Construction, Forestry, Mining and Energy Union v CSR Limited t/as CSR Humes

Federal Court of Australia|2000-07-01|Before: Duncan DP, Branson J

THE COURT ORDERS THAT: 1. The application for interlocutory relief, to the extent that it seeks an order restraining the respondent from: 1) "Offering, entering into, having certified under the WR Act or taking any steps to make, formalize, register or certify an agreement made pursuant to Pt VIB, Div 2 or 3 of the WR Act which: (a) has provisions that give benefits to members of the Australian Workers' Union that are not given to members of the Applicant; or (b) has been negotiated without any negotiations with representatives of the Applicant; or (c) has been negotiated without any opportunity being given to the Applicant to be party to the agreement." is dismissed. 2. Subject to paragraph 1 hereof, further consideration of the application for interlocutory relief be adjourned to a date to be fixed. 3. The applicant have liberty to apply at short notice to reinstate its application for interlocutory relief. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

INTRODUCTION 1 The applicant ("CFMEU") claims that the respondent ("CSR") has engaged in, and is continuing to engage in, conduct in contravention of the Workplace Relations Act 1996 (Cth) ("the Act"). By way of final relief CFMEU seeks declaratory orders and orders for the imposition of penalties against CSR. The claims for final relief are examined in more detail below (see paras 12-19). 2 These reasons for judgment are concerned with CFMEU's claim for interlocutory relief. CFMEU seeks an order for interlocutory injunctions in the following terms: "Until further order of the Court the Respondent, by itself, its servants or agent is restrained from: 1) Refusing or unduly delaying entry to the premises of the Respondent at 1 Woodstock Avenue, Rooty Hill in the State of New South Wales ("the Premises") by officers or employees of the Applicant who are entitled to enter the Premises pursuant to sections 285B and 285C of the WR Act. 2) Requiring, counselling or suggesting by words or other conduct (whether by threats, promises or otherwise) that employees of the Respondent (who are members of the Applicant) stop being members of the Applicant; 3) Offering, entering into, having certified under the WR Act or taking any steps to make, formalize, register or certify an agreement made pursuant to Pt VIB, Div 2 or 3 of the WR Act which: (a) has provisions that give benefits to members of the Australian Workers' Union that are not given to members of the Applicant; or (b) has been negotiated without any negotiations with representatives of the Applicant; or (c) has been negotiated without any opportunity being given to the Applicant to be party to the agreement."

FACTUAL BACKGROUND 3 There is little dispute between the parties as to the general factual background to this proceeding. Where it is necessary for me to make findings of fact, such findings will necessarily be provisional in nature. At the conclusion of the final hearing, at which the parties will have full opportunity to call and test evidence, different findings may prove to be appropriate. 4 CSR operates a concrete pipes and products site at 1 Woodstock Avenue, Rooty Hill, New South Wales known as the "Blacktown Site". There are approximately 85 employees ("the Employees") employed at the Blacktown Site of whom 62 are engaged in cement and concrete production and three are fitters engaged in maintenance work. The remaining employees are engaged in management, support and sales related roles. The majority of the employees engaged in cement and concrete production are members of the Australian Workers' Union, New South Wales Branch ("AWU"). Some of the employees engaged in cement and concrete production are members of CFMEU. The current CFMEU membership at the Blacktown Site is approximately nine members. 5 Since about 2 June 1999, the CSR Humes Blacktown Factory (Enterprise Bargaining) Agreement No 3 1999 ("the Current Agreement") has applied at the Blacktown Site in respect of employees covered by the Cement and Concrete Products Award 1987 and the Metal Industry Award 1984 - Part 1 ("the Awards"). The Current Agreement is binding on CSR, AWU and all employees of CSR at the Blacktown Site engaged under the Awards. CFMEU was not involved in the negotiating of the Current Agreement. The Cement and Concrete Products Award 1987 has been simplified by the Australian Industrial Relations Commission ("the Commission") and is now known as the Cement and Concrete Products Award 2000. The Metal Industry Award 1984 - Part 1 has been wholly superseded by the Metal, Engineering and Associated Industries Award, 1998. 6 The nominal expiry date of the Current Agreement was 6 July 2000. In about February 2000 consideration began to be given to the negotiation of a new agreement to prescribe the minimum terms and conditions of the Employees' employment. Discussions and negotiations took place at meetings of the Blacktown Site's Enterprise Bargaining Agreement Committee which comprises members from CSR's management and representatives of the Employees elected by the Employees. One of the representatives of the Employees is an AWU delegate. None of the representatives of the Employees is a CFMEU delegate. CSR has approved the holding of four mass meetings of the Employees as part of the process of finalising the terms of a proposed new agreement. 7 CFMEU first sought to become involved in negotiations concerning the proposed new agreement on 7 July 2000 when Mr Andrew Ferguson, the Secretary of CFMEU, and Mr Malcolm French, an Organiser with CFMEU, attended a mass meeting of the Employees. CSR took the position that CFMEU representatives were not entitled to attend the meeting. CFMEU representatives took the view that they had a legal right of entry to the Blacktown Site under State and Federal Law. It is not now contended, as I understand it, that Messrs Ferguson and French were entitled to enter the Blacktown Site on 7 July 2000. There is no evidence that either of them gave CSR notice of his intention to do so. 8 CFMEU asserted its wish to commence negotiations for an enterprise agreement with CSR. By letter dated 13 July 2000 CFMEU advised CSR that it was initiating a bargaining period in order to secure agreement with the company. Enclosed with the letter was a formal notice of limitation of bargaining period. CSR has not engaged in negotiations with CFMEU in respect of the proposed new agreement or at all. 9 On 14 July 2000, CSR issued a notice to its employees advising, amongst other things, that it did not recognise CFMEU as having any legitimate interest at the Blacktown Site and that accordingly it would not: "• Allow any CFMEU official to enter the Blacktown site for the purposes of enterprise bargaining negotiations. • Recognise any employee as representing the interests of the CFMEU or any of their alleged members at the Blacktown site." 10 Correspondence between CFMEU and the solicitors for CSR ensued. CFMEU asserted constitutional coverage of the Employees. It expressed concerns relating to the payment of entitlements to its members and gave notice of intention to enter premises to inspect time and wages records. On behalf of CSR it was asserted that CFMEU lacks the constitutional capacity to represent the industrial interests of the Employees, and that representatives of CFMEU had no right to enter the Blacktown Site. It was made plain by CSR that it would not commence negotiations for an enterprise agreement with CFMEU. 11 At a ballot of the Employees held on 24 July 2000 supervised by the Australian Electoral Commission a majority of the Employees (36 in favour; 23 against) voted in favour of the CSR Humes Blacktown Factory (Production) Certified Agreement 2000, No: 4a ("the Proposed Agreement").

CLAIMS FOR FINAL RELIEF 12 The application in this matter makes claims for final relief pursuant to ss 170NB, 285E and 298M of the Act. 13 Section 170NB is within Part VIB of the Act. Division 4 of Part VIB of the Act is concerned with the certification by the Commission of agreements between certain classes of employers and organisations of employees or employees. It is not in dispute that the Proposed Agreement is an agreement under Division 2 of Part VIB of the Act. Section 170NB, which is contained in Division 8 of Part VIB of the Act, relevantly provides: "170NB An employer must not, in negotiating an agreement under Division 2 …, discriminate between employees of the employers: (a) because some of those employees are members of an organisation of employees while others are not members of such an organisation; or (b) because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees." 14 CFMEU contends that CSR, in negotiating the Proposed Agreement, has discriminated between the Employees because the Proposed Agreement gives greater benefits to AWU members than to CFMEU members "primarily through giving their union access to various mechanisms for resolving disputes or grievances". Clause 12 of the Proposed Agreement provides as follows: "12. SETTLEMENT OF DISPUTES, CLAIMS AND GRIEVANCES a) Consultation Procedure Subject to the provisions of the Workplace Relations Act 1996, as amended, any dispute or claim or grievance arising out of the operation of this Agreement, shall be dealt with in the following manner: i. The matter shall be submitted by the Shop Steward or Union Representative to the Production Manager or other appropriate Officer of the Company or by the Company Officer to the union Representative when appropriate. ii. If not settled the matter will be formally submitted by the State Secretary or other appropriate official of the Union to the employer concerned. iii. If the matter is still not settled it shall be submitted to the Australian Industrial Relations Commission for decision. iv. Until the matter is determined in accordance with the above procedure, work shall continue normally at the instruction of the employer concerned, unless danger is alleged to be involved, in which case work shall not proceed until the alleged danger is removed or a decision is given on the matter. v. No party shall be prejudiced as to a final settlement by the continuance of work in accordance with the clause. b) General Workforce Meetings Meetings conducted by the Union or its delegates should be conducted whenever possible at the change of shift in the afternoon. Such a meeting should occur out of shift hours in an endeavour to avoid disruption and also so that the majority of employees from both day and afternoon shifts can attend. Such meetings, when called by the Union Organiser should whenever possible also have 48 hours notice given to management. All issues for management consideration should be identified in a written form. Unless agreed by the employer these meetings shall be unpaid." 15 Division 11A of Part IX of the Act, consisting of ss 285A-285G, is concerned with entry and inspection of premises by organisations. Section 285A authorises a Registrar, on application by an organisation, to issue a permit to an officer or employee of the organisation. Section 285B relevantly authorises a permit holder who suspects that a breach of the Act has occurred, or is occurring, to enter premises where members of his or her organisation are working, during working hours, for the purpose of investigating the suspected breach. Section 285C authorises a permit holder to enter premises in which work is being carried out to which an award applies that is binding on his or her organisation and in which employees who are members, or are eligible to become members, of that organisation work, for the purpose of holding discussions with any such employees during their meal-time or other breaks. Section 285D(2) requires a permit holder to give the occupier of premises at least 24 hours' notice of his or her intention to enter the premises. 16 Section 285E(2) provides: "The occupier of premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or 285C." 17 CFMEU contends that the CSR contravened s 285E(2) on 10 July, 3 August and 7 August 2000 by refusing Mr French entry to the Blacktown Site. 18 Section 298M of the Act 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." CFMEU is an "industrial association" within the meaning of s 298M (see s 298B(1)). 19 CFMEU contends that CSR has contravened s 298M by: (a) refusing to acknowledge CFMEU for the purposes of negotiating the Proposed Agreement; (b) by advising the Employees that it will not "recognise any employee as representing the interests of the CFMEU or any of their alleged members at the Blacktown Site"; (c) subjecting members of CFMEU to adverse treatment because of their union membership; and (d) approaching members of CFMEU and seeking to persuade and influence them to stop being members of CFMEU.

LEGAL PRINCIPLES 20 The application in this matter invokes the jurisdiction conferred on the Court by the Act (see ss 170NE, 285F, 298T(1) and 298U). The jurisdiction so invoked is not conferred in terms which expressly or implicitly deny the Court power to grant relief by way of interlocutory injunction. Indeed, s 298U(e) itself confers on the Court power to make orders in respect of conduct in contravention of Part XA of the Act including orders for interim injunctions "that the Court thinks necessary to stop the conduct or remedy its effects". It is not necessary for the purposes of this case to determine whether s 298U(e) is, to the extent of its operation, the exclusive source of the Court's jurisdiction to make orders for interlocutory injunctions in respect of conduct proscribed by Part XA of the Act. No party suggested that for the purposes of this case any significance attaches to the difference in wording between s 298U(e) of the Act and s 23 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). Section 23 of the Federal Court gives the Court power to make "orders of such kinds, including interlocutory orders … as the Court thinks appropriate." 21 The principles applicable to the grant of an interlocutory injunction are well settled. In American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 406-408 Lord Diplock, with whom the other Law Lords agreed, said: "… when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at trial. The court must weigh one need against another and determine where 'the balance of convenience' lies. … It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that 'it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing' …. So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." 22 In Trade Practices Commission v Santos Limited (1992) 38 FCR 382 at 386 (FC) Davies J noted that the principles to be applied and the elements of policy on which they are based when this Court considers whether an interlocutory injunction should be issued are those identified and considered in American Cyanamid v Ethicon (see also Castlemaine Tooheys Ltd v South Australia (1986) 60 ALJR 679 per Mason ACJ at 681). However, it is accepted that it may be appropriate for the Court to make some assessment of the apparent strength of an applicant's claim as this may have a bearing on whether interlocutory relief should be granted (Trade Practices Commission v Santos per Hill J, with whom Sweeney J agreed, at 397; Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1136). 23 As was pointed out in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (Patrick's Case) (1998) 195 CLR 1 at 33 by Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ: "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." 24 The effective exercise of the jurisdiction invoked may require, as it did in Patrick's Case, that orders be made to prevent irremediable prejudice or damage to a party pending trial of the action. However, as Patrick's Case also illustrates, a court must be concerned not only with the rights of the parties but also with the surrounding circumstances and the rights and interests of other persons who may to varying degrees have an involvement in those circumstances. In Patrick's Case Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ (at 42) adopted the following statement from Dr Spry's Equitable Remedies 5th ed, pp 402-403: "the interests of the public and of third persons are relevant and have more or less weight according to the other material circumstances. So it has been said that courts of equity 'upon principle, will not ordinarily and without special necessity interfere by injunction, where the injunction will have the effect of very materially injuring the rights of third persons not before the courts'. Regard must be had 'not only to the dry strict rights of the plaintiff and the defendant, but also the surrounding circumstances, to the rights or interests of other persons which may be more or less involved'. So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.)" 25 As a general rule, interlocutory injunctions are confined to orders designed to maintain the status quo at the time of the making of an application for those orders but this is not invariably so, and it is not the case under s 298U(e) of the Act (Patrick's Case per Gaudron J at 59). 26 The respondent submitted that where an applicant seeks an interlocutory injunction on the basis of an alleged violation by the respondent of a prescription in a statute, there must be "strong grounds" to suppose that the respondent is violating the law. Reliance was placed on the following passage from the judgment of the Full Court of this Court in BHP Iron Ore Pty Ltd v Australian Workers' Union (2000) 171 ALR 680 at para 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 TS Gill & Son Pty Ltd [1926] VLR 414, Dixon A-J (as he then was), indicated (at 416-17) 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.'" 27 I see no reason to conclude that the Full Court intended by its reference to the judgment of Dixon AJ in Attorney-General and Lumley v TS Gill & Son Pty Ltd to countenance a departure from the now well-established approach to the determination of the circumstances in which the grant of an interlocutory injunction will be justified. The Full Court in BHP v AWU did not consider that there was in that case, on the proper construction of s 298K of the Act, a serious question to be tried as to a breach by the employer of that section (see paras 48 and 52). Even if Dixon AJ is to be understood as suggesting in the passage cited by the Full Court that the interlocutory injunction sought in that case could only be granted if there was "strong ground to suppose that the defendant was in process of committing a violation of the by-law", it must be remembered that Attorney-General and Lumley v TS Gill & Son Pty Ltd was decided well before American Cyanamid v Ethicon from which the "serious question to be tried" test is derived. 