Independent Education Union of Australia v Canonical Administrators, Bar - [1998] FCA 1530 - FCA 1998 case summary — Zoe

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Independent Education Union of Australia v Canonical Administrators, Bar

[1998] FCA 1530

Federal Court of Australia|1998-09-09|Before: Ryan J, Wilcox J, Derrington J, North J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

1998-09-09

Before

Ryan J, Wilcox J, Derrington J, North J

Source

Original judgment source is linked above.

Judgment (72 paragraphs)

[1]

INTERIM INJUNCTION - power of the Court to grant interim orders -injunction to restrain the employer terminating the employment of employees - order requiring the employer to reinstate employees dismissed for picketing - construction of ss 170NG, 170NH and 298U(b) and (c) - application of s 23 of Federal Court of Australia Act 1976 (Cth) to these sections - whether orders may be made under s 170NG in the absence of a claim for a penalty under s 170NF - whether serious question to be tried that employer engaged in conduct in contravention of ss 170MU and 298K Workplace Relations Act 1996 (Cth) - onus of proof under s 298V - whether balance of convenience favours the continuation of orders - interrelationship between serious question and balance of convenience. INDUSTRIAL LAW - protracted industrial dispute - strikes and picketing - termination of employment - threat to dismiss further employees - whether employer engaged in conduct in breach of s 298K Workplace Relations Act 1996 (Cth) - whether dismissals were for a prohibited purpose - whether breach of s 170MU Workplace Relations Act 1996 (Cth) - whether employees engaged in protected action - whether picketing constitutes industrial action - whether industrial action engaged in "in concert" - whether notice was sufficient under s 170MO. PRACTICE AND PROCEDURE - whether judge should disqualify himself for apprehended or actual bias - factors claimed to give rise to apprehended bias examined. Workplace Relations Act 1996 (Cth) ss 4(1), 4(9), 127, 170L, 170ML, 170MM, 170MO, 170MT, 170MU, 170MW, 170ND(c), 170NF, 170NE(9), 170NG, 170NH, 298K, 298L, 298T, 298U, 298V Federal Court of Australia Act 1976 (Cth) ss 22, 23 Trade Practices Act 1974 (Cth) ss 45(2), 80 Workplace Relations Act 1997 (Qld) Trade Union & Labour Relations (Consolidation) Act 1992 (UK) Trade Union Reform & Employment Rights Act 1993 (UK) Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (Ryan J, Federal Court of Australia, 9 September 1998, unreported) Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Murphy v Lush (1986) 65 ALR 651 Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (1984) 3 FCR 55 Construction, Forestry, Mining & Energy Union v Curragh Queensland Mining Ltd (Wilcox J, Federal Court of Australia, 30 September 1998, unreported) Castlemaine Perkins Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (Derrington J, Supreme Court of Queensland, 2 December 1997, unreported) FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269 Coal and Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union (1998) 80 IR 14 Construction, Forestry, Mining & Energy Union v Full Bench of the Australian Industrial Relations Commission (Full Court, Federal Court of Australia, 6 November 1998, unreported) Dowling v Bowie (1952) 86 CLR 136 Flower Davies Wemco Pty Ltd v Australian Builders Labourers' Federated Union of Workers, WA Branch (1986) 20 IR 88

[5]

UPON THE APPLICANT by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the Court directs - AND UPON THE APPLICANT by its counsel further undertaking that it will not engage in any industrial action relating to the negotiations with the respondent concerning an enterprise agreement - In this undertaking "industrial action" does not include any action by an employee if: (a) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (b) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another work place, that was safe and appropriate for the employee to perform. AND UPON THE APPLICANT by its counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998. THE COURT ORDERS THAT:

Until further order, the respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons named in the schedule to this order as employees of the respondent with continuity of service save and except for the purpose of payment of wages; and
Until further order, the respondent, by itself, its servants and agents, is restrained from terminating the employment of the said employees and Alexander Pucar.
Paragraphs 1 and 2 do not prevent the respondent accepting the resignation of any of the said employees or Alexander Pucar.
Liberty to the parties to apply on the giving of 24 hours' notice in writing to the other party.
The respondent's application for disqualification is dismissed. SCHEDULE Bill Allison Brian Augustus Scott Benge Jerry Borg Gary Boyd Spencer Bragg Joe Calleja Vince Camilleri Tony Casey Phil Cotter Joe Darouti Arthur Davies Eddy Dawson Noel Evans Chris Frost Jason Funnell Ian Johnson Graham Mains Miladin Markovic Alan McLean Michael Morawsky Glen Murray Warren Oxton Andrew Perkins Daniel Phillips Ignacio Pinkihan Bernie Portelli Jim Ramsay Andrew Rowley Kevin Saliba Michael Smith Tony Sultana Ray Treacy Lou Vanderburg Anthony Younis Robert Heather Shane Irvine Michael Mahboub Edgardo Fernandez Grace Overton Marion Nemeth Michael Moses Brett Solomon Michael Galea Christine Crook Albert McKinley Gary Conlon Michael Dukes Anthony Spicer S Reti J Carratt A Prasad

[8]

Davids Distribution Pty Ltd (Davids), the respondent, operates a large wholesale grocery business. It distributes goods to retailers from centres at Blacktown and Silverwater in New South Wales and Fyshwick in the Australian Capital Territory. The National Union of Workers (the Union), the applicant, is an organisation of employees registered under the Workplace Relations Act 1996 (Cth) (the Act). Davids employed about 300 people at the Blacktown distribution centre, about 60 at the Silverwater distribution centre and about 20 at the Fyshwick distribution centre. Many of these employees were members of the Union. In October 1997, the Union served a log of claims on Davids seeking a new industrial agreement, including increased wages for employees at the distribution centres. This claim developed into a long running dispute, characterised by many proceedings in the State and Federal Industrial Relations Commissions. It is not necessary to recount the involved history of the dispute prior to June 1998. The events directly relevant to the issues raised in this application commenced on 16 June 1998. On that day, the Union served a notice of intention to take industrial action on Davids. It appears that this notice was later withdrawn. But, in apparent response to it, Davids gave its employees a memorandum, dated 18 June 1998, in the following terms: "The National Union of Workers has advised us that its members employed by us will be commencing an indefinite stoppage from tomorrow. As union delegates have commenced asking for annual leave we are forced to assume that there will be such a strike. You should be aware that whilst your union is advising you that the strike is 'protected action' under Federal industrial legislation, our legal advice is that it is not. This matter will not be resolved until well after the strike. If our legal advice is correct and the strike was not protected action, then it is clear that if you take part in the strike you will be guilty of misconduct. Of course if the union is correct then you will not. It is a matter for you to decide whether to risk your employment on the basis of the union's advice. Regardless of the above issue, it is clear that stopping trucks entering and leaving the premises is not, and never can be, protected action. Any employee who, whilst engaged in a strike or otherwise, interferes with the free access to or exit of any vehicles or people from any of the warehouses operated by this company will clearly be guilty of serious and willful [sic] misconduct. Such employee's employment will be terminated with immediate effect." On the same day, the Union served on Davids a notice of intention to take industrial action, which read as follows: "NOTIFICATION OF PROTECTED ACTION (S.170MO) In accordance with section 170MO of the Workplace Relations Act 1996 the National Union of Workers hereby gives notice of protected action in the form of

bans and rolling stoppages by members of the Union employed by Davids Distribution Pty Limited At the following sites: Davids Distribution Pty Limited 37 Bessemer Street, Blacktown NSW 2148 Ph: 9208 1222; Fax: 9208 1257 Davids Distribution Pty Limited 4 Newington Road, Silverwater Ph: 9202 4301; Fax: 9202 4308 Davids Distribution Pty Limited Cnr Nyrang and Mildura Streets Fyshwick ACT 2609 Ph: 0262 9525 66; Fax: 0262 9509 01 This action shall commence on Thursday, 25 June 1998 and relates to the bargaining period initiated by the National Union of Workers in C No 2155 of 1998." On 25 June 1998, rolling stoppages commenced as notified. Then, at about 3 pm on 8 July 1998, an indefinite strike began and pickets were formed outside the entrances to the three distribution centres. On the next day, 9 July 1998, Mr Zammitt, the Assembly Manager at the Blacktown Distribution Centre, and Mr Blazejko, a Warehouse Supervisor at the Blacktown Distribution Centre, were instructed by Mr Richards, the State Manager for Distribution in New South Wales and the ACT, to take the names of employees whom they observed interfering with the free access of vehicles or persons at the Blacktown Distribution Centre. There were about 70 or 80 picketers present. Mr Zammitt and Mr Blazejko identified 35 employees. On the same day, Davids sent letters to the 35 employees, in the following form: "Dear Sir, You were observed at a picket line at the entrance of this company's Distribution Centre at 37 Bessemer Street, Blacktown during the afternoon of Thursday, 9 July 1998. Whilst on that picket line you were observed to interfere with the free access to or exit of vehicles and/or persons at the Distribution Centre. On the 18th of June 1998, I wrote to you advising you that your employment would be terminated if you engaged in conduct of that kind. As you are aware your conduct represents a dismissible offence. If you have any matter that you wish us to consider before taking action in respect of your conduct, your [sic] are invited to phone Mr David Small at or before 10:00am on 10 July 1998 on 9208‑1358. Failing any satisfactory explanation or matter in mitigation being raised with us by that time your services will be terminated and cheque will be forwarded to you for outstanding monies." On 14 July 1998, Davids sent letters in similar terms to four more picketers in relation to alleged obstruction which occurred on that day and, on 20 July 1998, Davids sent a further ten letters to more picketers in relation to alleged obstruction which occurred on that day. On 20 August 19998, Davids sent a letter to Mr Reti in generally similar terms, although it alleged particular incidents against Mr Reti. It stated that he had damaged a bus window on 14 August 1998 and a prime mover window on 15 August 1998. On 21 August 1998, Davids sent letters in generally similar terms to Mr Prasad and Mr Carratt, although they alleged a particular incident against both, namely, damaging a bus window on 11 August 1998. In total, Davids sent such letters to 52 picketers. On 13 July 1998, Davids obtained an ex parte injunction from the Supreme Court of New South Wales against the Union and three officers, restraining them from impeding the entry or exit of persons or vehicles from the New South Wales distribution centres. On 15 July 1998, Davids filed a motion for contempt, based upon the alleged breach of the ex parte orders obtained two days before. The hearing of this motion commenced on 27 July 1998, and concluded on 7 August 1998. The day before the hearing concluded, Davids sent the Union an offer to settle the dispute. On the day the hearing concluded, 7 August 1998, Davids sent a letter to the strikers, in the following terms: "Dear Fellow Employee, As you would be aware, the industrial dispute at our Blacktown and Silverwater sites has now been going for seven weeks. Whilst the company has made a substantial offer on increased wages, the union has apparently declined to even tell you of the offer or allow you to vote on it. Contrary to the misinformation contained in union circulars, the offer contains a number of changes to which the union has agreed and provides for a 6% wage increase whilst maintaining the 36 hour week. Regardless of acceptance of the offer or otherwise the company is going to have to take some steps to return its operations to normal. In early July we informed employees that the NUW maintained that the strike upon which employees were embarking was 'protected action'. This has now changed. Mr Belan, the NSW Secretary of the NUW, has announced on Radio 2KY and Radio 3CR that the action is being taken in conjunction with other unions including the MUA, the CEMEU, the AMWU, the CEPU and the Clerks Union. Section 170MM of the Workplace Relations Act makes it clear that industrial action is not protected if more than one organisation is involved. In other words, the strike is no longer a 'protected action'. We have enclosed a copy of the section of the Act to assist you in obtaining advice. You should check Independent Legal Advice in relation to continuing with your strike. As the strike is no longer a 'protected action', any further absence from employment by you is unauthorised absence from work for which you will be liable to termination. UNLESS YOU ARE AT WORK ON OR BEFORE THE FIRST ROSTERED SHIFT ON WEDNESDAY THE 12TH AUGUST, YOU WILL BE REQUIRED TO SHOW CAUSE WHY YOUR EMPLOYMENT SHOULD NOT BE TERMINATED."

