29 November 2002 by a Full Court differently constituted. 3 In the event, we are of their view that the appeal should be dismissed on its merits. Had we not come to that view there were in any event powerful discretionary considerations against the grant of any relief in the circumstances of this case. Factual Background and History of Proceedings 4 Emwest markets and services gas and electricity meters, gas regulators and related measurement and control equipment for the commercial and industrial sector of the energy distribution industry. It trades under the name Email Metering. In 2001, the company had premises at Newport in Victoria where it employed approximately 71 persons under the terms of the Metal, Engineering and Associated Industries Award 1998. Almost all of its employees at Newport were members of the AMWU. Apart from the award there have been four agreements, certified by the Australian Industrial Relations Commission, which relate in whole or in part to Emwest employees. These agreements were as follows: 1. Emwest Products Pty Ltd Email Gas Division Certified Agreement 1997 ('1997 Agreement') This agreement was certified on 22 September 1997 with a nominal expiry date of 30 June 1999. It applied to Emwest's employees at Newport engaged under the Metal Industry Award 1984. It made provision for their terms and conditions and the continuing operation of other awards and certified agreements. There were no provisions in this agreement concerning redundancy. 2. Email Gas Redundancy Agreement 1998 ('1998 Redundancy Agreement') This agreement was certified on 14 December 1998 with a nominal expiry date of 30 September 2000. It applied to Emwest's employees at Newport and at another location in Victoria. In addition to the AMWU, the Transport Workers Union was also a party. The agreement provided for redundancy only. 3. Email Victoria Manufacturing Agreement 1999 ('1999 Agreement') This agreement was certified on 13 October 1999 and had a nominal expiry date of 30 June 2000. It applied to a number of Emwest sites across Victoria and bound various unions. 4. Email Metering Newport Operations Enterprise Agreement 2000 ('2000 Agreement') This agreement was certified on 30 April 2001 with a nominal expiry date of 30 June 2003. Emwest and the AMWU were parties. The agreement applied to all employees at Newport engaged in any of the occupations, industries or callings specified in the 1998 Award. All production employees of Emwest at the Newport site were covered by this agreement. It did not contain any provisions dealing with redundancy. The provisions of previous agreements not inconsistent with those of the 2000 Agreement were continued. 5 The bargaining period for the 2000 Agreement was initiated on 22 June 2000 by a notice given by the AMWU to Emwest under s 170MI of the Workplace Relations Act. The notice set out matters to be dealt with in the proposed agreement including matters relating to redundancy. However in August 2000 the parties agreed to drop redundancy from the negotiations for the 2000 Agreement and to consider that topic separately in 2001. 6 In July 2001, the AMWU told Emwest that it wished to commence negotiations for a new redundancy agreement. This was discussed at meetings held on 20 July 2001. At that time Emwest's General Manager, Human Resources, Mr Bruce Jackson, informed the AMWU that the business of Emwest at Newport was to be sold. In a later meeting on 9 August 2001, Mr Jackson told the AMWU that it would be difficult to alter the fundamental terms and conditions of employment of Emwest employees as they had been disclosed to prospective buyers. The AMWU responded by informing Mr Jackson that employees at Newport had decided to take protest action by leaving work and they would not return until 13 August 2001. On 13 August 2001, Emwest applied to the Australian Industrial Relations Commission pursuant to s 127 of the Workplace Relations Act for an order preventing industrial action in relation to the renegotiation of redundancy conditions. A bargaining notice was served on Emwest on 15 August 2001. The application for an order under s 127 was dismissed on 29 August 2001. 7 The AMWU served Emwest with a notice pursuant to s 170MO of the Act on 3 September 2001 informing Emwest that its employees at Newport intended to take industrial action from 4pm on 7 September 2001. The action proposed comprised a total ban on overtime and a stop work 2 hours before the end of each shift every day. This action would continue for a period of three months or until agreement was reached whichever was sooner. 8 On 5 September 2001, Emwest filed an application in the Federal Court against the AMWU claiming penalties under s 170NF of the Workplace Relations Act for contravention of s 170MN and for injunctive relief under s 170MG to restrain what it claimed were contraventions of s 170MN and for other injunctions. The specific relief claimed included: 'A declaration that the industrial action which the respondent is taking and has threatened to take, is not protected industrial action within the meaning of the Act.' Emwest also applied to the Court for an interlocutory injunction. The hearing of that application was adjourned, subject to undertakings, so that a meeting could be arranged between the parties on 13 September 2001 to endeavour to resolve the dispute. No resolution ensued and later on the same day the union served a further notice of intended industrial action under s 170MO. The industrial action was to commence at 7am on 19 September 2001 and to comprise a total ban on overtime and rolling stoppages throughout Emwest's operations. The action would continue for a period of three months or until agreement was reached. On 18 September 2001, Kenny J granted an injunction restraining the AMWU: '… from directing, including, (sic) encouraging, procuring or authorising any employee of the applicant at 100-110 Mason Street, Newport, Victoria to stop work, or fail to work otherwise than in accordance with the Email Metering Newport Operations Enterprise Agreement 2000, for the purpose of supporting or advancing claims against the applicant for redundancy benefits in respect of such employees.' 9 Negotiations having failed, Emwest's substituted application came on for hearing before Kenny J on 29 October 2001. On 6 February 2002, her Honour ordered that the application be dismissed. She did so substantially on the basis that s 170MN, which prohibits industrial action by an employee whose employment is subject to a certified agreement the nominal expiry date of which has not yet passed does not apply to industrial action in respect of matters not covered by the agreement where the action is undertaken in furtherance of an agreement on another topic. The terms of the section prohibit industrial action by employees or organisations bound by an agreement where such action is 'for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement…'. 