28 I reject the submission that the interlocutory relief sought by the applicant may only be granted if the Court is satisfied that there are "strong grounds" to suppose that the respondent is contravening the Act. For the policy reasons expounded in American Cyanamid v Ethicon, if the balance of convenience favours the grant of interlocutory relief (a test which can not be entirely divorced from the issue of the apparent strength of the applicant's case for final relief), it will be sufficient that the evidence on this application establishes a serious question to be tried as to whether the conduct of the respondent concerning which the applicant makes complaint is conduct which relevantly contravenes the Act. ELIGIBILITY RULES OF CFMEU 29 It is critical to the claims of CFMEU in this proceeding that its eligibility rules comprehend employees of the types employed by CSR at the Blacktown Site. 30 As O'Connor and Moore JJ observed in Rescrete Industries Pty Ltd v Jones (1998) 86 IR 269 at 275: "The CFMEU is an amalgamation of a number of organisations and, generally, its eligibility rules are a pastiche of the eligibility rules of the organisations that have amalgamated to form it." 31 For present purposes it is only necessary to refer to the following parts of CFMEU's eligibility rules: "2 CONSTITUTION (A)(A) The Union shall consist of an unlimited number of persons whether male or female (1) employed in … the industry or industries, and/or occupations, and/or calling, and/or vocations and/or industrial pursuits of and/or (2) …. (3) …. (i) carpenters and joiners … and all … persons engaged in the dressing and preparation and/or erection of stone, marble or slate also those engaged in the preparation and/or erection of terrazzo or similar compositions …." (emphasis added) 32 In Rescrete Industries at 279 O'Connor and Moore JJ, with whom Beaumont J agreed, considered that it was plain that r 2 (A)(A) of CFMEU's rules was intelligible only if each of paragraphs (1), (2) and (3) is treated as qualifying subparagraph (i) and the following subparagraphs. Their Honours noted that subparagraph (i) "identifies what are, at least, a number of occupations, callings or industrial pursuits." 33 Eligibility rules are to be construed liberally rather than narrowly or technically (R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 581, 587; Rescrete Industries at 281). 34 There is evidence before me as to the nature of concrete and the kinds of products produced at the Blacktown Site. There is also evidence before me as to the ordinary meaning of the word "terrazzo" and as to the nature of products manufactured from terrazzo. Both concrete and terrazzo are a form of building or construction material. Concrete is made of cement, sand and rocks or stones. Terrazzo is made of stone chips and cement to which sand or marble dust may be added. Concrete is commonly reinforced and terrazzo products are reinforced if required to be weight bearing. Both concrete and terrazzo products can be manufactured in moulds. 35 Having regard to the analysis by the Full Court in Rescrete Industries of the very aspect of CFMEU's eligibility rules set out in para 31 above, I am satisfied that there is a serious question to be tried that those rules comprehend some of CSR's employees at the Blacktown Site on the basis that they are employed in the industry, occupation, calling, vocation or industrial pursuit of the preparation of a composition similar to terrazzo, namely concrete. For this reason I do not consider it necessary to give consideration to other parts of CFMEU's eligibility rules. ENTRY TO PREMISES 36 I also do not consider it necessary to determine on this application for interlocutory relief whether CSR has refused or unduly delayed entry to the Blacktown Site by an officer of CFMEU entitled under ss 285B or 285C of the Act to enter the site. The evidence establishes that CSR has made it plain that it does not regard any officer of CFMEU as having a right to enter the Blacktown Site. CSR did not move from that position during argument on the present claim for interlocutory relief. It is in this circumstance appropriate to give consideration to the bases upon which CFMEU asserts that such of its officers as hold permits under Division 11A of Part IX of the Act as give appropriate notice to CSR of their intention to enter the Blacktown Site have a right of entry to the site. If CFMEU has established a serious question to be tried as to the right of its officers to enter the Blacktown Site, it will be necessary to consider whether, in all the circumstances of this case, it is appropriate to make an interlocutory order compelling CSR to allow their entry on the site. 37 The first basis upon which a right of entry is asserted by CFMEU is that provided by s 285B(1)(a) of the Act. Section 285B(1)(a) applies where a person who holds a permit under Division 11A of Part IX of the Act suspects that a breach of the Act has occurred or is occurring. The alleged breaches upon which reliance is placed relate first to the failure of CSR to involve CFMEU in the negotiating process for the Proposed Agreement. This issue is dealt with below. The alleged breaches relate secondly to conduct by representatives of CSR which has caused certain members of CFMEU to believe that they have been adversely treated by reason of their membership of CFMEU. The conduct by representatives of CSR is sought to be characterised by CFMEU as conduct in contravention of ss 170NB or 298M of the Act or both. This issue is also dealt with below. It is not entirely clear whether CFMEU seeks to place reliance on other alleged breaches of the Act and if it does, what are the details of those alleged breaches. If CFMEU does place reliance on other alleged breaches of the Act, I am not satisfied that it has made out a case on the evidence presently before this Court for the grant of interlocutory relief in respect of those alleged breaches. 38 Thirdly, CFMEU places reliance on s 285C(1) of the Act which provides: "285C(1) A person who holds a permit in force under this Division may enter premises in which: (a) work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and (b) employees who are members, or eligible to become members, of that organisation work; for the purposes of holding discussions with any of those employees who wish to participate in those discussions." 39 For the purposes of s 285C(1), CFMEU places reliance on the CSR Limited (Superannuation) Award 1988 ("the Superannuation Award") the Metal Industry Award 1984 ("the Metal Industry Award") and the Metal, Engineering and Associated Industries Award 1998 ("the MEAI Award"). 40 I doubt that the evidence before me is sufficient to show a serious question to be tried as to whether the Superannuation Award is binding on CFMEU as opposed to its officers (see cl 6.1 of the Superannuation Award). The Metal Industry Award has been wholly superseded by the MEAI Award (cl 1.9.1 of the MEAI Award) and I therefore give no further consideration to it. The industry coverage of the MEAI Award is, subject to certain exemptions and restrictions - "the metal working and engineering and fabricating industries, and all allied industries including those industries referred to in Schedule A. Coverage of the award extends to every operation, process, duty and function carried on or performed in or in connection with or incidental to any of the foregoing industries" (cl 1.6.2). 41 On the evidence before me it would seem that only three of the Employees could be covered by the MEAI Award, namely the three fitters engaged in maintenance work. There is no evidence that any of the three fitters is a member of CFMEU. The nature of any discussions that a CFMEU permit holder might wish to hold with employees on the Blacktown Site has not been made clear. 42 In considering whether the balance of convenience favours an interlocutory injunction restraining CSR from refusing, or unduly delaying entry to the Blacktown Site by officers of CFMEU, I note that officers of CFMEU have not at any relevant time been permitted access to the Blacktown Site pursuant to s 285C(1) of the Act for the purpose of holding discussions with the Employees or any of them. I infer that it is only in recent months that CFMEU has sought to represent the industrial interests of the Employees. The Employees have traditionally been represented by AWU. It may be, as CFMEU contends, that without interlocutory relief its capacity to enrol members at the Blacktown Site will be impaired and it will have difficulties providing services to its members and proposed members. These considerations may be of relevance if CFMEU seeks an expedited hearing of some or all of its claims for final relief. However, I do not consider that the evidence before me is sufficient to establish that, in the circumstances, an interlocutory order allowing entry of CFMEU officers for the purpose of holding discussions with the Employees is necessary to prevent CFMEU suffering irremediable prejudice or damage pending the trial of the action. Moreover, such an order would not preserve the industrial status quo at the Blacktown Site but would rather tend to allow a disturbance of that status quo. CFMEU is, of course, entitled to seek to vindicate in this Court its asserted entitlements to represent the industrial interests of the Employees. However, no interlocutory relief is needed to ensure the effective exercise of the jurisdiction of the Court so invoked. I am not satisfied that it is appropriate that an interlocutory injunction be made pending the hearing of the proceeding to ensure that officers of CFMEU have access to the Blacktown Site for the purpose of holding discussions with some or all of the Employees.