[9]

THE BASIS OF THE APPLICATION The Union filed the application in this proceeding on 11 August 1998, the day before the threatened dismissal of the strikers. As the terms of the application are relevant to some of the arguments addressed by Davids, it is convenient to set out the terms, which were as follows: "A. DETAILS OF CLAIM On the grounds appearing in the accompanying Affidavit the Applicant claims: 1. A declaration that the Respondent has engaged in conduct in contravention of s.170MU of the Workplace Relations Act 1996 (the 'Act') in dismissing or threatening to dismiss employees, members of the Applicant, engaged in industrial action. 2. A declaration that the Respondent has engaged in conduct in contravention of Part XA of the Act in dismissing or threatening to dismiss employees, members of the Applicant, engaged in industrial action. 3. A declaration that the purported termination of employees, members of the Applicant, engaged in industrial action on and after 8 July 1998 was and is ineffective and void. 4. An order that the Respondent treat all persons employed by it on 8 July 1998 as employees of the Respondent and any purported termination of such person as void. 5. An order restraining the Respondent, its servants or agents from taking any and all steps to give effect to any purported termination of employment effected on or after 8 July 1998 and/or to give effect to any threat of termination made on or after 8 July 1998. 6. Penalties. B. CLAIM FOR INTERLOCUTORY RELIEF AND THE APPLICANT CLAIMS by way of interlocutory relief: 1. An order that, until further order of the Court, the Respondent, by its servants and agents, take no steps to give effect to any purported termination of employees of the Respondent who are members of the Applicant. 2. An order that, until further order of the Court, the Respondent, by its servants and agents, take no steps to give effect or carry out any threat to dismiss or terminate any employee of the Respondent, being an employee who is a member of the Applicant." The Union contended in argument that the dismissals of the picketers was wholly or partly for the various reasons set out below, and therefore contravened the section of the Act specified below: (a) for the reason that the picketers had engaged in protected action (s 170MU(1)). The protected action was attending on the picket and/or taking and continuing strike action; (b) for the reason that the picketers were members of the Union, which was seeking better industrial conditions, and the picketers were dissatisfied with their conditions (s 298L(1)(l)); (c) for the reason that, as a member of the Union, the picketers attended the picket and/or took and continued strike action for the purpose of furthering or protecting the industrial interests of the Union, such picketing and/or remaining on strike being: (i) lawful; and (ii) within the limits of an authority expressly conferred on the picketers by the Union under its rules (s 298L(1)(n)). The Union argued that the Court had power to, and should, make interim orders having the effect of reinstating the picketers. The Union also argued that the purported dismissals were void and ineffective because they were made in breach of the specified sections of the Act. The Union contended that the threats to dismiss the strikers were wholly or partly for the various reasons set out below, and therefore contravened the section of the Act specified below: (a) for the reason that the strikers had engaged in protected action (s 170MU(1)). The protected action was taking and continuing strike action; (b) for the reason that the strikers failed to vote in favour of the making of an agreement to which the Union would be a party (s 298L(1)(e)); (c) for the reason that the strikers were members of the Union, which was seeking better industrial conditions, and the strikers were dissatisfied with their conditions (s 298L(1)(l)); (d) for the reason that the strikers, as members of the Union, took and continued strike action for the purpose of furthering or protecting the industrial interests of the Union, such strike being: (i) lawful; and (ii) within the limits of an authority expressly conferred on the strikers by the Union under its rules (s 298L(1)(n)). The Union argued that the Court had power to, and should, make interim orders restraining Davids from carrying out its threat to dismiss the strikers. THE COURSE OF PROCEEDINGS AND ORDERS MADE On 11 August 1998, most of the employees of Davids were on strike and many of them were present on the picket. At the first hearing, on 11 August 1998, Davids gave undertakings not to dismiss any employees until 4.15pm on Friday, 14 August 1998, and the further hearing was adjourned until then. On Friday, 14 August 1998, the matter was again mentioned. Davids expressed concern about the continuance of the picket and alleged continuing breach of the orders of the Supreme Court of New South Wales. The Union was not able to offer an undertaking in respect of the continuance of the picket. Consequently, the hearing was adjourned for mention by videolink on Monday, 17 August 1998, to allow the Union to consider the question. No injunctions were granted in the meantime. On Monday, 17 August 1998, the Union was still not able to undertake that there would be no picket action by its members. But it indicated that the question would be considered by a meeting of members on Wednesday, 19 August 1998. Consequently, no injunctions were granted and the application for interim orders was adjourned for full argument until 26 August 1998. On 26 August 1998, the application for interim orders was argued. The Union offered undertakings as to damages and an undertaking to cease industrial action. Davids indicated that it wanted the employees, other than the picketers, to return to work. For practical purposes, the only issue between the parties at the end of this day was whether the balance of convenience favoured the making of orders. The only issue of substance urged by Davids on this question was that the return of the picketers would cause acrimony in the workplace. As there was no evidence of this likelihood and Davids was prepared to take back strikers who had been on the picket but had not been dismissed for their attendance, the Court granted injunctions in the following terms, on the undertakings set out below: "UPON THE APPLICANT by its Counsel undertaking to pay to any party adversely affected by these Orders such compensation (if any) as the Court thinks just, in such manner as the Court directs - AND UPON THE APPLICANT by its Counsel further undertaking that from 3:00 pm on Friday 28 August 1998 it will not engage in any industrial action relating to the negotiations with the Respondent concerning an enterprise agreement - In this undertaking 'industrial action' does not include any action by an employee if: (a) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (b) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another work place, that was safe and appropriate for the employee to perform. AND UPON THE APPLICANT by its Counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998. AND UPON THE APPLICANT by its Counsel further undertaking to enter into an agreed process of discussion with the Respondent as to the circumstances of the purported termination of each of the 52 employees with a view to narrowing the differences between the parties on this issue. THE COURT ORDERS THAT: 1. Until 4:00 pm on 9 September 1998, the Respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons employed by it on 8 July 1998 as employees of the Respondent with continuity of service save and except for the purpose of payment of wages; and 2. Until 4:00 pm on 9 September 1998, the Respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, be restrained from taking all and any steps to give effect to any purported termination of employment effected on or after 8 July 1998 or to give effect to threat of termination made on or after 8 July 1998. 3. The further hearing of this application be adjourned to 10:15 am on 9 September 1998 to consider the extension of the above orders beyond 9 September 1998 and for directions. 4. Liberty to apply on very short notice." Reasons for decision were given. The further hearing was adjourned until 9 September 1998 to allow Davids to adduce evidence on the narrow question of the possible difficulty arising in the workforce from the continued presence of the picketers at work. As a result of the orders, the strikers and picketers returned to work in shifts commencing on 28 August 1998. On 9 September 1998, new counsel appeared for Davids. They sought to reopen the entire argument. In the end, I reluctantly agreed to hear argument on all issues and Davids' argument took the entire day. In the course of argument, counsel for Davids raised the problem that the existing orders prevented resignations of employees and prevented Davids recognising the abandonment of employment by some employees. Consequently, the orders made on 26 August 1998 were slightly modified, by adding a new paragraph 2, as follows: "2. Order 1 does not apply to employees of the Respondent who resign or abandon their employment." Otherwise, the orders made on 26 August 1998 were continued until 22 September 1998, the date fixed for the Union to put its argument in response. On 22 September 1998, the Union put its argument and Davids foreshadowed an application for disqualification. This application, which is dealt with in detail later in these reasons, was heard on 23 September 1998. On 23 September 1998 I reserved my decision in relation to the application for interim relief and on the application for disqualification. The orders made on 26 August 1998, as modified on 9 September 1998, were continued until the determination of the application for interim orders. The Union argued that the existing orders should be further continued and Davids argued that the orders should be discharged. Resolution of the issues before the Court requires reference to a number of statutory provisions.

[10]

SECTION 170MU AND ASSOCIATED PROVISIONS One basis for the Union's application is asserted to be s 170MU, which relevantly provides: "170MU (1) An employer must not: (a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action. ..... (3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action." Section 170MU is found in Division 8 Part VIB of the Act and the Part is entitled "Certified Agreements". The object of the Part 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). The scheme of the Division is to provide for a bargaining period, during which the taking of certain industrial action is immune from legal action. A bargaining period is commenced by service of a notice of initiation of bargaining period by a negotiating party on another party with whom the former seeks to make an agreement. Section 170ML identifies conduct that constitutes protected action. It provides relevantly as follows: "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. … (7) This section has effect subject to the following provisions of this Division." "Industrial action" is defined in s 4(1), for the purposes of, inter alia, s 170ML, as follows: "'industrial action' (except in Part XA) means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if: (i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or (ii) the failure or refusal is in connection with an industrial dispute; or (iii) the persons are employed by the Commonwealth or a constitutional corporation; or (iv) the persons are employed in a Territory; but does not include: (e) action by employees that is authorised or agreed to by the employer of the employees; or (f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or (g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform." Section 4(9) provides: "For the purposes of this Act: (a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and (b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions." The immunity of industrial action from legal action depends upon the industrial action fulfilling certain conditions. The conditions relevant in this case are the absence of action in concert (s 170MM) and the giving of notice (s 170MO). Section 170MM provides: "170MM (1) Engaging in industrial action is not protected action if: (a) it is engaged in in concert with one or more persons or organisations that are not protected persons; or (b) it is organised other than solely by one or more protected persons. (2) Organising industrial action is not protected action if: (a) it is organised in concert with one or more persons or organisations that are not protected persons; or (b) it is intended to be engaged in other than solely by one or more protected persons. (3) In this section: protected person means: (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." Section 170MO relevantly provides: "(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. (2) The requirements are that: … (b) in any other case - the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days' written notice of the intention to take the action. .... (5) A written notice or other notification under this section must state the nature of the intended action and the day when it will begin." The immunity of certain protected action, and the limits to the extent of the immunity, are set out in s 170MT (2) and (3), as follows: "(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) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action." Enforcement of, inter alia, s 170MU and provision for remedies for contravention of the section are provided in Division 10 of Part VIB. Section 170MU is defined as a "penalty provision" (s 170ND(c)). Section 170NF(1) provides: "A contravention of a penalty provision is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision." The Federal Court is an eligible Court (s 170NE(a)). Section 170NG provides: "An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision." Section 170NH provides: "(1) If an employer contravenes section 170MU, an eligible court may order the employer: (a) if the contravention was constituted by dismissing an employee - to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and (b) in any case - to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice. (2) The rights of and relating to reinstatement that are conferred on a person by this section do not limit any other rights of the person."

[11]

SECTION 298K AND ASSOCIATED PROVISIONS The other basis for the Union's application is asserted to be s 298K, which is found in Part XA and which relevantly provides: "(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person. The prohibited reasons upon which the Union relied are set out in s 298L (1) (e), (l) and (n), as follows: "(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: .... (e) in the case of an employee - has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or .... (l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or .... (n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules." An application for orders under s 298U, in respect of conduct in contravention of Part XA can be made to the Federal Court. Section 298U provides: "In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - $10,000; or (ii) in any other case - $2,000; (b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor; (c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate; (d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not make any further threat; (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects; (f) any other consequential orders." The onus of proof is dealt with in s 298V, as follows: "If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise."

[12]

NO CLAIM FOR REINSTATEMENT UNDER THE ACT WAS MADE Counsel for Davids contended that the Court could not entertain a claim for reinstatement under the Act because the application made no claim for reinstatement under the Act. There are references in paragraphs 1 and 2 of the application to conduct in contravention of s 170MU and Part XA of the Act. But these references, so it was contended, were directed to an allegation that any termination of employment was illegal and, by reason of the illegality, ineffective and void. That allegation, it was argued, was intended by the Union to support the relief sought in paragraphs 4 and 5, namely, orders requiring Davids to treat any termination as void and restraining Davids from giving effect to any such termination. It was argued that the relief was not sought under the Act but was sought in the exercise of the Court's general jurisdiction. The relief was not a claim for reinstatement as is provided for in s 170NH and s 298U(b). In my view, the substance of the relief sought in paragraphs 4 and 5 is reinstatement of employment as from the date of termination. This relief is claimed in respect of each of the three separate bases of liability set out in paragraphs 1, 2 and 3. The application would have put the matter beyond argument if it had added at the end of paragraph 1 "and for orders for reinstatement under s 170NH", and had added at the end of paragraph 2 "and for orders for reinstatement under s 298U(b)". But, even in the absence of these words, a fair reading of the application leads to the same construction. There is, however, a more fundamental answer to the argument. One purpose of the written application is to require the applicant to convey to the respondent the basis of its claim and, thereby, to allow the respondent a proper opportunity to respond. Even if Davids was initially in doubt as to the basis of the Union's claims, the course of argument made it clear that the applicant relied on s 170NH and s 298U. Davids had, and took advantage of, the opportunity to put full argument to the Court on the Union's claims under s 170NH and s 298U. Even if there were some inadequacy in the terms of the application, the Court would not, in these circumstances, refuse to deal with the Union's claims under s 170NH and s 298U. The matter would fall within the terms of s 22 of the Federal Court of Australia Act 1976, which provides: "The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided."

[13]

NO PROCEEDINGS FOR A PENALTY Davids also argued that reinstatement could be ordered under s 170NH or s 298U only if an application were made under s 170NF or s 298T. These sections were, it was contended, "gateways" to relief under s 170NH and s 298U. Even if the proposition were correct, it would not assist Davids in the present case because paragraph 6 of the application seeks the imposition of penalties. But, in my view, the proposition is not correct. An application for a penalty under s 170NF is not a "gateway" to relief under s 170NG or s 170NH. Each of the sections provides for different relief. Each form of relief may be claimed independently. In Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (Federal Court of Australia, 9 September 1998, unreported) Ryan J held that an application for an injunction under s 170NG or relief under s 170NH could be granted even if no penalty was claimed under s 170NF. His Honour held that the alleged contravention of s 170MU was a matter arising under the Act in relation to which the Court has jurisdiction under s 412 of the Act, which provides: "(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act; or (b) actions may be brought in it under this Act; or (c) questions may be referred to it under this Act; or (d) appeals lie to it under section 422; or (e) penalties may be sued for and recovered under this Act; or (f) prosecutions may be instituted for offences against this Act. (2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946." His Honour said, at pp16-17: "It is significant that the introductory words of the section acknowledge that the Court has jurisdiction 'with respect to matters arising under the Act' in relation to which applications and other proceedings of the kinds enumerated in paragraphs (a) to (f) may be brought. A 'matter arising under the Act' is different from a proceeding which may be brought under the same Act. Thus in Felton v Mulligan (1971) 124 CLR 367 Menzies J said, at 382: It is to be observed from s 76(i) and (ii) of the Constitution that there is a difference between a matter arising under a law and a matter involving the interpretation of a law. A matter may involve the interpretation of a law without arising under that law. Thus, for instance, if, upon a claim for damages for negligence at common law, it became necessary to interpret some statutory provision imposing some duty upon the defendant, the litigation would involve the interpretation of the statutory provision but would not arise under it. A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation. A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law. It is to be observed that there is a difference between a 'proceeding' arising under a law and a 'matter' arising under a law. A 'proceeding' arises under a law only when it is authorized by that law; see Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, at p 537. A 'matter' need not be a 'proceeding'; it may be part of a proceeding, e.g. a defence that the law authorizing the proceeding is unconstitutional. So it is that a matter may arise under a law made by the Parliament in a proceeding which does not arise under that law. Of course, the legislature may define in an exclusive way if it wishes, the procedural machinery by which a court is to determine 'matters' in respect of which the court has been invested with jurisdiction. This was acknowledged by the High Court In Re Judiciary and Navigation Acts (1921) 29 CLR 257 were it was observed at 265: .... we do not think that the word 'matter' in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorise this Court to make a declaration of the law divorced from any attempt to administer that law. However, the use in s 412(1) of the facultative expression 'may be brought' suggests that the legislature in this context was not concerned to confine this Court's exercise of the jurisdiction to matters arising in proceedings which had been instituted in one or other of the ways indicated in paragraphs (a) to (f)."

[14]

SECTION 298U Counsel for Davids submitted that s 298U did not allow the Court to make interim orders for reinstatement. Two arguments were advanced. One was that the opening words of the section "In respect of conduct in contravention of this Part, the Court may .... make one or more of the following orders" meant that the orders can only be made after a final determination that there has been a contravention. This argument was rejected by the majority of the High Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, at 655: "The applications which may be made to the court under s 298T and the orders which may be made by the court under s 298U are defined in the same terms, namely, 'in respect of conduct in contravention of this Part'. Counsel for the appellants submits that those words preclude the exercise of any of the powers prescribed by s 298U unless the court is satisfied on a final hearing that the contravening conduct has in fact occurred. But s 298T is not defining a condition that must be satisfied before an application can be made or the jurisdiction to hear and determine the application can be exercised; that section is defining the subject matter of the court's jurisdiction under the Act. Whether or not an application is 'in respect of' contravening conduct depends not on the facts that are ultimately found but on the basis of the relief which is sought by the party invoking the jurisdiction. If the relief sought is an order of the kind prescribed in the lettered paragraphs of s 298U and if the basis of the relief is alleged conduct in contravention of Pt XA of the Act, the jurisdiction of the court is effectively invoked." The other argument advanced by Davids was that, upon the proper construction of s 298U, the Court was precluded from granting an interim order for reinstatement. Counsel for Davids contended that there was a general power to grant interim injunctions in s 298U(e). The power to grant specific relief by way of reinstatement was contained in s 298U(b). This specific power was not expressed to include a power to grant interim reinstatement. Consequently, it was argued, Parliament must be taken to have intended that the power to order reinstatement was limited to the making of final orders. The Union relied on s 23 of the Federal Court of Australia Act as the source of power to make interlocutory orders for reinstatement. It provided: "The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate." Davids then responded that s 298U was an exclusive code, restricting the relief available by way of reinstatement to final orders. Reliance was placed on Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 162. Thomson was concerned with s 80 of the Trade Practices Act 1974 (Cth), which provided for the Court to grant final injunctions restraining a person from contravening a provision of the Trade Practices Act. Section 45(2) of the Trade Practices Act prohibited contracts, arrangements or understandings which had the purpose or likely effect of substantially lessening competition. The majority (Gibbs CJ, Stephen, Mason and Wilson JJ) held that s 23 of the Federal Court of Australia Act did not allow the Court to grant a final injunction beyond the circumstances referred to in s 45(2). Their Honours said, at 161: "When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act"; and, at 162: "....s 80 proceeds upon the footing that it constitutes the Federal Court's exclusive charter to grant injunctions restraining, or relating to, contraventions of the Trade Practices Act. .... The inference is irresistible that Parliament looked upon s 80 as a complete and comprehensive statement of the circumstances in which injunctions might be granted in respect of relief sought under the Trade Practices Act." Davids' argument was that s 298U also enacted such a limitation and thereby precluded the operation of s 23 of the Federal Court of Australia Act. In my view, s 298U is not an exclusive code in relation to the grant of interim relief by way of reinstatement. This was also the view of the Full Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626, where it was said, at 637‑638: "Moreover, having regard to the provisions of the Workplace Relations Act it should not be assumed that the principles expressed in cases such as JC Williamson and Argyll have application to contracts of employment regulated by that Act. For example, the Act contemplates the reinstatement of a wrongfully dismissed employee. When the legislation contemplates relief of that type then there is no reason why interlocutory relief which may have the same practical effect should not be available to an employee whose rights have been arguably unlawfully infringed." On appeal, the High Court considered the power to make interlocutory orders in relation to the power granted in s 298U(e) to make orders "that the Court thinks necessary to stop the conduct or remedy its effects". That power was not a power to make interim orders. The majority of the High Court considered that s 23 of the Federal Court of Australia Act provided power to make interlocutory orders by reference to the final relief claimed under s 298U(e). The majority said, at 655-656: "[26] .... In so far as the power of the court under s 298U(e) is to make an order necessary to remedy the effects of contravening conduct, counsel for the appellants may well be correct in submitting that the power conferred by s 298U(e) is exercisable only when those effects have been found to exist. That is the condition upon the power to make a final order; it is not the definition of the jurisdiction to hear and determine an application in respect of alleged contravening conduct. The power to make an interlocutory order is exercised by reference to the relief finally available but that is not, or is not necessarily, to say that the power to make the final order is the source of the power to make an interlocutory order or confines the power to make an interlocutory order. [27] .... Once the jurisdiction conferred on the Federal Court by the Act is invoked, that court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to make 'orders of such kinds, including interlocutory orders ..... as the Court thinks appropriate'. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s 23 power to the court in that class of proceeding. It cannot be invoked to grant an injunction where the court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction (Byrne v Australian Airlines Ltd (1995) 185 CLR 410, at 425-426). But this is not such a case." In the same way that the majority of the High Court in Patricks held that s 298U(e) was not an exclusive code of the remedies available under that section, I hold that s 298U(b) is not an exclusive code of the remedies available. Section 23 of the Federal Court of Australia Act allows the Court to make interlocutory orders for reinstatement.

[15]

SECTION 170NG AND SECTION 170NH Counsel for Davids contended that s 170NG did not apply to past contraventions of s 170MU. It could not, therefore, be a basis for final relief in relation to the picketers who were dismissed. The section is concerned with a power to restrain continuing or future contraventions. Section 170NH was complementary, in that it applied to past contraventions and allowed orders for rectification by way of reinstatement or compensation. There is merit in this analysis. Counsel for Davids, however, submitted that s 170NG and s 170NH permitted the Court to make final orders only. In respect of s 170NH, this conclusion flowed from the opening phrase "If an employer contravenes section 170MU ....". It was argued that these words required the establishment of a proven contravention before any orders could be made. Doubtless, the purpose of these words is to specify the jurisdiction of the Court to make final orders. In my view, that is the only purpose of the phrase. It has nothing to say, either expressly or by implication from its context, about the circumstances in which interim orders may be made. Section 170NH is not an exclusive code in relation to reinstatement orders. It does not exclude the operation of s 23 of the Federal Court of Australia Act in respect of the power to make interlocutory orders for reinstatement. Even if s 170NH were an exclusive code in respect of the making of final orders, it would not prevent s 23 from operating in respect of interlocutory orders. In Thomson, the High Court said, after holding that s 80 of the Trade Practices Act provided a code in relation to the power to make final orders, at 165: "No doubt the Federal Court has power to accept an undertaking at an interlocutory stage when the undertaking is reasonably related to the orderly procedure of the Court or to the subject matter of the litigation, as Deane and Fisher JJ observed, even though it is not in a form which falls within s 80." In my view, s 23 of the Federal Court of Australia Act gives power to make interlocutory orders in cases in which final orders may be made under s 170NG or s 170NH. Nothing in these sections suggests that they restrict the application of s 23. Section 23 is available in the same way and for essentially the same reasons as it is available in relation to s 298U. THE GENERAL APPROACH TO THE CONSIDERATION OF THE MAKING OF INTERIM ORDERS As the Court has power to make the interim orders sought, the question arises whether the Court should make these orders. The traditional approach to this matter is to consider whether the applicant has established a serious question to be tried, and whether the applicant has established that the balance of convenience favours the grant of the orders: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651, at 653;Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, at 153-154; Murphy v Lush (1986) 65 ALR 651, at 652; Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (1984) 3 FCR 55, at 58-59.

[17]

NOTICE - SECTION 170MO Davids contended that the notice of 18 June 1998 of intention to take industrial action did not conform to the requirements of s 170MO(5), in that it did not state "the nature of the intended action" and it did not state "the day on which it will begin". The action to be taken was described in the notice as "bans and rolling stoppages" and was stated to commence on 25 June 1998. The action taken, for which protection is claimed by the Union, is the strike and picket from 8 July 1998 until 11 August 1998, when this application was filed. What is meant by "the nature of the intended action" is governed by the context in which s 170MO(5) appears. Unlike the equivalent United Kingdom legislation: Trade Union & Labour Relations (Consolidation) Act 1992 (UK), as amended by the Trade Union Reform & Employment Rights Act 1993 (UK), the Act provides a comprehensive definition of industrial action. In the absence of subsection (5), the only requirement would be to notify that "industrial action" was to be taken. The presence of subsection (5) allows me to assume that, in its absence, a simple reference to the expression "industrial action" in a notice would suffice. The function of subsection (5) is to require notice of the "nature" of the action. The "nature", in my view, is a reference to the specific element of the definition of industrial action which applies to the situation. This is a limited requirement to specify the general type of action to be taken. It can be contrasted to a requirement to notify "particular" action intended to be taken. There is good reason for a limited notice requirement. The construction, which I favour, has the advantage of certainty. Those notifying need only choose a description from the list of action within the definition. A requirement to notify particular action would often lead to controversy as to whether the action notified fell within the definition. This would inject uncertainty into a process which requires as much certainty as is possible. That Parliament has opted for certainty at some expense to comprehensiveness of description is evident from the requirement to specify the time of commencement of the industrial action. There is no requirement to specify the duration nor, as is required by the United Kingdom legislation, whether the action is to be continuous or discontinuous. To determine what reference to the definition will suffice as a description of the nature of the industrial action to be taken, it is necessary to examine the definition of industrial action. The definition covers three types of activity. A strike is covered by subparagraph (d), and work to rules or go slows and like conduct is covered by subparagraph (a). Both provisions refer to the action taken by an employee in respect of the employee's own work. Subparagraphs (b) and (c) include actions of employees in relation to others. They both relate to bans, limitations or restrictions on the performance of work, the acceptance of work, or offering for work. This subject matter remains constant throughout both subparagraphs. The remaining matters in each subparagraph are directed to the jurisdictional basis of the provision. Thus, if the notice refers to "bans", it must be taken to be a reference to the bans referred to in subparagraphs (b) or (c) of the definition, that is to say, bans on the performance of work, the acceptance of work, or the offering for work. The description "bans" sufficiently describes the nature of the industrial action where the person notifying intended, at the time of notification, to impose bans at the time designated in the notice. Reference to the jurisdictional basis of the provision is not necessary in order to describe the nature of the industrial action for the purposes of s 170MO(5). Thus, in my view, there is a serious issue to be tried that the notification of "bans" was a sufficient notification of the action of the picketers in attending the picket. Thus, the safest course for persons notifying an intention to take industrial action is to adopt the language of the definition of "industrial action". But that is not to say that a notification which uses other words to describe the intended action will not be effective. There may, however, be more room for argument. Probably, notification of a "strike" would fall within paragraph (d). But does "rolling stoppages" describe the strike action taken after 25 June 1998 in attempted reliance upon the notice? It is accepted by Davids that there were rolling stoppages between 25 June 1998 and 8 July 1998. On 8 July 1998, there was a refusal to work which lasted at least until the filing of this application. It is argued that the uninterrupted strike action after 8 July was not properly described as part of "rolling stoppages". In my view, it is arguable that the longer stoppage was part of the series, and it can properly be described as part of a series of rolling stoppages because of the events which occurred before it. The notice did not and was not required to state how long each of the rolling stoppages was to last. The definition of "industrial action" includes reference to a course of conduct consisting of a series of industrial actions (s 4(9)). In a letter dated 12 October 1998, Davids requested that the Court take account of the decision of Wilcox J in Construction, Forestry, Mining & Energy Union v Curragh Queensland Mining Ltd (Federal Court of Australia, 30 September 1998, unreported). In that decision, his Honour determined that a complete cessation of work was not within the description "overtime bans, bans on the use of contractors, work-to-rule, stop-work meetings and rolling stoppages". However, the facts in that case were distinguishable from the present case. In that case, there was one interrupted cessation of work from 9 May to 25 August. In the present case, there was a series of stoppages of work commencing on 25 June 1998. That is to say, there was not a single cessation of work. Whether the circumstances fall within the description of the notice is a question of fact in each case. Wilcox J was concerned with a different set of facts than in the present case. In my view, "rolling stoppages" is an expression which arguably covers the present case of a series of stoppages of work. This type of problem of description shows the value of the construction which would permit a description of the nature of the industrial action by following the words of the definition in the statute. In this case, the industrial action would have been sufficiently described as "failing to attend for work in connection with an industrial dispute". In my view, there is a serious issue to be tried that the action of the strikers was sufficiently notified by reference in the notice to "rolling stoppages".

