BHP Iron Ore Pty Ltd v Australian Workers' Union

THE COURT ORDERS THAT: 1. Leave to appeal granted. 2. Appeal allowed in part. 3. Vary the orders made by Gray J on 31 January 2000 as follows: (1) By omitting from the undertaking there noted the words "the applicants" and substituting the words "the Union Applicants and the Employee Applicants". (2) By adding thereto a further note of the following undertaking: "That the Union Applicants and the Employee Applicants further undertake to the Court (a) that they will forthwith apply to the docket Judge (Kenny J) for an order expediting the hearing of their claim for final injunctive relief for the alleged contravention of s 298M of the Workplace Relations Act 1996 (Cth); and (b) that they will continue to prosecute that claim with all necessary diligence on their part." (3) By reserving specific liberty to the respondent, in the event that the undertaking mentioned in (1), above, is not complied with, to apply to Kenny J for an order discharging the interlocutory injunction granted by Gray J and staying the claim for final injunctive relief. (4) By omitting in para 1 of the orders the words "the hearing and determination of the proceeding, or". 4. Costs of the appeal reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AUTOMOTIVE FOOD METALS ENGINEERING PRINTING & KINDRED INDUSTRIES UNION

INTRODUCTION 1 This is an application by BHP Iron Ore Pty Ltd ("BHPIO") for leave to appeal from interlocutory orders of a Judge of the Court (Gray J) made on 31 January 2000 restraining BHPIO (the respondent in the principal proceeding) until the hearing and determination of the proceeding or further order from: "offering, entering into, or taking any step to make, formalise or register a workplace agreement made pursuant to the Workplace Agreements Act 1993 (WA) or any contract of employment conditional upon the making of a workplace agreement with any of its employees whose employment is regulated by: (a) the Iron Ore Production and Processing (Mt. Newman Mining Company Pty Limited) Award No. A 29 of 1984, sometimes called the Iron Ore Production and Processing (BHP Iron Ore Pty Ltd) Award No. A 29 of 1984, an award of the Western Australian Industrial Relations Commission; (b) the BHP Iron Ore Enterprise Bargaining Agreement 1993, registered with the Western Australian Industrial Relations Commission in application no C314 of 1993 on 14 July 1993; (c) the BHP Iron Ore Pty Ltd - BHP Iron (Goldsworthy) Pty Ltd Enterprise Bargaining Agreement 1995, registered with the Western Australian Industrial Relations Commission in application no C339 of 1995 on 24 November 1995; (d) the BHP Iron Ore Enterprise Bargaining Agreement 1997, registered with the Western Australian Industrial Relations Commission in application no AG333 of 1997 on 13 January 1998." 2 BHPIO is a wholly-owned subsidiary of the Broken Hill Proprietary Company Ltd and carries on the recovery and processing of iron ore in the Pilbara region of Western Australia. Before November 1999, as the learned primary Judge found, BHPIO employed about 1,057 "award employees" distributed between Newman, Finucane Island and Nelson Point. "[A]ward employees", as that expression was used by his Honour, had their wages and conditions of employment prescribed and regulated by the Iron Ore Production and Processing (Mt Newman Mining Co Pty Limited) Award ("the award") made by the Western Australian Industrial Relations Commission pursuant to the Industrial Relations Act 1979 (WA) and a series of collective agreements which had been registered with the Western Australian Industrial Relations Commission. As well, as his Honour found, other "staff" employees of BHPIO, comprising foremen, supervisors, departmental managers and other managers, before November 1999 had their terms and conditions of employment governed principally by separate contracts of employment, each made between the staff employee concerned and BHPIO. 3 At first instance, the applicants' claim for relief invoked, in the first place, s 298K(1) of the Workplace Relations Act 1996 (Cth) ("the WR Act"). That sub-section provides: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person." 4 The prohibited reasons on which s 298K is predicated are to be found in s 298L(1) which, so far as is relevant, provides: "Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or … (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or … (l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or …."