INDUCEMENTS TO CEASE MEMBERSHIP 43 There is evidence before the Court that certain members of CFMEU employed at the Blacktown Site believe that representatives of CSR have sought to induce them to stop being members of CFMEU. They have given evidence of conduct by representatives of CSR which is capable of being found to constitute such inducement. In particular there is evidence which tends to show that CFMEU members are being discriminated against in respect to overtime, may be being discriminated against in the implementation of disciplinary procedures, and are being invited by representatives of CSR to resign from CFMEU ("the Adverse Treatment"). The Adverse Treatment is denied by CSR. At this stage of the proceeding it is not appropriate to say more than that, whilst I am satisfied that there is evidence sufficient to establish a serious question to be tried as to whether CSR has acted in contravention of s 298M of the Act, the case of CFMEU, so far as it relies on the Adverse Treatment, is not strong. 44 Mr Gregory James Minton, General Manager Australasia of CSR, who is responsible for the Blacktown Site, has given sworn evidence as follows: "At all material times, I have instructed CSR's management as to how to deal with the approaches to CSR made by persons purporting to act on behalf of the CFMEU for entry to the Blacktown Site, and to negotiate an agreement with the CFMEU in respect of the Employees. My intention at all material times in rejecting those approaches was to protect and preserve CSR's current industrial relationship with the AWU and the Employees respectively, to which the CFMEU has never been a party. I have never intended, in doing so, to discriminate against any of the Employees in the course of negotiating the Proposed Agreement. I have never had any intention to induce any of the Employees to stop being members of the CFMEU." 45 Mr Peter Robert McWilliams, Production Manager of CSR at the Blacktown Site, has given sworn evidence that he has never had any intention to persuade or influence any of the Employees to resign from CFMEU. 46 In the circumstances I do not consider it appropriate now to make an interlocutory order calculated to prevent repetition of the alleged Adverse Treatment. If the Adverse Treatment did occur in the past, I consider it likely that Messrs Minton and McWilliams will not allow it to be repeated. However, to protect the position of CFMEU, this aspect of CFMEU's application for interlocutory relief will not be dismissed. CFMEU will have liberty to apply to the Court on short notice to reinstate this aspect of its application for interlocutory relief. It will be open to it to exercise such liberty should it appear that CSR is acting in contravention of s 298M of the Act in a way calculated to do irremediable harm to CFMEU. 47 The issue of whether there is a serious question to be tried that CSR is acting in contravention of s 298M by refusing to acknowledge the right of CFMEU to represent the industrial interests of the Employees, or any of them, and in particular by refusing to involve CFMEU in negotiations for a new certified agreement is discussed below. NEGOTIATIONS FOR A CERTIFIED AGREEMENT 48 Section 170NB of the Act relevantly provides: "170NB(1) An employer must not, in negotiating an agreement … discriminate between employees of the employer: (a) because some of those employees are members of an organisation of employees while other are not members of such an organisation; or (b) because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees …." 49 CFMEU contends that the Proposed Agreement itself gives greater benefits to AWU members that CFMEU members primarily because, as properly construed, it gives AWU but not CFMEU a role to play in the resolution of disputes and grievances. I doubt that s 170NB is concerned with the terms of an agreement as opposed to the process by which the terms of an agreement are negotiated. I note that this is the construction of s 170NB apparently adopted by the Full Bench of the Industrial Relations Commission in Re CSL Enterprise Agreement 1999 (5 June 2000 - Print S 6754). See also Re Telstra Retail Shops Agreement 1998 (Duncan DP - 9 September 1998, Print Q 6111). I therefore doubt that there is a serious question to be tried as to whether CSR has acted in contravention of s 170NB by reason of its being a party to negotiations which had as their outcome the Proposed Agreement. Even if the construction of s 170NB which I consider to be preferable is the wrong construction (as to which see National Tertiary Education Industry Union v University of Technology, Sydney [2000] FCA 874 at para 13), I am not satisfied that the balance of convenience favours the grant of an interlocutory injunction restraining CSR from taking steps to have the Proposed Agreement certified. 50 First, s 170LU(3) of the Act provides that the Commission must refuse to certify an agreement if it is satisfied that an employer has, in connection with negotiating the agreement, contravened s 170NB. The framework established by the Act for the negotiation and certification of agreements discloses an intention, in my view, that the Commission, rather than the Court, should ordinarily be the forum in which the issue of whether certification of an agreement should be withheld because of an alleged contravention of s 170NB should be determined. In this regard the terms of ss 170LU(4) and 170LY, which apply only to the Commission, are of significance. It is also of significance, as Madgwick J pointed out in the National Tertiary Education Industry Union case at para 17, that if the Commission proceeds on a mistaken view of the meaning of s 170NB, its error will be likely to be of a kind which will attract judicial review. Although CFMEU may not itself obtain leave to intervene before the Commission to oppose the certification of the Proposed Agreement (s 43(2)(b) of the Act), an employee who wishes to contend that he or she has suffered discrimination in the negotiation of the Proposed Agreement in a way proscribed by s 170NB would almost certainly be granted leave by the Commission to intervene in the application for certification of the Proposed Agreement (s 43(1) of the Act). 