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.