THE DECISION AT FIRST INSTANCE 5 The learned primary Judge attributed to the applicants before him reliance on three separate grounds as establishing a contravention of s 298K(1) or of s 298M of the WR Act. The latter section relevantly provides: "An employer … must not (whether by threats or promises or otherwise) induce an employee … to stop being an officer or member of an industrial association." 6 As to those three grounds his Honour said: "The first ground is that the respondent has embarked on a course of conduct by which it has injured some of its award employees in their employment, or altered their positions to their prejudice, for prohibited reasons or reasons which include prohibited reasons, and proposes to continue that course of conduct. The course of conduct is said to include four elements. The first element is entering into individual workplace agreements with some of the respondent's award employees, and registering those agreements pursuant to the Workplace Agreements Act 1993 (WA), thereby treating those employees as staff employees. The second element is the respondent's refusal to engage in collective bargaining with respect to the terms and conditions of employment of award employees. The third element is the adoption of a scheme for voluntary redundancy of employees. The fourth element is overt discrimination against some award employees who have not accepted the offers of workplace agreements. Three prohibited reasons are alleged. The first prohibited reason is that award employees are members, or in some cases officers or delegates, of the state-registered trade unions or the first five applicants. The second prohibited reason is that award employees are entitled to the benefit of industrial instruments in the form of the award and the EBAs [Enterprise Bargaining Agreements]. The third prohibited reason is that the award employees, being members of industrial associations that are seeking better industrial conditions, are dissatisfied with their conditions. The second ground of the applicants' case is that, by making with some award employees individual workplace agreements, which are then registered pursuant to the Workplace Agreements Act 1993 (WA), the respondent has induced those employees to stop being members of the state-registered trade unions or the first five applicants. The third ground of the applicants' case alleges that, by entering into individual workplace agreements with some award employees, and having those workplace agreements registered, the respondent has committed breaches of the contracts of employment of other award employees." 7 The applicants at first instance pointed, as evidence of a course of conduct engaged in by BHPIO, to its offering from March 1999 of "redundancy packages" under which benefits were generally proportional to years of service. That had the effect of making the packages attractive to longer-serving employees, among whom active union members, convenors, deputy convenors and shop stewards tended to be concentrated. However, his Honour said, "for the purposes of determining this interlocutory application, I have disregarded the redundancy scheme." 8 It was noted in his Honour's reasons that BHPIO had, early in 1999, been engaged in negotiating a new collective agreement with the single bargaining unit which was representative of Western Australian State-registered unions with members among BHPIO's award employees. By letter dated 19 April 1999, however, BHPIO notified the relevant unions that it proposed to withdraw from the Industrial Relations Agreement from 1 June 1999. His Honour observed: "The respondent [BHPIO] was entitled to withdraw from that agreement by notice. The giving of notice prompted further negotiations and the Industrial Relations Agreement was revised." 9 On 10 November 1999, BHPIO offered to each of its award employees an individual workplace agreement. Since that time, the primary Judge found, it had refused to bargain collectively with unions representing those award employees. That finding was expressed as follows: "It has since refused to continue negotiations for a further enterprise bargaining agreement with the single bargaining unit. There is no provision in any legislation of the State of Western Australia under which the respondent can be compelled to bargain collectively. On 18 and 19 November 1999, each of the first five applicants served on the respondent a notice of initiation of a bargaining period, pursuant to s 170MI of the Workplace Relations Act 1996 (Cth). On 7 and 8 December 1999, each of the first five applicants gave notice to the respondent of intention to take protected industrial action, pursuant to s 170MO of the same Act. Industrial action has since been taken. In the absence of any statutory provision compelling the respondent to bargain with any of the first five applicants, protected industrial action to force such bargaining remains the only legitimate weapon to compel the respondent to bargain collectively. The respondent has refused and still refuses to bargain with any of the first five applicants." 10 There were also detailed findings about the nature and form of the individual workplace agreements offered on 10 November 1999 which, by 24 January 2000, had been accepted by 481 of the 1,039 award employees. It was said that they were, for the most part, in standard form, stipulating different amounts of remuneration to take account of the position held by each offeree and the shift which he or she was to work. They did not reflect any difference in the individual value of particular employees. One newly created benefit in relation to rostering was described by his Honour in these terms: "The offer to one category of employees, drivers of trains on the railway, was of appointment to newly created positions of Rail Transport Technicians. Employees accepting such positions were offered 'fly-in, fly-out' arrangements as part of their contracts. These arrangements involved those employees working on twelve consecutive days and then having nine consecutive days' leave, with free flights to and from Perth. The rostering arrangements applying to award employees do not allow for a sufficient break to make regular flights to and from Perth a feasible arrangement." 11 It was also noted that the individual agreements included increases of approximately 7 per cent on base salaries, an incentive scheme which could yield an average of 7.5 per cent of defined base salary, based on company, department and individual performance and an annual salary review based on individual performance. As well, provision was made for an increase in the employer's contribution to superannuation for former award employees. It was also stipulated that accrued sick leave entitlements would be paid out and future sick leave would attract payments of total salary for up to twelve months. Other elements of the offer, as his Honour noted, included one annual shift added to annual leave, options for novated leasing of private vehicles and education assistance. 12 Acceptance of the offered agreements also entailed, it was found, some disadvantages to the employees concerned. Those disadvantages were described by his Honour in this passage: "One of the standard terms provides that the terms and conditions of employment are those set out in the particular employee's contract of employment and the Staff Handbook as amended from time to time. This may be perceived as reserving to the respondent the right to change at will the terms and conditions set out in the Staff Handbook. By virtue of s 6 of the Workplace Agreements Act 1993 (WA), the effect of a workplace agreement is that no award applies to the contract of employment between an employer and an employee who have entered into the agreement or to the employer as a party to any such contract, so long as the workplace agreement remains in force. For the purposes of that provision, the reference to an award includes an award and any industrial agreement under the Industrial Relations Act 1979 (WA). The result is that employees who have accepted workplace agreements have lost the benefit of any entitlements pursuant to the award and the EBAs. This may be of significance to the nature of methods available to enforce the respondent's obligations to employees. It may also be significant in relation to specific terms and conditions of employment. Although both award employees and staff employees work a nominal forty-hour week, award employees are entitled to overtime payments. The workplace agreements provide that hours worked in excess of forty per week are considered to be paid for in overall salary. The protection of the award with respect to compulsory redundancy, which includes consultation between the respondent and the relevant trade union, is also lost." 13 The learned primary Judge then summarised, as follows, the competing contentions of the parties on the application of s 298K to the facts which he had provisionally found: "The applicants contend that the fact that some award employees have entered into workplace agreements with the respondent, and have become entitled to the benefits of those agreements, amounts to injury of the remaining award employees in their employment, or to alteration of the position of the remaining award employees to their prejudice, for the purposes of s 298K(1) of the Workplace Relations Act 1996 (Cth). It is clear that there has been no change to the terms and conditions on which the remaining award employees perform their work for the respondent. Indeed, the respondent's position is that it is adamant that those terms and conditions will not be changed by collective bargaining and that the award employees who do not accept offers of workplace agreements will remain on the same terms and conditions they have had until now. The only change has been arguably to improve, at least in some respects, the terms and conditions on which former award employees who are now parties to workplace agreements perform their work for the respondent. The effect of this change is to place the continuing award employees in a position which is arguably disadvantageous when compared with the position of their workmates who have accepted workplace agreements." 14 His Honour then referred to a series of judgments at first instance in this Court or the Industrial Relations Court of Australia which he considered afforded some guidance on the application of s 298K and enabled him to conclude that: "It is seriously arguable that, by offering significant benefits only to those who are prepared to enter into workplace agreements, by entering into such agreements with those who accept the offers, and by refusing to alter the terms and conditions on which the remaining award employees are employed, the respondent has injured the remaining award employees in their employment, or has altered the position of each of them to his or her prejudice. It is strongly arguable that an actual diminution in the terms and conditions of employment of an employee is unnecessary before it can be said that that employee has been injured in his or her employment, or has had his or her position altered to his or her prejudice. The offer of superior terms and conditions to other employees, coupled with a refusal to offer them to those who wish to have their employment regulated in a collective way, is arguably conduct which falls within par (b) or par (c) of s 298K(1) of the Workplace Relations Act 1996 (Cth), if it is engaged in for a prohibited reason." 