[18]

IS PICKETING WITHIN THE DEFINITION OF INDUSTRIAL ACTION? In ordinary parlance, picketing is industrial action. It is a very common form of conduct used to support industrial demands. Other statutory schemes providing immunity for industrial action, such as United Kingdom legislation Trade Union & Labour Relations (Consolidation) Act 1992 (UK)as amended by the Trade Union Reform & Employment Rights Act 1993 (UK), extend the immunity to picketing subject to certain limits. In Castlemaine Perkins Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (Supreme Court of Queensland, 2 December 1997, unreported) Mr Justice Derrington had to consider whether picketing fell within the definition of "strike" under the Queensland Workplace Relations Act 1997. "Strike" was defined in broadly similar terms to "industrial action" under the Federal Workplace Relations Act. His Honour held that picketing fell within the definition. The differences in the provisions may be material in the final analysis but some of his Honour's observations apply equally to the construction of the provision now under consideration. His Honour observed: "It is such a significant part of industrial action [picketing] that if it were intended to have been excluded it might be thought, firstly, that that would somehow be made plain rather than depend upon an exclusive reading of fairly broad provisions of a definition; and secondly, that it would have been referred to in the Minister's speech. .... 4. Normally picketing would be expected to be within the meaning of the expression 'industrial action' used to define the various activities in this way and the normal meaning of that term tends to colour the reading of that passage even though of course picketing does not amount to striking in the normal sense of the term. 5. The preservation of the right to picket seems in industrial law to be strongly associated with the right to strike in International Labour Law. See Creighton and Stewart Labour Law, second and paragraph 1102 footnote 2. It should be noted that under the provisions of the Act itself, section 3(I) under the title 'Principle object of the Act' refers to 'assisting in giving effect to Australia's international obligations in relation to labour standards' and that includes the preservation of the right to strike in the broader sense." As was the case in Queensland, there is no suggestion that picketing is outside the definition of "industrial action" in the Minister's second reading speech. Also, s 3(k) of the Act provides that "assisting in giving effect to Australia's international obligations in relation to labour standards" is one of the means of achieving the principal objects of the Act. As Mr Justice Derrington observed, these considerations point to the likelihood that picketing is included within the definition of "industrial action". Turning now to the terms of the definition of "industrial action", we see that such action includes "a ban .... on the performance of work, or on the acceptance or offering for work" and "the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work ....". In my view, it is arguable that picketing is a form of "ban" within the definition of industrial action in the Act. A picket is formed by a group of people assembled at the entrance to a workplace, to demonstrate the picketers' demand that others not attend for or perform work. This is a form of ban on the performance of work. It is a physical and moral barrier to the performance of work. A ban is also, and perhaps more commonly, constituted by a decision of a governing organ of an organisation of employees to the effect that members of the organisation should not perform work. It is a moral and, possibly, legal barrier to the performance of work by members of the organisation. In neither case is the ban restricted to the work of the person imposing the ban. Further, it is arguable that a picket is the adoption of a practice in relation to work, the result of which is a restriction or limitation on or a delay in the performance of work. Again, the definition does not compel the conclusion that the practice must be in relation to the work of the person adopting the practice. There are at least two indicators in the Act which support this construction. The immunity of protected action from legal action, granted by s 170MT(2), is limited to industrial action which does not involve personal injury, wilful or reckless destruction of or damage to property, or the unlawful taking, keeping or use of property. This limitation is likely to have been drawn with picket conduct in mind. If picketing was not industrial action, the limitation would apply only to injury to person or property associated with strikes or conduct such as work to rules. Personal and property injury is far more likely to be associated with a picket than with a refusal to work or a work to rules. Furthermore, if the definition of industrial action did not include picketing, a very common instrument of industrial disputation would be outside the scope of the power of the Industrial Relations Commission. A central power of the Industrial Relations Commission to intervene in industrial disputes relates to industrial action as defined and is contained in s 127(1) and (5), which provide: "(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to: (a) an industrial dispute; or (b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or (c) work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur. .... (5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order." The Federal Court has power to enforce these orders under subsections (6) and (7), which provide: "(6) The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation: (a) has engaged in conduct that constitutes a contravention of subsection (5); or (b) is proposing to engage in conduct that would constitute such a contravention. (7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6)." In FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366, Drummond J assumed that picketing was industrial action, although the question was not expressly determined by him. In the Australian Industrial Relations Commission (the Commission), in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269, at 275, Boulton J, on the application of certain unions, ordered the termination of a bargaining period under s 170MW of the Act. Section 170MW(1) and (3) provided: "(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed. .... (3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening: (a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (b) to cause significant damage to the Australian economy or an important part of it." The industrial action relied upon included strike and picket action, and retaliatory action by the employer. The employer and the Commonwealth argued "that industrial action referred to in s 170MW(3) and as defined in s 4 of the Act does not include picketing conduct". This construction was referred to as the narrow construction. The unions and the State of New South Wales argued that picketing was industrial action. His Honour said, at 279-280: "The nature of the power given to the Commission under s 170MW(1) and (3) also tends to support the adoption of a construction of s 170MW(3) which does not confine the subsection in the way contended by the Commonwealth and the Company. It is a special power which allows the Commission to terminate a bargaining period where there is a risk of serious harmful effects for the economy or the community. An order to terminate a bargaining period under s 170MW(3) may be made on the Commission's own initiative, on the application of the Minister or on the application of a negotiating party (s 170MW(8)). Where such an order is made the Commission may exercise conciliation and arbitration powers under s 170MX to bring about a settlement of matters in issue. It would seem inappropriate to construe the subsection in such a way that the Commission can only take action where there is a risk of serious harmful effects caused by the taking of protected action. For the above reasons, I tend to prefer the broader construction of s 170MW(3) put forward by New South Wales and the unions." His Honour, however, did not have to choose between the two constructions because there were grounds for termination of the bargaining period on both constructions. On appeal to a Full Bench of the Commission, his Honour's decision was quashed: (1998) 80 IR 14. As to whether picketing was within the definition of "industrial action" the President, Justice Giudice, said, at p 32: "Conduct that is not capable of being industrial action within the meaning of the Act is not a proper subject for assessment even if it is thought to be in support of the proposed agreement. .... The parties were at odds on the issue of whether picketing fell within the definition of industrial action. No submission made on the appeal compels the view that picketing as such, whether lawful or unlawful, is within the definition of industrial action. It is axiomatic that picketing is conduct engaged in outside the workplace by persons who either are not employees or who, being employees, have absented themselves completely from work. Whilst employees in the latter category may be engaging in industrial action in that they are on strike, the picketing activity is distinct." Justice Munro, although agreeing in the result, said as to this issue, at p 53: "Also, in my view, 'picketing' can be found to be industrial action within the meaning of the Act. Activity that can be identified as, or is called picketing is conduct by individuals, some of whom may be employees of the workplace picketed. In my view such activity or conduct may also in some circumstances constitute industrial action. Conduct that is picketing may, on occasions, be conduct that amounts to the adoption of a practice in relation to work, or a restriction on the performance or acceptance of work, within the definition of 'industrial action'." It is not clear whether Commissioner Larkin agreed with Justice Giudice or Justice Munro on this issue. The union sought prerogative relief from the High Court against the decision of the Full Bench of the Commission. This application was remitted to the Federal Court. A Full Bench of the Federal Court (Spender, Moore and Branson JJ, 6 November 1998, unreported) quashed the decision of the Full Bench of the Commission. The Court held that it was not necessary to express a concluded view on whether picketing was within the definition of "industrial action". The Court, however, did offer a tentative view that picketing was not industrial action. It said[BB1]: "The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in para (c) of the definition. That is, if it is a restriction on the performance of work or on the acceptance of or offering for work. The word 'picketing' may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace. The word 'picketing' may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere). Even if used to describe the latter situation it is unlikely that picketing is conduct comprehended by the expression 'a .... restriction on the performance of work' as it appears in para (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression 'a .... restriction .... on acceptance of or offering for work' in para (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in para (c) relate to circumstances of the type just discussed. It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it. Reference was made to the judgment of Drummond J in FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366 that might suggest that picketing is industrial action as defined. However that question was not directly addressed in his Honour's reasons. The scope of the definition of 'industrial action' appears not to have been canvassed in argument in that matter which generally related to the operation of the protective provisions of the WR Act on picketing. Other authorities referred to by counsel for the applicants in these proceedings including In re Building Construction Employees and Builders Labourers Federation of New South Wales v Jennings Industries Ltd (1982) AR 677 at 688 and the judgment of Derrington J in Castlemaine Perkins Pty Ltd v The Australian Liquor and Hospitality and Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (unreported, 2 December 1997, Supreme Court of Queensland) either did not depend on a definition of industrial action or related to a definition that was in materially different terms to that appearing in s 4 of the WR Act." These decisions reflect a variety of judicial views on the question whether picketing is within the definition of "industrial action". The variety of views demonstrates that there is a serious issue to be tried that picketing is within the definition of "industrial action".

[20]

Davids relied on statements made by Mr Frank Belan, the New South Wales State Secretary of the Union, on radio stations 3CR and 2KY to sustain its argument. Although counsel did not identify the particular evidence upon which Davids relied, I expect it is to be found in part of exhibit 53 to the affidavit of Gary Johnson, sworn 13 August 1998. This exhibit contains a number of transcripts of radio interviews with Mr Belan on 3CR. On 19 July 1998, Mr Belan said: "COMPERE: Right. And the workers there look very united and very tough. Is that the case? BELAN: Oh, absolutely. They get a momentum - - there's enormous support coming through now from other unions, including New South Wales Labour Council indicating they are going to call a meeting of all affiliates on Monday to ask them to assist us - - participate in the action." On 22 July 1998, the following exchange occurred on 3CR: "COMPERE: I'm a member of the Metal Workers Union and we passed motions of support for the dispute. What can unions down here in Melbourne and unions do down here to support - - BELAN: Well, we had enormous support up here. It's so far from .... MUA, they've had a strong presence up there. Their officers, including the State Secretaries, the members have been up here, they're helping people around the picket line, as some people call it. CFMEU have been enormously supported, obviously, and the members. The AMWU even came out last Tuesday. So we - the momentum's getting .. [indistinct] .." On 2 August 1998, the following exchange occurred on 3CR: "COMPERE: .... And I also understand there was a great show of solidarity on Friday, with other unions coming to support you. BELAN: Oh, yeah, we had enormous support on Friday. A number of good unions come up, such as MUA come up with (.. indistinct ..) enormous financial donation and the moral support with their bodies and everything else, you know. And the AMW, with the CFMEU (.. indistinct ..) state secretary and that Paul Bastion, state secretary of the AMW Manufacturing Union. CPEU [sic] - - even in the Clerk's union and so on. It's incredible support that's coming out. We're getting a momentum." There is no evidence of collaboration or joint action between the Union and the supporters referred to in the interviews. There is no evidence that the Union solicited the support of other unions. The evidence falls short of showing that there was action in concert. The evidence is evidence of support. Mere support is not action in concert. Further, industrial action taken in concert with persons who are not protected is only unprotected while the action is taken in concert. Thus, for example, for Davids to show that the picketing, on 9 July, which gave rise to the dismissal of 35 picketers, was unprotected, it must show that the action in concert occurred on that day. The evidence does not generally allow the Court to determine the time at which the alleged action in concert occurred. THE CASE UNDER SECTION 170MU(1) In the light of my conclusions on the three legal issues just discussed, and on the evidence as a whole, the Union has established that there is a serious issue to be tried that the picketers were dismissed, at least partly, for the reason that they engaged in protected action in contravention of s 170MU(1)(a). For the same reasons, the Union has established a serious question to be tried that Davids threatened to dismiss the strikers, at least in part, for the reason that they were engaging in protected action, namely, participating in the continuance of the strike, in contravention of s 170MU(1)(b). I emphasise that these conclusions are based on the evidence as it presently stands, and are made for the purpose only of determining whether there is a serious issue to be tried. The conclusions are necessarily preliminary. At the trial, the evidence may well be different and will, in any event, be subject to testing by cross-examination. The present tentative conclusions are based on the affidavits filed in the application without cross-examination of the deponents.

[21]

THE CASE UNDER SECTION 298K In the event that I am wrong about the case under s 170MU(1), I now consider whether a serious issue to be tried under s 298K has been established. I will first consider the Union's allegation that Davids dismissed the picketers and threatened to dismiss the strikers for the reason that they were members of the Union, which was seeking better industrial conditions, and that the picketers and strikers were dissatisfied with their conditions, that is to say, the reason prohibited by s 298L(1)(l). Once the Union alleged that Davids acted for the prohibited reason, a presumption was raised by operation of s 298V that Davids did act for that reason unless Davids proved otherwise. Section 298V applies in interim applications: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, at 647. As in Patricks, there was no express denial by Davids that it acted for this reason. The person responsible for the dismissal seems to have been Mr Ray Richards, the District Manager for New South Wales and ACT. He prepared the memo dated 18 June 1998 and gave instructions for its distribution. He instructed various employees of Davids to observe the picket and report the names of employees who obstructed trucks on the picket. He signed the letters to the picketers, and he instructed Mr Craddock to prepare termination statements and cheques for the picketers. He swore two affidavits, one on 25 August 1998 and one on 4 September 1998. In neither of these affidavits did Mr Richards directly deny the allegation that the dismissals were made for the reason that the picketers were members of the Union which was seeking better industrial conditions and the picketers were dissatisfied with their conditions. Mr Gary Johnson, the National Industrial Relations Manager, swore a very extensive affidavit on 13 August 1998 concerning the history of the dispute and the details of the daily happenings on the picket. He swore another affidavit on 4 September 1998, well after the extent of the Union's allegations had been ventilated. He also made no express denial of the allegations made by the Union. On the basis of the silence of Mr Johnson and/or Mr Richards, the case under s 298K is made out as a result of the failure of Davids to discharge the onus of proof. It may be suggested that it was implicit in Davids' case that it acted against the picketers solely for the reason that they were obstructing trucks on the picket. In my view, there is a serious question to be tried that Davids did not dismiss the picketers solely because they obstructed trucks on the picket. The videos of the conduct on the picket after 13 July 1998 show conduct on the picket ranging from picketers wandering onto the roadway in a group and causing trucks to stop for a few minutes to violent resistance to police attempting to drag picketers from the roadway in front of trucks. In respect of the conduct on the picket before this, the Union conceded that there had been significant obstruction to trucks. In almost all cases, Davids did not identify particular conduct of individual employees upon which it based its decision to dismiss that employee. Davids' position was that it would dismiss employees if they were involved in any obstruction of trucks, however minor. It is unlikely, in my view, that Davids would have believed that such conduct would justify dismissal in all the circumstances. It is arguable, on the evidence at this stage, that Davids was committed to dismiss some of its employees who were on strike whatever the extent of their conduct on the picket or even if such conduct had minimal effect on the movement of trucks. There was advantage to Davids in asserting picket conduct as the reason because it contended the picketing could not be protected action. That Davids was not solely concerned with conduct on the picket is indicated by evidence which suggests that Davids was not interested to hear any explanation from the picketers of their conduct. Although the letter to the picketers invited them to phone and explain their position prior to termination, there is evidence that the invitation was issued, in some cases, after the time for explanation had passed, that, in other cases, there was no answer on the phone number given in the invitation and, in several cases, when employees were able to speak to Mr Small, he was not interested in any explanation but seemed to have determined upon dismissal in any event. The evidence suggests that the decision to dismiss the picketers was not solely because they obstructed trucks on the picket. Davids has denied that the picketers were not given a proper opportunity to explain their actions. There is a serious issue to be tried on this matter. I emphasise that I make no final findings as to the reasons for Davids actions. That is not the present task. But the evidence does satisfy me that the reason for dismissal of the picketers was not only for obstructing trucks on the picket. The next question, then, is whether there is a serious issue to be tried that a reason for the decision to dismiss the picketers was a prohibited reason. It is undoubted that the Union was seeking better conditions and that the picketers were dissatisfied with their conditions. The dismissals occurred in the context of a long-running industrial dispute about wages and conditions. Particularly in the absence of an express denial, it is likely that part of the reason for the action against the picketers and the strikers was that they were members of the Union which was seeking better conditions and that they were dissatisfied with their conditions. Thus, in my view, the Union has established a serious issue to be tried that Davids acted for the prohibited reason set out in s 298L(1)(l) in respect of both the picketers and the strikers. In the light of these conclusions it is not necessary to consider whether the Union has made out a case under s 298L(1)(e) or (n), or a case that the purported terminations of the picketers were ineffective and void.

[22]

STRENGTH OF THE APPLICANT'S CASE ON THE SERIOUS QUESTION TO BE TRIED Sometimes it is desirable to determine legal issues finally on the hearing of an application for interim relief but, in some instances, it is not appropriate to do so. In Cohen v Peko-Wallsend (1986) 68 ALR 394, the High Court (Gibbs CJ, Mason and Wilson JJ) said, at 397: "The questions raised by these arguments are complex and profound and have ramifications far beyond the confines of the present case. The principles which govern the question whether and when a person affected by an exercise of the prerogative is entitled to natural justice or judicial review are in a developing state, and the result of applying those principles to the present case is far from clear. The construction of the Convention presents difficulties which it would be wrong to attempt to resolve without first inquiring whether there are available aids to interpretation, such as travaux preparatoires, which ought to be considered. It is not right to say that it is always the duty of the court on an interlocutory application to decide a question of law upon which the decision of the case depends. No doubt if the question is one susceptible of resolution without further evidence, and the urgency of the matter does not render it impracticable to give proper consideration to the question, the desirable course will be to decide it. Ultimately, however, the course which the court takes lies within its discretion." The proper approach to this issue was addressed by French J in OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270, in which he considered an application for an interlocutory injunction to restrain the Western Australian Government Railways Commission from undercutting prices charged by the applicant for certain road services, in breach of the provisions of the Trade Practices Act 1974 (Cth). Whether the respondent was subject to the Act was raised by it as a threshold question. At 273-274, his Honour said: "Counsel for the respondent raised at the outset what he described as a threshold question, a question, he said, which went to the jurisdiction of the court to entertain this application. .... It was further submitted for the respondent that the Court could not, on a claim for interlocutory relief, deal with the jurisdictional issue as it would deal with the other questions before it in such a case. The Court, it was said, is obliged to resolve the jurisdictional issue at this stage of the proceedings and cannot limit itself to a consideration whether a serious question of law arises in that regard. As a proposition of universal application that is not correct. Some questions which go to the jurisdiction of the Court may require extensive factual inquiry before they are resolved. According to the circumstances of the case, it may be a desirable and practicable course to adjudicate at the outset upon a jurisdictional question as a preliminary issue, but that is not the only way in which jurisdiction may be determined. ...... Certainly as put by counsel for the respondent, the character of the respondent is a matter to be determined entirely by reference to the statute by which it is established, namely the Government Railways Act 1904 (WA). It can be accepted that where a straightforward question of law arises at an interlocutory stage, it will in most cases, be proper to decide it then and there. In fact it has been said to be a general rule that such questions should be so decided: Karaguleski v Vasil Bros & Co Pty Ltd [1981] 1 NSWLR 267. Where, however, time does not permit a proper consideration of questions of law at the interlocutory stage, then the court should not decide them: Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545", and, at 274, he concluded: "In my opinion it would be quite inappropriate for the Court on the materials presently before it and within the present time constraints to attempt definitively to resolve the question of the proper characterisation of the respondent in relation to the conduct complained of by the applicant. In my opinion, there is, in connection with the status of the respondent in soliciting and entering into the relevant contracts, a serious question to be tried as to whether or not it acted as an agent of the Crown in right of the State in so doing." In the present case, it would also be inappropriate to deal with the three legal questions discussed earlier - the validity of the notice, the question whether picketing is within the definition of industrial action, and whether the Union took action in concert - on a final basis. I have considered these issues only with a view to determining whether the Union has raised a serious question to be tried. This is because the issues are important beyond the concern of this case, some of them have not previously been decided and, in all the circumstances, the arguments have not been as comprehensive as is necessary for a proper final determination of such matters. Thus, while I have formed a clear view that these questions are seriously arguable, any one of them may not succeed at trial. For instance, there are cogent arguments that the notice under s 170MO must state the specific action intended to be taken and there are also cogent arguments that picketing is not industrial action because it is not expressly mentioned in the definition. There is a relationship between the serious issue to be tried and the balance of convenience considerations. In Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, at 472, Woodward J, with whom Smithers and Sweeney JJ agreed, said that the serious issue to be tried and balance of convenience factors: ".... need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it". The same approach was taken by Mason ACJ in Castlemaine Tooheys at 155, and see also Re Printing & Kindred Industries Union; Ex parte Nationwide News Pty Ltd (1994) 122 ALR 303, at 316, Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Ltd [1979] VR 107, at 110, and Magna Alloys & Research Pty Ltd v Coffey [1981] VR 23, at 28. I approach the assessment of the balance of convenience on the basis that the serious questions to be tried in this case are no more than "doubtful claims" referred to in Bullock.

[25]

THE PICKETERS Counsel for Davids told the Court that, unless Davids was compelled to do so, it would not reinstate the picketers pending the hearing of the case for final relief. The convenience of these employees favours the grant of interim relief. That would ensure continued work and, hence, income until the trial. If the Union is successful at the trial, such interim orders would avoid the disruption and uncertainty caused by not working at Davids until the trial and then being reinstated after the trial: Patricks Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643. The employees who do not find work in the meantime will be disadvantaged by the loss of income and the effects attendant on unemployment. Employees who do find work in the meantime may, in a practical sense, lose the opportunity to enforce their right to reinstatement if the application succeeds.I regard the interests of the picketers as a strong factor in favour of the grant of interim relief. Against this, the convenience of Davids must be considered. It was strongly urged that Davids should not be compelled to take back people, even on an interim basis, whom it regarded as having engaged in gross misconduct. The gross misconduct alleged was attending the picket and impeding the progress of trucks into and out of the Davids sites. In five instances, the conduct involved an added element of violence. In respect of the picketers who were dismissed on 9 July 1998, and who constitute the majority of the picketers, there is no evidence of the particular conduct, which constituted impeding the progress of trucks. Conduct described as impeding may encompass conduct which is almost trivial, causing only momentary delay, and conduct which is highly intrusive, confrontational and violent, causing major and lengthy disruption. In the absence of specific significant wrongdoing by particular picketers, this argument has little force. It is not suggested that the conduct of the picketers indicates that they will not carry out their duties as storepersons in the time prior to the trial of the action. The five picketers against whom particular allegations are made should be considered separately. Mr Fernandez was alleged to have put his fist through the window of an employee's car as the other employee drove into work. Davids alleged that Mr Fernandez had agreed to pay for the damage. Mr Fernandez rang Davids on receipt of the letter threatening dismissal and said that the acts were done in self defence. Mr Spicer was alleged to have broken the aerial of the car of Mr Sutcliffe, a supervisor employed by Davids. Mr Spicer rang in response to the letter and denied involvement. Mr Reti was alleged to have damaged a bus window and a prime mover window. He rang Mr Small and denied the allegation. Mr Prasad was alleged to have damaged a bus. He rang Davids and said he could not remember the incident. This may not be surprising, because the letter was sent on 21 August 1998 and the allegation related to an incident said to have happened on 11 August 1998. Mr Carratt was alleged to have damaged a bus window. Davids said that he admitted doing so and his own version of the incident is contained in his statement, as follows: "10. Do you recall what happened on that day? I was in front of the bus with other storemen. I was last to move aside. One of the scabs was laughing and flashing a fifty dollar note at me as the bus went past. I slapped the side of the bus. I didn't see the window break. I didn't hit it very hard. 11. Any other comments: It wasn't a premeditated act but after 5 weeks with no pay to be laughed at and shown money by the scab was very frustrating." In determining whether the balance of convenience favours making orders in favour of these five picketers, I bear in mind that Mr Spicer and Mr Reti deny the incidents, Mr Prasad doesn't remember the incident, and Mr Fernandez and Mr Carratt hint at mitigating circumstances. The full story about these incidents is yet to be told. The uncertain state of the evidence, taken with the undertaking that the picketers will not take any retaliatory action against non-strikers, persuades me that the allegations are not, in all the circumstances, a reason for refusing orders. The next thing to be observed is that Davids had no objection to the strikers continuing to work for Davids. Many of the strikers attended the picket and obstructed trucks. For instance, on 9 July 1998, about 70 strikers attended the picket. The police took their names. Only 35 of the strikers were identified by Mr Blazejko and Mr Zammitt. Only these 35 were dismissed. The others returned to work without objection from Davids. Their conduct was the same conduct as those dismissed. The difference was only that the particular officers of Davids did not identify them on the picket. The fact that Davids did not object to the return to work of the strikers who were on the picket is a strong indication that there is no firm basis to the objection to a return to work by the picketers pending the trial of the action. Next, Davids submitted that there would be hostility between the picketers and the workers who did not go out on strike, and this militated against the making of interim orders in favour of the picketers. The starting point in assessing this argument is the approach taken by the Full Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626, at 638-639, as follows: "One of the matters that has weighed most heavily with us in relation to balance of convenience concerns personal relationships. There is no doubt the actions taken by parties to this proceeding, and their supporters, has polarised public opinion; not least on the waterfront itself. Incidents have occurred, on both sides of the dispute, that reflect little credit on those involved. They have engendered hostility and, in some cases, justifiable fear. We treat these matters seriously but like North J we do not think the personal relations problems that will undoubtedly exist during the changeover and settling period ought to deter the court from making whatever orders are otherwise appropriate. Threats made in anger, however vile, are usually just that; they subside when the cause of the anger is removed. Vendetta is not the Australian way. All parties will need to exercise restraint in adjusting to the changed arrangements required by North J's orders; provided there is proper leadership we are confident they will." In taking back the strikers, Davids was apparently confident that their interaction with the non-strikers and employees who had returned to work before 28 August 1998 (who will both be referred to as the "non-strikers") could be managed. There is little difference between the likely interaction between the non-strikers and the strikers, and the likely interaction between the non-strikers and the picketers. The strikers who were on the picket line but were not identified by Davids would probably be known to the non-strikers, who needed to pass through the picket in order to go to work during the strike. Finally, some evidence was led about the difficulties experienced in the return to work. It could not reasonably be expected that there would be no difficulties in the transition. The return to work after a seven-week strike, and the intermingling of strikers, picketers and non-picketers, produced some incidents. They were, however, save for the incident involving Mr Pucar, to which I will return, limited to the several days immediately following the return to work, not of a particularly serious nature, and they involved only a small number of people. There were a number of incidents of petty vandalism of employees' lockers, some alleged theft of property from lockers, some name-calling, and a certain amount of lack of cooperation in the performance of work. There were about 20 incidents in a workforce of over 300 people. The last incident occurred on 4 September 1998. Thus, things seem to have settled down after about a week from the return to work. These incidents had to be investigated by Davids and thereby caused it the inconvenience of expending staff time and effort. I am not persuaded that the return to work of the picketers has generated or the continued presence at work will generate such hostility in the workplace, or need for time and effort by Davids in investigation, that, in all the circumstances, the Court should refuse the orders sought in relation to the picketers. Using the approach referred to by the Full Court in Bullock, I find that there is a marked balance of convenience in favour of making interim orders continuing the reinstatement of the picketers until further order. I have assessed the balance of convenience on the assumption that the serious issues to be tried are doubtful, as postulated in Bullock.