10 Following delivery of the judgment, Emwest had 21 days within which to file a notice of appeal. It did not do so but instead reached agreement with the union about redundancy payment for its employees. However the construction of s 170MN was seen in some quarters as having ramifications for the industry generally going well beyond the interests of the parties in the case before her. For that reason the Australian Industry Group (AIG), which is a registered organisation of employees of which Emwest is a member, applied to the Court seeking leave to appeal against the decision of Kenny J. Its application was made within 21 days of her Honour's order. AIG contended that the decision had an immediate impact on its members and that its effect had been 'significant'. In addition to AIG's application, the Minister for Employment and Workplace Relations sought leave to intervene in support of AIG. The application for leave came before a Full Court comprising Gray, Goldberg and Finkelstein JJ. On 29 November 2002, the Court made orders in the following terms: '1. Leave be granted to the Minister for Employment and Workplace Relations to intervene in the hearing of the application for leave to appeal. 2. Leave be granted to the Australian Industry Group to appeal from the judgment of the Court given on 6 February 2002. 3. The Australian Industry Group file and serve its Notice of Appeal within 7 days.' The judgment of the Full Court in that case was by majority, Goldberg and Finkelstein JJ writing a joint judgment and Gray J dissenting. The Grounds of Appeal and the Relief Sought 11 The grounds of appeal as set out in the notice filed pursuant to the leave given by the Full Court on 29 November 2002 are as follows: '3. The learned Judge was in error in concluding that the prohibition in s 170MN(1) of the Workplace Relations Act 1996 against engaging in industrial action for the purpose of supporting or advancing claims against the employer, only applies to industrial action engaged in for the purpose of supporting or advancing claims in respect of matters actually agreed upon by the parties in the agreement in question. 4. The learned Judge was in error in failing to conclude that the prohibition in s 170MN(1) against engaging in industrial action for the purpose of supporting or advancing claims against the employer, extends to industrial action engaged in for the purpose of supporting or advancing any claim pertaining to the employment of employees to whom the relevant certified agreement applies.' 12 The relief sought on the appeal is first that the judgment and order of Kenny J be set aside and secondly a declaration in the following terms: '… that the industrial action which the First Respondent [AMWU] threatened to take against the Second Respondent [Emwest], commencing 7 September 2001 and 19 September 2001, details of which are set out in paragraphs 18 and 20 of the judgment of Her Honour Justice Kenny dated 6 February 2002, was not protected industrial action within the meaning of the Workplace Relations Act 1996.' Statutory Framework 13 The provisions of the Workplace Relations Act which are relevant to these proceedings fall for consideration against the background of the amendments to the Industrial Relations Act 1988 and the changes effected by those amendments which led to its redesignation as the present Act. 14 Part VI of the Industrial Relations Act 1988 provided for dispute prevention and settlement as does Part VI of the Workplace Relations Act. The Industrial Relations Reform Act 1993 introduced into the Industrial Relations Act 1988 new provisions, including Part VIB entitled 'Promoting Bargaining and Facilitating Agreements'. It provided, inter alia, for the making of certified agreements (Div 2) and enterprise flexibility agreements (Div 3). It conferred on the Commission a role in facilitating agreements so made (Div 5). At that time the subject matter of awards which could be made under Pt VI of the Act was as wide ranging as the subject matter of certified agreements under Pt VIB. 15 The Industrial Relations Act 1988 was further substantially amended by the Workplace Relations and Other Legislation Amendment Act 1996. The Second Reading Speech characterised the role of the awards under the new Workplace Relations Act 1998 as 'a genuine safety net' - Parl Deb H of R 23/5/96 p 1298. Consistent with that purpose the Commission's jurisdiction to incorporate matters in awards was to be confined to certain 'allowable award matters'. All matters beyond those specified in the legislation were generally to be determined, at the enterprise or workplace level, in formal agreements or otherwise informally. Options for agreement making were to be 'significantly expanded'. In relation to certified agreements it was said: 'The current certified agreement provisions are being revised substantially.' 16 Reference was made in argument to the objects of the Workplace Relations Act set out in s 3 and the object of Pt VIB set out in s 170L. The principal object of the Act as set out in s 3 and the relevant means specified towards the attainment of that object are as follows: '3. The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and (c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and … (e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; ….' 17 Section 170L, which appears in Div 1 of Pt VIB, states: 'The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business.' 18 The term 'certified agreements' which is the title of Pt VIB is defined in s 4 as '…an agreement certified under Division 4 of Part VIB'. The "nominal expiry date" of a certified agreement is defined in s 170LD as 'the date specified in the agreement as its nominal expiry date, or that date as extended or further extended under section 170MC'. After Div 1 of Pt VIB which deals with preliminary matters the following divisions cover: . Division 2 - Making agreements with constitutional corporations or the Commonwealth (s 170LH to s 170LM). . Division 3 - Making agreements about industrial disputes and industrial situations (s 170LN to s 170LS). . Division 4 - Certifying agreements (s 170LT to s 170LW). . Division 5 - The effect of certified agreements (s 170LX to s 170Z). . Division 6 - Persons bound by certified agreements (s 170M to s 170MB). . Division 7 - Extending, varying or terminating certified agreements (s 170MC to s 170MHA). . Division 8 - Negotiations for certified agreements (s 170MI to s 170NB). . Division 9 - Prohibition of coercion in relation to agreements (s 170NC). . Division 10 - Enforcement and remedies (s 170ND to s 170NH). . Division 11 - Miscellaneous (s 170NI). 19 Division 8 which deals with the negotiations for certified agreements provides for the initiation by an employer or an organisation of employees or employees of a bargaining period for negotiating the proposed agreement. The bargaining period commences upon the initiating party giving written notice to each other negotiating party (s 170MI(1) and (2)). The notice initiating the bargaining period is to be accompanied by various prescribed particulars including the matters that the initiating party proposes should be dealt with by the agreement (s 170MJ(c)). The bargaining period then begins at the end of seven days after the day on which the last notice was given. 20 During the bargaining period the relevant organisation of employees or an employee who is a negotiating party is entitled to organise or engage in industrial action directly against the employer where that action is for the purpose of: 1. Supporting or advancing claims made in respect of the proposed agreement; or 2. Responding to a lock out by the employer of employees whose employment will be subject to the agreement (s 170ML(2)). Such industrial action is protected action to which s 170MT applies. In particular, s 170MT(2) and (3) provide: '(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. (3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.' Employers are prohibited from taking various classes of adverse action against employees on account of their engagement or proposed engagement in protected action (s 170MU). 