15 It was also considered that other conduct of BHPIO was suggestive of the infliction of "injury" on continuing award employees or an alteration of their positions to their prejudice in contravention of s 298K(1)(c). As to that matter, his Honour said: "There is also evidence, put on behalf of the applicants, to suggest that the continuing award employees of the respondent are being subjected to injury to their employment, or alteration of their positions to their prejudice, other than by the relative improvement of the terms and conditions of employment of those who have accepted the respondent's offers of workplace agreements. There is evidence of denials by management that it was 'discriminating' against continuing award employees, but admissions that the respondent was 'differentiating' between employees. This evidence is not denied in the respondent's evidence." 16 There was then reference to evidence of the offering of inducements to award employees to enter into workplace agreements and to alleged discriminatory conduct against employees who did not elect to enter into workplace agreements. His Honour acknowledged that the evidence to which we have just referred, was "mostly disputed" but concluded that: "Nonetheless, there is a serious question to be tried as to whether, by actively disadvantaging some continuing award employees, the respondent has injured them in their employment, or altered their positions to their prejudice, for one or more of the prohibited reasons alleged." 17 The learned primary Judge then examined the existence of a prohibited reason or prohibited reasons for the conduct alleged to constitute BHPIO's contravention of s 298K. It is unnecessary for the resolution of the present appeal to consider that issue in detail because counsel for BHPIO accepted, for the purposes of the argument, that it had not discharged the reverse onus imposed by s 290V of the WR Act of proving that the reasons for the conduct imputed to it did not include one or more of the prohibited reasons. 18 Reference was next made to the alleged contravention by BHPIO of s 298M of the WR Act, as to which his Honour said: "The applicants also relied on the respondent's entry into workplace agreements with a number of former award employees to found their allegation that the respondent has induced employees to stop being members of industrial associations, contrary to s 298M of the Workplace Relations Act 1996 (Cth). It is not contended that there has been inducement by threats or promises. In the terms of the section, the allegation is that there has been inducement "otherwise" than by threats or promises. At its most basic, the argument is simple. It is that conduct having the effect of causing members of a union to stop being members of a union induces them to do so, even if this is not the intention of the employer concerned." 19 After adverting to Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168, his Honour concluded that it is seriously arguable that the offering of the inducement contemplated by s 298M does not require an intention on the part of the offeror to produce the proscribed result. 20 The learned primary Judge then reviewed evidence tending to suggest that there had been a decline in numbers of unionists, and of financial union members, among BHPIO's workforce and a drop in union activity by those employees who had entered into workplace agreements. In the light of that evidence, his Honour concluded: "I am satisfied that it is likely that union membership will decline substantially among those who have become parties to workplace agreements with the respondent. It is therefore seriously arguable that the effect of the respondent's conduct will be to induce a substantial number of its employees to stop being members of the state-registered trade unions, or the first five applicants. A serious question to be tried has been raised as to whether this constitutes a contravention of s 298M, even in the absence of any evidence as to the respondent's intention." 21 His Honour also found evidence from which he considered it could be inferred, putting it at its lowest, that BHPIO viewed with equanimity the complete absence of union membership amongst its Pilbara workforce and had adopted a policy of encouraging workplace agreements at the expense of existing collective agreements as to which "the respondent has refused steadfastly to become involved in negotiations for any change to the existing terms and conditions of employment of award employees, which have been determined collectively." His Honour, in the same context, observed of BHPIO: "Whilst it maintains that it is content for those on individual agreements to continue to be members of the union, it is obvious that such membership is intended by the respondent to have no significance in relation to the determination of terms and conditions of employment. Whether or not a particular employee is a member of a union, his or her terms and conditions of employment will be the subject of decision by the respondent, on a take-it-or-leave-it basis." 22 After referring to a discussion of the operation of ss 298K and 298L, by Wilcox and Cooper JJ in a joint judgment in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, his Honour concluded: "The concept of union membership contemplated by the respondent would be a mere shell. It would be devoid of any meaningful benefit to the employees who retained it, because they would be unable to exercise their rights as members to engage in collective bargaining as to their terms and conditions of employment. It is a reasonable inference from the facts known at this stage that the respondent desires to rid its workplaces of union membership, in the same way that Hamersley and Robe River have done. It is a reasonable inference that the respondent maintains a formal stance of neutrality with respect to union membership by its employees, but with the intention that union membership will be of no consequence whatever to those of its employees who retain it. It is a reasonable inference that the respondent expects, and hopes, that the irrelevance of union membership in itsworkplaces will lead to a decline in the willingness of its employees to continue to be union members. In these senses, a serious question to be tried exists as to whether the respondent has engaged in conduct which contravenes s 298M of the Workplace Relations Act 1996 (Cth), even if the inducement proscribed by that section is required to contain an element of intention." 23 The applicants' claim for relief in the present case is founded in the alternative on the presence in a document given by BHPIO to new employees on engagement of the following clause: "The terms and conditions of employment which [sic] include, but are not limited to those set out herein. In general, the terms and conditions of employment are as prescribed in the Iron Ore Production and Processing (BHP Iron Ore Ltd) Award No. A29 of 1984 and the BHP Iron Ore Enterprise Bargaining Agreement 1993 (EBA) and the Stage I & II Award Restructuring Agreements. Where any inconsistencies exist, the conditions as set out in the EBA shall prevail. Employment with BHP Iron Ore Pty Ltd is dependent on acceptance of all the terms and conditions of employment." 24 His Honour regarded that clause as making it seriously arguable that the terms of the award had been expressly incorporated in the contract of employment. 25 The relevant clause of the award was in these terms: "No contract of employment shall be made between the employer and any employee which contains any term or condition which is inconsistent with or contrary to the provisions of this award; ........." 26 The existence of that clause led his Honour to say: "If the terms of the award are terms of each award employee's contract of employment, on its face this term would operate to give each award employee a contractual entitlement, as against the respondent, to have the respondent refrain from entering into a contract of employment inconsistent with the award with any other award employee. In other words, it would be a breach of the contract of employment of one employee if the respondent entered into a contract inconsistent with the award with another employee." 27 His Honour then rejected an argument advanced on behalf of BHPIO to the effect that the term, presumptively imported from the award into each contract of employment, should be read down so that it bound BHPIO contractually only in respect of the employee whose contract was under consideration, leaving it free, vis ŕ vis that employee, to make contracts with other employees on whatever terms it might choose. In that part of his reasons, the learned primary Judge said: "In a real sense, each employee does have an interest in the terms and conditions upon which his or her employer engages other employees. Each employee has an interest in ensuring that the employer does not treat fellow employees either with favour or with disfavour. The award term is capable of operating sensibly as part of an individual contract of employment. It is therefore arguable that the respondent was bound by contract to each award employee not to enter into, with any other award employee, a contract of employment inconsistent with the award." 28 His Honour then noted certain respects in which the individual workplace agreements entered into by BHPIO were arguably inconsistent with the award and concluded, on this aspect of the case: "As the foregoing discussion indicates, I am of the view that the allegation that the respondent is in breach of its contractual obligations to its remaining award employees, because it has entered into workplace agreements with other employees and those workplace agreements are inconsistent with the award, raises a serious question to be tried." 29 Having thus identified several serious questions to be tried, the learned primary Judge examined the balance of convenience and concluded that it was significantly in favour of granting injunctive relief. Adverting to the effect of such relief on "third parties", being award employees who might, while the injunction was pending, be minded to accept workplace agreements on the terms offered by BHPIO, he said: "It is true that the possibility exists that there might be such persons. To some extent, the remedy lies in the hands of the respondent itself. If its conduct turns out to be lawful and it wishes to reward its employees who signify their desire to avail themselves of workplace agreements while the proceeding is pending, it will be able to do so. There is also the possibility that anyone prevented by the presence of an injunction from becoming a party to a workplace agreement, and suffering loss for that reason, could be compensated by means of the undertaking in damages offered on behalf of the applicants. Otherwise, the position can be dealt with by means of liberty to apply. If there should be a demand from award employees for the offers to be reopened before the proceeding is determined, the respondent could apply to the Court for a variation of the injunction." 30 His Honour then indicated why, approaching the question with great caution, he considered he should exercise his discretion to grant the interlocutory injunction set out at the beginning of these reasons. He regarded such an injunction as not likely to amount, in effect, to a final victory for the applicants and as being designed only to maintain the situation as it exists.

LEAVE TO APPEAL 31 In accordance with the practice frequently adopted by the Court, this application for leave was fixed for hearing upon the basis that we would hear counsel not only on the question of leave, but also on the grounds of appeal sought to be advanced if leave were to be granted (see, e.g. Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539). We have had the benefit of full argument on the issues from both sides. It is apparent that the issues are complex and of general public importance. We have come to the conclusion, for the reasons which will follow, that in some respects the judgment granting the interlocutory injunction is attended by sufficient doubt to warrant its reconsideration, and that substantial injustice would result were leave to appeal to be refused. We propose, accordingly, to grant leave (cf. Patrick Stevedores v MUA (1998) 195 CLR 1 at 16).

CONCLUSIONS ON THE APPEAL 32 As noted, Gray J found that a serious question arose whether BHPIO had engaged in unlawful conduct in three areas: (a) the alleged contravention of s 298K; (b) the alleged contravention of s 298M; and (c) the alleged breach of the employment contracts. It will be convenient to consider the arguments on the appeal in each area in turn.

Was there a serious question to be tried that there had been or would be an injury of an employee or alteration of an employee's position to his or her prejudice (s 298K)?

33 For the respondent unions and individual employees (hereinafter collectively called "the Unions") it was contended that BHPIO injured certain employees when it made a general offer of improved terms and conditions, subject to entry by each offeree into an individual workplace agreement. Deciding whether or not to accept such an offer involved, so it was argued, the making of an "invidious choice" by each employee. To impose such an invidious choice was to "injure" the employee in his or her employment as contemplated by s 298K. 34 A second point at which BHPIO is said to have injured those employees who did not accept its offer occurred, on the Unions' argument, when BHPIO commenced to extend, to those who did accept the offer, the improved remuneration and conditions for which it provided. By refusing to extend the same remuneration and conditions to employees performing similar work who have not accepted the offer, BHPIO is said to have again "injured" those employees or altered their position to their prejudice. 35 It has to be borne in mind, in construing s 298K, that it proscribes conduct by "an employer" directed to "an employee" or "other person" (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ", and "discriminate". That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee. 36 That implication is reinforced by the terms of s 298L(1) which contains an exhaustive catalogue of prohibited reasons, prefaced by the statement: "Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned; ....." 37 Then follow fourteen descriptions of actual or proposed conduct by the person who is the target of the conduct described in s 298K, each of which constitutes a "prohibited reason" for the latter conduct. 38 In the present case, the only undisputed intentional act of BHPIO has been to offer to each employee improved remuneration and conditions to be embodied in an individual workplace agreement. That, of itself, did not change, in either absolute or relative terms, the remuneration or any of the conditions of employment of the employee to whom the offer was made. A change in absolute terms occurred only upon acceptance of the offer and the consequent coming into existence of a new contract of employment. It is true that, after some offers have been accepted by individual employees, a change can be discerned in the remuneration and conditions of employment of those employees, viewed in relation to the remuneration and conditions of employment of those employees who have not accepted the offer. However, the position of each of the latter employees has not been changed to his or her detriment by an intentional act of the employer. The relative change which we have just identified is brought about by the acceptance by some employees, and the rejection by others, of an offer made indiscriminately to all employees. 39 The learned primary Judge considered that some guidance on the application of s 298K to the facts of the present case is to be found in four recent judgments in this Court or the Industrial Relations Court of Australia. In Health Services Union of Australia v Tasmania (1996) 73 IR 140, Marshall J had to apply s 334(1) of the Industrial Relations Act 1988 (Cth), which for relevant purposes, was indistinguishable from s 298K(1) of the Act. His Honour found, at 143: "On 17 July 1996, Mr Kelly, on behalf of the respondent, telephoned Ms Harvey, the Acting State Secretary of HSUA, and informed her that a decision had been made to pay the initial 1.4% instalment of the 5.5% increase only to all non-HSUA members. He also informed Ms Harvey that the payment would be made administratively, i.e., without taking the matter to the Tasmanian Industrial Commission ('TIC'). Additionally, Ms Harvey was informed that all non-unionists would be asked to complete a form requesting to be paid the 1.4% increase. The respondent chose not to take the matter to TIC because any industrial agreement registered by that body would, upon registration, be applicable to every employee employed at the relevant work site. See s58(1)(c) of the State Act. The respondent's apparent intention was to discriminate against HSUA and its members for not agreeing to a total wage claim settlement of a 5.5% increase." 40 After observing that the section was concerned to afford protection to both employees and organisations of employees, Marshall J concluded, at 145: "The action of the respondent in singling out a member of the HSUA for denial of a wage increase is in the circumstances an 'injury' to such an employee in 'his or her employment' within s334(1)(a)(i) of the Act. The action of the respondent involved it treating HSUA members '... differently to other employees and for reasons not associated with the manner in which (they are) performing (their) work. ...' See Squires v Flight Stewards Association of Australia (1982) 2 IR 155, 164. Further, I am satisfied that, as the evidence stands, HSUA members have had their positions altered to their prejudice. They were assured during a period in which bans and limitations had been imposed by them that the 5.5% wage increase would be paid to them regardless of industrial action. The respondent reneged on this assurance and as a result the 'expectations and benefits' which were to accrue to HSUA members were lost. See Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49, 62. It is also clear that the applicants have established a strong case to the effect that s334(3A) of the Act has been breached. The evidence discloses inducements by the respondent to HSUA members to stop being HSUA members. It amounted to the respondent saying 'if you want the 1.4% increase you resign from HSUA'. It is difficult to imagine a more blatant breach of the sub-section as the evidence currently stands." 41 It will be readily apparent that, in the present case, BHPIO has not treated any employees differently from other employees by reason of their union membership. The terms of the offer permit those accepting it to retain or acquire union membership as they wish. Any difference in treatment has resulted solely from non-acceptance of the offer. That was not the case in HSUA v Tasmania where the employer intentionally framed the offer so that it was not available to union members. 42 In Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67, R D Nicholson J at 100-102, considered the concepts of "injury" and "alteration of position" in s 298K(1) and expressed, in these terms, at 102, his understanding of the reasoning in HSUA v Tasmania: "The concept of 'singling out' a member of a union for denial of a wage increase was held by Marshall J in Health Services Union of Australia v Tasmania (1996) 73 IR 140 at 145 to constitute an 'injury' to the employee in 'his or her employment' within s 334(1)(a)(i) of the Industrial Relations Act 1988, applying Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164. Furthermore, he held that an employer's reneging on an assurance to pay a wage increase during a period in which bans and limitations had been imposed, contrary to prior assurances, resulted in an alteration to the positions of the employees to their prejudice, applying Linehan v North West Exports Pty Ltd. (1981) 57 FLR 49 at 62." 43 In Geraldton Port Authority it was held that an offer of a "redundancy package" which included certain payments in addition to award entitlements had been offered to all employees in the relevant category. That offer had been stipulated to remain open while the Authority was involved in its restructuring program, which was expected to be concluded by the end of 1998. Against that background, R D Nicholson J concluded, at 104: "..... I consider s 298K(1)(b) has the following effect in respect of voluntary redundancies: (1) an offer of voluntary redundancy is not a threat to injure an employee in his or her employment. It is an offer the employee may accept or reject. (2) Acceptance by an employee of payment of redundancy, a fortiori payment at an enhanced rate, is evidence of absence of injury in the employment to which the redundancy relates. (3) Once accepted by the employee, the redundancy takes effect and the employment ceases. There is therefore no relevant employment against which to measure any alleged injury arising from the redundancy. (4) Consequently, allegations of worse terms and conditions being inevitable on engagement in new employment are not relevant to alleged injury in the former employment. Section 298K(1)(b), even given its wide connotation, does not address employment as a general condition but is referable to the particular employment in which the injury is said to have occurred or been threatened. Cf Australasian Meat Industry Employees' Union v R J Gilbertson (Queensland) Pty Ltd (Gray J, Federal Court of Australia, 8 December 1988) unreported, 15-17." 