[26]

MR PUCAR Mr Pucar was one of the strikers. His position is different from the position of the other strikers, because Davids intends to dismiss him if the Court does not restrain it from that action. The reason Davids asserts that it intends to dismiss Mr Pucar is that he was involved in an incident, which occurred on 31 August 1998, and which Davids concluded involved Mr Pucar abusing and assaulting another employee, Mr Younan. I have already held that there is a serious issue to be tried that the threat, made in the letter dated 7 August 1998, to dismiss the strikers, including Mr Pucar, was a contravention of s 170MU(1) and s 298K, for the reason specified in s 298L(1)(l). In relation to the strikers, apart from Mr Pucar, there is no continuing threat to dismiss and so I have refused to make orders in respect of those strikers. The question in relation to Mr Pucar is whether the present threat to dismiss him is at least partly a continuation of the threat made by the letter dated 7 August 1998, that is to say, a threat to dismiss made partly for the reason that Mr Pucar was on strike, or partly for the reason that he was a member of the Union which was seeking better conditions and he was dissatisfied with his conditions. The incident had its origins on the day of the return to work, 28 August 1998. After Mr Younan had been impeded in driving his pallet mover along an aisle in the warehouse, an exchange occurred with another employee called Bradsy. In an affidavit sworn by Mr Younan on 10 September 1998, he recounted the events which occurred after he cleared a path, as follows: "As I did this Bradsy said to me: 'When you finish your work bring my crown back.' I said: 'You wait here and see if I bring it back.' I then got back onto my pallet mover and proceeded along aisle number 7 passed [sic] Bradsy and Michael Hill. As I passed them Bradsy screamed out: 'You fuck wit.' I drove back to him and said: 'Did you swear - why did you swear?' Bradsy did not answer me. I said to Bradsy: 'Don't fuck up with me, don't talk to me.' Michael Hill who was standing near Bradsy said: 'We will see you outside.' I said to Michael Hill: 'If you want to see me outside lets you and I go now.' He said: 'No, all of us will see you outside.' I reported this incident to the afternoon shift supervisor, Mr Gary O'Shea." Mr Younan described what happened on 31 August 1998 as he was clocking off, as follows: "Mr Hill said to me: 'You are a virus, I hate your face when you smile, we are going to see you for sure tonight outside in Forge Street.' I did not reply. I continued to walk to the toilets near the bundy clock. As I walked from the toilets I saw Michael Hill standing with a group of storemen who I know to be members of the NUW who were on strike during the period 8 July 1998 to 28 August 1998. Amongst those storemen were Adam Wilson and Alex Pucar. Mr Hill was staring at me. He said to me: 'You bugger, we are going to take you home tonight and you are not going to work at Davids any more.' As I walked passed [sic] Mr Hill and the other storemen, Mr Adam Wilson said: 'Don't come close to us you are not one of us any more.' I did not answer him. I said to Michael Hill: 'Michael, if you want to do something to me, see me one to one.' Mr Alex Pucar said to me: 'Do you know you are a scab, you fucking scab.' I did not answer. I bundied off and walked to the car park." Mr Younan then described what occurred in the carpark, as follows: "When I arrived at the car park I saw Mr Hill near his car. I observed Mr Hill open his boot and I said to him: 'Michael are you going to see me on Forge Street?' He said: 'Yeh, we are going to see you there.' I continued to work [sic] towards my car and as I did so I saw Alex Pucar running up behind me. When he got close, he said to me: 'You are a fucking scab, what do you think you are - smart coming back to work. You fucking cunt I am going to kill you.' Another storeman, Tim Cao who was standing near his car ran towards Alex Pucar and said: 'Don't hit him, don't touch Sam. Another storeman, Miladin Markovic called out to Alex Pucar: 'Don't touch him, don't touch him. Michael Hill said: 'We are going to meet him on Forge Street.' " Mr Pucar swore an affidavit in response, in which he denied the essential allegations made by Mr Younan. The incident was investigated by Mr Gary Johnson, the National Industrial Relations Manager for Davids. He interviewed Mr Younan and Mr Pucar. Their accounts were opposed, in much the same way as their accounts recorded in the affidavits filed in these proceedings. Mr Johnson also interviewed Mr Markovic, who denied the incident in the carpark. Mr Bidar and Mr Pascu were interviewed in relation to Mr Pucar's presence in Forge Street after the incident in the carpark. Mr Johnson also spoke to Mr Gary O'Shea, the afternoon shift manager, who told him: "I also saw an incident in the car park. I was standing about 20 meters [sic] from Sami and observed Alex Pucar running towards him in a threatening manner. Alex Pucar had to be restrained by another storeman. Sami approached me and told me that Alex Pucar and Michael Hill had told him that they would be stopping him at Forge Street and that three or four people would beat him up. I asked Dave Broome and Mark Gittman to follow Sami Younan and make sure that he got away from the warehouse safely."

[27]

As a result of his investigation, Mr Johnson rejected Mr Pucar's version of events. He relied particularly on the irreconcilable differences concerning the events in the carpark. It will be recalled that the direct participants in the carpark incident were Mr Pucar, Mr Younan, Mr Markovic and Mr Cao. Mr Pucar and Mr Markovic both denied the version of events given by Mr Younan, and Mr Cao was not interviewed. Mr O'Shea was not a direct participant. While I do not suggest that Mr Johnson's conclusion was not open to him, the investigation did reveal a confused event, giving rise to conflicting accounts. The question then arises whether the sole reason for Davids' threat to dismiss Mr Pucar was his involvement in these events. The following observations reflect a preliminary view of the facts presently before the Court. The total conflict in the versions of what occurred makes it especially important to emphasise that the preliminary view which I am about to express may be quite different from the final view formed after a full hearing of the case. The underlying conflict will be resolved primarily by an assessment of the credit of the witnesses involved. The opportunity to assess the credit of the witnesses has not been available on the hearing of the interim application because the matter is to be decided upon affidavits alone. In my view, there is a serious question to be tried that the involvement of Mr Pucar in the alleged incident was not the sole reason for Davids' decision to dismiss Mr Pucar. The factors which persuade me that Mr Pucar's involvement in these alleged events was not the sole reason for the threat of dismissal are as follows: (a) The events occurred within a few days of the return to work, when some tension was predictable. Some allowance would be made for those unusual circumstances in determining whether dismissal was an appropriate response. (b) Mr Pucar did not initiate the sequence of events which led to the carpark incident. Rather, Mr Hill appears to have taken the first steps. Again, this fact suggests that Davids would not have threatened dismissal for Mr Pucar's involvement. (c) On Mr Younan's own version of events, he responded by provoking further action. Instead of turning away from the trouble, he initially responded to Mr Hill "If you want to see me outside lets you and I go now", and, later, "Michael, if you want to do something to me, see me one to one" and, when in the carpark, "Michael are you going to see me on Forge Street?" (d) The whole incident was clouded in confusion and, while Mr Johnson did conclude that Mr Pucar was involved in the incident, the decision cannot have been clearcut. There must have been some uncertainty, given the conflicting versions of the direct participants. If the involvement in the incidents with Mr Younan do not explain the entire reason for Davids' decision to dismiss Mr Pucar, what were the other reasons which led Davids to do so? One reason which may be inferred from the surrounding facts is that Mr Pucar participated in the strike. The strike was only recently concluded, the incidents arose out of the circumstances of the strike, and Mr Pucar participated in the strike while Mr Younan originally did so but returned to work after about four weeks. In taking action against Mr Pucar, Davids acted against a striker and in favour of Mr Younan, who had withdrawn support for the strike. There is an arguable case, at this stage, that Davids' decision to dismiss, rather than to impose some lesser consequence on Mr Pucar, was in part because Mr Pucar had taken part in the strike action. That is to say, there is a serious question to be tried that, in relation to Mr Pucar, Davids acted in breach of s 170MU(1). Further, there is a serious question to be tried that Davids threatened to dismiss Mr Pucar partly for the reason that he was dissatisfied with his conditions of employment, in breach of s 298K(1)(a) together with s 298L(1)(l). The next question is whether the balance of convenience favours the making of interim orders restraining Davids from dismissing Mr Pucar. Mr Pucar is presently suspended. Davids continues to pay him but does not require him to attend for work. If it is ultimately found that interim orders were not justified, the damage suffered by Davids would be the payment of wages to Mr Pucar while suspended. The damage is monetary. This damage is addressed by the undertaking as to damages. For Mr Pucar, the balance of convenience favours the making of interim orders, thereby allowing him to retain his employment until the final determination of the case. If the Court grants final relief in favour of Mr Pucar but no interim orders are made, Mr Pucar would suffer the disruption of ceasing work for Davids and then resuming work for Davids. In the meantime, he would either obtain no alternative employment and thereby no source of income, or find alternative employment and thereby, in a practical sense, probably lose the opportunity to enforce his right to the benefit of final orders in his favour. The balance of convenience favours the making of interim orders restraining Davids from dismissing Mr Pucar.

[28]

RELIEF For the foregoing reasons, the following orders will be made upon the following undertakings: UPON THE APPLICANT by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the Court directs - AND UPON THE APPLICANT by its counsel further undertaking that it will not engage in any industrial action relating to the negotiations with the respondent concerning an enterprise agreement - In this undertaking "industrial action" does not include any action by an employee if: (a) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (b) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another work place, that was safe and appropriate for the employee to perform. AND UPON THE APPLICANT by its counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998. THE COURT ORDERS THAT: 1. Until further order, the respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons named in the schedule to this order as employees of the respondent with continuity of service save and except for the purpose of payment of wages; and 2. Until further order, the respondent, by itself, its servants and agents, is restrained from terminating the employment of the said employees and Alexander Pucar. 3. Paragraphs 1 and 2 do not prevent the respondent from accepting the resignations of any of the said employees or Alexander Pucar. 4. Liberty to the parties to apply on the giving of 24 hours' notice in writing to the other party. The schedule referred to in paragraph 1 of the orders will list the names of the following employees: Bill Allison, Brian Augustus, Scott Benge, Jerry Borg, Gary Boyd, Spencer Bragg, Joe Calleja, Vince Camilleri, Tony Casey, Phil Cotter, Joe Darouti, Arthur Davies, Eddy Dawson, Noel Evans, Chris Frost, Jason Funnell, Ian Johnson, Graham Mains, Miladin Markovic, Alan McLean, Michael Morawsky, Glen Murray, Warren Oxton, Andrew Perkins, Daniel Phillips, Ignacio Pinkihan, Bernie Portelli, Jim Ramsay, Andrew Rowley, Kevin Saliba, Michael Smith, Tony Sultana, Ray Treacy, Lou Vanderburg, Anthony Younis, Robert Heather, Shane Irvine, Michael Mahboub, Edgardo Fernandez, Grace Overton, Marion Nemeth, Michael Moses, Brett Solomon, Michael Galea, Christine Crook, Albert McKinley, Gary Conlon, Michael Dukes, Anthony Spicer, S Reti, J Carratt, A Prasad.

[29]

APPLICATION FOR DISQUALIFICATION On 22 September 1998, counsel then appearing for Davids made an application that I disqualify myself from determining the application for interim orders and from further hearing the case. The application for interim orders was heard on 11, 14, 17 and 26 August and 9, 11, 22 and 23 September 1998, albeit shortly on some of those days. However, the primary complaint was made only about the proceedings on 26 August. No complaint was made about the proceedings on 11, 14 or 17 August and 22 September, and only several minor points were taken in relation to the proceedings on 9 and 11 September 1998. Counsel for Davids submitted that, principally on 26 August 1998, I did not approach the issues in the case impartially or neutrally and exhibited an active predisposition against Davids. As he initially put the argument, the allegation was one of apparent or ostensible bias. The principles upon which such an application may be made were summarised by Dawson J in Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 94 ALR 1, at 4-5, as follows: ".... the test to be applied in any consideration of an allegation of apparent or ostensible bias, that which was recently set out in Grassby v R (1989) 168 CLR 1 at 20; 87 ALR 618 at 631: 'The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v New South Wales Bar Association [(1983) 151 CLR 288; 47 ALR 45]; R v Watson; Ex parte Armstrong [(1976) 136 CLR 248; 9 ALR 551]. If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs CJ pointed out in R v Simpson; Ex parte Morrison [(1984) 154 CLR 101 at 104; 52 ALR 648], the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively.' " Speaking of the role of a court asked to grant prohibition in such a case, Dawson J said, at 9: "In R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14; 32 ALR 47 at 50-1, Gibbs ACJ referred to R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551, and said: 'In that case it was pointed out (CLR at 264) that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that "as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory". However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly established" that such a suspicion may reasonably be engendered in the minds of the parties or the public, as was made clear by the court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v Watson; Ex parte Armstrong (CLR at 262).' "

[30]

I required counsel to specify the transcript references upon which he relied. Upon doing so, it emerged that, in almost all instances about which complaint was made, I was expressing a view which was stated to be a tentative or preliminary view, or I was seeking answers to questions. The case is, thus, similar to Re Keely, in which Dawson J concluded, at 9: "At no point did his Honour indicate that he had reached any concluded view upon the questions which he raised with counsel nor, in my opinion, would any of his remarks warrant the view that he had. The matters which he put forward were matters which he conceived may be relevant and which, therefore, ought to have been raised." When I raised this approach with counsel for Davids, the following exchange occurred: "MR BUCHANAN: ... Then your Honour says - and this really is, with respect, the beginning of the problem - your Honour says, at line 27 - well, I should go back. Your Honour does say: I must say this is a very preliminary view, subject to being persuaded differently by your opponent ... seen by all surrounding circumstances to be for another reason altogether. HIS HONOUR: Is that a passage to which you take exception? MR BUCHANAN: Yes, it is, your Honour. .... MR BUCHANAN: Your Honour, I'm at the beginning of a large number of references out of which the conclusion is available that your Honour is not neutral in the matter. This is the first of them. .... HIS HONOUR: Do you [now] accept that at that point a preliminary view was being expressed? MR BUCHANAN: In the light of what happened subsequently, your Honour, I regret I do not." (transcript 23/9/98, pp 108-109) This amounts to an allegation of actual bias. This is a serious allegation, although that does not mean that it should not be made: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, at 564. I should say at once that I reject the application and I also reject the basis upon which it was made. The transcript of the entirety of the proceeding speaks for itself. In the following pages, I have referred to the particular pages of transcript about which complaint was made and have sought to outline the terms of the complaint. As mentioned earlier, the complaints relate primarily to one day. In assessing the complaints, however, it is necessary to survey the rest of the proceedings. Consequently, I have sought to present a full picture of the way the proceedings were conducted by reference to relevant parts of the transcript of the other hearing days. For instance, it is necessary to compare the enquiries made by the Court from counsel for Davids with the enquiries made by the Court from counsel for the Union. It will be seen that the same vigour and expression was used in relation to both. It will be seen that Davids was not singled out for particular treatment: see Re Keely, Dawson J, at 9. The transcript demonstrates no actual bias. There exists no actual bias. The transcript does not disclose grounds for a reasonable apprehension of bias. Rather, it discloses the approach approved by the majority in Vakauta v Kelly (1989) 167 CLR 568 at 571: "It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