21 The bargaining period ends upon the making of an agreement or where the initiating party tells the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Div 2 or 3 with those parties or where the Commission terminates the bargaining period (s 170MV). 22 Section 170MN prohibits industrial action for certain purposes until after the nominal expiry date of certain agreements and awards. The section is in the following terms: '170MN(1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: (a) any employee whose employment is subject to the agreement or award; (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. (3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action. (4) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3); comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment. (5) If the employer does so, the lockout is not protected action. (6) Engaging in industrial action, or locking out an employee, in contravention of section 170VU is not protected action.' The Judgment at First Instance 23 Her Honour identified the issue before her as one about the proper construction of s 170MN. She held that the prohibition against industrial action which it imposes is a limited one. It does not extend to industrial action for a non-prescribed purpose even where there is a relevant certified agreement. This aspect of its operation, her Honour held, reflects a statutory assumption that when parties make an agreement with respect to employment they do so on the basis that they will not resort to industrial action during its currency '… in respect of the matters upon which they have reached agreement'. 24 The term 'in respect of the employment of employees whose employment is subject to the agreement', she found capable of more than one meaning. It could be read as referring to 'the employment of employees [where this] employment is [specifically] subject to the agreement'. On that basis the expression would refer only to matters actually agreed upon by the parties in the agreement. The prohibition would then extend only to industrial action for the purpose of advancing claims in respect of such agreed matters. It was this construction for which the AMWU contended. Her Honour found support for it in the decision of Ryan J in Kilpatrick Green Pty Ltd v The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [1998] FCA 559. 25 The alternative construction, for which Emwest contended, would read the expression as referring to 'the employment of employees [where this] employment is [in some way or other] subject to the agreement'. On that basis the prohibition would extend to industrial action taken for the purpose of advancing any claim pertaining to the employment of an employee to whom (or to whose work) the certified agreement applied. 26 Her Honour referred to the stated objects of the Act in s 3 and in particular pars (c) and (e). She also referred to the object of Pt VIB in which s 170MN is located. Her Honour found the question of the proper construction of the expression not free from doubt. She accepted that the Emwest construction was perhaps the most obvious and relatively straight forward but was not persuaded that it was the preferable construction. 27 Her Honour cited other provisions of Pt VIB and observed that, save possibly for s 170MN, the statutory assumption was that more than one certified agreement could apply at the one work site and that the remainder of Div 8 would apply in relation to the negotiation of a certified agreement under the Act. She noted the contention that employees subject to certified agreements dealing with different topics and expiring on different days could be hamstrung by the different expiry dates and prevented from taking protected action in relation to one agreement merely because another agreement dealing with other topics had not expired. 28 On the other hand Emwest had submitted that, if the construction it favoured were accepted, the AMWU and its members would not be precluded from seeking to negotiate the improved redundancy benefits. Her Honour however noted, with evident approval, the proposition that unless labour and management have recourse to work stoppage it is unlikely that bargaining will be fruitful. In the absence of such coercive power, it was unlikely that bargaining would even commence. She cited McCarry, 'Industrial Action under the Workplace Relations Act 1996 (Cth)' (1997) Australian Journal of Labour Law 133 at 133-134. Emwest had also submitted that the construction for which the AMWU contended would severely limit the scope of s 170MN as unions and employees would be able to take industrial action in relation to claims about matters arguably not in the certified agreement. This would undermine the purpose and effect of parties reaching agreements and having them certified. As to that her Honour said: 'Assuming the policy behind s 170MN is to encourage parties to adhere to the bargain they have struck, then the policy would not, in my view, be defeated by permitting the parties to negotiate effectively in respect of matters that were not the subject of a relevant certified agreement. The policy is sufficiently protected if s 170MN(1) is construed as prohibiting parties to a certified agreement from resorting to industrial action to undo the matters they have agreed upon in the certified agreement, if its nominal expiry date has not passed. If the parties so desired, they could agree that a certified agreement made by them was intended to cover the whole field of relevant employment, thereby excluding the possibility of industrial action during the currency of the agreement.' [55] Her Honour concluded that s 170MN(1) did not prohibit industrial action for the purposes of advancing the redundancy claims of Emwest employees at Newport notwithstanding the 2000 Agreement. The Construction of Section 170MN of the Workplace Relations Act 29 Section 170MN(1) prohibits specified classes of employees, organisations and officers of organisations from engaging in industrial action for a specified purpose during a specified time. The class of employees affected by the prohibition is that whose employment is subject to a certified agreement or an award under s 170MX(3). The class of organisations covered is that of organisations bound by such an agreement or award. The class of officer to which the section applies is an officer or employee of such an organisation. The period for which the prohibition operates in respect of a certified agreement runs from the time when the agreement comes into operation until its nominal expiry date has passed. 30 The prohibition operates upon industrial action engaged in 'for the purpose of supporting or advancing claims against an employer'. The content of the claims to which that purpose relates is defined by the words 'in respect of the employment of an employee whose employment is subject to the agreement or award'. The word 'employment' is not defined in the Workplace Relations Act. It is a word of 'very wide significance' - Westall Richardson Ltd v Roulson [1954] 2 All ER 448 at 451 (Vaisey J). Its ordinary English meaning defined in the Shorter Oxford English Dictionary and relevant for present purposes is: '1. The action of employing; the state of being employed.' In the context of a statute which governs employer and employee relationships, the state of being employed is ultimately defined by the terms and conditions of the employment. 