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[2005] FCA 3
Federal Court of Australia
2004-06-28
Heerey J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant Bluescope Steel Limited (BSL) sought an interlocutory injunction to restrain industrial action threatened by the first respondent union (CEPU). The application was short served and came on for hearing on 6 January 2005. As the action the subject of the application was to commence the following day and as argument did not conclude until almost 7.00 pm, I announced a decision to refuse the application. I gave a brief outline of my reasons and told the parties I would later deliver amplified reasons. This I now do. 2 BSL operates a large steel mill near Hastings in Victoria. Among its employees are about sixty maintenance electricians, most of whom are members of the CEPU. It also employs maintenance workers in the metal trades who are member of the AMWU and production workers who are members of the AWU. Since about the middle of last year the metal trades maintenance workers have been employed by Silcar, an unincorporated joint venture between Siemens Ltd and Thiess Pty Limited, to which BSL has contracted maintenance work. 3 On 4 September 2002 an agreement was certified under Pt VIB of the Workplace Relations Act 1996 (the Act). The nominal expiry date of that agreement was 28 June 2004. The parties to the agreement are BSL, the AWU, the AMWU and the CEPU. 4 On 29 April 2004 the CEPU faxed to BSL a document headed "Notice of Initiation of Bargaining Period" (the initiating notice) under s 170MI(2) of the Act. As required by s 179MJ(c), the initiating notice included particulars of matters which the CEPU proposed should be dealt with by the proposed new agreement. There were thirty items, including such matters as wage increases and superannuation contributions, and also "17. No contracting out of work except by agreement with the Union. Employees and the Union are to be consulted if contracting is contemplated." 5 The initiating notice was also sent by post and was received by BSL in the mail on 3 May 2004. Initially the AWU and the CEPU advanced separate claims but at a negotiating meeting on 17 June 2004 the AWU, the CEPU and the AMWU jointly gave BSL a consolidated log of claims. The log consisted of forty-six items including "13. No contracting out of work except by agreement with the Union. Employees and the Union are to be consulted if contracting is contemplated. … 36. No outsourcing of any work being performed by any employee without the approval of the relevant Union and majority of employee's (sic) effected." 6 Shortly after the provision of the consolidated log of claims the AMWU reached agreement with Silcar. The agreement was certified under the Act and employees of BSL who were members of that union resigned their employment with BSL and accepted employment with Silcar. 7 Negotiations continued between BSL, the AWU and the CEPU. Commencing on 1 September 2004 the CEPU on numerous occasions took industrial action at BSL's plant by way of work stoppages. These commonly were of two hours but occasionally twelve hours or more with one stoppage of three days. There was also imposition of bans on the performance of isolation duties or other work by members of BSL and contractor staff and imposition of bans on equipment on which such work had been performed by such persons. 8 On each occasion the CEPU prior to the stoppage gave a notification under s 170MO(2)(b) of the Act, which required the union to give BSL "at least 3 working days' written notice of the intention to take the action". This is one of the requirements for industrial action to qualify as "protected action" within the meaning of s 170ML and thus to obtain the protection of s 170NC(2) from the prohibition against coercion in the making of an agreement contained in s 170NC(1). 9 The first of such notifications was contained in a document from the CEPU dated 26 August 2004 addressed to the Proper Officer, Bluescope Steel Limited at Hastings. The notification advised that industrial action would commence on Wednesday, 1 September 2004 at 7.00 am and would involve a stoppage of the performance of work between that time and 7.00 pm on 1 September and between 7.00 am and 7.00 pm on 6 September. The notification was received by BSL by fax on 26 August and by mail on 1 September. 10 There were in all 156 occasions on which the CPU notified BSL by fax that it intended to take industrial action. Action proceeded on forty of those occasions. Of the 803.5 hours industrial action notified 225 hours of action proceeded. 11 Sometimes the notification was also sent in the mail but on many occasions there was notification by fax only. BSL apparently did not complain to the CEPU about receiving otifications by fax. It has not suggested that it was disadvantaged in any way by this means of communication. 12 BSL commenced the present proceeding on 5 January 2005. At the date of the interlocutory injunction application hearing (6 January) the proposed industrial actions for which notification had been given were as follows: s 6 January 8.00 am to 7 January 7.00 am s 7 January 8.00 am to 8 January 7.00 am s 10 January 8.00 am to 11 January 7.00 am In each case the notification was a stoppage of the performance of work for all shift and day workers. 13 Notice has been sent by post in sufficient time for the proposed stoppage on 10 and 11 January. Therefore if, as BSL contends, notification by fax was not sufficient, that would only be relevant for the proposed stoppage on 7 and 8 January. 14 During last year BSL arranged a major maintenance shutdown at the plant. The shutdown had been planned for over twelve months and commenced on 28 November 2004. It was the largest shutdown in more than thirty years of the operation of the plant. Different parts of the plant were scheduled to be decommissioned on various dates in late November and early December. Originally the plan was to have the work completed for the plant to be operational by 17 December. The stoppages have caused delays. The continuation of the delays will result in lost revenue for BSL of approximately $3.3 million per day. For each day of lost production fixed costs not recovered amount to $283,000.
Do the CEPU's claims pertain to employer/employee relationship? 15 An agreement capable of certification must be about matters pertaining to the relationship between employer and employees: s 170LI(1). BSL submits that the CEPU's claim for a provision against contracting out does not pertain to the employer/employee relationship. This contention is supported by a line of authority: R v Judges of the Commonwealth Industrial Court: ex parte Cocks (1968) 121 CLR 313 at 317-320, CFMEU v Mount Thorley Operations Pty Ltd (1997) 79 FCR 96 at 107-110, Wesfarmers Premier Co Limited v AFMEPKIU (No.2) [2004] FCA 1737 at [104]-[109]. Therefore, BSL contends, industrial action in support of such a claim would not be "protected action" within the meaning of s 170ML: Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 209 ALR 116. 16 At least for the purposes of the present application, the CEPU does not dispute these propositions. However when, on 6 January, the CEPU was served with BSL's statement of claim which included the above contention, CEPU immediately faxed to BSL a letter which included the following: "The second ground [in the statement of claim] is that the notice under s 170MI contained claims concerning contractors, as did the combined log of claims. This is the first time that this issue has been raised with us. This part of the claim has not to our knowledge ever been in dispute. It reflects agreed clauses in the existing EBA. However, in view of the objection which you now raise to it, we hereby give you notice that the union drops its notified claim in relation to contractors and does not any longer seek to have it included in any agreement arrived at with your company." 17 I pause to note BSL's argument that while the contracting out claim (item 17 of the initiating notice and item 13 of the consolidated log) was withdrawn there was no withdrawal of the outsourcing claim (item 36 of the consolidated log). There is no substance in this argument. Senior counsel for BSL was unable to point out any practical difference between contracting out and outsourcing. The obvious explanation is that the consolidated log was a combination of two or more different documents and understandably there was not a careful linguistic analysis undertaken to ensure there were no overlapping or redundant phrases in the combined document. 18 BSL appears to accept therefore that at the moment there is no claim being made in respect of contracting out and therefore no industrial action being taken in support of any such claim. However, BSL says there is a more fundamental problem for the CEPU. Because the initiating notifice under s 170M1(2) included the impermissible contracting out claim the notice was invalid and no "bargaining period" was "initiated". The bargaining period therefore did not begin at the end of seven days after the day on which the notice was given (s 170MK(a)) because there was no valid notice. The protected action provisions of s 170ML are inapplicable because there is simply no bargaining period in existence. 19 This point did not arise in Electrolux because there was no doubt in that case that the claim which the majority of the High Court found to be not an employer/employee matter was in fact being pursued by industrial action. 20 The BSL's argument is in my opinion inconsistent with the reasoning of French J in Wesfarmers. At [56] his Honour said: "The 'proposed agreement' in s 170MI(1) therefore is used in a generic sense to describe the desired outcome which is 'an agreement'. The requirement that the particulars accompanying the initiating notice specify the matters that the initiating party proposes should be dealt with does not demand a specification of terms and conditions but rather of topics. Nor does it require that the matters be exhausted of all matters that could find their way into a final agreement. These provisions govern the beginning of the process of negotiation. It would be antithetical to their objects to require that the initiating party have to find an agreement capable of certification from the outset." And at [59] his Honour said: "In my opinion, consistently with the use of words 'proposed agreement' in s 170MI, the 'proposed agreement' in s 170ML(2)(e) is the desired end point, described generically, of the negotiation process. It does not require that there be in existence a draft of a certifiable agreement which has been prepared or is proposed by the organisation undertaking the industrial action. On the other hand, it does not exclude the possibility that industrial action may occur at a point which such a draft has come into existence." 21 As already indicated, an essential step in BSL's argument is that the initiating notice of CEPU was simply a nullity because it included, amongst many legitimate employer/employee claims, an impermissible claim. In other words, in law it was as if no notice at all had been given. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] McHugh, Gummow, Kirby and Hayne JJ pointed out that the correct test for determining the issue of validity where some statutory provision has been infringed is to ask whether it was a purpose of the legislation that an act done in breach of that provision should be invalid. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". Here the principal object of the Act, as enshrined in s 3, is to provide a framework for co-operative workplace relations which promotes the economic prosperity and welfare of the people of Australia by, amongst other things, "(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them." 22 BSL's argument would mean that parties might proceed for an indefinite period of time, for months (as in the present case) or even years on the assumption that there was a "bargaining period" in existence and find that expectation dashed, and acts previously thought lawful made unlawful, because the initiating notice had included, amongst many legitimate matters, one impermissible matter. And that notwithstanding the fact that the impermissible matter has not in fact formed the subject of any live claim. What is or is not a matter pertaining to the relationship between employer and employee is not always easy to ascertain, as witness the fact that three judges in the Full Court of the Federal Court and one judge in the High Court in Electrolux took a different view from that of the High Court majority. 23 I am satisfied there that there is not an arguable case that the initiating notice given by the CEPU was invalid. The bargaining period is therefore still in existence and the industrial action the subject of the proposed injunction application is not being made in support of any impermissible claim. 24 In the course of the hearing BSL sought to raise another ground, namely that on 5 January the CEPU had made another claim, namely that its members wanted to be terminated, with appropriate redundancy payments, so that they could be re-employed by Silcar. However, BSL did not seem to argue that such a claim was impermissible, but only that it was not included in the initiating notice or the log of claims. For the reasons given by French J in Wesfarmers, this does not make the proposed action unlawful
Was notification by fax "written notice" within s 170MO(2)(b)? 25 Since BSL got from its fax machine a piece of paper which had written on it the CEPU's notifications (not otherwise suggested to be defective) in respect of proposed industrial actions there was in my opinion written notice of those actions given by the CEPU. What might have been the situation had BSL's fax machine been turned off, or run out of paper, can be left for another day. 26 BSL relied on s 28A of the Acts Interpretation Act 1901 (Cth) which provides: "(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression 'serve', 'give' or 'send' or any other expression is used, then, unless the contrary intention appears, the document may be served: (a) on a natural person: (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or (b) on a body corporate - by leaving it at, or sending it by pre-paid post to, the head office or a principal office of the body corporate. (2) Nothing in subsection (1): (a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or (b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection." 27 This provision however is merely enabling. For example it authorises service by post to the last known address of a person, something which would not be comprehended within the ordinary meaning of "service" which usually connotes actual physical delivery. The natural meaning of s 170MO(2)(b), as I have said, comprehends the receipt of notice by fax and thus the Act itself authorises service in that way. Section 28A(2)(a) makes it clear that the operation of the Workplace Relations Act is not to be affected. 28 BSL referred to Hastie & Jenkinson v McMahon [1990] 1 WLR 1575 where the English Court of Appeal had to consider a Rule of Court which provided that "service of any document … may be effected - (a) by leaving the document at a proper address of the person to be served." It was argued that a document produced by the recipient's fax machine was left at the proper address and so there was in fact service in accordance with the rules. Woolf LJ, with whom the other members of the Court agreed, said at 1582 that by "giving a generous interpretation" to the rule it was "perfectly possible to come to this conclusion". The argument was not accepted, mainly it seems because the rule in question came into existence long before the introduction of fax machines and their Lordships thought that amendments to the Rules of Court ought to be better left to the Rules Committee. In the present case we are concerned with an Act passed in 1996, at least a decade after faxes came into everyday use in Australia. I would not impute to Parliament, which was obviously concerned to promote a common sense approach to resolution of industrial disputes, an intention to exclude such a common and sensible means of communication.
Discretionary factors 29 While the proposed industrial action will no doubt cause substantial financial loss to BSL, it still has to show a serious issue to be tried that the proposed action is unlawful. In my opinion it has failed to do so. The scheme of the Act necessarily assumes that during a bargaining period there may be situations in which an employer is under substantial economic pressure, with the inevitable consequence that unions have a correspondingly increased bargaining power. That is simply a reflection of the vagaries of the market place which Parliament has decided should apply during that limited period. 30 There are also, as senior counsel for the CEPU pointed out, strong discretionary reasons against the grant of interlocutory relief. As has been mentioned, the industrial action complained of commenced as long ago as the beginning of last September. BSL was, on its own case, acutely conscious of the importance of its stand down program planned for November and December. Yet it took no action. It did not raise any complaint about notification by fax or the presence of impermissible non-employer/employee claims. It only commenced the present proceeding on 5 January when, unsurprisingly, the CEPU was at a disadvantage because many of its officials were on holidays. 31 BSL's standing by and failing to make a complaint at an early stage put the CEPU at a disadvantage. For example, it was not given the opportunity to give a fresh initiating notice. The criticism by senior counsel of the CEPU as playing a "deeply and intensely tactical game" might, I think, be more fairly placed at the door of BSL itself. In particular, BSL's fax point was an exercise in pedantic formalism which should not be encouraged in this jurisdiction. I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.
Counsel for the Applicant : Dr C N Jessup QC and B Mueller Solicitors for the Applicant: Blake Dawson Waldron Counsel for the Respondents: H Borenstein SC Solicitors for the Respondents: CEPU Inhouse Lawyers Date of Hearing: 6 January 2005 Date of Judgment: 7 January 2005
Bluescope Steel Limited
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia