Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Nestlé Australia Limited

7 Further, as Gray J said in Geneff v Peterson (1986) 19 IR 40 at 88: "…the focus of the section is on the institution of the proceedings, and the court should not allow itself to be influenced unduly by the actual result." 8 The proceeding in the current matter was instituted under ss 178 and 298U of the Act in respect of alleged contraventions s 178(1) and s 298K. 9 The application, filed on 19 January 2005, was supported by an affidavit, rather than by a statement of claim. This is a course permitted by O 4 r 6(1) of the Rules of Court. Under O 4 r 6(2) the affidavit accompanying the application is required to show the nature of the applicant's claim and the material facts on which it is based. 10 The affidavit filed with the application ("the affidavit") was sworn by Ms Bronwyn Halfpenny, the Regional Secretary of the Food and Confectionery Division of the Union. The affidavit referred to the certified agreement, which the Union alleged that Nestlé had breached. It stated that Ms Halfpenny was involved in the negotiations, which led to the making of the agreement. It identified the two clauses of the agreement, which the Union contended had been breached by Nestlé. It alleged that Nestlé was engaging in conduct, which breached the agreement by forcing applicants for permanent employment to accept additional conditions of employment, outside the terms of the agreement. It contended that the "letter of appointment" is an agreement "which is outside the Certified Agreement". It attested to the urgency of the proceeding and the failure of Nestlé to respond to the Union's request that it not impose additional conditions on the applicants for employment. 11 The affidavit, in a rudimentary way, set the groundwork for the submissions ultimately pressed before the Court. Namely, the affidavit alleged that Nestlé had breached the certified agreement by offering permanent employment to employees under a different form of agreement and by pursuing "extra claims", inconsistent with the agreement during its life. 12 As referred to above, the central issue in the Union's ultimate submissions was the requirement in the letter of appointment for new permanent employees to agree to Nestlé having the right to require, in certain defined circumstances, such employees to attend a medical examination. 13 The Court rejected the Union's claims but these claims were not "so obviously untenable that they could not possibly succeed", "manifestly groundless" or "bad beyond argument". The requirement by an employer that an employee agree to an employment related condition in circumstances where the Union is prohibited from making extra claims during the life of a certified agreement, understandably concerned the Union. It desired to have the matter aired in Court. Whilst the arguments raised by the Union lacked merit when compared with the arguments raised by Nestlé, the Union's case was not obviously hopeless as at 19 January 2005, when the application and the Halfpenny affidavit are considered in isolation. 14 In my view for the foregoing reasons, it has not been established that the proceeding was instituted without reasonable cause as a matter of objective fact, viewed from the time of the institution of the proceeding, that is, on 19 January 2005. It is unnecessary to consider whether the Court should exercise its discretion, in any event, not to make an order as to costs having regard to certain issues raised in the written submissions of the Union. These issues concerned the pre-trial conduct of Nestlé in not consenting to the matter being resolved in the Australian Industrial Relations Commission and the benefit to Nestlé in having some of the matters ventilated in the application judicially determined. 15 The Court will make no order as to costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Representative of the Applicant pursuant to s 469(6) of the Workplace Relations Act (1996): Mr T Hale

Solicitors for the Respondent: Mallesons Stephen Jaques

Completion of written submissions: 31 May 2005

Date of Judgment: 3 June 2005