31 The evident purpose of s 170MN(1), whatever the width of the prohibition it imposes, is to prohibit industrial action relating to matters capable of inclusion in a certified agreement or an award under s 170MX(3). This reinforces the proposition that 'employment' as used in the section refers generically to terms and conditions of employment. On this meaning of the word 'employment' the prohibition relates to industrial action engaged in for the purpose of supporting or advancing claims in respect of the terms and conditions of employees whose terms and conditions are subject to the relevant agreement or award. An alternative approach is to treat 'employment' as a reference to the 'employment relationship'. But in the setting of this statute the better view is that the employment relationship is defined by reference to its terms and conditions rather than some wider numinous reality. The construction which acknowledges that 'employment', in this setting, is a reference to terms and conditions of employment leaves open the constructional choice which faced her Honour, albeit the choice is differently framed. 32 On one reading of s 170MN(1) it prohibits industrial action for the purpose of supporting or advancing claims against the employer in respect of the terms and conditions of employment of employees whose terms and conditions of employment are subject to the relevant agreement or award. The alternative reading is that s 170MN(1) prohibits industrial action for the purpose of supporting or advancing claims against the employer in respect of the terms and conditions of employment of employees which terms and conditions of employment are subject to the relevant agreement or award. The word 'whose' is the word which is actually used in the subsection. If construction is to be based upon the ordinary English meaning of the words in their context then that construction which her Honour identified as 'perhaps the most obvious' best accords with the ordinary meaning of the words. The question is whether the other construction is open and, if so, whether it should be preferred. 33 The starting point in the construction of any statute must be the ordinary and grammatical meaning of its words. They must be construed from the outset in the context in which they appear including the statute as a whole - K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 at 315 (Mason CJ); Mills v Meeking (1990) 169 CLR 214 at 235 and 242-243. Construction must also be purposive - Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382. A construction that would promote the purpose or object underlying the Act is to be preferred to one that would not - s 15AA(1) - Acts Interpretation Act 1901 (Cth). It is not necessary to identify constructional choice before considering purposive interpretation. Consideration of purpose may throw up the existence of more than one construction of the words - DC Pearce and RS Geddes, Statutory Interpretation in Australia, 4th Ed, Butterworths, Sydney 1996 at par 2.5. However where only one construction is open, s 15AA does not provide a warrant for redrafting legislation closer to 'an assumed desire of the legislature …' - R v L (1994) 49 FCR 534 at 538. 34 The objectives of the Act set out in s 3 pars (a), (b) and (e), and the object of Pt VIB set out in s 170L may be read together as supporting cooperative workplace relations based upon agreements made between employers and employees. The particular mechanism for achieving that end, to which Pt VIB is directed, is that of certified agreements. 35 Each of the competing constructions of s 170MN may be said to advance the statutory purpose in different ways. AIG submits that the construction for which it contends encourages parties to enter into comprehensive agreements. It does this because, during the period of operation of the agreement, a party is prohibited generally from taking industrial action for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement. And although AIG accepts that the Act permits a multiplicity of agreements nothing in it encourages such agreements. 36 For the AMWU it is submitted that the policy behind s 170MN is to encourage parties to adhere to their agreements once those agreements are made. On the construction of s 170MN(1) for which the AMWU contends, it is said that parties to industrial negotiation will be able to negotiate in a way which leaves open, at a future date, the possibility of protected industrial action or which precludes it. A construction of s 170MN which rules out further effective bargaining where an agreement about any aspect of employment has been certified would hardly promote the objects of the Act. 37 Both views of the purposes of s 170MN have force. Each side of the argument can point to anomalous outcomes which could arise from the other's approach. In the end however, in our opinion, the preferable view is that which permits and encourages flexibility in the bargaining process. Comprehensive agreements may be desirable in some and perhaps most circumstances. But there may be cases when it will be in the interests of good workplace relations to conclude an agreement on some issues and leave less pressing issues for a subsequent agreement. If any certified agreement, however narrow its terms, has the effect that industrial action is prohibited generally in respect of the employment relationship to which it applies the result will be effectively to discourage resort to a possible option for the partial resolution of complex industrial negotiations. 38 It is of course possible that parties to an agreement may seek to abuse s 170MN by confecting some issue not explicitly covered by a certified agreement and using that as a basis for constructing an entitlement to protected action. It may be that in such a case the court would construe the agreement as intended to cover the field of terms and conditions defining the employment relationship in question. Indeed the parties may, as Kenny J pointed out, make that intention explicit by the inclusion of a provision that the agreement is intended to be exhaustive of the terms and conditions of the relevant employment relationship. Conclusion 39 For the preceding reasons we are of the opinion that Kenny J did not err in her approach to the construction of s 170MN and that the appeal should be dismissed. 40 We would add, with due respect to the contrary view, that we have reservations about the grant of leave in this case. It was not argued that this Full Court had the power to, or should have revoked the leave given by the previous Full Court. Nor was AIG's standing to prosecute the appeal in dispute before us having regard to the orders made by the previous Full Court. In the event that we had come to a view other than that the appeal should be dismissed on the construction point, we would have needed considerable persuasion that it was useful or appropriate to grant the declaratory relief sought. In the circumstances it is sufficient that we order that the appeal be dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French and von Doussa.

