FH Transport Pty Ltd v Transport Workers Union of Australia

EX TEMPORE REASONS FOR JUDGMENT Given the need for the quick resolution of this matter, I intend to give my decision immediately. The first applicant (the Union) is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (the Federal Act). The second and third applicants are employees of the Union. In July 1997, the applicants organised employees of TNT Australia Ltd (TNT) at the Comet Kwikasair depot at Coopers Plains, Queensland, to refuse to load or unload trucks operated by Carl Robert Price and Joan Marlene Price trading as Kingaroy Freight Express in their capacity as subcontractors of transport services to TNT. The action was taken as part of a campaign against several major transport companies, including TNT, in which the Union sought an agreement with TNT that would be certified under the Federal Act. The agreement was to include the following two matters: (a) rates of pay, namely, an increase to $493.60 in the rates of pay for an employee who would be described by the grade 3 classification of the Transport Workers Award 1983 and commensurate increases for all other employees; and (b) a clause that TNT would not enter into a contract for the carrying out of work which is or could be performed by TNT's employees unless that contract contained a clause binding the contractor to pay wage rates and observe conditions no less favourable than those provided in the agreement to be certified. As the evidence presently stands, a matter which I emphasise, the second matter arose from the major transport companies' argument that they could not afford wage increases for employees because they faced competition from smaller operators not bound to pay even the existing award rates. The Union doubted the bona fides of this argument because the major transport companies used the smaller operators as subcontractors and thereby indirectly utilised the cheaper labour rates in the industry. The Union therefore pitched its campaign against the major transport companies, including TNT, towards not only the rates paid by the major transport companies to employees but also the terms on which they contracted with subcontractors. The industrial action at the Coopers Plain depot gave rise to proceedings, which were commenced on 14 October 1997, in the Kingaroy Magistrates' Court, for a penalty for breach of s 61(1)(a) of the Workplace Relations Act 1997 (Qld) (the Queensland Act). These proceedings were brought by Graham Meyrick Lee, an inspector authorised to make an application for an order for a contravention of s 61 of the Queensland Act. He is the respondent in the present application. The present application was commenced on 6 February 1998. It seeks a declaration that the industrial action organised by the applicants was protected action under s 170ML(2) of the Federal Act. The section provides relevantly: "During the bargaining period: (a) an organisation of employees that is a negotiating party; or ...... (c) an officer or employee of such an organisation acting in that capacity; .... ....... is entitled, for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement; .... ...... to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employer does so, the organising of, or engaging in that industrial action is protected action." Section 170MT(2) relevantly provides that: ".... no action lies under any law (whether written or unwritten) in force in a State .... in respect of any industrial action that is protected action ...." The applicants also seek an injunction against the respondent from further pursuing the proceedings in the Kingaroy Magistrates' Court. The magistrate has rejected a preliminary objection by the applicants concerning the validity of the complaints. The further hearing of the proceeding is due to start next Tuesday, 17 February 1998. In order to prevent that hearing in the Magistrates' Court until the determination of this application, the applicants have sought interim relief by way of an anti-suit injunction. In order to persuade the court that an anti-suit injunction should be granted, the applicants sought, as a first step, to demonstrate that there was a serious issue to be tried that the industrial action was protected action under the Federal Act. Mr Hinkley, who appeared with Mr White as counsel for the applicants, put the first argument on the assumption that action is protected action under s 170ML(2) only if the sole purpose of the action is to advance or support claims made in respect of the proposed agreement with TNT under the Federal Act. He contended that the evidence demonstrated there was a serious issue to be tried whether the sole purpose of the applicants in this case was to advance the relevant claims. Mr Douglas QC, who appeared on behalf of the respondent, contended that the evidence established two purposes: one to advance the claim against TNT, and the other to force Kingaroy Freight Express itself to agree to enter into an agreement under the Queensland Act to pay improved rates and award better conditions to its employees. It is important that a decision be given in this interim application quickly so that the parties will know whether they need to prepare for the Magistrates' Court hearing next week. Consequently, it is not possible to set out a detailed analysis of the evidence concerning the applicants' purpose. Neither is it appropriate at this stage of the proceedings to do so. In my view, the applicants have made out a serious issue to be tried that they had but one purpose in taking the action against Kingaroy Freight Express, namely, to advance their claims against TNT. One example from a conversation between the third applicant, Mr Swinton, and Mr Price, which occurred on 14 July 1997, demonstrates the tenor of the evidence. Mr Price suggested in the conversation that he might enter into an agreement, to be registered under the State Act, directly with his staff. The following exchange then occurred: "Mr Swinton: Oh, you're entitled to do what you want. You know, as I say - still you know our dispute remains with Kwikasair [TNT]. Mr Price: Yeah, well, that's between you and Kwikasair. It's really nothing to do with me. Mr Swinton: Yeah, that's right. Mr Price: But I mean to say if I get these [draft agreements under the Queensland Act] up and drawn up, started tomorrow are you going to exclude me from the Kwikasair yard or yards in Brisbane? Mr Swinton: Oh, we'd probably still have a dispute with Kwikasair." This exchange is open to the conclusion, in the context established by other evidence of the steps taken by the Union in its campaign, that the whole point of the exercise concerning Kingaroy Freight Express was to support the claim against TNT. Mr Price was told that the dispute would continue even if he signed an agreement under the Queensland Act. Mr Hinkley contended, in the alternative, that there was a serious issue to be tried on the construction of s 170ML(2). He argued that action is protected if it is taken for the real purpose of advancing the claims made in respect of the proposed agreement, even if that purpose is not the only purpose. Mr Douglas, however, relied upon FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366, in which Drummond J said, at page 371: "Only if action is engaged in for the purpose of advancing negotiations for a Part VIB agreement is it protected. There is nothing in the Workplace Relations Act that declares it to be sufficient to attract the immunity section 170MT(2) confers that industrial action be undertaken for a variety of different purposes that include the particular purpose specified in section 170ML(2)." At page 372, his Honour said: "But if industrial action is engaged in for multiple purposes, that one of those purposes is of the kind referred to in section 170ML(2), it will not, in my opinion, be sufficient to attract the immunity the statute confers on protected action to that industrial action. To hold otherwise would be to confer on a union a large measure of discretion to fix, where it pleased, the boundaries within which it could take lawful industrial action against a range of persons that would otherwise be unlawful, so long as a bargaining period with respect to a proposed workplace agreement with one particular employer was current at the relevant time. That is, in my view, inconsistent with the intention of Division 8 which is to legitimise industrial action, subject to detailed controls and only as an encouragement to the setting of conditions of employment by specific agreements of the kind provided for by Divisions 2 and 3 of Part VIB." There was evidence before me that his Honour did not have the benefit of argument concerning the construction of s 170ML(2). It should also be observed that the decision was given in an interlocutory application, where the full consideration given to such an issue at trial is not ordinarily given. The wording of the section, in my view, leaves it open to argue that the purpose of advancing claims need only be one of any number of purposes. This involves giving a different emphasis to the use of the definite article before "purposes" than did Drummond J. Alternatively, even accepting his Honour's characterisation of the intent of Division 8, it could be argued that that intention is accommodated by regarding it as implicit in the section that the purpose required is the dominant or perhaps substantial purpose. A further arguable alternative is that the purpose referred to is the ultimate purpose of the action and not the intermediate purpose or immediate effect of the action. This distinction has been the subject of much litigation in relation to s 45D of the Trade Practices Act 1974 (Cth). If any of these arguable constructions applied, the evidence as it presently stands would entitle the applicants to protection under the section. Consequently, in my view, the applicants have established a serious issue to be tried on the two alternative arguments put, one being a factual argument and the other being a legal argument. I now turn to consider other matters relevant to the application for the interim injunction. It is obvious, and I think accepted by the parties, that it is not feasible to have proceedings moving forward in both the Magistrates' Court and in this Court. The absurdity of the progression of parallel proceedings is well described in Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152, at 159. The question therefore becomes, in effect, which of the proceedings should move forward first. The test which should guide me in determining this issue was enunciated in Pegasus, at 156, as follows: "Foreign proceedings may be restrained, not only when they are vexatious in the sense of frivolous or useless, but also where they are oppressive. However, vexation or oppression should not be regarded as the only grounds on which the jurisdiction is to be exercised. See Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 894. The fundamental requirement is that an injunction will be granted only where the interests of justice so require." There are a number of considerations relevant to the interests of justice in the present case. Of course, the establishment of a serious issue to be tried is one such matter. I have already determined that matter in favour of the applicants. Another consideration is whether each Court has the capacity to resolve all the issues in dispute. The Magistrates' Court can determine all the issues in controversy between the parties. It can resolve both the claim for a penalty and the defence based on the provisions of the Federal Act. The Federal Court cannot determine the application for a penalty under the Queensland Act. Mr Douglas persuasively put this matter at the forefront of his claim to resist the application for an injunction. However, a determination that the action was protected under the Federal Act would probably mean that the penalty proceedings would have to fail. If the Federal Court proceedings were determined in favour of the respondent, the respondent would presumably then proceed in the Magistrates' Court. The respondent would have to call witnesses who may have given evidence in the Federal Court, thereby causing some inconvenience and duplication . However, if the respondent succeeded in the Magistrates' Court, one would expect that the costs of the proceedings in the Magistrates' Court would be awarded to the respondent, thereby compensating for the inconvenience to a significant degree. Furthermore, Mr Hinkley pointed out that the consequence of an unfavourable decision to the applicants in the Federal Court would leave the penalty proceedings "de-gutted". They would be, in effect, a shell. The substantial point in the Magistrates' Court proceedings is the existence of the alleged defence under the Federal Act. I also have regard to the need for comity between courts within Australian jurisdictions. There is no threat to that comity where a rational decision is made to deal with parallel proceedings by consideration of all the circumstances of the case in order to arrive at a conclusion which serves the interests of justice. While the Federal Court application was made well after the Magistrates' Court proceedings commenced, this is not a case in which the purpose of the Federal Court application was to take advantage of the Federal Court jurisdiction in a way that was unconscientious. It is, therefore, not a case like CSR Ltd v Cigna Insurance Australia Ltd (1997) 71 ALJR 1143. Mr Douglas also raised the potential prejudice of delay in finalising the Queensland proceedings if the proceedings in this court were to proceed and an injunction were granted in respect of the Magistrates' Court proceedings. I accord little weight to this consideration in the particular circumstances of this case because no evidence was led to demonstrate that any prejudice would flow from the delay. For example, there was no suggestion that any witness now available would become unavailable. I also take into consideration the fact that the applicants did not apply for a stay of the Magistrates' Court proceedings. There is no explanation why such a stay was not sought. Again, in the circumstances of this case, I do not regard this as a matter of particular importance. It is preferable in a case such as the present, where the parallel proceedings are taken in both State and Federal courts, that the application for an injunction is made to the court standing higher in its particular judicial hierarchy. It would, I think, be unseemly for the Magistrates' Court to have refused a stay application and then for this Court, if it was so minded, to grant an injunction against the moving party in the Magistrates' Court. In the end, there are two factors which persuade me that it is appropriate, in the interests of justice, that the injunction be granted. The first is that, while in the Federal Court there is an unrestricted right of appeal to the Full Court in these proceedings, there is doubt that an appeal lies to the Industrial Court under s 258(1)(b)(iii)(B) of the State Act. If no such appeal lies, the only challenge to the magistrate's decision would be by way of judicial review under s 258(1)(d) of the State Act. I have not been persuaded by Mr Douglas's argument that there is a right to appeal conferred by s 422 of the Federal Act against a decision of the magistrate in the circumstances of this case. It is in the interests of justice that the rights of appeal normally available in respect of the determination of an issue under the Federal Act are available to the parties to disputes concerning matters under that Act. The second factor is allied to the first. It is in the interests of justice that this court resolve a matter dealing with rights under the Federal law. The Federal Court is a superior court of record, charged with the function of determining controversies under the Federal law. It has a primary and specialist function in this regard. The case raises important issues of statutory construction of an important Federal Act. These features make the case peculiarly appropriate for resolution by the Federal Court. They distinguish the case from one in which the only controversy is a factual controversy. For these reasons, I intend to grant the applicants an injunction in terms which are to be formulated.