the scope of the prohibition in s 170MN(1)
41 The issue is one of the proper construction of s 170MN. Section 170MN was introduced by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). That Act, it may be recalled, amended the statutory regime introduced by the Industrial Relations Reform Act 1993 (Cth) ("the Reform Act"). The Reform Act introduced the notion of certified agreements and enterprise flexibility agreements.
42 The effect of s 170MN is straightforward enough. Where there is on foot a certified agreement, the nominal expiry date of which has not yet passed, s 170MN(1) prohibits industrial action by an employee whose employment is subject to the agreement, or by a union bound by the agreement or officer of such a union, "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". The prohibition in s 170MN(1) against industrial action is, on any view, a limited one. The prohibition does not extend to industrial action taken for a non-prescribed purpose, even where there is a relevant certified agreement: cf Email at [12] per Madgwick J. This aspect of the provision's operation reflects the statutory assumption that when parties make an agreement with respect to employment, they do so on the basis that they will not resort to industrial action during the currency of the agreement in respect of the matters upon which they have reached agreement.
43 The issue in this case arises out of the ambiguity created by the use of the expression "in respect of the employment of employees whose employment is subject to the agreement". The reference to "the agreement" is a reference to the certified agreement, the nominal expiry date of which has not yet passed. The whole expression is, however, capable of having more than one meaning. The expression may be read as referring to "the employment of employees [where this] employment is [specifically] subject to the agreement". That is, the expression may refer to only the matters actually agreed upon by the parties in the agreement. If so, the prohibition would relevantly extend only to industrial action taken for the purpose of advancing claims in respect of such agreed matters. The union contends that this is the correct construction of s 170MN(1).
44 Indeed, this construction is supported by Ryan J's decision in Kilpatrick Green. In Kilpatrick Green, the relevant certified agreement provided that where the employer undertook a project with a total value in excess of $56.2 million, the parties could negotiate a "specific site agreement" which would take precedence over the certified agreement. The employer was awarded a contract for a project valued at $360 million. The union imposed bans on the performance of work on the project until the site agreement was resolved. Ryan J held that the union had not contravened s 170MN. His Honour held that the employment of the employees at the site was not subject to the certified agreement because the agreement itself excepted the relevant area of work from its operation, and left open the possibility that a new certified agreement would be concluded with respect to this work (pp 8-9).
45 Emwest's submissions support an alternative construction. The expression may refer to "the employment of employees [where this] employment is [in some way or other] subject to the agreement". If so, the prohibition would extend to industrial action taken for the purpose of advancing any claim pertaining to the employment of an employee to whom (or to whose work) the relevant certified agreement applied.
46 If the expression is, as I think, open to more than one meaning, it is to be construed in the way that would best promote the relevant statutory object: Acts Interpretation Act 1901 (Cth), s 15AA. The principal objects of the Act are set out in s 3 and include the following:
(c) enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and
…
(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them.
The object of Pt VIB, in which s 170MN is located, is "to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business": s 170L of the Act.
47 Further, as Mason and Wilson JJ observed in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320:
The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
See also Miller v University of New South Wales [2000] FCA 1563 where Branson J held that the expression "an employee whose employment is subject to the agreement" in s 178(5A)(b) and s 413A of the Act was also ambiguous: see [19]-[27]. (I have not been assisted in resolving this issue of construction by either the Minister's Second Reading Speech for what was to become the Amendment Act or the explanatory memoranda accompanying the Bill. Further, so far as I am aware, the issue has not previously arisen: cf, e.g., Theiss Contractors; Original Juice; Hayman Reese v AFMEPKIU [2001] FCA 1279 at [19]-[23]; Hayman Reese v AFMEPKIU (No 2) [2001] FCA 1328 at [15]; and Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1999] VSC 434 (29 October 1999) per Beach J at [53].)
48 The question of the proper construction of the expression "in respect of the employment of employees whose employment is subject to the agreement" is not free from doubt. Although the construction that Emwest favours is perhaps the most obvious, and results in a relatively straightforward application of the provision, for the reasons set out below, I am not persuaded that it is to be accepted as the preferable construction.
49 Part VIB permits a certified agreement to cover a single business, or part of a single business such as a geographically distinct part of an employer's business or a distinct operational or organisational unit: see ss 170L and 170LB. Part VIB also contemplates that employees may be subject to more than one certified agreement (the nominal expiry date of which has not passed) at any one time: see s 170LY(1)(b) of the Act. This latter matter is, as appears below, significant in resolving the issue with which I am presently concerned.