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

MARSHALL J 41 This matter is an appeal by leave from the judgment of a judge of the Court ("the primary judge") in which her Honour held that the second respondent ("Emwest") had not made out its case for declaratory or interlocutory relief against the first respondent ("the Union"). Emwest did not appeal from the judgment of the primary judge. The appellant ("AIG") was granted leave to appeal from the judgment of the primary judge by a Full Court in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCAFC 386. 42 The substantive grounds of appeal are as follows:

The primary Judge was in error in concluding that the prohibition in s170MN(1) of the Workplace Relations Act 1996 (Cth) ("the Act"), against engaging in industrial action for the purpose of supporting or advancing claims against Emwest, only applies to industrial action engaged in for the purpose of supporting or advancing claims in respect of matters actually agreed upon by the parties in the agreement in question, and

The primary Judge was in error in failing to conclude that the prohibition in s170MN(1) against engaging in industrial action for the purpose of supporting or advancing claims against Emwest, extends to industrial action engaged in for the purpose of supporting or advancing any claim pertaining to the employment of employees to whom the relevant certified agreement applies.

43 The issue is not, in reality, as broad as it is sought to be described by the appellant and the intervener. As Gray J said in AIG at [59]: "What her Honour says in her reasons for judgment must be read in the light of the facts of the case before her. Her Honour was confronted with a situation in which two certified agreements dealing with redundancy had expired. If there were no other circumstance, provided that the requisite steps to comply with the provisions of the WR Act were taken, the Union and the employees of Emwest at Newport would have been entitled to take protected action, for the purpose of supporting or advancing claims against Emwest in respect of terms and conditions of employment relating to redundancy. The question before her Honour was whether the existence of the unexpired certified agreement, dealing with terms and conditions of employment other than redundancy, was sufficient to do away with this right. Her Honour sought to construe the WR Act as a whole. She sought to determine whether, in the circumstance in which certified agreements have different nominal expiry dates, those provisions of the WR Act that would otherwise authorise the taking of protected action prevail over s 170MN(1), in respect of claims about terms and conditions the subject of the expired agreement."

44 The main issue for determination in the appeal is whether s170MN of the Act disentitles an organisation to take protected industrial action, undertaken for the purpose of supporting claims dealing with enhanced redundancy benefits, in circumstances where there is in existence a certified agreement which deals with other conditions of employment of the relevant employees. An issue also arises concerning whether the relief sought in the appeal is of any practical utility. Factual background 45 The primary judge's findings of fact were not in dispute. 46 Emwest marketed and serviced gas and electricity meters, gas regulators and associated measurement and control equipment for the commercial and industrial sector of the energy distribution industry. The Union had as members persons employed by Emwest at its site in Newport, a western suburb of Melbourne. 47 The primary industrial instruments which governed the terms and conditions of Emwest employees at Newport were: · the Emailgas Redundancy Agreement 1998 ("the redundancy agreement"), and

· the Email Metering Newport Operations Enterprise Agreement 2000 ("the 2000 agreement"). 48 The Australian Industrial Relations Commission ("the Commission") certified the redundancy agreement on 14 December 1998, with effect from 1 October 1998. The redundancy agreement contained a nominal expiry date of 30 September 2000. The Commission certified the 2000 agreement on 30 April 2001, with effect from 1 July 2000. It contained a nominal expiry date of 30 June 2003. 49 The redundancy agreement made provision for severance payments in the event of redundancy occurring. It made a related provision for consultation about, and notice of, redundancy situations. It also dealt with entitlements to sick leave and annual leave loading on termination of employment by reason of redundancy. 50 The 2000 agreement provided for a range of terms and conditions of employment in addition to, and with primacy over, the terms and conditions of its parent award, the Metal, Engineering and Associated Industries Award 1998. 51 The 2000 agreement was negotiated by the parties in 2000 and 2001. In August 2000, Emwest and the Union agreed not to include redundancy issues in the negotiations for the 2000 agreement. 52 At a meeting on 20 July 2001, at which a proposed new redundancy agreement was discussed, a manager employed by Emwest, Mr Jackson, stated that the company would sell its business at Newport. At a meeting on 9 August 2001, Mr Jackson opposed any improvements in redundancy provisions. In response, employees at Newport left work in protest. An application was made by Emwest under s127(2) of the Act to prevent industrial action in relation to re-negotiation of redundancy entitlements. On 15 August 2001, the Union served a bargaining notice in accordance with s170MI of the Act and later gave an undertaking that any future industrial action would be taken in accordance with the Act. 53 On 29 August 2001, the Commission dismissed Emwest's application under s127. Commissioner Hingley noted that there were co-existing agreements in operation that dealt with unrelated topics and contained different nominal expiry dates. Hingley C then said that: "It is competent for the union to initiate a bargaining period in respect of the Redundancy Agreement during the term of the general agreement and as a consequence be eligible to take protected action in pursuit of renegotiating the Redundancy Agreement… ." 54 Further discussions between the parties occurred on 13 September 2001, without resolution. Later on the same day, the Union served a notice of intended industrial action under s170MO of the Act. The industrial action was to commence on 19 September 2001. It did not occur. On 18 September 2001, the primary judge made an interlocutory order which prohibited the proposed industrial action. The proposed industrial action related solely to the dispute between Emwest and the Union about redundancy issues at the Newport site.