44 In United Firefighters Union v Country Fire Authority (Industrial Relations Court of Australia, unreported, 24 December 1996), North J had to consider the creation by the respondent employer of a new classification of "Operations Officer". Substantive appointment to that classification occurred only upon an employee's signing an individual employment agreement. Some seven members of the applicant union who had not signed individual employment agreements were performing the same functions as Operations Officers appointed as such. However, they were being paid salaries at the same rate as they had received before embarking on their new duties and had been denied availability and flexibility allowances which were accorded by the new individual employment agreements. It was also indicated in a letter to each of those seven employees that appointment, or promotion, to the substantive position of Operations Officer was contingent upon acceptance in writing of an individual employment agreement by 31 December 1996. The imposition of that condition distinguishes that case from the present in an important respect because, unlike BHPIO's offer in the present case, which has been made indiscriminately to all employees in the relevant categories, the Country Fire Authority effectively offered a limited number of promotions on condition of entry into individual employment agreements. That was to attach a new condition to employment in the service of the Authority which could be regarded as injuring each employee or altering each employee's position to his or her prejudice. That was recognised by North J when he said, at 2: "It is arguable that the seven who have not signed an individual employment agreement are being paid significantly less than the salary of an Operations Officer and are not being accorded the conditions applicable to Operations Officers because they want their salaries and conditions governed by award and not individual employment agreements. Further, the requirement to sign an individual employment agreement as a prerequisite to retaining an appointment by way of promotion is to alter the position of the employee to the employee's prejudice, or to injure the employee in the employee's employment. The alteration and injury arguably flow from the fact that the requirement to sign an individual employment agreement was not previously a requirement for promotion." 45 The fourth case to which Gray J referred in this context was Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531 which concerned the prohibition in s 170MU(1) of the Act which provides: "An employer must not: (a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action." 46 The question which arose in Canonical Administrators was whether the withholding by employers of teachers' salaries referable to a period of protected industrial action amounted to an injury of the relevant teachers or an alteration of their position to their prejudice in contravention of s 170MU(1). As to that matter, Ryan J said, at 548: "I entertain considerable doubt whether the exercise of a claimed right to withhold payment of salary or wages amounts to injuring an employee in his or her employment or alteration of the position of an employee to the employee's prejudice within the meaning of s 170MU(1). As I perceive it, the purpose of that sub-section is to ensure that the relationship of employer and employee can resume or continue unaffected after the conclusion of protected industrial action. Accordingly, the employer is prohibited from dismissing or demoting the employee for the proscribed reason. Similarly, the sub-section precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees." 47 The learned primary Judge explained his reliance on Canonical Administrators by saying, at para 29: "The reference to affording fewer opportunities for overtime indicates that his Honour took the view that a relative upgrading of benefits to other employees, without any actual downgrading of benefits to the specific employee, could amount to injury to the specific employee in his or her employment or to alteration of that employee's position to his or her prejudice." 48 However, in our view, the observations in Canonical Administrators extend only to an alteration in the employee's position which has been brought about by a discriminatory act of the employer in "singling out", as Marshall J put it, the employee concerned for exposure to detrimental consequences or exclusion from benefits or advantages such as promotion or the availability of congenial shifts or attractive overtime. As we have endeavoured to explain, the facts of the present case do not reveal any such discriminatory "singling out" by BHPIO of any of its existing workforce. It is apprehended by the applicants that employees who elect not to sign individual workplace agreements will, in the future, be excluded from consideration for promotions or changes of shifts to which they are as well qualified by experience or training as employees who have accepted the offer. On the evidence, this has not happened and, until it does, it is not open to find that BHPIO has injured in their employment, or has altered to their prejudice the position of, those employees who remain regulated by the award. It is also true that a continuing award employee who receives a promotion or some other beneficial change in his or her employment may not achieve the same increase of remuneration as a similar employee on an individual workplace agreement. However, for the reasons outlined above, that will be a consequence of an election between different contractual regimes for the regulation of the employment of the two groups of employees. It will not have been brought about by the active, intentional, conduct of the employer which is struck at by s 298K. 49 A consideration related to those which we have just mentioned is the need to mould any interlocutory relief so that it extends no further than reasonably necessary to protect the applicants against the contravention of the Act as to which they have raised a serious question to be tried. As was observed in the joint judgment of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33 (para 35): "The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 621: 'A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order.' The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked (See Tait v The Queen (1962) 108 CLR 620). The Federal Court had jurisdiction to make interlocutory orders to prevent frustration of its process in the present proceeding." 50 That passage has recently been applied by Kenny J in discussing a similar problem in a different context in Peniche v Vanstone (1999) 169 ALR 157 at 159-160. In the present case, if the arguable contravention of s 298K consists in discriminating between award and individual contract employees by favouring the latter in, for example, selection for promotions or the allocation of overtime or rostering for more congenial shifts, the interlocutory injunction would have to be framed to protect the applicants against only those forms of discrimination. The principles to which we have just referred do not countenance a blanket restraint, until the hearing and determination of the action, on the offering by BHPIO of any further individual contracts on the same terms as have already been accepted by more than 45 per cent of its workforce. Such a blanket restraint would deny to the remainder of the workforce, for a very significant time, the election to accept or reject an indiscriminate offer which we have concluded is not prohibited by s 298K on its proper construction. It would also deny to BHPIO, for the same significant period, if it ultimately succeeded in resisting a final injunction in that form, the benefits (which it can be assumed it sees as substantial) accruing from a wider acceptance of its offer. For these reasons, an assessment of the strength of the applicants' case for final relief in that form cannot be disregarded in considering the balance of convenience: see e.g. Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472, Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, and the other authorities which Sackville J has conveniently collected in Australian Rugby Union Limited v Hospitality Group Pty Ltd [1999] FCA 1136, (unreported, 19 August 1999). 51 The primary question raised in the present case by the Unions' invocation of s 298K is one of construction of the section and its application to facts which are substantially undisputed. In Attorney-General and Lumley v T S Gill & Son Pty Ltd [1926] VLR 414, Dixon A-J (as he then was), indicated, at 416, that where, as here, an applicant for an interlocutory injunction invokes a violation by the defendant of a prescription in a statute or subordinate legislation, the issue which later authorities have characterised as a "serious question to be tried" - "next depends on the construction of the by-law and the nature of the business of the defendant. It is undesirable in interlocutory matters to give decisions which are unnecessary, and I say no more than that I think there is strong ground to suppose that the defendant was in process of committing a violation of the by-law, and that the affidavits do not lead to the conclusion that it will desist from that course of proceeding without an injunction being granted." 52 To the extent that the existence in the present case of a serious question to be tried depends on the construction of s 298K, for the reasons which we have outlined, we do not think that the undisputed facts establish a contravention by BHPIO of that section. This conclusion, based as it is on facts which are undisputed, or not seriously contested, leaves to one side evidence, to which the Unions have pointed, of active discrimination by BHPIO against employees who have not accepted individual workplace agreements. We exclude from "active discrimination" in this discussion, the differential administration of the distinct contractual regimes discussed in para 48 of these reasons. The evidence alleging active discrimination was, first, that requests to attend "call outs" or to work overtime are made disproportionately or exclusively of award employees rather than of those who have signed staff contracts. Secondly, there is evidence that, in late November 1999, a BHPIO supervisor advised a group of employees based at Jimbie Bar Junction who had not accepted staff employment that they would be transferred to work at Headland (which is about 450 kilometres from Jimbie Bar Junction). Another continuing award employee claims that he was told by "BHPIO management" that he would not be promoted to charge-hand if he did not sign a staff contract. Had we come to a different conclusion from that reached later in these reasons on the existence of a serious question to be tried as to the alleged contravention of s 298M, it would have been necessary to consider separately whether to frame an interlocutory injunction to restrain discrimination of the kind alleged in the evidence to which we have just referred. If evidence becomes available in the future that discrimination of the kind alleged is working actual hardship on identified employees, the Unions can renew their application for interlocutory relief to the docket Judge responsible for judicial case management of this action. However, in the circumstances, it is unnecessary for this Full Court to say anything further about an interlocutory injunction founded on the alleged contravention of s 298K.