51 Secondly, an order restraining CSR from taking steps to have the Proposed Agreement certified will affect the rights and interests of third parties, namely the Employees. A majority of the employees has indicated support for the Proposed Agreement. Their entitlement under the Act is to have the agreement brought before the Commission on a certification application within the time frame provided by the Act. That entitlement should not lightly be interfered with by this Court. 52 CFMEU further contends that, in negotiating the Proposed Agreement, CSR has acted in contravention of s 170NB by meeting with representatives of AWU but not with representatives of CFMEU. I am inclined to doubt that the mere failure by an employer to negotiate with one organisation capable of representing the industrial interests of its employees when it is negotiating with another such organisation will amount to a contravention of s 170NB, or indeed of s 298M, of the Act. Section 170LJ of the Act provides: "170LJ(1) The employer may make the agreement with one or more organisations of employees where, when the agreement is made, each organisation: (a) has at least one member employed in the single business or part whose employment will be subject to the agreement; and (b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement. 170LJ(2) The agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement. 170LJ(3) The employer must take reasonable steps to ensure that: (a) at least 14 days before any approval is given, all the persons either have, or have ready access to, the agreement, in writing; and (b) before any approval is given, the terms of the agreement are explained to all the persons. 170LJ(4) An agreement must not be made under this section if it is able to be made under section 170LL (which deals with greenfields agreements)." 53 Plainly s 170LJ(1) of the Act permits an employer to make an agreement with one or more organisations of employees in the circumstances identified in paragraphs (a) and (b) of the subsection. An employer is not required by the Act to enter into agreement with every organisation with which it could make an agreement. I do not consider that the evidence before me is sufficient to establish that there is a serious question to be tried that CSR discriminated against any of the Employees qua employees by deciding to make, and negotiating, an agreement with AWU and not with, or not also with, CFMEU. Even were I to have taken a different view on this issue, for the reasons given above I consider that, the negotiation process having been completed, the appropriate forum for consideration to be given to the consequences of any such contravention is now the Commission. 54 In the circumstances I do not consider that a serious question to be tried has been established as to whether a breach of ss 170NB or 298M of the Act occurred, or is occurring, by reason of the failure of CSR to involve CFMEU in the negotiating process for the Proposed Agreement. Even if I am wrong in this, I do not consider that the balance of convenience now favours the making of an interlocutory order effectively compelling CSR to allow CFMEU officers onto the Blacktown Site to take part in the negotiation of the Proposed Agreement. Negotiations in respect of the Proposed Agreement were well advanced when CFMEU first sought to become involved in them. The negotiations had been completed by the time that this proceeding was commenced. Thereafter a majority of the Employees has voted in favour of the Proposed Agreement. 55 However, as is mentioned above, I do not propose to dismiss CFMEU's application for interlocutory relief under s 298M of the Act. Similarly, I do not propose to dismiss its application for interlocutory relief under ss 285B and 285C of the Act. I have found that there is a serious question to be tried as to whether the eligibility rules of CFMEU comprehend some of the Employees. Should it appear that CSR is, by conduct unrelated to the Proposed Agreement, acting in contravention of the Act in a way which may detract from the effective exercise of the jurisdiction of the Court invoked by the applications herein, CFMEU may exercise its liberty to reinstate its application for interlocutory relief.

CONCLUSION 56 To the extent that CFMEU seeks interlocutory relief restraining CSR from: "Offering, entering into, having certified under the WR Act or taking any steps to make, formalize, register or certify an agreement made pursuant to Pt VIB, Div 2 or 3 of the WR Act which: (a) has provisions that give benefits to members of the Australian Workers' Union that are not given to members of the Applicant; or (b) has been negotiated without any negotiations with representatives of the Applicant; or (c) has been negotiated without any opportunity being given to the Applicant to be party to the agreement" such relief will be refused. Subject thereto, further consideration of the application for interlocutory relief will be adjourned to a date to be fixed. CFMEU has liberty to apply at short notice to reinstate its application for interlocutory relief. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J.

Solicitor for the Respondent: Fisher Cartwright Berriman

Workplace Relations Act 1996(Cth)

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