Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd

REASONS FOR JUDGMENT 1 Previously, I handed down my reasons for decision on the interlocutory application by the Construction, Forestry, Mining and Energy Union ("the Union") for an injunction restraining the respondent ("Yallourn Energy") from commencing proceedings in respect of industrial action taken by the Union between 24 and 28 July 2000 (see Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd [2000] FCA 1070). At the conclusion of those reasons I indicated that I had formed the prima facie view that the notice of intended industrial action given by the Union complied with s 170MO(5) of the Workplace Relations Act 1996 (Cth) ("the Act"). Consequently, the action taken pursuant to that notice was, prima facie, protected action and therefore the Union had a strong case for the grant of the interlocutory injunction it sought. 2 I also indicated that my prima facie view was that, on the balance of convenience, the grant of such an injunction would protect and maintain the integrity of the industrial bargaining process provided for under the Act. However, I stated: "…since the hearing, the union has given notice that it is no longer continuing to engage in industrial action in reliance upon the notice and that it is therefore unnecessary for the court to resolve the issues raised by the motions. Yallourn Energy disagreed and requested that judgment be handed down. As neither party has sought leave to withdraw its motion for relief or to put further submissions in relation to the motions, it is appropriate to deliver judgment on those motions but to desist from making any orders until the parties have had the opportunity to consider these reasons for judgment. It is appropriate to indicate that as the solicitors for the union stated that the issues raised by the motions no longer need to be resolved, the onus will clearly be upon the union to demonstrate why any injunctive order should now be made in respect to the action taken under the notice dated 20 July 2000." 3 The problem that I was adverting to arose from a letter dated 31 July 2000 from the solicitors acting for the Union. The letter stated that a further notice had been given pursuant to section 170MO of the Act, and added: "In those circumstances, I respectfully suggest that it seems the issues raised in the notices of motion heard before his Honour Justice Merkel last week no longer need to be resolved." 4 Whether or not the balance of convenience is for or against the grant of interlocutory relief in a particular case is, in the final analysis, a question of fact. In my reasons for judgment I indicated that, in the usual course, the integrity of the bargaining process provided for under the Act was a matter of some importance and may be a compelling factor in favour of the grant of interlocutory relief. The reason for that is not that the integrity of the bargaining process under the Act must be maintained as a matter of principle but, rather that the parties ought to be free to engage in protected action immune from the threats, risks and fears of litigation. 5 The letter of the solicitors for the Union suggested, implicitly if not explicitly, that interlocutory relief restraining the bringing of court proceedings in respect of the industrial action taken between 24 and 28 July was no longer necessary. In practical terms the letter was therefore stating that the commencement of proceedings in respect of that period was not a matter which the Union any longer feared would undermine its position or cause any disadvantage to it in relation to the bargaining process. 6 No evidence has been placed before me in relation to why the letter was sent and there is nothing before me that suggests that the grant of the injunction, which was originally sought, is now needed to protect the Union's rights and interests in respect of the bargaining process. The only new circumstance since the hearing of the motion that the Union put forward is that, on 4 August 2000, the Australian Industrial Relations Commission issued a certificate under section 166A of the Act which authorised Yallourn Energy to bring action in tort in respect of the industrial action the subject of that certificate. While the certificate is in fairly wide terms, it is clear that, as a result of undertakings given by Yallourn Energy to the Court, the only litigation that could be issued without breaching those undertakings and without further notice, would relate to the period between 24 and 28 July, which was the period with which the interlocutory motions were concerned. 7 Although the issuing of the certificate was an event that has occurred since the hearing of the motion, it was an anticipated and expected event that formed, in part, the basis for the Union's application for interlocutory relief. In those circumstances I do not regard the actual issue of the certificate as, relevantly, a new or unforseen circumstance that might justify the consideration of the Union's application for interlocutory relief afresh. 8 It seems to me that, on the material before the Court, the issue of proceedings by Yallourn Energy does not constitute a risk to the Union of the kind that warrants the grant of interlocutory injunctive relief. I base that conclusion largely on the fact that I take the Union to have stated that it no longer wishes to proceed with its action because it does not fear the consequences of Yallourn Energy issuing proceedings. Consequently, on the balance of convenience in the present case, it is appropriate to refuse the motion of the Union for injunctive relief. 9 In the course of the submissions in respect of the application Yallourn Energy put a further submission which was not pressed at the hearing. The submission was that the protected action only related to action by members of the Union and not by the Union itself, with the consequence that the Union itself is not immune from legal action by reason of the notice. It seems to me that that issue raises a number of questions concerning the principles underlying the statutory scheme which have not been the subject of detailed consideration or argument. Moreover, as the matter was not pressed at the hearing there is a real question as to whether it should be allowed to be raised at this late stage. Consequently, in the events that have occurred, I am satisfied that the application for interlocutory relief should be refused on the basis of balance of convenience rather than on this new ground.