Was there a serious question to be tried that BHPIO had induced, or would induce, an employee to stop being a member of an industrial association (s 298M)?

53 In their application the Unions claimed by way of final relief, inter alia, injunctions under s 298U(e) of the Act. By that provision, in respect of conduct in contravention of Pt XA of the WR Act, the Court may, if the Court considers it appropriate in all the circumstances of the case, make orders by way of "injunctions (including interim injunctions) … that the Court thinks necessary to stop the conduct or remedy its effects; …". The claim for final relief was made as follows - "8. Injunctions under s 298U(e) … restraining [BHPIO] … from continuing to contravene s 298M. 9. Orders under s 298U(e) … that [BHPIO] remedy the effects of the conduct in contravention of s 298M. 10. Such further or other orders under s 298U or otherwise as to the Court seem appropriate in respect of the contravention of s 298M." 54 By their statement of claim, the Unions alleged this contravention of s 298M: "95. By engaging in the conduct referred to in [paras] 56 to 58 [the [alleged] individualisation and union exclusion strategy] BHPIO did by threats or promises or otherwise induce award employees to stop being members or officers of their industrial association." 55 In paras 56-58 it was alleged that BHPIO had formulated, implemented and continued an "individualisation and union exclusion strategy", being, it was claimed, a strategy "to refuse to collectively bargain with the Applicant Unions for a further collective industrial agreement and to offer and make with its Award Employees[the] individual agreements …". 56 As noted, in considering the meaning of s 298M, the learned primary Judge applied the reasoning of Toohey J in the Mobil Case and held that it was "seriously arguable" that this provision "was concerned with conduct, not with the mental element that may accompany the conduct". In Mobil, Toohey J interpreted the resale price maintenance provisions of the Trade Practices Act 1974 (Cth), in particular s 96(3)(b) (which relevantly defines the practice of resale price maintenance to include "… the supplier inducing, or attempting to induce, a second person not to sell [goods], at a price less than a price specified by the supplier …"). On behalf of Mobil, it was argued that for Mobil "to induce" another not to sell at a price etc., a number of conditions had to be met, including that Mobil must have had the intention of inducing the second person so to act, and must have done things which, irrespective of intention, had the potential so to induce, and did so induce. Toohey J (at 183) accepted that, in the case of an attempt to induce, there must be an intention to bring about the prohibited result, but went on to say (at 183-184) that in the case of inducement (as opposed to an attempt), s 96(3)(b) - "… contains an absolute prohibition on the conduct in question, absolute in the sense that proof of the conduct proscribed is sufficient. See Tubemakers' Case at 737. Although a contravention of s 48 [proscribing the practice of resale price maintenance] carries serious financial consequences, the proceedings are civil." 57 In Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719, another decision of Toohey J on restrictive trade practices legislation, the Commission alleged that Tubemakers had attempted to contravene s 45(2)(a) of the Trade Practices Act. This proscribed the making of a contract etc. if a provision of the proposed contract etc. had the purpose, or would have had, or be likely to have had, the effect of substantially lessening competition. Toohey J held (at 737) that a concession by counsel for Tubemakers that s 45(2) contained an absolute prohibition on the conduct in question was rightly made, and that mens rea need not be established as an element of this statutory prohibition. But Toohey J went on to hold (at 743) that there could be no attempt to contravene s 45 - "… unless those involved had the relevant intention, that is, that they acted with the purpose of bringing about a result - in this case an arrangement or understanding that had the purpose or would have or be likely to have the effect of substantially lessening competition." 58 Without at all questioning the correctness of the reasoning in Mobil and Tubemakers as applicable in their own statutory contexts, there are necessarily limits to the application of that approach in the present context, notwithstanding that the central notion of "inducement" may be a common factor. Section 298M has to be construed in its own particular statutory context as part of an Act dealing with workplace relations and, in particular, as a section within Part XA - Freedom of Association. That part has, of course, its own specific objects "to ensure" freedom to join, or not join, industrial associations and "to ensure" that employers and employees are not discriminated against, because they are, or are not, members or officers of industrial associations. Moreover, as will be seen, assistance in the proper construction of s 298M may be found in the approach taken to comparable industrial legislative provisions by courts of high authority in other jurisdictions. 59 In interpreting any statute, the duty of a court, as McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 (at 384) - "… is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (Footnotes omitted) 60 Construed in its context as indicated in para 58, it appears to us that s 298M will be contravened by conduct that leads or moves, by persuasion or influence, an employee to stop being a member of a union. It further appears to us that it is essentially a question of fact, to be determined by looking at all the circumstances of the case. To this extent, we do not find it helpful to analyse the issue, as the primary Judge did, in terms of an absolute prohibition where intention is irrelevant. On the contrary, in resolving the question of fact which we have just identified, the existence of a particular intention may be a significant consideration. 61 Taken literally, s 298M appears to contain only a single prohibition, that is, that an employer must not, by a threat or a promise or otherwise, induce an employee to stop being a member of an industrial association. That is, if considered grammatically only, s 298M does not speak of an attempt, or of a threat, to induce. But English industrial legislation speaking of inducement has been purposively interpreted so as to pick up a threat to induce. Section 3 of the Trade Disputes Act, 1906 (UK) dealt with "[a]n act … that … induces some other person to break a contract of employment …". It was held in Morgan v Fry [1968] 2 QB 710 (at 728-729) that the verb "induces" used in that context included a threat to induce. It is appropriate to place a similar interpretation upon s 298M, since, in our view, this would give effect to the evident purpose of s 298M. This approach is reinforced by the explicit reference to "threats" in the section. 62 Central to the operation of s 298M is the meaning of the verb "induce" itself. Its meaning needs to be explained for present purposes. Of its dictionary meanings, the primary one that seems appropriate in the present context, contained in the Macquarie Dictionary (2nd Ed. 1991), is - "1. To lead or move by persuasion or influence, as to some action, state of mind, etc.: to induce a person to go." 63 In The Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153, Pincus J, with the agreement of Lockhart and Wilcox JJ, made some general observations on the notion of "inducement". His Honour said (at 164): "Counsel argued that there must be an 'inducement' as that word is commonly used in the law. It is true that the word ordinarily refers to some proffered advantage or disadvantage, promised or threatened, to follow from following or failing to follow a stipulated course of action. There is no reason, however, to read into par (b) a necessity to find that anything is offered in exchange, so to speak, for not discounting; mere persuasion, with no promise or threat, may well be an attempt to induce. Apart from that, here it appears that there was an inducement in the sense referred to by counsel, namely a threat to discontinue supply." 64 This reasoning appears equally apposite here, given especially the presence of the words "or otherwise" in parenthesis in s 298M. 65 English legislation comparable to s 298M was recently considered by the House of Lords in Associated Newspapers Ltd v Wilson [1995] 2 AC 454. Section 23(1) of the Employment Protection (Consolidation) Act 1978 (as amended) (UK) provided: "(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of - (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or (b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions." 66 Although that provision was expressly framed in purposive terms, there is, we think, no reason of principle, or of a practical kind, why s 298M should not receive a similar construction particularly having regard to the stated objects of Part XA - Freedom of Association. 67 Lord Lloyd drew a distinction between a concern with membership of a union on the one hand, and a concern to get rid of collective bargaining on the other. He said (at 484): "The only evidence as to the employers' purpose in withholding the 4.5 per cent. came from the group managing director, Mr Hardy. He said that he wanted as many members as possible to sign up so that everybody should know where they were. Over and over again he was asked in cross-examination whether it was not also a disguised attack on membership of the union. Over and over again he replied that it was not. He was not concerned with membership of the union; he was concerned only to get rid of collective bargaining. It is not suggested that in giving these answers Mr Hardy was not expressing his honest opinion. His evidence appears to have been accepted by the tribunal at its face value. It is borne out by the terms of the handbook which specifically preserves the right of employees to remain members of the union, as well as their right to be accompanied by a union representative when raising grievances. It is further borne out by the fact that the very great majority of those who accepted the 4.5 per cent. remained union members." 68 Lord Lloyd continued (at 484 - 485): "In my view, section 23(1)(a) was intended to protect trade union membership as such, that is to say, the right to associate as members of an independent trade union, just as section 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words 'or making use of the essential services of the union' in section 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as being the same thing. They do not mean the same thing in section 23(1)(c). So why should they mean the same thing in section 23(1)(a)? I do not accept Knox J.'s view, at p. 16, that this would reduce section 23(1)(a) to vanishing point. Unions may flourish even though they are not recognised for collective bargaining." 69 He went on to say (at 486): "In the context of this case the distinction between means and ends is narrow and somewhat artificial. In my view, the industrial tribunal were entitled to hold that the true purpose of paying the extra to those who signed the new contracts was to persuade as many employees as possible to abandon union representation in wage negotiations." 70 In his conclusion, Lord Lloyd said (at 490): "… the words of the consolidating Act are clear and unambiguous and must be given effect according to their meaning. It follows that in both appeals the employers took action against the applicants as individuals. But in both cases the applicants fail because the action was not for the purpose of preventing or deterring them from remaining members of the union." 71 In our opinion, assistance for present purposes can also be found in the approach taken by the United States Supreme Court, again in a comparable context, in two decisions mentioned by Wilcox and Cooper JJ in Davids, above. There, Wilcox and Cooper JJ said (at 500): "In the context of the Act, Pt XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. In this regard the Act operates in the same way and to the same ends as similar legislation in the United States of America: National Labor Relations Act 29 USCA ss 152(3), 157, 158(a) (1) and (3), 163; American Ship Building Company v National Labor Relations Board (1965) 85 S Ct 955; National Labor Relations Board v Brown (1965) 85 S Ct 980. That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions: American Ship Building Company at 965." 72 In Labor Board v Brown 380 US 278 (1965), Brennan J, writing for the Court, said (at 287 - 288): "For example, in Labor Board v. Erie Resistor Corp., supra, we held that an employer's action in awarding superseniority to employees who worked during a strike was discriminatory conduct that carried with it its own indicia of improper intent. The only reasonable inference that could be drawn by the Board from the award of superseniority - balancing the prejudicial effect upon the employees against any asserted business purpose - was that it was directed against the striking employees because of their union membership; conduct so inherently destructive of employee interests could not be saved from illegality by an asserted overriding business purpose pursued in good faith. But where, as here, the tendency to discourage union membership is comparatively slight, and the employers' conduct is reasonably adapted to achieve legitimate business ends or to deal with business exigencies, we enter into an area where the improper motivation of the employers must be established by independent evidence. When so established, antiunion motivation will convert an otherwise ordinary business act into a unfair labor practice." 73 In American Ship Building v Labor Board 380 US 300 (1965), Stewart J, delivering the opinion of the Court, said (at 311): "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation. … Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership. … Such a construction of s 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise." 74 Stewart J went on the say (at 311 - 312): "This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer's protestations of innocent purpose." 75 Stewart J added (at 313), in the passage mentioned by Wilcox and Cooper JJ, the following: "There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the 'union membership' which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. Labor Board, supra, at 39-40. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favourable terms, no violation of s 8(a)(3) is shown." 76 The stance taken to comparable legislation in England and the United States can illuminate our approach to the meaning of s 298M. By this approach, the essential question, one of fact, is the appropriate characterisation of the conduct of BHPIO, viewed, however, in its full context. We agree with Lord Lloyd that, in this connection, the distinction between means and ends may be too narrow and artificial. Although it is accepted by the respondents that no explicit relevant threat or promise was made, it is plain that the operation of s 298M is not so limited; that is, the inducing conduct may take another form - i.e. "otherwise", as the words in parenthesis state. 77 Gray J's reasons did address this question of fact albeit (necessarily) at this stage on an interlocutory footing only. His Honour said (para 40): "The evidence on behalf of the applicants is that union membership is considered to be, and is in fact, less attractive to employees if they cannot have the terms and conditions of their employment determined by collective bargaining than if they can. Further, the evidence is that employees who enter into individual agreements, such as those offered by the respondent, tend to relinquish their union membership. The result can be the end of the capacity of a union to function effectively in the workplace. The evidence is that this has occurred in the workplaces of Hamersley and Robe River. The switch to individual contracts has been followed by the almost total elimination of union membership among employees of Hamersley and Robe River. Already, a significant number of members of the first five applicants employed by the respondent have resigned their membership. Many of the stated reasons for resignation refer to the making of a workplace agreement by the person concerned. The evidence of Gary Norman Wood, Secretary of the Mining and Energy Division, West Australian District, of the second applicant, based on his experience of events that occurred in relation to Hamersley and Robe River and another workplace in Western Australia, is that more resignations are likely at the end of a dues period when accounts are sent out seeking payment of further union dues. The evidence of Mr Stockden is that the respondent has continued to collect union dues by payroll deduction where its employees so desire. The total number of persons for whom union dues are deducted has fallen from 805 at 11 November 1999 to 636 at 24 January 2000. The evidence on behalf of the applicants also concerns a drop in participation in union affairs by those who have entered into workplace agreements with the respondent. Numbers attending mass meetings have fallen. Delegates who have accepted the respondent's offers and entered into workplace agreements have ceased to attend meetings." 78 Although we disagree with aspects of his Honour's approach to the interpretation of s 298M, we nonetheless consider that, on our own construction of this provision, the facts disclosed in the evidence mentioned by his Honour do raise a question, one of fact, for serious determination at the final hearing of the claim for injunctive relief. That question, as has been said, is: in all the circumstances, and notwithstanding the absence of any explicit threat or promise, may what BHPIO has done, or threatens to do, be appropriately characterised as inducing (i.e. leading or moving by persuasion or influence) an employee to stop being a member of a union? In our view, the evidence to this stage is sufficient to justify a conclusion that this factual issue should be treated as a serious question. 79 The balance of convenience if an interlocutory injunction were either to be granted or to be refused will be addressed later.

