Griffin Coal Mining Company Pty Limited (ACN 008 667 285) v The Construction Forestry Mining & Energy Union

REASONS FOR JUDGMENT 1 This is an application for interlocutory relief in a proceeding commenced by the applicant ("Griffin") against the respondents ("CFMEU"; "CMU"; and "Wood") seeking injunctions, and orders for the payment of penalties and damages, pursuant to ss 170NF and 170NG of the Workplace Relations Act 1996 (Cth) ("the WR Act") based on an alleged contravention by the respondents of s 170NC of the WR Act. Griffin also sought injunctions and damages at common law for the alleged tort by the respondents of interference with Griffin's trade and business. The application for interlocutory relief turns on the construction of provisions of Division 8 of Part VIB of the WR Act. 2 Griffin carries on the business of mining coal at Collie in the State of Western Australia. The CFMEU is an organisation registered under Part IX of the WR Act. The CMU is an organisation registered under Part II of the Industrial Relations Act 1979 (WA) ("the State IR Act"). Wood is the secretary of the Western Australian District Branch of the Mining and Energy Division of the CFMEU and the secretary of the CMU. 3 The Rules of the CFMEU ("the Rules") provide for the day-to-day affairs of the organisation to be conducted through Divisions and Divisional Branches established by those Divisions. The Rules provide that Divisions have autonomy to make Divisional rules not inconsistent with the Rules. The Divisional rules are registered under the WR Act as part of the Rules. In addition to a Divisional Branch established by a Division, the Rules provide that there is to be a Branch of the CFMEU in each State. Such a Branch may make By-Laws not inconsistent with the Rules. The function of a Branch, "inter alia", is to co-ordinate Divisional Branches "at a State … level, dealing with matters affecting only that State and more than one Division and any other matter that Divisions or Divisional Branches agree should be dealt with by such Branch" (r 28(i)). 4 The Rules establish a Mining and Energy Division. The Divisional rules of that Division establish a Divisional Branch for Western Australia, known as the Western Australian District Branch. 5 On 24 December 1992, the Western Australian Industrial Relations Commission ("WA Commission") made a declaration under s 71 of the State IR Act that the rules relating to qualification for membership of the CMU are deemed to be the same as those of the "CFMEU, UMW Division, Western Australian District Branch". The "UMW Division" is now known as the Mining and Energy Division. 6 It was not in issue that pursuant to s 71(5) of the State IR Act officers of the CMU are the officers of the Mining and Energy Division, Western Australian District Branch, elected or appointed in accordance with the Divisional rules of the Mining and Energy Division as they apply to the Western Australian District Branch of that Division. The Divisional rules provide, inter alia, for employees in the coal industry to apply for membership of the Division and for the "Central Executive" to approve that application. The "Central Executive" is the Executive body of the Central Council of the Division. 7 As set out above, those same rules are the rules relating to qualification for membership of the CMU. It follows from the foregoing that membership of the CMU is co-extensive with membership of the CFMEU obtained through application for membership made to the Mining and Energy Division of the CFMEU through the Western Australian District Branch of that Division. 8 Although evidence on the point was sparse, it appears that the relationship between Griffin and its employees at the Collie mine site who have dual membership of the CMU and CFMEU, is governed by an Award and by an Enterprise Agreement, presumably having force under the State IR Act, the parties thereto being Griffin and the CMU. 9 Industrial disputes in the coal industry in Western Australia involving parties to whom the State IR Act applies are dealt with by the Western Australian Coal Industry Tribunal ("the CIT") established under the Coal Industry Tribunal of Western Australia Act 1992 (WA). 10 On 10 November 1995, an eighty three point log of claims was served by the CFMEU on Griffin and on another coal mining corporation operating at the Collie coalfields. On 29 November 1995, the Australian Industrial Relations Commission ("the Commission") found a dispute between the CFMEU and coal miners operating in States other than Western Australia and held over determining whether Griffin was a party to that dispute. On 3 October 1996, the Commission determined that the finding of dispute on 29 November 1995 should include Griffin as a party to that dispute as of that date. 11 In August 2000, Griffin undertook a review of its mining business and on 31 August 2000 it distributed to its employees and to the CMU notice of alterations it proposed to make to the way in which its mining business was carried on. Griffin contended that such changes would enable Griffin to produce coal for sale at a lower price and allow it to compete with suppliers of other sources of energy. Griffin already operated its mines seven days a week, twenty four hours a day on twelve hour shifts. The proposals for change related, in the main, to the cessation by employees of work practices that Griffin regarded as restrictive; an end to demarcation disputes between organisations as to their coverage of employees; and the introduction of "regular performance appraisals" of the work carried out by employees. The proposal also included provision for voluntary redundancies. 12 In September and October 2000, Griffin held discussions with Wood and other "Union" officers. Griffin says it understood that those officers represented the CMU. In October 2000, the CFMEU brought an application in the Commission in respect of redundancy issues. The application was withdrawn at a later date. 13 On 13 November 2000, Griffin met again with Wood and other "Union" officers to discuss Griffin's proposals. At that meeting Wood informed Griffin that some issues would not be conceded by the "Union" and that a "bargaining period" would be "registered" with "the Federal system" under which negotiations for an agreement could be conducted. 14 On 20 November 2000, the CFMEU by notice under the hand of the "General President, Mining & Energy Division", gave notice to Griffin, and to the Commission, under s 170MI(2) of the WR Act of the intention of the CFMEU to try to make an agreement with Griffin "under Division 3 of Part VIB" of the WR Act. Several days later Wood, as secretary of the CFMEU, Mining and Energy Division, Western Australian District Branch, wrote to Griffin to set out suggestions by the CFMEU for achieving a multi-skilled workforce, as sought by Griffin, able to be deployed to various employment positions. 15 Meetings to discuss an "Enterprise Agreement" were held between Griffin representatives and "Union" representatives on the 7 December 2000, 12 December 2000 and 12 January 2001. On 23 January 2001, a draft agreement prepared by Griffin was forwarded to Wood, on behalf of the CMU, for "final consideration by your members". The document was said to be "related" to the "Current Mine Enterprise Agreement/Award". 