The statutory context 55 Section 170MN is found in Div 8 of Part VIB of the Act. Part VIB is entitled "Certified Agreements". Division 1 of Part VIB is entitled "Preliminary". Section 170L, in Div 1, provides as follows: "The object of this Part is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business." 56 Division 2 of Part VIB permits the making of agreements between employers who are constitutional corporations, or the Commonwealth, with their employees or organisations of employees. Division 3 deals with the making of agreements designed to settle or prevent industrial disputes and situations. Division 4 governs the process for certifying agreements in the Commission. Division 5 deals with the effect of certified agreements, as to their operation and interaction with awards, State laws and other Commonwealth laws. Division 6 deals with who is bound by an agreement. The process for extending, varying and terminating agreements, including the extension of a nominal expiry date under s170MC, is provided for by Division 7. 57 Division 8 provides, in s170MI, for the right of an employer, an organisation of employees or an employee to initiate a bargaining period for the purpose of negotiation of a proposed agreement. Importantly, section 170MJ provides for certain particulars to accompany the written notice which initiates the bargaining period, including in par (c) thereof: "the matters that the initiating party proposes should be dealt with by the agreement…" 58 Section 170MK deals with the commencement date of the bargaining period. Section 170ML is an important provision which permits the taking of protected industrial action during a bargaining period. Protected industrial action is industrial action which is immune from legal suit (see ss170ML(1) and 170MT). 59 Under s170ML an organisation, inter alia, may take protected industrial action: "for the purpose of:

(e) supporting or advancing claims made in respect of the proposed agreement…" 60 The claims supported or advanced by the industrial action will be in respect of the matters referred to in the s170MJ notice. 61 Section 170MO requires that notice of proposed protected industrial action must be given in accordance with sub-section (2) thereof. In the case of an organisation of employees, at least three working days written notice is required to be given to the employer concerned of the intention to take the protected industrial action. 62 The industrial action will not be protected unless the organisation negotiates with a view to genuinely trying to reach an agreement with the employer on the matters in dispute (see s170MP). The industrial action must be authorised by the organisation in accordance with s170MR. 63 The industrial action will also not be protected if it is taken or organised in concert with persons who are not protected persons as defined in s170MM. 64 Victimisation of those who take protected action, or propose to do so, is proscribed by s170MU. Provision is also made in Div 8 of Pt VIB for the ending of a bargaining period, including its termination or suspension by the Commission (see s170MV and s170MW). Under s170MX the Commission may exercise conciliation and arbitration powers, having regard, inter alia, to "the matters that were at issue during the bargaining period" (see s170MX(5)). 65 Division 8 of Pt VIB requires an organisation to itemise the matters it wants covered by an agreement (see s170MJ(c)). Any industrial action it takes during a bargaining period is confined to supporting or advancing those matters itemised in the s170MO notices (see s170ML(2)(e)). 66 An employee organisation is not required to seek comprehensive agreements about all facets of the employment relationship between the relevant workforce and the employer. It may make piecemeal agreements on isolated topics, such as redundancy. Various agreements may have differing nominal expiry dates. 67 Once parties to an agreement have settled their difference on the matters in issue, it is appropriate that their bargain be protected and that further industrial action not be permitted with respect to issues which were once in dispute but are now settled. Section 170MN provides that protection. 68 Section 170MN provides: "(1) From the time when:

(b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

(2) For the purposes of subsection (1), the following are covered by this subsection:

(a) any employee whose employment is subject to the agreement or award;

(b) an organisation of employees that is bound by the agreement or award;

(3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action.

comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment.

(5) If the employer does so, the lockout is not protected action.

(6) Engaging in industrial action, or locking out an employee, in contravention of section 170VU is not protected action."

69 Section 170MN prohibits industrial action after the matters in dispute between the parties have been settled by agreement, or alternatively by arbitration under s170MX. But it must always be remembered that the ambit of the dispute is constituted by the matters in issue in the prescriptive s170MJ notice. Industrial action is proscribed post agreement or post arbitration if it is: "for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award…" 70 In that part of s170MN quoted from above, the words "agreement or award" must be read in the context of a certified agreement or a s170MX award made about matters which were earlier identified as being in dispute between the parties. The words "in respect of the employment of employees" are referable to the employees' conditions of employment because such conditions form the subject matter of certified agreements and arbitrated awards. 71 A literal construction of s170MN(1), isolated from the context of its surrounding provisions in Div 8 of Pt VIB, may tend to support the view that industrial action about any subject matter is proscribed once there is some certified agreement or some s170MX award which binds the parties, even on one isolated issue. Such a construction would not promote the object of Part VIB. There would be no incentive for any organisation to reach agreement on matters, other than a comprehensive agreement dealing with all aspects of the employment relationship between the workforce and the relevant employer, despite the lack of practical utility or the desirability of doing so, viewed from the aspect of either or both parties. That is not a result which the legislature should be assumed to have intended. The overriding concern of s170MN is the protection of the bargain of the parties (in respect of the issues dealt with in that bargain) in a particular agreement or the protection of the 170MX award of the Commission in its arbitration. It was not the intention of the section to render nugatory the application of ss170MI, 170MJ and 170ML to matters outside the purview of what the parties have agreed upon or of what the Commission has imposed on them. 72 The process of construction does not commence and end with an examination of the provision in question devoid of consideration of the surrounding provisions in the legislation. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381, [1998] HCA 28 at [69]: "…the process of construction must always begin by examining the context of the provision that is being construed."