Was there a serious question to be tried that, by entering into the individual workplace agreements, BHPIO had acted or would act, in breach of the contracts of employment of its remaining employees? 80 As noted above, Gray J held that it was also seriously arguable that the provisions in documents handed to new employees upon their engagement (1) had contractual effect and (2) picked up the terms of the relevant award, specifically a clause in the award (cl 5(14)(a)) providing that no contract of employment shall be made between the employer and any employee which contains any term or condition inconsistent with or contrary to the provisions of the award. His Honour considered that it was arguable that individual workplace agreements offered to award employees, and accepted by a number of them, were inconsistent with the award, instancing conditions for compulsory redundancy. 81 We have been persuaded that his Honour's approach to this issue is not correct. In the first place, it is now authoritatively established that if an award is to be incorporated into a contract of employment, express provision to that effect is required (see Byrne v Australian Airlines Ltd (1995) 185 CLR 410). In Byrne it was held that the obligation to observe an award arose by force of statute, not because the award was imported into a contract of employment independently of the parties' intention; and that the provisions of the award were not an implied term of the contracts of employment, because their implication was not necessary for their reasonable and effective operation in all the circumstances. 82 Secondly, we have difficulty accepting that the document relied on by his Honour was intended to have the contractual force suggested. The document is entitled "Information for New Employees at Newman". In our view, that is an appropriate description of its character. In its form and in its substance it is not, and does not purport to be, an independent contract of employment, or a document recording or evidencing such a contract. On the contrary, the document makes it plain that the employment relationship is governed, not by any free-standing contract, but by the award. 83 The document commences with the statement which we have set out above, under the heading "Conditions of Employment". As has been seen, it is there stated that the conditions of employment are "[i]n general … as prescribed in the … Award … and the [EBA] …" and that "[w]here any inconsistencies exist, the conditions as set out in the EBA shall prevail". This makes it plain, in our view, that the relationship is governed by the award and the EBA to the exclusion of any independent contractual arrangements. 84 So much is confirmed by the balance of the document. The next heading is "Award Conditions". Under this title, a number of matters are dealt with under separate sub-headings: "Contract of Employment", "Hours", "Overtime", etc. Later in the document, under further headings ("Property Protection", "Relocation of Employees", etc.) other managerial subjects are dealt with. 85 In our opinion, when the document is read as a whole, it is clear that it was not intended that the terms of the award were to be picked up as a free-standing contract of employment (see Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455 (at 490)). 86 It must follow, in our view, that his Honour erred in concluding that it was seriously arguable that BHPIO had breached a contractual obligation to other employees by offering the individual agreements. 87 It is necessary, then, to consider the balance of convenience in connection with the triable issue that arises in respect of the claim that BHPIO has contravened s 298M.

