BGC Contracting Pty Ltd v The Construction Forestry Mining

introduction 1 The matter before the Court is whether interim injunctions which I granted on 18 March 2004 should continue until trial of the application or further order. These reasons are intended to be read with ex tempore reasons in relation to the same matter given on 20 February 2004, BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 272 and 18 March 2004, BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 417. I shall not here recite the facts and procedural background contained in those reasons other than as follows. 2 On 20 February 2004, I refused the (then) first applicant's application for interlocutory injunctive relief, but granted liberty to renew that application on two days written notice to the respondent. I did so principally because I thought that it would be in the interests of justice to allow the proceedings before the Western Australian Industrial Relations Commission (described in the earlier reasons) to proceed at least to the stage where it made certain factual findings which might have disposed of the whole of the matter. 3 As described in my reasons of 18 March 2004, events transpired very differently. 4 At that stage, the evidence showed that the Commission proposed, subject to giving the parties an opportunity to speak to a minute it had prepared, to make a declaration that representatives of the Union (in these reasons I incorporate the descriptions used in the earlier reasons) holding the requisite authority under the State Act were entitled to enter the Ammonia Plant premises on the Site for the purpose of holding discussions with relevant employees of the second applicant. 5 I expressed the view that on the materials then before the Court, I was satisfied that the proceedings before the Commission involved a matter arising under the Constitution and that that was a real and substantial Constitutional issue which remained as a live issue in those proceedings. In order to preserve what I considered to be the status quo until there was an opportunity for a fuller argument on the points in issue, I granted what were intended to be short-term interim injunctions to restrain the Union and its officers from further proceeding in the Commission and from attempting to exercise any rights conferred under the State Act until further order. 6 The question whether those injunctive orders should be continued was adjourned to a date to be fixed. Written submissions were filed and the matter was fully argued on 16 April 2004. 7 In the meantime there were further developments in the Commission proceedings. Although the Commission was informed of the short-term interim injunctions, on 24 March 2004 it saw fit to move those proceedings forward (the parties quite rightly took no part in this), noting that it was not "of itself" subject to the orders which had been made by this Court. The Commission expressed the view that s 34(1) of the State Act imposed a "mandatory statutory duty" to do so. It is not necessary to make any comment about the validity or otherwise of that view. 8 The document which the Commission published on 24 March 2004, omitting formal parts, read as follows: 'DECLARATION HAVING heard Mr T Dixon of counsel and with him Mr T Kucera of counsel on behalf of the applicant, Mr D Parker of counsel and earlier Mr T Casperz of counsel on behalf of the first respondent, and Mr M Hotchkin of counsel on behalf of the second respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 ("the Act"), hereby declares - THAT representatives of the applicant, holding the requisite authority under the Act, are entitled to enter the Ammonia Plant construction site premises on the Burrup Peninsula for the purpose of holding discussions with relevant employees of the second respondent who wish to participate in those discussions.' 9 It is, I think, necessary to form a provisional view of the nature of the proceedings before the Commission and the nature of the declaration which it published. 10 I do not propose to refer to all of the relevant legislative provisions in the State Act or to all of the procedural steps which were taken. But, in summary, I think that it is sufficiently clear for present purposes that the proceedings before the Commission started as a conciliation process with conferences being held pursuant to s 44. 11 As that process did not resolve the matter, on 11 February 2004 the nature of the proceedings changed. On that date the Commission, by a formal memorandum, referred the "matter described in the schedule attached hereto" for hearing and determination. In the memorandum the Commission said that this was pursuant to s 44 of the State Act. In paragraph [1] of the Commission's reasons published on 15 March 2004 it explains that the referral was pursuant to s 44(9). That subsection relevantly provides that where at the conclusion of a conciliation conference any question, dispute or disagreement in relation to an industrial matter has not been settled by agreement, the Commission "… may hear and determine that question, dispute or disagreement and may make an order binding [the parties]". In that set of reasons the Commission stated that it had referred the matter for determination "by arbitration". 12 The Commission, identically constituted, had earlier expressed its views about its jurisdiction or powers in relation to Part II Div 2G of the State Act in a matter known as AFMEPKIU v Transfield Services (Australia) Pty Ltd (2002) 83 WAIG 376. In essence (and I concede that I may not be doing complete justice to the Commission's reasoning in that matter) the Commission described the statutory scheme as to rights of entry as a code which was intended to be paramount in respect of which it had no jurisdiction or power to impose limitations. As I read the Commission's decision in that matter, and in the present matter, it exercised its power to make a declaration in the form of a declaration of right during the course of conducting the arbitration. 13 There are two senses in which the verb "to arbitrate" is used. Generally, in the industrial context, so it seems to me, the term is used in the sense of a proceeding which may result in the creation of new rights and obligations. That may be contrasted with, for example, a commercial arbitration under the fairly uniform Commercial Arbitration Acts of the various States where, as a general rule, arbitration mirrors the judicial function of fact finding plus the application of law to adjudicate upon existing rights and obligations. 14 It is in that latter sense that, in my provisional view, the Commission was arbitrating in the present matter and, in doing so, granted a declaration of right. It seems to me, again on a provisional basis, that the wording of s 44(9) is wide enough to confer both arbitral power in the traditional industrial sense and also arbitral power in the judicial sense. As it is a State tribunal, there are no difficulties in that regard. If, as I discussed briefly in my reasons handed down on 20 February 2004, the Commission has been duly constituted (as I thought it was) as a "court of the State of Western Australia" then it was also invested with federal jurisdiction to decide, inter alia, matters arising under the Federal Act - see s 39(2) of the Judiciary Act. I see nothing in these remarks which is inconsistent with the decision of a Full Bench of the Western Australian Industrial Relations Commission in Crewe & Sons Pty Ltd v Amalgamated Metal Workers & Shipwrights Union of Western Australia (1989) 69 WAIG 2623. This brings me to the hearing before the Commission which took place on 23 February 2004. 15 It will be recalled that there were three central matters relied upon by the applicants in these proceedings (respondents before the Commission, henceforth referred to as "the applicants"), namely: