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

REASONS FOR JUDGMENT 1 On 1 November 2000, the applicants applied pursuant to ss178 and 298U of the Workplace Relations Act 1996 (Cth)("the Act") and pursuant to the accrued jurisdiction of the Court for orders against the respondents. It was alleged in the application filed with the Court that the first respondent, Yallourn Energy Pty Ltd ("Yallourn Energy") had engaged in conduct in breach of a certified agreement to which it is a party. It was also alleged that Yallourn Energy had contravened Part XA of the Act by engaging in conduct in breach of s 298M of the Act in that it induced members of the union applicants to cease being members of those organisations. A further allegation was made that Yallourn Energy and two of its senior employees, Mr Smith and Mr Ward, were engaged in a conspiracy to injure the applicants by unlawful means. 2 The fourth respondent to the proceeding is Commissioner Lewin of the Australian Industrial Relations Commission ("the Commission"). Paragraph 8 of the application sought the following relief in respect of Commissioner Lewin: "An injunction against the Fourth Respondent restraining the Fourth Respondent from making any order which would, or which would have the effect of, suspending or terminating the bargaining periods." 3 The bargaining periods to which reference is made in the application arose in the following way. On 3 September 1999, the first applicant, Construction, Forestry, Mining and Energy Union ("CFMEU") initiated a bargaining period in accordance with s170MI of the Act. On 6 October 1999, the second applicant, Australian Municipal, Administrative, Clerical and Services Union ("ASU") initiated a bargaining period in accordance with s170MI of the Act. Yallourn Energy also initiated a bargaining period on 15 February 2000. During a bargaining period, protected action as referred to in s170ML of the Act may be taken by relevant employees and their employer in accordance with notice provisions contained in s170MO of the Act. 4 Under s170MW of the Act, the Commission may suspend or terminate a bargaining period if satisfied that any of certain pre-conditions set out in that section have been satisfied. On 2 November 2000, Commissioner Lewin decided to terminate certain bargaining periods including each of the three referred to above. However, he did not make any order giving effect to his decision. Commissioner Lewin was satisfied, pursuant to s 170MW(7)(c) of the Act, that there was no reasonable prospect of the negotiating parties reaching an agreement during the bargaining periods. 5 The only interlocutory relief sought by the applicants was in the following form: "The Fourth Respondent be restrained from making any order which would, or which would have the effect of, terminating or suspending the bargaining periods." 6 Whilst it was contended by counsel for the applicants that Yallourn Energy had engaged in conduct in breach of the existing certified agreement and had sought to induce employees to resign from the union applicants, it was also contended that Yallourn Energy, Mr Smith and Mr Ward, had conspired to injure the applicants by unlawful means. It was further submitted that the final step in the execution of the conspiracy would be the order of the Commission terminating the bargaining periods. It was contended that the first three respondents had misled the Commission by failing to disclose to it critical information concerning secret plans allegedly made by Yallourn Energy to contract out its mine operations and terminate the services of relevant existing employees. 7 The application for interlocutory relief first came before the Court at 10.30 am on 3 November 2000. This occurred in circumstances where it was alleged, and not disputed, that Commissioner Lewin intended to make an order to give effect to his decision of the previous day at 11.00 am that morning. 8 At 10.50 am on 3 November 2000, the Court granted interim relief which was scheduled to expire later that day unless extended by further order. The relief was substantially in the form of the interlocutory relief sought in the application. Interim relief of that kind was granted without consideration of the merits of the application for interlocutory relief. The Court was concerned to preserve the subject matter of the claim for interlocutory relief and to maintain the authority of the Court so that "it may have an opportunity of considering the application": see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641, [1998] HCA 31 at [1], per Hayne J. See also Tait v R (1962) 108 CLR 620 at 624, per Dixon CJ and Construction, Forestry, Mining & Energy Union v Multiplex Constructions (2000) 95 IR 225, [2000] FCA 101 at [32], per Marshall J. 9 From 4.15 pm until 9.00 pm on 3 November 2000, the Court heard evidence and submissions as to whether or not the interim relief granted should be extended. At the conclusion of those submissions it became apparent that Commissioner Lewin was not intending to make any orders giving effect to his decision until after the receipt of written submissions which are due at 4.00 pm today. The Court was also informed by counsel for the applicants that no notice of protected action would be given until at least the following Wednesday afternoon. 10 The first issue which arises for determination is whether the Court had the jurisdiction to make an order which operates as an injunction directed to a person holding office under the Act. It was contended by counsel for Yallourn Energy that s 39B of the Judiciary Act 1903 (Cth) prevents the Court from making any such order. That was a contention which was made and rejected in Tighe v Watson (1998) 86 IR 44 at 47- 48, per Marshall J. As was said in Tighe at 48: "(Section 39B of the Judiciary Act) does not purport to deprive the Court of the jurisdiction it might otherwise have to grant relief in the nature of an injunction against a person who holds office under the WR Act." 11 In this proceeding, the Court has jurisdiction to deal with the ss178 and 298U applications pursuant to s412(1) of the Act. It also has jurisdiction to deal with the conspiracy claim pursuant to its accrued jurisdiction. In the course of exercising the jurisdiction it possesses, the Court is empowered to make orders, including interlocutory orders, in accordance with s23 of the Federal Court of Australia Act 1976 (Cth). The submission that would deny the Court power to grant injunctive relief directed to Commissioner Lewin confuses power with jurisdiction. If the Court was asked to make an order against a person holding office under the Act in circumstances where neither s412 of the Act nor the accrued jurisdiction of the Court was invoked the Court would have to decline to do so for want of power. For example, the Court could not make an order prohibiting a member of the Commission from commencing to hear an unfair dismissal case because of an apprehension that the mode of hearing may breach the rules of natural justice, in the absence of there being some jurisdiction to be found in the Act allowing such power to be exercised. 