Where does the balance of convenience lie? 88 Gray J granted an interlocutory injunction upon the conventional basis, that is, on the condition that the applicants gave the usual undertaking as to damages and upon the footing that the restraint would, unless discharged earlier, operate until the final hearing of the Unions' claims by the Judge to whom the matter had already been allocated for judicial case management and hearing (Kenny J). (His Honour had been approached to hear the claim for interim relief on an urgent basis in the vacation period.) 89 In considering the balance of convenience, his Honour was faced with a difficult exercise in making a discretionary judgment as to the form of any interim restraint. Although it may be appropriate to frame a final injunction in the terms of s 298M (see, e.g. Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617), different considerations can apply to the form of interim relief. In Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294, Bowen CJ said (at 305 - 306): "If in this case the board is restrained only from following a course of conduct where its purpose is the eliminating or substantially damaging of Parkwood or deterring or preventing Parkwood from engaging in competitive behaviour, the very difficulties arise which I referred to in Parish's case. In some cases, of which the tort of nuisance provides the most common example, the court cannot help but frame the interlocutory order in the terms in which final relief will be granted. Where that is so, the difficulties in determining whether the injunction has been contravened will not stay the court's hand. Where however it is possible to specify the course of conduct which is shown to be prima facie in contravention of the law, it is better to proscribe that conduct. It is no objection, at least to a court not exercising statutory jurisdiction, which might in this regard be expressly limited, that the court for a short period restrains a person from doing that which he is lawfully entitled to do (Hubbard v. Pitt). In my opinion if the order is one which the court has jurisdiction to make under s. 80, I consider it proper that it be in the absolute form in which it is, notwithstanding that until the hearing or further order the board may be restricted from engaging in legitimate competition. In the absence of a qualification to the order that does not raise the issues to be determined at the trial, such a proscription is the lesser evil. I would only add that the possibility of a party applying for a variation of the order if its operation proves to be unexpectedly harsh is a proper matter for the learned trial judge to have had in mind when framing the order." (Emphasis added) 90 See also per Brennan J at 316; Patrick Stevedores Case, above, at 32-34. 91 It is true that the interim restraint granted will operate upon BHPIO's conduct of its business in substantial respects, and BHPIO claims that, if restrained absolutely from offering individual agreements, it will be prejudiced in its capacity to compete effectively with its business rivals. Moreover, it is also material to consider the position of third parties, in particular, those employees who may wish to accept BHPIO's offer but who will be deprived of that opportunity by virtue of the restraint imposed on BHPIO (see Patrick Stevedores Case at 41-43). It is appropriate to take these circumstances into account. Yet, as Bowen CJ pointed out in the above passage, it may still be proper to restrain a person from doing something lawful, subject to the important proviso that the restraint operates for no more than a short period. 92 In the present case, whilst we agree with the primary Judge in principle that the form of restraint ordered was appropriate, we cannot accept that its contemplated duration was proper. 93 As noted, the restraint granted will, unless discharged earlier, subsist until the final hearing and determination of all the applicants' claims. Those claims are multiple and complex. They include claims for the imposition of penalties and for damages. They include claims made by way of group proceedings (joined in this action) on behalf of other employees, proceedings which have already given rise to adjectival complications. We were informed from the Bar table that, unless expedited, it may be twelve months before all of these claims are heard and determined. In our opinion, it would be wrong to allow the present interim restraint to remain in place for so long. We propose to require the applicants to apply to Kenny J for expedition of their claim for injunction under s 298M. We further propose to vary the restraint so that it operates until further order, rather than until the final hearing and determination of all of the applicants' claims. 94 Further, it is not appropriate, at this stage at least, that the parties to the group proceedings be required to join in the undertaking as to damages. We propose to vary the undertaking so as to clarify this.

ORDERS ON THE APPEAL 95 We make the following orders:

1. Leave to appeal granted. 2, Appeal allowed in part.
2. Vary the orders made by Gray J on 31 January 2000 as follows: (1) By omitting from the undertaking there noted the words "the applicants" and substituting the words "the Union Applicants and the Employee Applicants". (2) By adding thereto a further note of the following undertaking: "That the Union Applicants and the Employee Applicants further undertake to the Court (a) that they will forthwith apply to the docket Judge (Kenny J) for an order expediting the hearing of their claim for final injunctive relief for the alleged contravention of s 298M of the Workplace Relations Act 1996 (Cth); and (b) that they will continue to prosecute that claim with all necessary diligence on their part." (3) By reserving specific liberty to the respondent, in the event that the undertaking mentioned in (1), above, is not complied with, to apply to Kenny J for an order discharging the interlocutory injunction granted by Gray J and staying the claim for final injunctive relief. (4) By omitting in para 1 of the orders the words "the hearing and determination of the proceeding, or".
3. Costs of the appeal reserved. 96 (Accordingly, the terms of the interlocutory injunction, as so varied, will be: THE COURT NOTES THAT the Union Applicants and the Employee Applicants by their counsel undertake to the Court (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of this interlocutory order or any continuation (with or without variation) thereof; and (b) to pay the compensation referred to in (a) to the person there referred to.

THE COURT FURTHER NOTES that the Union Applicants and the Employee Applicants further undertake to the Court (a) that they will forthwith apply to the docket Judge (Kenny J) for an order expediting the hearing of their claim for final injunctive relief for the alleged contravention of s 298M of the Workplace Relations Act 1996 (Cth); and (b) that they will continue to prosecute that claim with all necessary diligence on their part.

THE COURT ORDERS THAT: 1. Until further order, the respondent, by itself, its servants or agents, be restrained from offering, entering into, or taking any step to make, formalise or register a workplace agreement made pursuant to the Workplace Agreements Act 1993 (WA) or any contract of employment conditional upon the making of a workplace agreement with any of its employees whose employment is regulated by: (a) the Iron Ore Production and Processing (Mt. Newman Mining Company Pty Limited) Award No. A 29 of 1984, sometimes called the Iron Ore Production and Processing (BHP Iron Ore Pty Ltd) Award No. A 29 of 1984, an award of the Western Australian Industrial Relations Commission; (b) the BHP Iron Ore Enterprise Bargaining Agreement 1993, registered with the Western Australian Industrial Relations Commission in application no C314 of 1993 on 14 July 1993; (c) the BHP Iron Ore Pty Ltd - BHP Iron (Goldsworthy) Pty Ltd Enterprise Bargaining Agreement 1995, registered with the Western Australian Industrial Relations Commission in application no C339 of 1995 on 24 November 1995; (d) the BHP Iron Ore Enterprise Bargaining Agreement 1997, registered with the Western Australian Industrial Relations Commission in application no AG333 of 1997 on 13 January 1998.) I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate: Dated: 7 April 2000 Counsel for the Appellant: Mr A Archibald QC with Mr F Parry

Solicitor for the Appellant: Mallesons Stephen Jaques (Perth) and Mallesons Stephen Jaques (Melbourne)

Counsel for the Respondents: Mr J Burnside QC with Mr M Bromberg

Solicitor for the Respondents: Maurice Blackburn Cashman

Dates of Hearing: 29 February and 14 March 2000