16 Correspondence between the parties in respect of these negotiations show that the identity of the organisation negotiating with Griffin was either not recognised, or not understood, by Griffin. In that correspondence Wood wrote to Griffin as Secretary of the CFMEU Divisional Branch, and Griffin addressed its letters to Wood as an officer of the CMU. 17 In a letter dated 26 January 2001, Wood, as Secretary of the CFMEU Divisional Branch, advised Griffin that "[the] union executive and delegates from [Griffin's] operation" had met and discussed the draft agreement and that a meeting of members would be convened by the "union" on 30 January 2001 to consider the proposal. Wood advised Griffin that "[the] union and members will in the meantime continue to work in accordance with the award and current agreements". 18 By letter dated 27 January 2001, addressed to Wood on behalf of the CMU, Griffin acknowledged receipt of the foregoing letter from Wood and advised that anything less than full acceptance by the meeting of "members" of the draft proposal would be treated by Griffin as a rejection of that proposal and that Griffin would thereafter act unilaterally in respect of reordering employment arrangements. 19 On 29 January 2001, Griffin forwarded a letter to each of its employees setting out the concessions it said it had made in negotiations it had conducted with the "union leadership". Griffin stated that the concessions were reflected in the "proposal" to be considered by employees at the meeting to be held on 30 January 2001 and that Griffin would treat the proposal as rejected if any part of it was not accepted. 20 On 31 January 2001, Wood, as Secretary of the CFMEU Divisional Branch, wrote to Griffin and reported as follows on the meeting of members of the "Union" held on 30 January 2001: "The following resolution was carried unanimously by members: Muja branch condemns the arrogant and dictatorial attempt by Griffin coal management to pressure and influence our members, wives/partners and families with a mail out document that does not give enough time, and in some areas not enough detail for due consideration. We request Griffin Coal commit to supply documentation with all the detail so that it can be fully understood and negotiated in the appropriate forums and allow sufficient time for that process. Make a concerted genuine attempt to address some of the other issues raised during negotiations and not addressed, such as, extremely lowmorale, fatigue management, improving the work environment to help production within existing shift arrangements and treating all employees with respect. Accordingly we cannot accept the Griffin Coal proposal of 23 January 2001 in its present format. Until any agreed change is implemented, we will work in accordance with the award, the registered enterprise agreement and associated agreements and practices. The Union reaffirms the availability of delegates and officials to continue dialogue on the significant issues, albeit we are mindful of the content of your correspondence of 27 January 2001 where it is stated it was the Griffin Coal's "final proposal". There are elements of the proposal which were acceptable to union members, but as indicated in your letter it was all or nothing, hence notification of the proposal being rejected." 21 On the same day Griffin wrote to Wood, as agent of the CMU, advising that Griffin would implement changed work conditions for employees from 5 February 2001. 22 On 2 February 2001, the CFMEU forwarded to Griffin another notice under s 170MI of the WR Act of its intention to try to make an agreement with Griffin "under Division 2 of Part VIB" of the WR Act. The notice was under the hand of the "General President, Mining and Energy Division". 23 On the same day Wood, as Secretary of the Divisional Branch of the CFMEU, wrote to Griffin seeking a meeting on 5 February 2001 to discuss the notice. Griffin, by letter of even date, responded that it would not meet with the CFMEU unless Wood, on behalf of the CFMEU and its members, advised Griffin that the proposal put to members on 30 January 2001 was accepted as the basis of a certified agreement. 24 On the same day the CFMEU by "Notice To All Griffin … Production Workers" advised that a meeting would be held at the mine site on 5 February 2001, the business of the meeting being " A Report on the current position of Griffin dispute". 25 On 4 February 2001, Wood, on behalf of the CFMEU, replied to Griffin's letter to Wood as Secretary of the CMU, advising that "[The] Union reaffirms the position, as put in correspondence of 31 January 2001, that the Griffin Coal proposal is incomplete and hence the notification of Bargaining Period to not only deal with the Griffin Coal proposal but the Union's issues as raised during past meetings". 26 On 5 February 2001, Griffin wrote to Wood as District Secretary, CFMEU, Mining and Energy Division, to advise that Griffin did not approve of the meeting of Griffin employees to be held that day and enclosed a copy of a notice addressed to all employees which stated that Griffin would treat any absence from employment by an employee as a breach of a contract of employment and that such breach would be taken into account by Griffin in "determining the ongoing suitability in employment" of such an employee. 27 On the same day, Wood, on behalf of the CFMEU, responded by letter to Griffin as follows: "Any action taken against any member of the Union for attendance at the above meeting will be contested by the Union on their behalf. Due to your operations working 12 hour shifts, 24 hours per day, 363 days of the year, it is necessary to have mass meetings of the intended nature to permit the democratic process to operate efficiently." 28 On the same day Griffin replied to Wood, as District Secretary of the CFMEU, as follows: "Your organisation is free to liaise with its members in whatever fashion, and whenever, it sees fit outside of employees' work hours. There is no need for the Company's production to be disrupted for this purpose. Accordingly, I confirm the matters contained in my letter to you earlier today and, in particular, that your request for the meeting is denied. A copy of this letter shall be placed on employees' noticeboards." 29 By another letter on the same day, Griffin advised Wood, on behalf of the CFMEU, that the meeting of members of the CFMEU, employees of Griffin, that had been held that day was a breach by the employees of their contracts of employment and Griffin reserved its rights against Wood and the CFMEU. Later that day, Wood, on behalf of the CFMEU, wrote to Griffin enclosing a copy of the "Union's" application to the CIT for assistance in resolving a dispute with Griffin. The applicant to the CIT was the CMU and the application was made pursuant to the terms of the "Enterprise Agreement". Production workers employed by Griffin withdrew their labour on the afternoon of 5 February 2001. 30 On 6 February 2001, the CIT issued a recommendation that "there be an immediate return to the status quo, being the historic position which existed prior to 5 February 2001, as envisaged by clause 20 of the Griffin Coal (Production) Enterprise Agreement 1996 to 2001, pending resolution of the matters in dispute (identified by a letter dated 31 January 2001 from [Griffin] to the [CMU]) either by arbitration or by conciliation". 31 On 9 February 2001, the CIT ordered that "there be a return to the status quo" and that Griffin and the CMU recommence discussions as soon as practicable to resolve the matters in dispute. Griffin production workers returned to work on the evening of 9 February 2001. 32 On 12 February 2001, Wood, on behalf of the CFMEU, wrote to Griffin as follows: "We do not wish to be in conflict with Griffin Coal but believe the attempts to force change in the manner that has been adopted by Griffin Coal is unhelpful. It appears that you are being guided in these matters by your Solicitors. Their guidance has resulted in no more than costly and unsuccessful court proceedings. This is no way to conduct relations with the Union and the employees. As you know, the Union has given notice under the Federal Act for a Bargaining Period for a Certified Agreement. All matters Griffin Coal wishes to resolve are capable of resolution through a new comprehensive Certified Agreement which makes due allowance for the changes Griffin Coal seeks, as well as improved conditions for employees, as provided to Griffin Coal in detailed documentation delivered last Wednesday. Please advise me by 4.00pm today, Monday 12 February 2001, of your availability to meet this week." 33 By a notice issued by Wood as Divisional Branch Secretary, on 28 February 2001 the CFMEU advised "All CFMEU/CMU Griffin Employees" that a stop work meeting would be held on 6 March 2001. 34 By letter to Griffin dated 2 March 2001, under the hand of the "General President CFMEU Mining and Energy", the CFMEU advised that pursuant to s 170MO of the WR Act, notice was given that industrial action in support of the "claims" made in the notice of 20 November 2000 would be taken by members of the CFMEU employed by Griffin commencing at 6.40am on 6 March 2001 and ending at 6.40am on 13 March 2001. On the same day notice was given to the Commission, as required by s 170MR(1)(c), that members of the CFMEU had been authorised by the General President, Mining and Energy Division of the CFMEU to engage in industrial action against Griffin. 35 A stop work meeting was held on 6 March 2001 at the appointed time and at the conclusion of that meeting, Griffin production workers did not return to work. A picket line was established at about 11.00am. 36 The parties to the proceeding before the CIT returned to the CIT on 6 March 2001 when the CIT recommended that the parties continue to conduct discussions in an attempt to resolve the dispute. 37 Also on 6 March 2001, Griffin commenced an application in the WA Commission for an order directing Griffin employees to return to work. The application was heard on 8 March 2001. The WA Commission determined that it did not have jurisdiction to deal with the application. The respondent to the application was the CMU, and the CFMEU was given leave to intervene in the proceedings. 38 On 7 March 2001, Griffin wrote to Wood on behalf of the CFMEU, advising that Griffin was prepared to engage in discussions with the CMU pursuant to the recommendation of the CIT provided that employees called a halt to the strike and returned to work. 39 By a letter of even date, Wood, on behalf of the CFMEU, wrote to Griffin in the following terms: "I am in receipt of the above correspondence and there appears to be a misunderstanding by Griffin Coal in regard to the current stoppage. Griffin Coal will be aware the Union notified of the commencement of a Bargaining Period in pursuit of a Federally Registered Certified Agreement on Friday 2 February 2001 and provided yourself with a detailed Log of Claims on Wednesday 7 February 2001. Despite numerous requests by the CFMEU to discuss the claim, Griffin Coal have refused to negotiate. This has lead to notification by our National President, Tony Maher, on 2 March 2001, of the member's (sic) intention to commence a 7 day stoppage effective Tuesday 6 March 2001 in pursuit of our claim. We are unclear what, if any, issue you would be prepared to discuss should a meeting occur. Can you clarify whether the discussions are in regard to the matter before the Coal Tribunal - or the Certified Agreement. The Union is prepared to meet with you at a time desirable to you on either or both the issues in dispute." The letter seemed to treat the CFMEU and the CMU as one. That was also reflected in the terms of the letterhead, which was on behalf of "CFMEU Mining & Energy Division WA District Branch Incorporating CMIU. 40 By a letter to Griffin dated 9 March 2001, under the hand of "General President CFMEU Mining & Energy", the CFMEU advised Griffin that pursuant to s 170MO of the WR Act notice was given that industrial action in support of the "claims" made in the Notice of 20 November 2000 would be undertaken between 10.00am on 13 March to 6.40am on 17 March 2001 by members of the CFMEU employed by Griffin. 41 Griffin commenced proceedings in this Court on 9 March 2001. Griffin seeks interlocutory relief restraining the CFMEU, the CMU and Wood from organising, or being involved in, the industrial action notified on 2 March 2001 and in the further industrial action foreshadowed in the notice of 9 March 2001. 42 Before dealing with the grounds relied upon by Griffin for its claim to interlocutory relief, it is necessary to examine and construe the relevant provisions of the WR Act, namely, the provisions relating to certified agreements set out in Part VIB of the WR Act. 43 The history of these provisions has been described by Creighton & Stewart Labour Law: an Introduction, 3rd Ed, The Federation Press (pp 42-46): "[2.45] … In their submissions to the April 1991 national wage case both the government and the ACTU argued for the adoption of a new system in which wage increases would predominantly be available through "enterprise bargaining". This was rejected by the Commission - inter alia, because it considered that the parties did not yet possess the necessary expertise or "maturity" successfully to engage in enterprise bargaining. The government and ACTU reacted angrily to this decision and, despite a partial retreat by the Commission in its October 1991 decision, the government decided to promote a shift to enterprise bargaining by legislative means. This led to the introduction in July 1992 of new provisions relating to "certified agreements", the most distinctive feature of which was to limit the Commission's discretion to refuse to register certain types of agreement. These provisions were in turn displaced by the even more radical changes introduced by the Industrial Relations Reform Act 1993 (Cth). [2.46] As will appear presently, the 1993 amendments to the Industrial Relations Act 1988 (Cth) ushered in a period where centralised wage fixing continued to play an important role in the system, but one that was increasingly subordinated to enterprise bargaining. Instead of laying down wage increases of general application (whether by means of flat rate or percentage increases), the Commission tended to award flat-rate increases to those employees who had not received increases in wages through enterprise bargaining over the relevant period. In other words, national wage increases came more and more to be seen as part of a "safety net" of basic terms and conditions of employment which should underpin the operation of the enterprise bargaining process. [2.47] The role of awards as a "safety net" mechanism received further endorsement by the reforms which were introduced by the Howard Government's Workplace Relations and Other Legislation Amendment Act (1996) (Cth) (WROLA Act). … [2.52] The changes effected by the 1993 Act were clearly the most significant in the history of the system up to that time. They constituted a concerted attempt to shift the entire emphasis of the system away from the settlement of disputes by conciliation and arbitration in favour of prevention and settlement through direct bargaining at enterprise level. In order to do this, they made innovative use of the conciliation and arbitration power in s 51(35) of the Constitution: partly by placing increased emphasis upon conciliation rather than arbitration, and partly by focusing upon prevention of disputes rather then simply their settlement. They clearly proceeded from the assumption that certified agreements should be the primary vehicle for industrial regulation in the federal system, and permitted the negotiation of enterprise flexibility agreements between employers and workers without the necessary involvement of either trade unions or employer organisations. In order to achieve this latter objective, the 1993 Act drew upon the corporations power in s 51(20) of the Constitution. However, both certified agreements and enterprise flexibility agreements continued to be underpinned by safety net awards which protected the basic terms and conditions of all workers to whom they applied. The Act also used the external affairs power in s 51(29) of the Constitution as a basis for minimum standard provisions relating to rates of pay, equal remuneration for work of equal value, workers with family responsibilities, and termination of employment. The external affairs power also provided the constitutional basis for at least a partial recognition of the right to strike. … [2.53] The Coalition Government which was elected in March 1996 was committed to an even more thorough overhaul of the system than had been effected in 1993. … [2.55] The WROLA Act made a number of other important changes to the federal system. …They include: … · permitting incorporated employers to enter into certified agreements with a "valid majority" of their employees, without any form of trade union involvement." (Footnotes omitted) 44 The "right to strike" referred to by Creighton and Stewart is the right to that effect set out in Article 8(1) of the International Covenant on Economic, Social and Cultural Rights 1966 to which Australia has subscribed. In Victoria v The Commonwealth (1996) 187 CLR 416, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ upheld provisions of the Industrial Relations Act 1988 (Cth) equivalent to those which now appear in Division 8 of Part VIB of the WR Act as being provisions made within the legislative power with respect to external affairs provided to the Parliament by s 51(xxix) of the Constitution. Their Honours stated (at p 546): "In our view, it was reasonably open to the Parliament to conclude that even the existence of common law remedies against strikers and strike organisers is inconsistent with the provision of the right to strike. Put positively, it was open to the Parliament to conclude that qualifying common law rights of action against strikers will fulfil, at least in part, Australia's obligation to provide a right to strike within the terms of the Covenant." 45 Notwithstanding that the provisions referred to implemented a limited form only of the right provided by the Covenant, in their reasons their Honours stated that it was clear that the provisions were directed to implementing the terms of the Covenant in some degree and thus constituted an exercise of the legislative power provided by s 51(xxix) of the Constitution. 46 Two matters relevant to the question of construction of the provisions of Part VIB arise from the foregoing. First, the parties negotiating an employment relationship are to be permitted to reach agreement by use of bargaining skills and strategies available to employees and employers respectively. Second, the right to take industrial action to support claims made in respect of a proposed agreement to be reached by direct bargaining is designed to facilitate the statutory purpose of promoting direct bargaining between employers and employees by recognising, and controlling in some degree, the bargaining powers available to the negotiating parties. 47 The construction to be applied to the relevant provisions of Part VIB is that which promotes the purpose of the Act having regard to the fact that those provisions apply to employment relationships that may, in many respects, be based on informalities and certainly not governed by formal processes. The parties involved in an employment relationship will be more concerned with the practical affairs of industry, than with form or the niceties or subtle nuances of language. Construction of statutory process which bears upon that relationship, must have due regard to that fact, cf The Queen v Aird; Ex parte The Australian Workers' Union (1973) 129 CLR 654 per Barwick CJ at 659. 48 Therefore, a broad and non-constrictive approach should be applied to the construction of these provisions. 49 The object of Part VIB is stated in s 170L as being "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". 50 The agreements to which Part VIB apply, being agreements which may be certified by the Commission, are: 1. An agreement made between an employer that is a "constitutional corporation" (as defined in s 4) and all persons employed in a single business of that employer about matters pertaining to the employment relationship whether made with the employees directly or with an organisation of employees (ss 170LI, 170LJ, 170LK). 2. An agreement made between an employer carrying on a single business and an organisation of employees who are or were parties to a dispute, to settle, maintain settlement of, or prevent an industrial dispute (s 170LO). 3. An agreement made between an employer carrying on a single business and an organisation of employees to prevent an industrial situation giving rise to an industrial dispute involving those parties (s 170LP). 4. An agreement made between an employer carrying on a single business in a Territory and employees employed in that business about matters pertaining to employment relationships (s 5AA(2)). 5. An agreement made between a waterside employer and waterside workers employed in a single business of the waterside employer about matters pertaining to the employment relationship so far as matters of the agreement relate to trade or commerce between Australia and a place beyond Australia; between the States and/or Territories or within the Territory (s 5AA(3)(a)). 6. An agreement made between an employer and maritime employees employed in a single business of that employer about matters pertaining to the employment relationship so far as matters of the agreement relate to trade or commerce between Australia and a place beyond Australia; between the States and/or Territories or within the Territory (s 5AA(3)(b)). 7. An agreement made between a flight crew officers' employer and flight crew officers performing duties or being trained in a single business of that employer about matters pertaining to the employment relationship so far as matters of the agreement relate to trade or commerce between Australia and a place beyond Australia; between the States and/or Territories or within the Territory (s 5AA(3)(c)). 51 In respect of the agreements referred to in items 4, 5, 6 and 7 above, s 5AA(1) states that Division 2 of Part VIB and the provisions of that Division apply as mentioned in subss 5AA(2) and 5AA(3). Section 5AA is to be read, therefore, as adopting that part of Division 2 of Part VIB as is appropriate and necessary for satisfying the Commission that an agreement is of the type referred to in ss 5AA(2) or (3) and should be certified. 52 In so far as the WR Act regulates the negotiation by parties of an agreement able to be put before the Commission for certification, the provisions thereof relevant to this application are as follows: "170MI(1) If: (a) an employer; or (b) an organisation of employees; or (c) an employee acting on his or her own behalf and on behalf of other employees; wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party) may initiate a period (the bargaining period) for negotiating the proposed agreement. Note: This subsection has effect subject to subsections 170MW(10) and 170MZ(7). (2) The bargaining period is initiated by the initiating party giving written notice to each other negotiating party (see subsection (3)) and to the Commission stating that the initiating party 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. (3) In this Division, each of the following is a negotiating party to a proposed agreement: (a) the initiating party; (b) if the initiating party is an employer who intends to try to make an agreement under section 170LJ or 170LL or Division 3 - the organisation or organisations who are proposed to be bound by the agreement; (c) if the initiating party is an employer who intends to try to make an agreement under section 170LK - the employees at the time whose employment will be subject to the agreement; (d) if the initiating party is an organisation of employees - the employer who is proposed to be bound by the agreement; (e) if the initiating party is an employee acting on his or her own behalf and on behalf of other employees - the employer who is proposed to be bound by the agreement and the employees whose employment will be subject to the agreement. 170MJ The notice is to be accompanied by particulars of: (a) the single business or part of the single business to be covered by the proposed agreement; and (b) the types of employees whose employment will be subject to the agreement and the other persons who will be bound by the agreement; and (c) the matters that the initiating party proposes should be dealt with by the agreement; and (d) the industrial dispute (if any) to which the proposed agreement relates; and (e) the proposed nominal expiry date of the agreement; and (f) any other matters prescribed by the regulations. … 170ML(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply. (2) During the bargaining period: (a) an organisation of employees that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party; is entitled, for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement; or (f) responding to a lockout by the employer of employees whose employment will be subject to the agreement; to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action. … 170MO(1) Any action taken as mentioned in subsection 170ML(2) by: (a) an organisation of employees; or (b) a member of such an organisation; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party; is not protected action unless the requirements set out in subsection (2) are met. … 170MP(1) Engaging in industrial action by a person who is a member of an organisation of employees that is a negotiating party is not protected action unless the organisation has, before the person begins to engage in the industrial action: (a) genuinely tried to reach agreement with the employer; and (b) if the Commission has made an order in relation to the negotiations - complied with the order in so far as it applies to the organisation. … 170MR(1) Engaging in industrial action by members of an organisation of employees that is a negotiating party is not protected action unless, before the industrial action begins: (a) the industrial action is duly authorised by a committee of management of the organisation or by someone authorised by such a committee to authorise the industrial action; and (b) if the rules of the organisation provide for the way in which the industrial action is to be authorised - the industrial action is duly authorised under those rules; and (c) written notice of the giving of the authorisation is given to a Registrar. (2) Industrial action is taken, for the purposes of this section, to be duly authorised under the rules of an organisation of employees even though a technical breach has occurred in authorising the industrial action, so long as the person or persons who committed the breach acted in good faith. (3) Examples of a technical breach in authorising industrial action are as follows: (a) a contravention of the rules of the organisation; (b) an error or omission in complying with the requirements of this Act; (c) participation, by a person not eligible to do so, in the making of a decision by a committee of management, or by members, of the organisation. (4) Industrial action is taken, for the purposes of this section, to have been duly authorised under the rules of an organisation of employees, and to have been so authorised before the industrial action began, unless: (a) the Court declares in a proceeding that the industrial action was not duly authorised under those rules; and (b) the proceeding was brought in the Court within 6 months after the notification in relation to the industrial action was given to a Registrar under paragraph (1)(c). … 170MT(2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve: (a) a personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. … 170MV The bargaining period ends if any of the following events occur: (a) an agreement under Division 2 or 3 is made by the employer and any one or more of the other negotiating parties; or (b) the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Division 2 or 3 with that other party or those other parties; or (c) the Commission terminates the bargaining period. 170NC(1) A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, or not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mentioned in paragraph (c). Note: The Court has certain remedial powers in relation to a contravention of this section: see Division 10. (2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8). … 170NG An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision." 53 Griffin contends that the industrial action undertaken by Griffin employees in withdrawing their labour and establishing a picket line at the mine site is not "protected action" and puts forward grounds which rely on what it concedes to be technical breaches of the WR Act to support that submission. 54 First, Griffin submits that the notice forwarded to Griffin by the CFMEU on 20 November 2000 was not a "valid" notice and, therefore, did not initiate a bargaining period under s 170MI(2) of the WR Act. Griffin contends that a particular included in the notice for the purpose of satisfying the requirements of s 170MJ of the WR Act, was incorrect and, therefore, it was submitted, the notice given under s 170MI was invalid. 55 The claimed error was the description of the industrial dispute to which the proposed agreement related as "that found in C21797 of 1995". It is necessary to examine several historical events to understand that submission. 56 On 25 March 1995, the Commission found an industrial dispute between the CFMEU and, inter alia, Griffin. The proceeding in the Commission in which the dispute was found was designated C21797 by the Commission. On 8 November 1995, that finding was revoked after the Commission was satisfied that there was insufficient proof that the CFMEU official who directed that a log of claims be served on Griffin was authorised to give that direction. Revocation of the finding of dispute operated prospectively from 16 November 1995. 57 As noted earlier in these reasons, on 10 November 1995, the CFMEU served the log of claims on Griffin once more and in due course the Commission found a dispute between Griffin and the CFMEU from 29 November 1995. The designated number of the proceeding in the Commission in which that dispute was found was C23780 of 1995. 58 Under s 170MI, a "bargaining period" is initiated by a relevant party giving written notice to another party to which s 170MI applies of the intention to try to make an agreement able to be certified by the Commission under Part VIB. 59 Keeping in mind that the purpose of the provisions of the WR Act is to provide that parties to certain employment relationships may regulate their affairs by agreements negotiated between them subject to those agreements being able to be certified by the Commission pursuant to the terms of Part VIB, a bare notice of the intention to seek to negotiate an agreement to which the WR Act will apply is likely to suffice for the purpose of s 170MI. 60 Section 170MJ provides that the notice is to be "accompanied by" the particulars specified in that section. It is unnecessary to consider whether the words "accompanied by" encompass delivery within a reasonable period of provision of the notice referred to in s 170MI. 61 In the notice provided to Griffin by the CFMEU on 20 November 1999, the particulars to which s 170MJ refers were included in the notice as provided for in Rule 58 and Form 40 of the Australian Industrial Relations Commission Rules 1998 in respect of the form of notice to be given to the Commission under s 170MI(2). Under s170MI(2), notice of intention to make an agreement able to be certified by the Commission is to be given to the Commission in addition to the negotiating parties. The WR Act does not prescribe a form for the notice, or for the particulars, to be given to a negotiating party and, if it had, substantial compliance therewith would have been sufficient, there being no contrary requirement in the words of s 170MI or s 170MJ (see Acts Interpretation Act 1901 (Cth) s 25C). 62 Counsel for Griffin submitted, in effect, that s 170MJ is in mandatory terms with the intent that non-compliance with s 170MJ in any respect will "invalidate" a notice that complies with the requirements of s 170MI. 63 I am unable to accept that submission. The broad purpose of the WR Act governs the intent of provisions such as s 170MJ. The end point of Part VIB of the WR Act is certification by the Commission of an agreement that meets the requirements of Division 2 or Division 3 of Part VIB, or of s 5AA of the Act, in so far as that section provides for Division 2 of Part VIB to apply to agreements to which s 5AA refers. 64 The power of the Commission to certify an agreement that meets the requirements of the WR Act is not confined or restricted by the content of the notice by which one party to the agreement advised the other of its intention to try to make an agreement able to be presented to the Commission for certification under the WR Act. The purpose of s 170MJ is to inform a party asked to participate in a bargaining process what the matters for discussion will be in relation to the proposed agreement to be certified by the Commission. The parties will not be confined in the bargaining by the particulars supplied pursuant to s 170MJ,or, for that matter, by the provisions of the WR Act: The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award. (Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16 (15 March 2001) at [34]) 65 If it is contended that legislative provisions do provide for consequences of invalidity, construction of those provisions must have regard to the overriding purpose of the legislation as a whole. That principle was stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 in the following terms: "In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute"." (Footnotes omitted) 66 That view was reiterated in Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503 at [33-41]. 67 As McHugh JA said in Kingston v Keprose Pty Ltd (1987) 11 NSWR 404 at 421: "A rule of law enacted by statute consists of a proposition which gives rise to legal consequences when the act or omission of some person falls within the factual outline delineated by that proposition. The proposition may be neatly contained in a single sentence; or it may only be deducible from an examination of a number of sentences in a number of sections or paragraphs. Once deduced, the proposition is taken to represent what Parliament intended to enact. The difficulty is to determine whether Parliament intended a particular set of facts to fall within the factual outline of the proposition. That is, the difficulty is to determine the ambit of the factual outline which parliament intended to enact." 68 In so far as it was relevant to the notice provided under s 170MI and to the overall purpose of the WR Act, the requirements of s 170MJ(d) were satisfied by indicating that the proposed negotiations would attempt to provide an agreement that would meet the requirements of Division 3 of Part VIB to enable the agreement to be certified by the Commission. Indeed, it may be noted that the provisions of Division 3 provide for negotiation and certification of an agreement that prevents an industrial dispute arising from an "industrial situation" (s 170LP; s 4) and under s 170MJ no particulars of that "industrial situation" are required. 69 I note that a similar opinion as to the breadth of the scope of operation of s 170MI and s 170MJ was expressed by Wilcox J in Construction, Forestry, Mining and Energy Union v Curragh Queensland Mining (Wilcox J, 30 September 1998, unreported) at pp 15-17. 70 In any event, the particulars provided in purported compliance of s 170MJ(d) could not have misled Griffin as to the dispute relied upon. Griffin would have been aware, as at 29 November 1995, that a dispute had been found by the Commission based on the same log of claims to which the prior finding of dispute in proceeding C21797 had referred. Furthermore, the matters proposed to be dealt with in negotiation of the proposed agreement as particularised in the notice given to Griffin on 20 November 2000 referred to eighty four items set out in an attached schedule, and it may be assumed that but for item 84, the items replicated the log of claims served on Griffin on 10 November 1995 on which the relevant finding of dispute was made by the Commission. 71 I am not satisfied that it is seriously arguable that a bargaining period was not initiated by the notice given to Griffin by the CFMEU on 20 November 2000. 72 Counsel for Griffin further submitted that if the bargaining period had been initiated on 20 November 2000, it had been terminated by the further notice given to Griffin by the CFMEU on 2 February 2001 which stated that the CFMEU intended to try to make an agreement "under Division 2 of Part VIB" and to have the agreement certified. Except for the deletion of item 84 ( "Work performance management") the same log of claims was provided as particulars to the latter notice of the matters to be dealt with by the proposed agreement as provided with the first notice. 73 It was submitted that pursuant to s 170MV(b) the bargaining period had come to an end on 2 February 2001 because by reason of the notice given to Griffin on that day, the CFMEU had "told" Griffin that it no longer wanted to reach an agreement under Division 2 or Division 3 with Griffin. 74 The WR Act does not prescribe that an agreement able to be certified by the Commission must be one made after an election has been made by the initiating party as to which of the qualifying provisions of the WR Act will apply to the proposed agreement. 75 It is unnecessary to consider what effect, if any, the "second" notice given to Griffin by the CFMEU had under the WR Act. It is sufficient to say that s 170MV defines the circumstances in which the bargaining period is brought to an end and the relevant circumstance in this case is whether the CFMEU "told" Griffin in writing that it no longer wanted to reach an agreement with Griffin able to be certified under the WR Act. Putting to one side whether the word "tells" in s 170MV(b) imports an objective or subjective test, or a mixture thereof, on no view could it be seriously argued that by delivery of the second notice the CFMEU "told" Griffin that the CFMEU no longer wanted to reach an agreement with Griffin. 76 Indeed counsel put the submission not on the terms whether as a matter of fact the CFMEU intended so to act, but that as a "matter of law" the Act provided that the bargaining period had been terminated. That submission seemed to rest on an assumption that by "implication" the WR Act provided for termination of a bargaining period by the issue of another notice under s 170MI. Section 170MV of the WR Act cannot be so construed. Indeed, it would lead to an absurd result where a negotiating party likely to be affected by a strike or lockout taken against it as protected action, could remove that protection by issuing a notice under s 170MI. 77 The remaining submissions were concerned with arguments that the industrial action was not protected action under the WR Act. 78 First, it was submitted that the CMU engaged in the industrial action in concert with the CFMEU and members thereof, and as the CMU was not a negotiating party and was not a "protected person" under s 170MM of the WR Act, it followed under that section that the industrial action taken by CFMEU and its members was not protected action. 79 Griffin pointed to the notice for the "stop work" meeting held on 6 March 2001 and to Wood's dual position as secretary of the CMU and of the CFMEU, Mining & Energy Division, Western Australian District Branch, to support that submission. 80 The submission does not appear to raise an issue of substance. The notice of meeting was issued by Wood as secretary of the Divisional Branch of the CFMEU. Addressing the notice to "All CFMEU/CMU Griffin Employees" did not make it an act of the CMU. 81 The inference to be drawn from the relevant evidence was that Wood, in material events relating to industrial action, was acting as secretary of the Divisional Branch and that members taking industrial action were acting as members of the CFMEU. 82 Counsel also pointed to the CFMEU letterhead referred to earlier in these reasons and submitted that it supported an inference that the CFMEU and CMU were acting in concert. The letterhead did no more than reflect the situation recognised by s 71 of the State IR Act namely, that for the purposes of management of the State organisation the rules of the CFMEU Mining & Energy Division, Western Australian District Branch, were the rules of the State organisation. That did not mean that the two organisations at all times acted in concert. It was not necessary for the CMU to provide any assistance to the CFMEU for the CFMEU and its members to carry out the industrial action notified to Griffin and accordingly no inference to that effect arises from the material. 83 Second, Griffin submitted that purported members of the CFMEU were not members in fact and, therefore, were not protected persons under s 170MM. Counsel referred to the collection by the CMU of membership fees paid to the CMU by Griffin from wages of employees by direction and to the remission of part of those fees by the CMU to the CFMEU. Counsel said there was no evidence of compliance with the CFMEU Mining & Energy Division, Western Australian District Branch rules in respect of membership. 84 Two points suggest that that argument lacks substance. First, the State IR Act deems the relevant CFMEU rules, and compliance therewith, to satisfy management of that part of the affairs of the CMU under the State IR Act. It follows that the relevant membership rules are those of the CFMEU and it is to be inferred that compliance with the CFMEU rules is effected by the CMU as agent for the CFMEU to provide deemed compliance by the CMU with the rules under which it operates. The arrangement for the remission to the CFMEU of part of the membership fees collected by the CMU does not deny due membership of the CFMEU. The onus is on Griffin to adduce evidence to support that assertion, not upon the CFMEU to disprove it. 85 Second, the Rules (see Rule 7(v)(a)) recognise substance, rather than form, in the creation of the binding obligations of membership between the CFMEU and its members. In particular, the Rules recognise that payment of a subscription is sufficient to secure membership. Furthermore, s 260 of the WR Act would permit an order to be made to like effect, retrospectively, if the Rules had not so provided. 86 Next it was submitted that the industrial action was not protected action because, it was said, the notices of proposed industrial action were not notices duly authorised under the Rules. The notices, referred to earlier in these reasons, were given on 2 March 2001 and 9 March 2001 under the hand of the "General President CFMEU Mining & Energy". The notice lodged with the Commission stated that the General President was authorised by "the Divisional rules" to give authority to the members to take such action. 87 Under Rule 10(iv)(c) of the Divisional rules, the Central Executive of a Division has power to initiate "all actions…industrial disputes and other matters". The General President is the principal officer of the Central Executive who, with co-operation of the executive officers, is to carry out the objects of the Division. An inference arises from the material, and from the Rules, that the notices under the hand of the General President were issued with the authority of the Central Executive. 88 Even if that were not so, the deeming provisions of s 170MR(2) as to due authority are sufficient to conclude that the section would apply to the circumstances of this case so that no argument could arise that the industrial action was not protected action under s 170ML. 89 Counsel for Griffin then submitted that the industrial action was not protected action because the CFMEU had not "genuinely tried to reach agreement with" Griffin before the industrial action began. 90 The CFMEU may have been content for the CMU to carry out negotiation with Griffin whilst there was a prospect of an agreement being reached that was satisfactory to members, being an agreement to which the State IR Act would apply. However, once negotiations entered a new phase where the CFMEU determined that the interests of members were better served by negotiation being conducted by the CFMEU under the WR Act, as it did by at least early February 2001, thereafter the CFMEU had conduct of the matter and the material shows that it sought to reach an agreement with Griffin to which the WR Act would apply. To this point, Griffin has regarded the CFMEU as an unnecessary party to any negotiations and has refused to engage it in discussions. The lack of progress towards agreement to which the CFMEU notice of 20 November relates reflects the absence of mutuality rather than lack of any genuine attempt by the CFMEU to negotiate with Griffin in respect of that agreement. No serious issue for trial has been demonstrated by Griffin in that respect. 91 Next was submitted that under s 170ML(2)(e) the industrial action was not protected action in that the CFMEU and its members were not engaging in industrial action to support or advance claims made in respect of the proposed agreement. 92 The argument put forward was that as the only negotiation for an agreement that had taken place before the industrial action had commenced was that between the CMU and Griffin, it could not be said that the industrial action was in support of negotiations between Griffin and the CFMEU in the bargaining period. 93 Section 170ML(2)(e) is not limited to protecting industrial action taken to support or advance propositions put forward in the course of negotiations conducted subsequent to the presentation of claims sought to be dealt with in a proposed agreement. As the plain meaning of the words reveals it protects industrial action taken to support or advance claims made in respect of a proposed agreement. The section recognises that industrial action may be used where a party served with a notice of claims by an initiating party refuses to engage in any negotiation with that party. 94 The argument does not raise a serious issue to be tried. 95 Finally, it was submitted that the letter to Griffin from the General President, CFMEU Mining & Energy Division, giving notice of intended industrial action did not provide sufficient particulars of the industrial action proposed to be engaged as required by s 170MO(5). 96 The relevant part of the letter to Griffin providing notice of the intended industrial action read as follows: "The industrial action will take the form of a seven (7) day stoppage of work, commencing at 6.40a.m. on Tuesday, 6 March 2001 and continuing until 6.40 a.m. on Tuesday 13 March 2001. A peaceful protest line will be maintained at the entrances to Griffin Coal Mining Company's Ewington Mine and Muja Open Cut Mine." 97 The notice of further intended industrial action, in a letter from the General President to Griffin dated 9 March 2001, read as follows in relevant respects: "The industrial action will take the form of a seven (7) day stoppage of work, commencing at 10.00 a.m. on Tuesday, 13 March 2001 and continuing until 6.40a.m. on Saturday 17 March 2001. A peaceful protest line will be maintained at the entrances to Griffin Coal Mining Company's Ewington Mine and Muja Open Cut Mine." 98 The latter notice over-stated the number of days in which industrial action would be engaged in, but nothing turns on that. 99 Counsel submitted that in respect of the first notice, it was said that proposed industrial action would commence with cessation of work at 6.40am on 6 March 2001, whereas on that day a stoppage of work did not occur until after a "stop work meeting" had been held at 7.30am. It is said that the letter giving notice of industrial action did not provide sufficient particulars of the stoppage that did occur - (cf National Workforce v Manufacturing Workers Union (1997) 141 FLR 95 at 116 per Phillips JA). 100 The purpose of s 170MO is to allow a party that will be the object of industrial action to have adequate notice of what action is intended to be taken against it in order that it may make some preparation in respect thereof (cf Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 578 per Wilcox and Cooper JJ; Australian Workers Union v Yallourn Energy Pty Ltd (2000) 95 IR 207 at 214 per Merkel J). 101 I do not consider it to be seriously arguable that the notice provided to Griffin by the CFMEU failed to comply with the requirements of s 170MO(5) of the WR Act. The information provided was of sufficient particularity to alert Griffin to what would occur in its mining operations. If a stoppage occurred later than indicated in the notice, that did not mean that the notice of forecast action did not accord with the requirements of the Act. 102 All of the foregoing shows that no serious issue for trial has been demonstrated on the material adduced and therefore, it is unnecessary to consider the question of balance of convenience in respect of the granting of interlocutory relief. 103 The application for interlocutory relief will be dismissed. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.