12 There is no merit in the submission of counsel for Yallourn Energy that the Court has no jurisdiction to make orders enjoining Commissioner Lewin from making an order giving effect to his decision to terminate the bargaining periods. 13 The next question which arises for determination is whether there is a serious issue to be tried in the proceeding. The allegations of breach of the certified agreement, wrongful inducement of resignations from the union applicants and conspiracy by unlawful means, all appear to rest upon the discovery by the applicants of a series of documents which the applicants contend to be evidence of a plan by Yallourn Energy to terminate its existing mine workforce by making it compulsorily redundant. 14 The Court heard evidence from Mr Smith, the Chief Executive Officer of Yallourn Energy, to the effect that the scenarios referred to in the documents discovered by the applicants did not have the approval of the Board of the company and that the plans referred to in the documents did not represent the current official position of Yallourn Energy. Mr Smith also gave evidence that Yallourn Energy was still working on an appropriate plan for its future mine operations and that the plan did not include compulsory redundancies. I have no reason to disbelieve that evidence. Further, counsel for Yallourn Energy gave an unconditional undertaking to the Court to the effect that it would comply with its obligations pursuant to the current certified agreement concerning consultation upon any relevant changes that would impact on its workforce. The undertaking provided that whilst the certified agreement was in force there would be no compulsory redundancies and no contracting out of the mining operations without the agreement of the CFMEU and ASU. 15 The strength of the evidence of breaches of the certified agreement, inducements to resign from the unions and conspiracy by unlawful means depends upon one's view of the status of the documents produced by the unions and an assessment, in light of Mr Smith's evidence, of that material. As the evidence currently stands, I consider that although the applicants have established serious issues to be tried, those issues may be described as more doubtful claims which would only attract interlocutory relief if there was a marked balance of convenience in favour of them: see Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472, per Woodward J (with whom Smithers and Sweeney JJ agreed). 16 In my view, there is not a marked balance of convenience in favour of interlocutory relief. Although, if the applicants' submissions are correct, the signing of an order by Commissioner Lewin will result in the completion of the conspiracy which they complain about, the only inhibition upon the unions and their members will be on the right to take protected action. That does not mean that in certain circumstances, identified in the Commissioner's decision, where Yallourn Energy seek to rely upon Div 8 of Pt VID of the Act, the unions may not have the right to initiate a further bargaining period. However, the extent of any such protection will depend on how Commissioner Lewin frames any orders which he may make. Additionally, it must be borne in mind that the termination of a bargaining period ordinarily results in the deprivation of a right to take protected action. 17 To be weighed in the balance against the prospect of an alleged conspiracy being effected and bargaining rights being diminished is, in my view, the more critical factor that the Court should not, unless for a very good reason, and only in exceptional circumstances, take a step which would override or nullify a discretionary decision of a member of the Commission as to whether or not a bargaining period should be terminated or suspended. 18 It is not the function of the Court to sit as some general appellate body in respect of decisions of the Commission. Although there may be circumstances where the interests of justice dictate that the Court exercise any powers it has to restrain certain steps being taken by the Commission, the exercise of those powers ought not occur without very good reason. 19 In the circumstances of this matter where the issues raised in the substantive application can be viewed as more doubtful claims which nevertheless raise serious issues to be tried, a marked balance of convenience will not be found in favour of interlocutory relief where, as here, the Court is essentially being requested to act as an overriding appellate body which is invited to render nugatory a decision of the Commission. This is so, a fortiori, in circumstances such as here where the Commission has declined to consider the Yallourn Energy documents which were in evidence before the Court. The Court would not ordinarily have a general supervisory role over the Commission in respect of claims that the Commission has deprived a party natural justice yet that is effectively a role which the Court is being requested to perform. 20 In short, any damage done to the applicants as a result of the completion of the alleged conspiracy is not of itself a sufficient reason to have the Court embark upon a de facto appeal from Commissioner Lewin's decision when that is the function of a Full Bench of the Commission. That is especially so in circumstances where that appellate process has already commenced and a member of the Commission had, as of late 3 November 2000, reserved his decision on whether or not he should stay the decision of Commissioner Lewin. 21 Given that a marked balance of convenience does not exist in favour of the interlocutory relief claimed, the Court will order as follows: