Iluka Resources Limited v Construction, Forestry, Mining and Energy Union

REASONS FOR JUDGMENT 1 On 23 November 2011, I dismissed two applications for interlocutory injunctions and gave short reasons. I said I would give more detailed reasons later. These are the reasons. 2 Each of the applicant and the respondents has brought an application for an urgent interlocutory injunction. 3 By an application for urgent interlocutory relief filed on 21 November 2011, the applicant, Iluka Resources Limited (Iluka), brought one of the applications. The first respondent to this application is the Construction, Forestry, Mining and Energy Union (CFMEU), an "industrial association" for the purposes of the Fair Work Act 2009 (Cth). The second respondent is Mr Gary Wood, the State secretary of the Western Australian branch of the Mining and Energy division of the first respondent, and an employee of the first respondent. 4 Iluka and its employees in Western Australia are in the course of seeking to make a new enterprise agreement. Iluka has proposed an enterprise agreement to its employees, and has requested that the employees, who would be covered by the agreement, approve it by voting in a secret ballot. The voting period commenced on 19 November 2011 and concludes on 29 November 2011. It is for this reason, says Iluka, that the application for the interlocutory injunction is urgent. 5 This is, however, not the first occasion on which the employees of Iluka have been asked to vote on whether to approve the new enterprise agreement. The employees also voted by a secret ballot during the period 16 October 2011 to 21 October 2011. On that occasion, the vote was a tie, with 76 votes in favour and 76 votes against the agreement. After that result became known, the first respondent asked Iluka to recommence the bargaining process provided for under s 228(1) of the Fair Work Act. That section imposes an obligation on the parties to the bargaining process, to bargain in good faith. Iluka declined the request from the first respondent. Rather than recommence that process, Iluka asked its employees to vote again on the agreement in a second ballot. It is that ballot which concludes on 29 November 2011. 6 When Iluka declined the first respondent's request to recommence the bargaining process, the respondents brought an application in Fair Work Australia complaining about the refusal by Iluka to engage in a new bargaining process. By that application, the first respondent sought orders that Iluka desist from seeking approval of the enterprise agreement in the second ballot and that Iluka meet with the first respondent and other bargaining representatives to further negotiate the agreement. That application was heard on 9 November 2011. 7 On 14 November 2011, the first respondent published a flyer, entitled "Vote No to the Iluka Agreement. Why?". This flyer contained the statement "Iluka have refused the CMFEU request to bargain in Good Faith". The flyer complained about Iluka's conduct in this regard and about the terms of the agreement which Iluka was proposing that the employees accept. 8 On 14 November 2011, the first respondent published a second flyer, entitled "What's the Rush Iluka?". This flyer made further comments upon the terms of the proposed agreement and said that there were "very few benefits to employees under their proposed agreement that will change current arrangements anyway" and also that a "a vote in support of the agreement rewards Iluka for refusing to bargain in good faith". 9 On 16 November 2011, Commissioner Williams of Fair Work Australia handed down the decision. Commissioner Williams found that the applicant's refusal to continue bargaining following the tied vote, was not a breach of its good faith bargaining requirements under s 228 of the Fair Work Act. 10 On 18 November 2011, the first respondent published a third flyer, entitled "Notice to all Iluka Employees Re: Collective Agreement". The third paragraph of the flyer referred to its invitation to Iluka to embark upon a good faith bargaining process and then went on to state "This was rejected by Iluka who were/are determined to impose the inferior agreement on employees". 11 Each of the three flyers stated that it was authorised by Mr Gary Wood. 12 Iluka contended that in publishing the impugned statements in the three flyers, the respondents knowingly made false or misleading representations in contravention of s 345 of the Fair Work Act. 13 Section 345 of the Fair Work Act provides: (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. 14 In its application for interlocutory relief, Iluka seeks to restrain the respondents, the CFMEU and Mr Gary Wood, who are bargaining representatives of some of the affected employees, from continuing to publish the impugned statements contained in the three flyers, and, also, seeks orders that the respondents forthwith remove the flyers from display and publish a corrective statement. Iluka relies upon the powers of the Court in s 545(1) and s 545(2)(a) of the Fair Work Act. Those subsections provide as follows: (1) The Federal Court or the Federal Magistrates Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. (2) Without limiting subsection (1), orders the Federal Court or Federal Magistrates Court may make including the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention… 15 The second application for an urgent interlocutory injunction is brought by way of an oral application by the respondents, who, as I have said, are bargaining representatives for some of the Iluka employees. The respondents seek an urgent interlocutory injunction stopping the conduct of the second ballot which is currently underway. The respondents contend that the Fair Work Act does not provide for a second ballot to be undertaken in circumstances where the first ballot is inconclusive. It is their contention that in the circumstances of an inconclusive ballot for the making of an enterprise agreement, the bargaining process should recommence. The respondents have undertaken to file a cross-claim seeking a declaration as to the proper construction of the Fair Work Act and an injunction.