Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia & Ors v Telstra Corp Ltd [1998] FCA 1089

REASONS FOR JUDGMENT RYAN J: In this matter, by their amended application, the applicants seek various declarations as to rights, privileges or immunities which they assert they have by reason of various provisions of the Workplace Relations Act 1996 ("the Act"). In short, they claim that, having given notices of a kind contemplated by the Act, the industrial action foreshadowed by those notices, some of which industrial action has already occurred, is protected industrial action within the meaning of s 170ML. Accordingly, it is said that the industrial action, as it occurs, will attract the immunity which is conferred by section 170MT(2) in these terms: Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. Subsection 3 provides that: Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action. In seeking to resist the claim for interlocutory relief Mr Young QC, who appeared with Mr S Wood for the respondent, Telstra Corporation Ltd ("Telstra"), argued that industrial action cannot be characterised as protected action until the industrial action has occurred. Only then, so it was submitted, could a finding be made, for example, that the industrial action did not involve personal injury or wilful or reckless destruction of, or damage to, property which would deprive it of the character of protected action by force of sub-s (2) of s 170MT. Similarly, it was pointed out, presumptively protected action loses the protection if the relevant organisation, its officials and members, engage in it in concert with one or more of the classes of persons proscribed by s 170MM. That section provides: (1) Engaging in industrial action is not protected action if: (a) it is engaged in in concert with one or more persons or organisations that are not protected persons; or (b) it is organised other than solely by one or more protected persons. (2) Organising industrial action is not protected action if: (a) it is organised in concert with one or more persons or organisations that are not protected persons; or (b) it is intended to be engaged in other than solely by one or more protected persons. The definition of "protected person", to be found in sub-s (3) of that section is that "protected person" means: (a) an organisation of employees that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party. Another circumstance in which presumptively protected action would lose that character, it was pointed out, is when it is engaged in otherwise than for supporting or advancing claims made in respect of the proposed agreement, as required by s 170ML(2). That sub-section provides: During the bargaining period: (a) an organisation of employees that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party; is entitled for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement; or … to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action. I consider that there is considerable force in the submission on behalf of Telstra in the sense that, if the Court were today considering the application for declaratory relief, it would be required to examine the matters to which I have referred, with others, in circumstances where the first period of industrial action of which notice has been given is not yet complete. As was pointed out in the joint judgment of the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 to which I was referred by both Mr Young and Mr Kenzie QC who appeared for the applicants: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise" Forster v Jododex Aust Pty Ltd ((1972) 127 CLR 421 at p 437, per Gibbs J)). However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions (See In re Judiciary and Navigation Acts (1921) 29 CLR 357). The person seeking relief must have "a real interest" (Forster (1972) 127 CLR at p 437 per Gibbs J; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, per Lord Dunedin) and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" (University of New South Wales v Moorhouse (1975) 133 CLR 1 at p 10 per Gibbs J) or if "the Court's declaration will produce no foreseeable consequences for the parties" (Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at p 188 per Mason J; see also p 189 per Aickin J; 18 ALR 55 at pp 69, 71 respectively). The present case involves no mere hypothetical question. At all stages there has been a controversy as to the Commission's duty of fairness. A report has been made and delivered under s 2.18 of the Act. That report has already had practical consequences for the appellants' reputations. For all that is known, those consequences may extend well into the future. It is appropriate that a declaration be made in terms indicating that the appellants were denied natural justice. That may redress some of the harm done. In the present case, the question is not purely hypothetical because, the applicants contend, some, or perhaps all, of the conditions precedent to the taking of protected industrial action have been satisfied. Nevertheless, some of the relevant circumstances cannot be known with certainty at this stage. In my view, the case is not to be assimilated with Ainsworth, where the matters alleging constituting a denial of natural justice could be identified with complete certainty. Courts have traditionally set their faces against the giving of advisory opinions and the best that the applicants could achieve if their claim for declaratory relief were determined today would be a declaration as to the sufficiency of their notices, the fact that the nominal expiry date of each relevant certified agreement had passed, and perhaps other matters of the same kind. The declaration, as far as future matters were concerned, would have to be qualified with some such rider as "if the proposed industrial action proceeds to completion without involving personal injury or wilful or reckless damage to property, it will be protected action". A declaration in that form would be redolent of an advisory opinion. Cognate considerations have led me to doubt the utility of any injunction to restrain the institution by Telstra of proceedings in tort. If such an injunction were hedged about with exceptions to preserve a right in Telstra to bring proceedings upon the occurrence of one or more of the events contemplated by the Act as removing the element of protection, it would be little more than an interlocutory injunction to observe the law. Moreover, I am not satisfied that the inconvenience or oppression which would be sustained by the applicants on the mere issue of proceedings in tort would outweigh the inconvenience to be suffered by the respondent if it were delayed in commencing an action which it was ultimately held to be entitled to bring. I am not persuaded that the respondent's position in that respect could be adequately protected by the usual undertaking as to damages. A related consideration bearing on the discretion which I am required to exercise is that a claim for declaratory relief in respect of an identified episode of industrial action can be heard and determined very quickly after that action has been completed. The resolution of a claim in that way will no doubt go a considerable distance towards allowing the applicants to assess whether industrial action which is not yet complete, or is to occur in the future, will be protected action. The position which the applicants would achieve if they were to succeed in obtaining a declaration of that kind would be similar to that of the applicant in Telstra Corporation Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 where Lockhart J said at 425: In my opinion Telstra is entitled to be told by the court whether its proposed conduct in business would be unlawful or not; that is to say, whether it is in a position to dominate the relevant market for its services. There is nothing hypothetical or abstract in the questions which Telstra seeks to submit to the court. Declaratory relief is sought to determine a legal controversy between Telstra, Austel and Optus. The affidavits of Mr Lee and Mr Hambleton demonstrate that the freedom of action of Telstra in conducting its business has been, and is being, constrained by the view formed by Austel that Telstra is in a dominant position. Austel's view governs Telstra's conduct of its business. Telstra has chosen to this point to act consistently with Austel's view. In the result, Telstra has accepted real constraints on its market behaviour. This is hardly surprising in view of the fact that Austel has, as mentioned previously, power to require compliance with the conditions of Telstra's licence, including a condition that the holder of the licence comply with any direction, determination, or order that the Act empowers Austel to give or make: s 62(a) (b). It is to be remembered that Telstra's general communication licence is subject to the condition that Telstra complies with the Act: s 62. If Telstra fails to comply with the Act and breaches the conditions of its licence, it may incur a pecuniary penalty of up to $10 million for each contravention: ss 355 to 357 of the Act. I agree with the submission of counsel for Telstra that it would be unreasonable for Telstra to be obliged to await a direction by Austel, or to continue to be subject to the increased risk (by reason of Austel's final report) of a proceeding being brought by any person aggrieved or otherwise entitled to commence proceedings pursuant to s 186 of the Act. The following passage from the speech of Lord Upjohn in the Pharmaceutical Society of Great Britain v Dickson [1970] AC 403 at 433 is apt: To contend that a trader subject to such pressures to restrict his trading cannot resort to law in an endeavour to prove if he can that such pressures ought not lawfully to be brought to bear upon him merely because they are said to be binding in honour only is quite untenable... Then it was said that in any event the action was premature. The objecting member must wait, apparently, until the council think fit to bring him before the statutory committee, it may be years later, for it was said there was no immediate threat to do so. As a matter of common sense this is most unreasonable. Why should a trader be put into the position where he may expend large sums on expanding his trading activities in defiance of the code of ethics and then be compelled to wait until at some indefinite time in the future the council choose to bring him before the statutory committee for his alleged misconduct, and only then, possibly, he finds all his hard work and expenditure rendered useless. The law is full of examples to show that a person whose freedom of activity is challenged can in a proper case have the issue determined so that he knows where he stands. Thus, a trader who is said to require some licence to trade may come to the court and ask for a declaration to the contrary and not wait until he is prosecuted… This principle is not confined to trade. A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case. Those considerations would prompt me, as presently advised, to accede to a request for a speedy trial of the applicant's claim for declaratory relief in respect of an identifiable and complete episode of industrial action. However, the fact that such a remedy can be afforded before any action which might be instituted by Telstra could progress very far provides an additional reason in the exercise of the Court's discretion why a claim for interlocutory relief should be refused. Accordingly, I decline at present to grant any interlocutory relief. I shall list the application on 4 September 1998 for directions as to pleadings and the presentation of evidence. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.