73 Their Honours later said in Project Blue Sky at [70], CLR 382: "where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions."

See also Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 (per McHugh J) and CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ and Austin v Commonwealth (2003) 195 ALR 321 at 352, [2003] HCA 3 at [102] per Gaudron, Gummow and Hayne JJ and at [251] per Kirby J (ALR 390-391) where his Honour said: "…in more recent times, this Court has departed from the narrow and literal words appearing in legislation, including that imposing taxation, in favour of an interpretation that seeks to achieve the apparent purposes or objects of the enactment as expressed in its terms."

74 The search for context does not require ambiguity as a pre-condition. As McHugh J said in Newcastle City Council at 112: "…a court is permitted to have regard to the words used by the legislature in their legal and historical context, and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deducted from that context."

75 Further in K and S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 at 315, Mason CJ said: "Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."

See also Busby v Chief Manager, Human Resources Department, Australian Telecommunications Commission (1988) 20 FCR 463 at 468; Short v F W Hercus Pty Limited (1993) 40 FCR 511 at 518 to 520 per Burchett J, with whom Drummond J agreed; and Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J and at 242 to 243 per McHugh J. 76 A construction of s170MN which proscribes industrial action with respect to any matter, during the currency of a certified agreement which does not include the matter the subject of the industrial action, is a construction which is at odds with the object of Part VIB and therefore is one which should not be preferred. The policy of Pt VIB and of the Act (as referred to in s3(b) and (e)) is to encourage and facilitate agreement making by employers and employees. In the case of employment relationship at Emwest, the parties agreed that for them the most appropriate form of agreement dealing with redundancy was one which dealt with that topic alone, leaving to a separate agreement other general terms and conditions of employment. The expiry of the term of the redundancy agreement in advance of the 2000 agreement, on the argument advanced by AIG, would mean that the Union could not bargain with the usual assistance that would ordinarily be afforded by Div 8 of Pt VIB, and in particular the provisions of s170ML with respect to protected action. I do not consider that s170MN, read in the context of the other provisions of Div 8, was intended to have that effect. 77 In recent times paid maternity leave has become an industrial issue of public importance. If an employee organisation intends to bargain in respect of a claim for paid maternity leave but has recently become a party to a certified agreement dealing with any other industrial matter, on AIG's construction of s170MN, it would not be permitted to utilise the provisions of Div 8 of Pt VIB of the Act to bargain for an agreement providing for paid maternity leave. An agreement for paid maternity leave would then only be possible with employer consent. The employee organisation, on behalf of the employees, would be hamstrung until the termination of the other extant certified agreement in seeking paid maternity leave, notwithstanding that the entitlement may otherwise be rapidly spreading to the rest of the Australian workforce. This approach would promote inflexibility in the bargaining process. 78 The construction of s170MN favoured by AIG would also promote an unfair bargaining regime where a stronger party is able to limit the bargaining rights of a weaker party contrary to the intent of s3(e), which is concerned with "fair and effective" agreement making. Two examples will suffice. 79 First picture a small corporation which is party to a certified agreement dealing with one aspect of its employees' conditions of employment. Partly as a result of conceding too much in that agreement, it finds itself at a competitive disadvantage which threatens its survival. In that circumstance, faced with no other choice than to seek to take protected lockout action, that employer would be powerless to bring the relevant union to the bargaining table because of the existence of another certified agreement between it and the union, dealing with other issues or another single issue. 80 Second, picture a robust and well resourced multi-national employer who is able to resist a demand on any particular issue so long as it is a party to a certified agreement dealing with another issue or issues, to which the relevant union is a party. In such circumstances any employee organisation dealing with this employer would be hamstrung in its ability to bargain on behalf of its members. 81 These examples show the inherent unfairness and inflexibility that would apply to undermine the collective bargaining regime which the Act supports, if the construction favoured by AIG prevailed. 82 In my view the Act, properly construed, does not intend these results. The Act is redolent with equality of treatment with respect to the right of employers and employees to take protected action in the form of lockouts and strikes in aid of the bargaining process; see Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v Electrolux Home Products Pty Limited (2002) 118 FCR 177 at 195;[2002] FCAFC 199 at [92]; (2002) 115 IR 102 at 119, where a Full Court said: "Fundamental to Part VIB of the Act is the notion that, within strict and objectively definable limits, organisations, employees and employers are entitled to engage in industrial warfare. We agree with the comment of North J in Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 18:

"The purpose of this statutory scheme is to allow negotiating parties, both employer and employee, maximum freedom consistent with a civilised community to take industrial action in aid of the negotiation of agreements without legal liability for that action.""

Other material 83 Counsel for AIG sought to rely, in support of their construction of the Act, upon a portion of the Second Reading Speech for the Workplace Relations and Other Legislation Amendment Bill 1996, delivered in the House of Representatives on 23 May 1996 by the then Minister for Workplace Relations and Small Business. The passage relied upon was: "The provisions relating to protected action for bargaining for single business CAs will be retained, in modified form, but any industrial action during the specified period of operation of an agreement will be prohibited."

84 At [47] of her reasons for judgment the primary judge said that she had not been assisted in resolving "the issue of construction" by the Second Reading Speech. I share that view. The paraphrasing of s170MN referred to by the then Minister, as counsel for the Union submitted, begs the question about the type of industrial action which is not permitted by the section. The same can be said of the Explanatory Memorandum, which accompanied the Bill. 85 Similarly reliance on comparisons with the provisions of the Industrial Relations Act 1988 (Cth), which dealt with certified agreements, is of no assistance. The two legislative regimes were underpinned by markedly different legislative intentions and objects. There is no substitute for construing s170MN in the context of its surrounding provisions and in the context of the Act when read as a whole. Counsel for the Minister ultimately conceded that little assistance is to be gleaned from the 1988 Act. As Kirby J said in Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 at [70]: "In statutory construction, there is a tendency, noted in several recent cases, for judges and others to look first to a number of external sources for guidance, including judicial generalitiesor legal history. It is as if some who have the responsibility of interpretation of legal words find the reading and analysis of the texts themselves distasteful, like dentists happy to talk about the problem but loath to pull a tooth. In statutory construction this error of approach must be rooted out. The proper place to start is the statute. A wide range of other materials may now be accessed, if need be, to assist in the task. But the task itself remains that of finding the meaning of the legislation from the text - not from other materials." (Footnotes omitted)

Relief 86 In my opinion the appeal should be dismissed. Irrespective of the correctness of that view I see no utility in granting any relief to AIG. AIG sought a declaration that the industrial action threatened by the Union against Emwest, commencing on 7 September 2001 and ending on 19 September 2001, was not protected industrial action. Of course it was not protected industrial action, because it did not occur. It was not industrial action but proposed industrial action. An order in the terms sought by AIG would be meaningless. No alternatively framed relief was contended for in substitution. 87 Emwest did not seek to appeal from her Honour's judgment. The Union and Emwest ultimately resolved their dispute. As was said by a Full Court in Beitseen v Johnson (1989) 29 IR 336 at 338: "…the passage of time has, in the circumstances, deprived the issues in controversy of real practical significance." Further, the following observation of the Full Court in Beitseen at 338 is applicable to the instant circumstances: "When the judicial system is in an apparently permanent state of stress, and courts are finding it increasingly difficult to keep up with their work, they cannot afford the luxury of spending time an interesting questions of law which, because they have been overtaken by events, have become of academic interest only."

See also Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 438 at [15] to [17] and Bass v Permanent Trustee Co Ltd [1999] HCA 9 at [47] to [49], (1999) 198 CLR 334 at 356 to 357. 88 Counsel for the Minister relied upon the observations of the majority in Australian Industry Group at [71] concerning the potential effect of the judgment of the primary judge on other employers that may be subject to industrial action. Compareper Gray J at [59] in Australian Industry Group, as referred to at [3] above. None of what appears at [71] in Australian Industry Group alters the fact that an order in the terms sought by AIG in the appeal has no practical utility. It may be said, with some persuasion, that the appeal appears to have been litigated for the ulterior purpose of seeking an advisory opinion from this Court on the correct interpretation of s170MN. 89 With the greatest respect, I do not agree with the views of the majority in Australian Industry Group that leave to appeal should have been granted to AIG. I would not have granted AIG leave to appeal for the reasons referred to in the three previous paragraphs. That leave, however, has been granted and the appeal falls to be determined. Nevertheless, I do not consider that the views of the majority stand for any more than an acceptance that AIG had a sufficient interest in the subject matter of litigation before her Honour to be granted status to appeal from the judgment of her Honour. This Full Court is entitled to separately consider whether the appeal before it is moot. I consider, for the reasons expressed above, that it is moot. 90 In any event no penalty could be awarded against the Union, even if one were sought, for its threatened industrial action. It is only actual industrial action in breach of s170MN which is proscribed by s170MN(1) and in respect of which a penalty may be sought under s170NF(4). It is too late to seek an injunction under s170NG because the allegedly contravening conduct is not in contemplation. 91 Counsel for AIGand counsel for the Minister were unable to refer the Court to any practical utility that would be achieved by the granting of the declaration sought. As a matter of discretion, even if the interpretation of s170MN favoured by AIGis correct, it would not be appropriate to make a declaration which has no practical consequence.

Disposition 92 I would dismiss the appeal for two reasons:

the interpretation of s170MN favoured by the primary judge was correct; and

the relief sought has no practical consequence and in the Court's discretion should be refused.

In the event that my opinion on the interpretation of s170MN is erroneous, I would nonetheless refuse to grant any relief in the appeal, as it would serve no purpose to do so.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Counsel for the Appellant: Mr M McDonald and Mr CB O'Grady

Solicitor for the Appellant: Cutler Hughes and Harris

Counsel for the Respondent: Mr WL Friend and Ms RM Doyle

Solicitor for the Respondent: Maurice Blackburn Cashman Counsel for the Minister for Employment and Workplace Relations: Mr JBR Beach QC with Ms W Harris Solicitor for the Minister for Employment and Workplace Relations: Australian Government Solicitor Date of Hearing: 12 May 2003

Date of Judgment: 15 August 2003

Workplace Relations Act 1996(Cth)s 170MN, s

Industrial Relations Act 1988(Cth)

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