Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

EX TEMPORE REASONS FOR JUDGMENT 1 The applicant ("Emwest") seeks interlocutory relief against the respondent ("AMWU") in respect of industrial action to be taken by its employees who work at its operations in Newport. 2 In support of its application, Emwest relies on affidavits of Bruce Ian Jackson sworn 5 September 2001, 6 September 2001 and 14 September 2001. Mr Jackson is the general manager, human resources for Emwest. There is an affidavit in opposition sworn by Maurice Addison on 17 September 2001. 3 Emwest markets and services a range of gas and electricity meters, gas regulators and associated measurement and control equipment for the commercial and industrial sector of the energy distribution industry. Employees of Emwest at Newport are employed pursuant to the Email Metering Newport Operations Enterprise Agreement 2000 ("the 2000 Agreement"). 4 The 2000 Agreement was certified by the Australian Industrial Relations Commission ("AIRC"), pursuant to s 170LT of the Workplace Relations Act 1996 ("the Act"), on 30 April 2001. It has a nominal expiry date of 30 June 2003. The 2000 Agreement makes provision for a range of terms and conditions of employment (including wages) of Emwest's employees at its Newport site. 5 The 2000 Agreement is binding on Emwest, the AMWU and those of Emwest's employees engaged in any of the occupations, industries or callings specified in the Metal, Engineering and Associated Industries Award - Parts I and V ("the Award"): see clauses 6 and 7. The Award covers all of Emwest's production employees at Newport. 6 In addition to the 2000 Agreement, there is an Emailgas Redundancy Agreement 1998 ("the Redundancy Agreement"). The Redundancy Agreement, certified under s 170LS of the Act on 14 December 1998, contains a nominal expiry date of 30 September 2000. The parties to the Redundancy Agreement are the AMWU, Emwest and the Transport Workers Union. The Redundancy Agreement applies to Emwest sites at Newport and Braybrook. The parties accepted that the Redundancy Agreement contains provisions in relation to the applicable process for redundancy, severance pay, and other matters relating to redundancy. The Redundancy Agreement continues to have effect, either by virtue of s 170LX of the Act or clause 5 of the 2000 Agreement, or otherwise. 7 The 2000 Agreement makes provision for pre-existing agreements in clause 5. Clause 5 provides: This Agreement supersedes all other pre-existing Agreements whether registered or not to the extent of any [in]consistency. Where no inconsistency exists, the provisions of previous agreements will apply. The 2000 Agreement also requires the observance of the Award: see clause 10. There is also a "No Extra Claims" clause: see clause 17. 8 It seems the 2000 Agreement and the Redundancy Agreement have historically been separate and distinct at the Newport site. From mid 2001, Emwest and the AMWU have been engaged in negotiations for a new redundancy agreement. Around July 2001, the AMWU requested a meeting with Emwest to discuss increased redundancy benefits for the employees. There was a meeting between representatives of Emwest and the AMWU to discuss a new redundancy agreement to cover Emwest employees at Newport on 20 July 2001. During the meeting, AMWU representatives gave Emwest representatives a document setting out the terms that were sought in respect of redundancy. A further meeting took place on 9 August 2001. 9 Later on 9 August 2001, following a meeting of Emwest employees with AMWU representatives, an AMWU organiser advised Mr Jackson of Emwest that the employees had left work that day and were returning on Monday morning (13 August 2001). 10 On 13 August 2001, Emwest made an application under s 127(2) of the Act for an order preventing industrial action in relation to the re-negotiation of redundancy agreement entitlements. On 15 August 2001, the AMWU served a bargaining notice pursuant to s 170MJ of the Act. In reasons for decision given on 29 August 2001 dismissing Emwest's application, Commissioner Hingley stated at [21]-[24] that: I am satisfied that at this time industrial action is not happening or continuing. … The union moved quickly to initiate a bargaining period … . Subject to complying to s.170MO, protected action may pursuant to the Act be taken in pursuit of renegotiation of the Redundancy Agreement. On the evidence and what is before me, there is in my view little likelihood of industrial action which is threatened, impending or probable that could be described as illegitimate in terms of the Act. For all of the reasons above I find that the jurisdictional prerequisites have not been met and the application should be dismissed. 11 On 3 September 2001, the AMWU served a notice of intended industrial action under s 170MO of the Act. The notice indicated that the employees intended to take industrial action from 4.00pm on Friday 7 September 2001. The industrial action specified was a total ban on overtime and a stop work two hours before the end of each shift every day. The action was to continue for a period of three months or until agreement was reached, whichever was the sooner. The AMWU did not, however, organise any industrial action at the site with respect to that notice. 12 When the matter came on for hearing on 6 September 2001, counsel for the AMWU informed the Court that a meeting between Emwest and AMWU representatives was planned for 13 September 2001, and that the AMWU undertook that it would not organise any industrial action prior to that meeting. Relevant undertakings being given by the parties, the matter was adjourned until 17 September 2001. 13 Representatives of Emwest and the AMWU met on 13 September 2001 to discuss proposed terms for redundancy for Emwest employees. They were unable to reach agreement on, it appears, the quantum of severance packages and the value of outplacement services. Emwest had, it seems, indicated that it was not prepared to engage in further negotiations unless the AMWU gave an undertaking with respect to any industrial action until June 2003. 14 Later on 13 September 2001, a further notice of intended industrial action was given to Emwest by the AMWU pursuant to s 170MO of the Act. The notice indicated that the employees intended to take industrial action from 7.00am on Wednesday 19 September 2001. This industrial action was to be a total ban on overtime and rolling stoppages across the company's entire operations. The action was to continue for a period of three months or until agreement is reached, whichever is the sooner. The AMWU has also given notice pursuant to s 170MR.

serious question to be tried 15 For the purposes of this application, Emwest relied on threatened alleged contraventions of s 170MN of the Act. Section 170MN relevantly provides: (1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: (a) any employee whose employment is subject to the agreement or award; (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. … 16 In contending that the AMWU's proposed industrial action would breach s 170MN(1), Emwest relied on the fact that there was a certified agreement in operation, namely the 2000 Agreement, and that the 2000 Agreement had not passed its nominal expiry date. Emwest submitted that s 170MN(1) proscribed industrial action engaged in for the purpose of supporting or advancing claims against the employer in respect of the employment of employees bound by the 2000 Agreement. In this case, the purpose of the industrial action was to support or advance claims against Emwest for increased redundancy benefits for employees bound by the 2000 Agreement. It followed, so Emwest submitted, that these claims were in respect of the employment of employees of Emwest whose employment is subject to a certified agreement that had not passed its nominal expiry date. Emwest submitted that s 170MN(1) applied to the AMWU by virtue of s 170MN(2)(b), since the AMWU was "an organisation of employees that is bound by the agreement" within the meaning of s 170MN(2)(b). 17 The AMWU submitted in reply that it was not proposing to "engage" in industrial action. Referring to the decision of North J in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 ("Australian Paper"), the AMWU submitted that Div 8 of Pt VIB of the Act recognised a distinction between organising industrial action and engaging in industrial action (see ss 170ML and 170MM); and that s 170MN prohibited only "engaging" in industrial action during the period of a certified agreement, and not "organising" industrial action in that period. The use of the term "engage", rather than "organise or engage" in s 170MN, was, so the AMWU submitted, a deliberate choice on the legislature's part. 18 As counsel for the AMWU submitted, Div 8 of Pt VIB of the Act does apparently recognise a distinction between "engaging" in industrial action and "organising" industrial action: see, e.g., ss 170ML(2), 170MM(1) and 170MM(2). Relying upon this distinction, North J held at 21-22, in Australian Paper, that s 170MN(1) only prohibited engaging in industrial action during the period of a certified agreement and did not prohibit organising industrial action in that period. 19 Counsel for the AMWU advanced a number of reasons why the approach of North J should be accepted. She submitted that the contrary approach renders the distinction made elsewhere in the Act between "organise" and "engage" meaningless. She contended that the word "organise" was omitted from s 170MN for two reasons. They were: 37.1 any other approach may have given rise to the perverse result that a union could be liable for organising what would otherwise be protected industrial action at site X, in circumstances where the union was party to a certified agreement at another site anywhere in the country; 37.2 the principle underpinning s170MN is that it is focussed on the 'deal', or the bargain struck between the parties. Accordingly, the section attaches to employees who take industrial action in circumstances where they have previously voted for a certified agreement representing a bargain with respect to their own work place. It does not extend to regulate the conduct of the unions which represent them - whose conduct is sufficiently regulated by the common law and s127 WRA. 20 The state of authorities in this area is, as counsel for the AMWU noted, far from settled. As counsel for Emwest pointed out, Ryan J took a different view of the action covered by s 170MN in Kilpatrick Green Pty Ltd v The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor [1998] FCA 559 ("Kilpatrick Green"). Ryan J declined to adopt North J's view, saying: It is accepted on both sides that those conclusions were reached by his Honour without the benefit of any argument and, with respect, I am unable to adopt them. It is true that s 170ML(2) appears to speak disjunctively of an entitlement to 'organise or engage in industrial action directly against the employer'. However, the entitlement is not conferred distributively on the organisation of employees and its officers on the one hand and the members employed by the employer and employees who are negotiating parties on the other. In other words, the concluding part of s 170ML(2) contemplates that an organisation of employees may 'engage in' as well as 'organise' industrial action and a member of the organisation employed by the relevant employer may similarly 'organise' industrial action against the employer as well as engage in it himself or herself. Sub-ss 170MN(1) and (2) preserve the same dichotomy between engaging in and organising industrial action but not in a mutually exclusive way that confines the former activity to employees of the relevant employer and the latter to the registered organisation and its officers. It is clear that s 170MN(2) makes the prohibition in s 170MN(1) which is confined to engaging in industrial action during the life of a certified agreement applicable to: (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity as well as to employees whose employment is subject to the certified agreement. It must therefore contemplate that an organisation of employees can 'engage in' industrial action in the sense in which that expression is used in s 170MN(1). The argument is clinched by s 4(8) of the Act which provides: In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct. An organisation of employees which through officers or employees counsels, procures or 'organises' the taking of industrial action by employees whose employment is subject to a certified agreement is at least indirectly a party to or concerned in that industrial action. 21 In BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275 at 290, Beaumont J accepted Ryan J's approach. In Email Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1932 ("Email") at [12], Madgwick J adopted a similar approach to Ryan J in Kilpatrick Green. In Hayman Reese v Automotive, Food, Metals, Engineering, Printing, Kindred Industries Union [2001] FCA 1279 ("Hayman Reese") at [19]-[23], Goldberg J noted the state of authorities and s 4(8) of Act and concluded that there was a serious question to be tried in that case that the conduct of the union, through its organiser, constituted action of the kind proscribed by s 170MN(1). Bearing in mind the state of authorities and s 4(8) of the Act, I too am satisfied that there is a serious question to be tried as to whether the conduct of the AMWU constitutes an "engaging" in industrial action for the purposes of s 170MN(1). 22 I am also satisfied that there is a serious question to be tried on the issue whether s 170MN(1) would be contravened in the circumstances of this case, even though the proposed industrial action is to be taken for the purpose of supporting claims for a new agreement in respect of redundancy entitlements after the nominal expiry date of the Redundancy Agreement has passed. 23 On the one hand, relying on current authorities, counsel for Emwest submitted that s 170MN(1) of the Act was to be construed and applied literally, according to its terms. According to counsel for Emwest, s 170MN(1) prohibited industrial action for the purpose of supporting or advancing any claim against the employer in respect of the employment of employees whose employment is subject to any certified agreement the nominal expiry date of which had not yet been reached. In this case, the employment of the relevant employees was, so the argument ran, subject to the 2000 Agreement which had a nominal expiry date of 30 June 2003. The claims that the employees sought to make related to their redundancy entitlements. That is, they were claims in respect of their employment. 24 Counsel for the AMWU submitted, on the other hand, that reading the Act as a whole, s 170MN did not have the meaning attributed to it by Emwest. As she pointed out, the Act apparently contemplates that there may be more than one certified agreement covering a site and employees at any one time: see ss 3(c), 3(d), 170L and 170LY(1)(b) of the Act. The Act itself contains a regime in relation to the negotiation, bargaining and industrial action preceding the certification of an agreement. In written submissions, counsel for the AMWU submitted that: [I]t could not have been intended that employees subjected to certified agreements dealing with different topics and expiring on different days would be 'hamstrung' by the different expiry dates and [be] prevented from taking protected action in relation to one agreement merely because another agreement has not yet expired. Counsel added: The absurdity of this result is even clearer if one considers what would occur if the position were reversed, and the Redundancy Agreement had been expressed to expire after the [2000 Agreement]. In such a circumstance, the employees would not be able to negotiate an improvement in their terms and conditions of employment, including wage rates, for close to three years. 25 Accordingly, so counsel for the AMWU contended, the prohibition contained in s 170MN attached only to a particular bargain and the particular parties to that bargain. She submitted that, whilst the parties could not reopen matters that were the subject of a certified agreement the expiry date of which had not yet passed, the parties were not prohibited from bargaining in respect of fresh matters. This was, so she said, consistent with the scheme of protected action and with the history of the industrial relationship between the parties in this case where the parties had for some time bargained for general conditions and redundancy separately. On her argument, s 170MN operated only to proscribe industrial activity in support of claims that concerned the same subject matter as that dealt with by the certified agreement the nominal expiry date of which had not yet passed. Redundancy entitlements, so she asserted, were not the subject of the 2000 Agreement. 26 Counsel for Emwest relied upon the breadth of approach adopted by Goldberg J in The Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 ("Original Juice") and Hayman Reese. See also his Honour's judgment in Hayman Reese a Division of TriMas Corporation Pty Ltd v Automotive Food Metals Engineering Printing & Kindred Industries Union (No 2) [2001] FCA 1328. In an interlocutory application in Original Juice, Goldberg J did not accept a submission that s 170MN only proscribed industrial action where it was taken for the purpose of supporting or advancing claims for a certified agreement. This led his Honour to depart, for interlocutory purposes, from the reasoning of Cooper J in Theiss Contractors Pty Ltd v Construction, Forestry, Mining & Energy Union [1999] FCA 407 ("Theiss Contractors") at [14]-[19] and from the reasoning of Madgwick J in Email at [12]. 27 In Theiss Contractors, Cooper J observed at [14]-[19]: Section 170MN(1) only prohibits industrial action 'for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement …'. That is, where there is an existing certified agreement and there is in existence a bargaining period in respect of a new or further certified agreement, industrial action in support of the claims in the proposed agreement, although protected under s 170ML(2), must be postponed until after the nominal expiry date of the existing certified agreement. The claim referred to in s 170MN(1) is the same claim as that referred to in s 170ML(2)(e) of the Act. If industrial action is taken supporting or advancing claims made in the proposed agreement prior to the expiry of the nominal termination date of the existing agreement by either the employees or the relevant organisation on the one side, or the employer on the other, two consequences follow. Firstly, the action is not protected action (s 170MN(1); s 170MW(5) and s 170MW(6)). Secondly, the contravention exposes the contravener to a penalty (s 170NF(1)). The constructions of s 170MN(1) contended for by the applicants ignore the purposive nature of the industrial action required by the subsection and renders the requirement superfluous. They also ignore the context in which the section is placed and operates. Notification of a dispute under clause 12 of the Alliance Mine Agreement on 1 April 1999 with respect to staff employees operating underground production machinery, without more, was not the making of a claim on behalf of employees employed under the agreement for the purposes of s 170MN(1) of the Act. On the material filed by the applicants in support of the relief sought, even when regard is had to the more expansive material filed by the respondent, there was no industrial action organised by the respondent or taken by its membership at the Alliance Mine in support of, or to advance a claim made in a proposed agreement within the meaning of either s 170ML(2) or s 170MN(1). The stoppage at about 3.00 pm on 8 April 1999 was a protest by certain production employees present at the Alliance Mine at the time of the shift changeover at the refusal of the applicants' mine manager to direct a staff employee to cease operating production machinery underground. For the above reasons, I am of the view that there is no serious question to be tried that the respondent has contravened s 170MN(1) of the Act and that there is no reasonable prospect, on the material presently before the Court, that the applicants will obtain final injunctive relief of the nature sought in the application under s 170NG of the Act. In these circumstances no question of the balance of convenience arises. In Email, Madgwick J adopted a similar approach to Cooper J. 28 The Full Court of this Court subsequently refused an application for leave to appeal against the decision of Cooper J out of time, since interlocutory relief was no longer sought: see Theiss Contractors Pty Ltd v CFMEU [1999] FCA 1205. Two members of the Full Court, Moore and Marshall JJ, emphasised, however, that Cooper J's construction of s 170MN was made upon an interlocutory application and was not to be regarded as expressing his Honour's definitive view. 29 In Original Juice, Goldberg J acknowledged that there might well be a different approach to s 170MN than that of Cooper J (and of Madgwick J). After noting the remarks of Moore and Marshall JJ in the Full Court,and that in Amcor Packaging (Australia) Pty Ltd v AMWU & Ors [1999] VSC 434, Beach J rejected the approach of Cooper J, his Honour concluded that: [T]here is a serious question to be tried whether s 170MN covers the type of industrial action and the purpose for that industrial action in this proceeding. That is to say, there is a serious question to be tried that the section is not limited to those types of cases considered by Cooper J in Theiss Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (supra) where the industrial action is engaged in for the purpose of negotiating another certified agreement. His Honour adhered to this view in Hayman Reese at [25]. 30 Plainly enough, there is, as the applicant submits, authority for the view that s 170MN(1) may operate to prohibit industrial action for the purpose of supporting a claim, which may not be a claim for another certified agreement, providing it is a claim in respect of employees whose employment is subject to a certified agreement, the nominal expiry date of which has not yet passed. Of course, none of these authorities is definitive. The authorities are, in the main, the decisions of single judges upon interlocutory applications. Moreover, they have factual backgrounds that differ from this case, and they do not deal with the specific question that arises here. 31 Although these considerations may prove important at trial, I am of the view that some of the authorities mentioned in this connection support the broad interpretation of s 170MN for which Emwest contends, although this is not to say that the contentions advanced by the AMWU will ultimately fail. In my view, there is a serious question to be tried as to whether s 170MN proscribes the industrial action proposed to be taken in this case. 32 Before turning to the question of balance of convenience, I note that there was a further submission advanced by counsel for Emwest that the Redundancy Agreement continued in operation by virtue of cl 5 of the 2000 Agreement and not s 170LX of the Act. If this submission were correct, then it would defeat the submission made by the AMWU that the Redundancy Agreement and the 2000 Agreement dealt with different subject matter. Much may depend upon what is intended by the words "replaced by another certified agreement" in s 170LX(2)(b) of the Act.

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