50 Division 8 of Pt VIB, which includes s 170MN, provides a statutory regime for negotiating a certified agreement. As already noted, under the Act, a union and its officers, and employees may engage in industrial action, which is protected action, within a bargaining period. A bargaining period for a certified agreement may be initiated by union, an employer, or an employee acting on his or her own behalf and on behalf of other employees, who wants to negotiate a certified agreement "in relation to employees who are employed in a single business or a part of a single business": s 170MI(1). A notice under s 170MI(2) must state that the "initiating party" (see s 170MI(1)) "intends to try (a) to make an agreement with the other negotiating parties under Division 2 or 3; and (b) to have any agreement so made certified under Division 4".
51 The particulars which must accompany the s 170MI notice include "the matters that the initiating party proposes should be dealt with by the agreement": s 170MJ(c). Once a bargaining period begins (see s 170MK), then a union, a union member employed by the employer, a union officer, or an employee who is a negotiating party is entitled to organise or engage in industrial action against the employer for the purpose of supporting or advancing claims made in respect of the proposed agreement, or of responding to a lockout: s 170ML(2). Subject to certain procedural requirements (s 170MO and s 170MR), action taken in these circumstances is protected action and subject to the immunity conferred by s 170MT of the Act. The Act also provides that action is not protected action unless there has been a genuine attempt to reach agreement previously: see s 170MP. The bargaining period ends if a certified agreement is made; the initiating party tells the other negotiating parties that it no longer wants to reach a certified agreement; or the Commission terminates the period: s 170MV of the Act.
52 Save for the ambiguity attaching to the expression "in respect of the employment of employees whose employment is subject to the agreement" in s 170MN(1), there is nothing in the above-mentioned provisions that would support the proposition that the bargaining regime for a certified agreement is not available in respect of the bona fide negotiation of any certified agreement that may be negotiated and made under the Act, subject to the statutory safeguards: see, e.g., s 170MW. On the contrary, save possibly for s 170MN, the statutory assumption is not only that more than one certified agreement, the nominal expiry date of which is not yet passed, may apply at a work site but that the remainder of Div 8 would apply in relation to the negotiation of a certified agreement under the Act.
53 Bearing in mind s 15AA of the Acts Interpretation Act 1901 (Cth) and ss 3 and 170L of the Act, it is legitimate to have regard to the consequences of the competing constructions of s 170MN. It is difficult to see how the making of certified agreements would be facilitated in accordance with s 170L if, as the union put it:
[E]mployees subject to two certified agreements dealing with different topics and expiring on different days would be 'hamstrung' by the differing expiry dates and prevented from taking protected action in relation to one agreement merely because another agreement dealing with other topics had not yet expired.
As the union submitted:
The absurdity of this result is even clearer if one considers what would occur if the position [in this case] were reversed, and the 1998 Redundancy Agreement had been expressed to expire after the 2000 General 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.
54 Emwest submitted that, if the construction favoured by Emwest were accepted, nonetheless the union and its members would not be precluded from seeking to negotiate improved redundancy benefits. This, however, does not meet the point the union makes. One author has stated:
The facilitation of bargaining necessarily requires the recognition of a right by the bargaining parties to take lawful industrial action. Under a bargaining regime, '[u]nless labour and management do have recourse to the work stoppage it is unlikely that bargaining would be fruitful, for there would be no reason for a party, believing it would be disadvantaged by making a particular concession, to do so. In fact, in the absence of this coercive power, it is unlikely that bargaining would even commence. [Footnote omitted.]
See Greg McCarry "Industrial Action under the Workplace Relations Act 1996 (Cth)" (1997) 10 Australian Journal of Labour Law 133 at 133-134.
See also ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) 96 IR 228 at 233 per Merkel J, citing Australian Paper at 18 per North J.
55 Emwest also submitted that the construction of s 170MN(1) for which the union contends "would severely limit the scope of s 170MN, as unions and employees would be able to take industrial action in relation to claims about matters arguably not in the certified agreement" and "would undermine the purpose and effect of parties reaching agreements and having them certified". Assuming the policy behind s 170MN is to encourage parties to adhere to the bargain they have struck, then the policy would not, in my view, be defeated by permitting the parties to negotiate effectively in respect of matters that were not the subject of a relevant certified agreement. The policy is sufficiently protected if s 170MN(1) is construed as prohibiting parties to a certified agreement from resorting to industrial action to undo the matters they have agreed upon in the certified agreement, if its nominal expiry date has not passed. If the parties so desired, they could agree that a certified agreement made by them was intended to cover the whole field of relevant employment, thereby excluding the possibility of industrial action during the currency of the agreement.
56 From time to time, issues about the purpose of industrial action will arise, on whatever view one takes of s 170MN. If the construction for which the union contends is accepted, issues may well arise as to whether a matter was dealt with in a relevant agreement. The courts, the Commission and others experienced in the field of industrial relations are familiar with issues of this kind. This consideration does not persuade me that the union's approach does not best meet the statutory objects to which I have referred. In this case, there is, as we have seen, no dispute about the purpose of the industrial action in question.