[32]

THE HEARING ON 14 AUGUST 1998 When the hearing commenced on this day, counsel for Davids said: "MR HATCHER: Perhaps if I could inform the court. On the last occasion the matter was before your Honour, your Honour made some helpful suggestions, if I might respectfully submit, to both parties as to their conduct, in particular that the applicant in these proceedings might take steps to ensure that the Supreme Court orders were complied with. We would wish to call some evidence that, notwithstanding your Honour's assistance in that regard, the orders are still not being complied with." (transcript 14/8/98, p 2) One observation I had made on 11 August 1998 was that, if the Union was correct that the strike action was protected, Davids had a right to lock out the employees. In the light of this observation, counsel for Davids said, also at the beginning of the hearing on this day: "Well, your Honour, I have instructions to put this proposal. Arising from a consideration by our client of your Honour's observations in relation to lockout, our client's desire is to crystallise the issue as it were. .... It would propose, your Honour, whilst the issue of whether the action is protected or not protected is litigated in this court - it would propose informing its employees that unless they are back at work on their first rostered shift next Wednesday, they will be either locked out or dismissed, depending upon how this court should ultimately determine the question of whether the action be protected or not, and the period of the lockout would be till 1 May 1999." (transcript 14/8/98, p 4) The following exchange then occurred: "HIS HONOUR: So what you want to ultimately achieve is a return to work next week. MR HATCHER: Yes." (transcript 14/8/98, p 4) The exchange proceeded: "HIS HONOUR: When you say you're putting this proposal, that's something that I'm to take into account in determining whether to grant interlocutory relief? MR HATCHER: Yes, your Honour. HIS HONOUR: How does it assist me in doing that? You say, well, whatever route we adopt, we're entitled to, as you say, crystallise the issue. MR HATCHER: Yes, and if your Honour were to make the orders that are sought against the context of our client having advice that the action is not protected, they would not be able to lock out, nor would they be able to terminate. So they'd be at a distinct disadvantage in terms of the bargaining regime envisaged by the Workplace Relations Act. HIS HONOUR: But why ought I not determine, in the usual way, whether there is a serious issue to be tried if the action is protected? If it is, then you say, well, this is what we're going to do in the event, yes. MR HATCHER: It comes to the question of balance of convenient [sic], clearly, your Honour. We accept there's an issue between the parties as to whether the action is protected or not. We maintain that it is not protected. HIS HONOUR: Yes. MR HATCHER: It would seem to be an issue that would be difficult. Not impossible, but difficult to deal with in the course of an urgent hearing. HIS HONOUR: Well, one can only deal with it on a serious issue basis which is obviously fairly superficial. MR HATCHER: Yes. HIS HONOUR: Without perhaps descending to detail, what's the issue on the question of protected action?" (transcript 14/8/98, pp 4-5)

[33]

Counsel for Davids then outlined, very briefly, the arguments concerning the adequacy of the notice of intention to take industrial action, whether the action was taken in concert with others, and whether the action was properly authorised. Counsel for Davids, on my invitation, then outlined the general background of the industrial dispute. In particular, he told me that Mr Justice Smart had found, on the previous day, that the Union and several officials had a case to answer for contempt of the orders made by the Supreme Court of New South Wales restraining them from certain conduct on the picket. Counsel for Davids then urged the Court not to grant injunctions because, first, the Union was acting in contempt of the order of the Supreme Court of New South Wales and, second, whether by way of lockout or dismissals, Davids had a legal right to terminate the employment of its employees and this would occur by the following Wednesday unless they returned to work. He also argued that the failure to raise the argument in the Supreme Court of New South Wales that the picket was protected action raised an estoppel against the Union, preventing it from relying on that argument in this case. Counsel for the Union pressed for orders to be made. He contended that, even if the action was not protected, the Union had a claim under s 298K of the Act which would justify an injunction preventing dismissals. The right of Davids to lock out was sufficient to answer the balance of convenience. Counsel was not in a position to answer the legal arguments put by Davids, going to a serious issue to be tried, nor was he in a position to respond to the voluminous affidavit sworn by Gary Johnson on 13 August 1998 and the two arch lever folders of exhibits filed in the Court on the morning. I summarised the position just prior to the lunch adjournment, as follows: "Yes, it's probably a convenient time in any event. It just seems to me, from having heard from where you're both coming, it seems to me desirable for the matter to be heard fully on another day because I think there's more work to be done, both on the evidence and I think I'd benefit by a written outline of submissions, although I basically understand where you're coming from now. I would welcome an undertaking by both sides to engage in a high level conference on Monday. I would bring the matter back on on Thursday and in the meantime enjoin or accept an undertaking in respect of dismissals and record on the transcript what's been said a number of times, that it is the union's position that the respondent is not prevented from locking out its employees between now and Thursday. That's what I have in mind and I will stand the matter down for you to come back and tell me what you want done." (transcript 14/8/98, p 33) After lunch, Davids proffered an undertaking not to dismiss any employees: ".... for reasons which include the reason that the employee is or was engaging in any ban, limitation, strike, or lawful picketing. The company reserves its right to terminate employees for any other misconduct including physically impeding persons or vehicles entering or leaving the company's premises." (transcript 14/8/98, p 35) I responded to the offer of an undertaking in such a form, as follows: "I see a real difficulty, Mr Hatcher, with an undertaking or an injunction, given as it is for such a short period, which is qualified by the reasons that you've expressed because there will be endless arguments in a dispute that's gone for, how many months, and which has spent 10 days in the Supreme Court. I mean, the authorities are clear that injunctions have to be clear, have to be readily understandable and have to be enforceable in a practical say. I mean, the first thing that would happen, I expect, is that you'd dismiss someone on Monday morning for standing in front of a truck and Mr Pearce will come back on a motion for contempt saying that the person only had a toe over the gutter. .... Yes, if that happens between now and Thursday, if the need arises, then I will make myself available on very short notice for the facts of that situation to be brought to my attention but it seems to me unworkable otherwise in a dispute like this to have an injunction or an undertaking which is really placed within the jurisdiction of your client to determine whether it will comply in the instant case or not because it depends upon an analysis of the facts which may be anything but clear. In any event, I understand what you say about the extent to which you proffer the undertaking and I'm not disposed to accept an undertaking in those terms but rather, for the sake of a few days and with absolutely no implication about the final decision, it seems to me the appropriate course is to prevent any dismissals unless you return on liberty to apply and satisfy me that there is some pressing need before Thursday for a person to be terminated before I've had a chance to hear the application. I can't really see what overriding prejudice your client suffers in those circumstances." (transcript 14/8/98, pp 35-36) The Union opposed any injunction being limited to the short period of any adjournment. The following exchange then occurred with counsel for the Union: "HIS HONOUR: .... would it not be a fair quid pro quo for the grant of an injunction until next Thursday for there to be some undertaking by your client in relation to the conduct of the picket line? See, this is in the background of a case where, whatever the rights and wrongs, there are orders of the Supreme Court about which there is an allegation of breach. Now, you're asking for the court to intervene, beneficially to your client. Whether the orders are breached or not in the Supreme Court, it would be wrong for an injunction to go unless there was in return some protection for a short period until the hearing of the interlocutory application. MR PEARCE: Yes, your Honour, I'm getting instructions. HIS HONOUR: Yes. Do you need some time for that Mr Pearce, or - - - MR PEARCE: I'll find out, your Honour. Your Honour, can I have five minutes? HIS HONOUR: Yes, very well. I will stand the matter down but you can see the way I'm thinking. I would be very reluctant to contemplate an injunction which was one-sided. In fact it seems to me frankly desirable that there be no lockout either. There should be, between now and Thursday, either the situation where the employees, members of the union, if they don't want to go back to work and want to picket, do it in a way which is not obstructive of entry and exit but if they want to return to work, that they can do so and that, in any event, they not be in a position where for any reason they can be dismissed without a further order of the court until Thursday. But to enjoin, to restrain dismissals for any reason I think would require as a matter of fairness some ironclad guarantee that there be some regulation of what happens at the entrances." (transcript 14/8/98, p 38)

[34]

Counsel for Davids had suggested that the picket was being continued in breach of the orders of the Supreme Court of New South Wales. The Union denied this. In relation to the grant of an interim injunction, I said: "HIS HONOUR: .... I am prepared to assume for the moment that the order has been ineffective and I don't ask you to concede that but I am prepared to assume that for the moment and if that be so, then it seemed to me that maybe a varied version was a fair quid quo pro, something which restricts picketing to a nominated area and it would have to be done by a description that allowed picketing in an area, confined area, and we are in this case talking about the union alone. .... MR PEARCE: Your Honour, I'm not in a position to give an undertaking along those lines. I was in a position - and I doubt the utility of it - to give an undertaking in the same terms on behalf of the applicant, not the second, third or fourth defendants, in the same terms as the orders made in the Supreme Court but I doubt the utility of it. HIS HONOUR: I mean, that's a fruitless exercise. There's an order to that effect there. Mr Pearce, you have to face the fact that as things presently stand I will not grant an injunction in the absence of some assurance that things quieten down on the site. That's the position. I don't see it as a fair resolution to the interim situation and I'm not prepared to accept an undertaking in the limited form offered by Mr Hatcher because I think it's impossible of proper implementation. So, absent some assurance about your client's position, the matter will be adjourned till next Thursday with no orders. .... I'm seeking to establish a position where the grant of an injunction, which is opposed by Mr Hatcher, would be fair to grant and I do not regard it as fair to grant such an injunction where your client maintains in the next week industrial action at the gate. I mean, if you say, 'Well, that's just too bad, we're going to continue whatever,' it may not be in breach of the Supreme Court order but I mean, there's got to be a balance for the exercise of the court's power. You see, in Patricks, Mr Pearce, the union undertook not to engage in industrial action and it also undertook, as you know, in a number of other ways. Now, that gave a foundation for the grant of an injunction but it would be quite lopsided in the midst of a hot dispute for one side to come along and get the advantage of an injunction where nothing is given on the other side at all. .... .... it would seem to me to be wrong for the court to use its beneficial power to protect your clients where there is, at the very least, allegations against your client of a continuation of conduct." (transcript 14/8/98, pp 40-41) Upon being further pressed by counsel for the Union to make orders, I said: "HIS HONOUR: Mr Pearce, I'm concerned that by adjourning till next Thursday with an injunction in place and no indication that some of the problems that have given rise to the dispute or exacerbated it and are detrimental to the respondent and not addressed in any way at all, would be an unfair exercise of the discretion. An alternative way forward is this, that I adjourn the matter until Monday, until after the meeting of Mr Sword and the equivalent company representative at which these matters can be addressed, and the matter can be mentioned, albeit shortly, on Monday for the matter to be taken further. MR PEARCE: What would your Honour do in the meantime in relation to interim orders? HIS HONOUR: In the absence of any indication, I would do nothing. I don't know that there is a present problem. There's no suggestion of dismissals that would occur before Monday, is there? So far the latest communication, I think, is VG4 on 7 August which says - no, I'm sorry, you have to be at work on the 12th. Is that - - - MR PEARCE: They were to be effected last Wednesday. HIS HONOUR: Yes, so that people that haven't shown cause might be terminated over the weekend. MR PEARCE: Yes, your Honour, that's the - - - HIS HONOUR: Yes, I'm afraid that's a risk that might have to be taken, Mr Pearce. MR PEARCE: Could I have another adjournment, your Honour? HIS HONOUR: Well, you can but time is running out as is my patience because it's one thing to invoke the injunctive powers of the court but you know that's a discretionary power that must be exercised on balancing and for one side to walk away with an order when the events that have given rise to the underlying dispute continues, seems to me just fundamentally unacceptable. But I will give you a short time and, as I say, the solution might be to bring it back for a short time on Monday when everyone has had a chance to think more carefully about where the whole matter is going." (transcript 14/8/98, pp 43-44) Counsel then indicated that no undertaking would be given. In adjourning the matter for mention on Monday, 17 August 1998, by way of a video link, I said: "I will adjourn the further hearing of this matter until 4.30 on Monday. In doing so I propose to make no orders but I do say this: that the conduct of the parties, both parties, between now and Monday and then Monday and Thursday, will of course be relevant to the action I take. The applicant seeks beneficial orders to prevent dismissal of its members as an interim measure. I think there would be justification for such orders if I could be sure that the disadvantage flowing to the respondent from the continuance of the dispute was somehow effectively linked to the grant of those orders. Similarly my expectation is that the respondent will take no action between now and Monday to inflame the situation in such a way which will of itself, perhaps, and without any of the sorts of assurances that I have previously referred to, require urgent intervention by the court." (transcript 14/8/98, p 45)

[35]

THE HEARING ON 17 AUGUST 1998 On 17 August 1998, counsel for the Union proffered an undertaking by the Union that it would not engage in industrial action and that it would recommend to its members, at a meeting to be held on Wednesday, 19 August 1998, that the members give the same undertaking. The Union asked the Court to make orders, including the following: "(1) Until the hearing and determination of this application, or further order, the Respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons employed by it on 8 July 1998 as employees of the Respondent with continuity of service save and except for the purpose of the payment of wages; (2) Until the hearing and determination of this application, or further order, the Respondent Davids Distribution Pty Ltd by itself, its servants and agents, be restrained from taking any and all steps to give effect to any purported termination of employment effected on or after 8 July 1998 or to give effect to any threat of termination made on or after 8 July 1998." In response to the form of orders sought, I said: "HIS HONOUR: These two orders go beyond what you sought initially. As I understand it what you sought initially was orders preventing any dismissal hereafter. I'm loath to get into the past for the sake of a few days. You see, Mr Rothman, I think the contemplation was that this matter would return to court on Thursday of this week if necessary for the argument on the interlocutory injunction, and I can see some merit now that - the undertaking that you've proffered in relation to industrial action, I can see some merit in making the order you sought the other day, that is to prevent any dismissals between now and Thursday, but to wind the clock back until July seems to go beyond the requirements of an interim order. I don't really know what is involved in doing that because I'm simply not appraised sufficiently of the facts. It may be on Thursday that that matter would be addressed. MR ROTHMAN: Well, your Honour, there are two matters. It does not in our respectful submission go beyond the orders that are sought in the application. Your Honour will recall two things; firstly that the application seeks orders in the nature of declarations that there's been action contrary to section 170MU. Your Honour will also see in paragraph 4 and order that: The respondent treat all persons employed by it on 8 July as employees of the respondent, and any purported termination is void. HIS HONOUR: Yes, but, Mr Rothman, if you look at the claim for interlocutory relief on page 3 - I see, that's probably wide enough to deal with the past. MR ROTHMAN: Yes, your Honour. HIS HONOUR: Yes, I follow." (transcript 17/8/98, pp 4-5) Counsel for the Union also told the Court that the contempt proceedings in the Supreme Court of New South Wales were to resume on the following day. In relation to those proceedings, I said: ".... You see, one very difficult complicating factor is the New South Wales Supreme Court proceedings. I mean, even if the action was protected action, the question arises whether the action in contempt of court if so found was protected or even if it was, whether it is appropriate for this court to grant relief in the face of a finding of contempt of an order of a superior court." (transcript 17/8/98, p 6) Counsel for Davids then commenced his submissions by complaining that no notice had been given by the Union that orders were sought in relation to the picketers. He said that Davids intended to dismiss employees who misconducted themselves on the picket, but there was only one person in that category, and that dismissal would not occur before the proposed adjourned hearing date on the following Thursday. Counsel for Davids alleged that that person put a cricket bat through a truck window as the truck was attempting to enter Davids' premises. He encapsulated the issue between the parties, as follows: ".... as my client apprehends the situation, what your Honour characterises as the underlying problem has now been identified as simply being the reinstatement of the 49 employees who had been terminated some weeks ago." (transcript 17/8/98, p 10) He said that Davids offered to waive any time limits which had already passed for the picketers to take action for unlawful termination in an industrial tribunal. Before counsel for the Union replied, I summarised the position as follows: "Yes. Mr Rothman, the way things presently seem to me - just before reply - the practicalities are that no-one will be dismissed between now and Thursday. I would hope and expect that no-one will be terminated until the actual hearing of the interlocutory application, but if they are then I will deal with that on the day or at some earlier time when it is raised with me, but in terms of imminence of threat, there is no threat to dismiss anybody simply by taking part in the action which you claim is protected. The threat relates to persons in the category of those who Davids say misconduct themselves, and as I say in respect of them I expect that there will not be terminations before the resumed hearing. If there are the matter can be raised either then or on short notice before. That's number 1. As far as further negotiations are concerned, I think the question of participation has been clarified, and I now use the words 'highest level' and mean at the highest level. I'm not disposed at the moment to make orders for this short time which have the effect of reinstating people going back to 8 July. I well understand what you say about how valuable such an order will be at the meeting, but I just don't think that it's a reasonable application to make, given the state of the material and the state of my grasp of the facts of this case presently. That's I think made more compelling by the fact that Davids has indicated that those persons who have been dismissed are entitled if they have a claim to bring it in the commission and no time limit point will be taken. It's therefore open to have an independent adjudication of the question of the justification. Those matters seem to me to point inevitably towards a conclusion that the matter should be left as it is for hearing Tuesday week, on which occasion I will obviously have to take into account what's happened in the Supreme Court, what's happened at the meetings, and what's happened on the ground. Those are my preliminary thoughts, Mr Rothman. What would you like to say?" (transcript 17/8/98, pp 11-12)

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In reply, counsel for the Union argued that, from past experience, further dismissals may be made quickly before the proposed adjourned hearing date. He said that there was a fundamental disagreement between the parties about what action constituted misconduct. Certain peaceful impeding of the entry and exit of trucks was not serious misconduct justifying dismissal according to the Union, but such conduct was grounds for dismissal according to Davids. In response, I said: "Mr Rothman, Mr Hatcher described an incident on Saturday in which someone on the picket used a cricket bat to break a windscreen. Now, I don't know whether that happened or whether it didn't, and if it happened, whether it was a member of yours and so forth, but if that case came before me, then you can be absolutely sure that I would not grant an injunction preventing the dismissal of that person." (transcript 17/8/98, p 16) Towards the end of the reply, the following exchange occurred: "MR ROTHMAN: .... I have to say, your Honour, being a little old fashioned and not meaning any disrespect to the court that absent those orders, it is unlikely the dispute will be resolved. HIS HONOUR: Well, that's a matter for your client, Mr Rothman. My obligation is - - - MR ROTHMAN: I'm sure it will use its best endeavours, your Honour. I can only say that. I can only tell you what - - - HIS HONOUR: Well, it had better because if we want to act in terrorem it runs two ways. I mean, very much in the consideration of my mind on the return of the interlocutory injunction application will be the conduct of the parties over the next week as it will be - - - MR ROTHMAN: I understand what your Honour says. I wasn't meant to be in terrorem, and your Honour ought know better - I don't mean that disrespectfully - than to think that I would mean it in terrorem. I was simply saying to your Honour that the confidence with which I expressed a view as to the outcome of the meeting on Wednesday is significantly affected by the existence or otherwise of those orders. HIS HONOUR: Well, that's as it may be. The duty of the court is to act according to the law, and that means taking into account the entirety of the circumstances. I don't know that a consideration of the likelihood of the orders affecting the outcome is really a consideration I'm entitled to take into account much, and as I'd very much like to see the dispute ended, I think the fair approach is as I've indicated to you on a number of occasions to leave with you a very accessible liberty to apply in the event that you say that you have a member who is sent a letter, threatened with dismissal for doing no more than informing those approaching the premises of that person's objection to thoroughfare through the entrance. If that's the circumstance which comes before me on an urgent application by phone or video link, then you can be assured that such person's circumstances will be taken into account and an injunction will go, but I don't expect that the employer will act in those circumstances in the next week. If it does, then come on an hour's notice - come ex parte - and I don't think much more can be done than that, Mr Rothman." (transcript 17/8/98, pp 19-20) The matter was adjourned on the following basis: "HIS HONOUR: Very well. Well, I'll adjourn the matter to 10.15 on 26 August in Sydney for one day, and in the meantime I will not make any orders, but it should have been clear from the discussion that I have a number of expectations, and these expectations come from the submissions of counsel. One expectation is that there will be no dismissal of any employees of Davids between now and then solely on the basis of participation in any industrial action, nor for peaceful participation on a picket where that person's actions are concerned only with informing passers by of the position of that person. I appreciate from the submissions of counsel that there is a narrow line between the parties as to what is acceptable and what is not from the employer's point of view. I've reserved liberty to apply to the applicants on extremely short notice at any time between now and next Wednesday week in the event that a threatened dismissal is made on the basis of actions on the picket line which fall short of the stopping of passage by physical means. The other matter which I have an expectation from counsel that will happen is that the discussions between the parties at the highest level will resume to seek to resolve the remaining disagreement between the parties. It's on that basis that I adjourn the matter, and I reserve liberty to the applicant to apply on one hour's notice of any attempted dismissal of employees of the respondent who are members of the applicant." (transcript 17/8/98, p 21) THE HEARING ON 26 AUGUST 1998 On 25 August 1998, the Union filed an affidavit, sworn by Andrew Joseph on the same day. Mr Joseph said that, on 10 July 1998, before the 10 am deadline, the picketers who had received letters were refused entry to the workplace and picketers who attempted to phone Mr Small in accordance with the invitation in the letter were told that he was uncontactable. He also said that he had been told by Superintendent Ballard, local area commander of the New South Wales police, that 71 Union members had been taken to Blacktown police station and had their names and addresses taken on that day. The affidavit exhibited statements from 41 picketers concerning the circumstances of their dismissal. Some of the statements asserted that the letter threatening dismissal was received after the expiry of the time for contacting Mr Small (see, for example, the statement of Mr Evans). Others stated that they tried but were unable to contact Mr Small and yet others, who did make contact, stated that they were dealt with peremptorily and that Davids was not interested in any explanations. The statement of John Raymond Carratt said: "Dave Small said that the phone call would not make a difference to me being terminated." As the affidavit had been filed prior to the hearing on 26 August 1998, I was able to, and did, read it in preparation for the hearing. When the hearing commenced, counsel for the Union referred to the fact that the affidavit of Mr Joseph had been filed and then called upon Davids to produce personnel files of the employees dismissed. Davids objected that the material was not relevant. The following exchange occurred: "HIS HONOUR: What might be relevant about what is in the personnel files? MR ROTHMAN: Well, your Honour, there is a whole range of things. Exercising your Honour's discretion in relation to the interlocutory orders that we seek are the conduct and service of the persons who had been dismissed, the basis upon which the termination was effected. Your Honour will recall that - - - HIS HONOUR: So if there is a memorandum which says, 'This bloke is an agitator, we've got to get rid of him. Let's use his presence on the picket as the reason?' That would be your - that is, in effect, your case and there could be documentation going to that sort of issue? MR ROTHMAN: Indeed, your Honour. There may be material going to not quite as obviously as your Honour's suggestion, but certainly leading to an inference that was a matter in the mind of employer. There are issues going to whether or not otherwise the employee was a suitable employee to be employed or continued in employment." (transcript 26/8/98, p 6)

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SUBMISSIONS OF THE UNION Counsel for the Union then began to develop the argument that picketing is protected action. In the course of that argument, the following exchange occurred: "MR ROTHMAN: .... It seems, your Honour, that there are two live issues in the case in terms of whether or not the matter is protected action. The first of them is whether picketing can ever be industrial action within the meaning of the Workplace Relations Act. HIS HONOUR: But is that really an issue because let us assume that your opponents are right, the refusal to work is clearly protected action. MR ROTHMAN: Yes, your Honour. HIS HONOUR: If the formalities had been gone through. I mean, if the position is that those whose employment has been terminated has, in fact, been terminated for refusing to work, then you don't need to go into the argument about picketing at all, do you? MR ROTHMAN: No, your Honour, we do not. HIS HONOUR: And I must say from what I have read in Mr Joseph's affidavit, by way of response of the individuals and I must say that this is a very preliminary view and it is subject to being persuaded differently by your opponent but it seems to me that there is an inference open to me at this stage of the case where you are obliged, at worst for you, to establish a serious issue to be tried, that even the early sackings were done in a way which although nominally and expressly, and in response to action over the picket, might be seen by way of all surrounding purposes to be for another reason altogether. MR ROTHMAN: Yes, your Honour. HIS HONOUR: I mean there is a worrying factor that seems to pervade a lot of them that although a time for showing cause was given, it was too short to be meaningful. The person to whom cause was to be shown was rarely available and when available said, in effect, I don't care what you say, you're going to be sacked. I mean, all this might be shown in [the] end, to be a completely wrong picture but at the moment does that not [arguably] show that whatever the letters of the company say, underlying the response was, we have not done too well in the state commission nor the federal commission. The only way to get this thing moving is to sack a few people and we will pick out the ones that cause us the most problem. And then they went about doing that - - - MR ROTHMAN: And/or the ones with the longest service, your Honour. HIS HONOUR: Yes. I mean, these are inferences that are open, possibly, on the material, and if that line was taken then the question of picketing being protected does not arise, does it?" (transcript 26/8/98, pp 15‑16) Counsel for the Union then developed the submission that Davids' real reason for terminating the employees was not attendance at the picket, but that Davids had sought to make that the apparent reason in order to rely upon the argument that the subsequent dismissal was not for taking protected action (transcript 26/8/98, p 21 lines 14-25; p 23 line 23). Many of the statements exhibited to Mr Joseph's affidavit indicated that, on the day in question, only some of the employees on the picket line were selected for dismissal (see, for instance, the statements of Boyd, Casey and Markovic). The statement of Glen Murray said "The company was picking heads of who they wanted to get rid of", and the statement of Bernard Portelli said "I did nothing less or more than my other colleagues. Among eight fellow employees I was dismissed. I really think that they pick heads." The statement of Raymond John Treacy stated "It seems that the majority of those sacked were long term employees".

[38]

Nature of conduct on the picket I raised with counsel for the Union the nature of the action which Davids had relied upon to dismiss the picketers. The following exchange occurred: "HIS HONOUR: And it seems to have been the view of Davids from what I can piece together that that conduct which is shown on the videos of sauntering around a roadway in front of a huge semi-trailer with nothing more is itself conduct that without an explanation warrants dismissal. MR ROTHMAN: Yes. There is no doubt about that, your Honour. In fact, I think my learned friend's - or my learned friend's predecessor in other proceedings has made that clear. HIS HONOUR: Well, I find that extremely difficult to accept, I must say. MR ROTHMAN: Well, your Honour, in a number of cases the - - - HIS HONOUR: So merely being on the picket, on a road, facing a semi-trailer and sauntering around were grounds used by the company to terminate? MR ROTHMAN: Yes, your Honour. And, indeed, the letters attached to the affidavit of Mr Gostencnik dismiss for the sole reason that the persons were observed to interfere with the free access to or exit of vehicles at the distribution terminus. HIS HONOUR: But, you see some of the other letters say you were observed hitting the side of the bus or damaging a vehicle. That is a different question altogether. MR ROTHMAN: Yes, your Honour. HIS HONOUR: But where the letters are not particular, then I have assumed that the only complaint is you were sauntering around on the road and maybe delaying a semi-trailer for five minutes." (transcript 26/8/98, pp 21-22) Previously, six videos had been tendered as exhibits to the affidavit of Gary Johnson, sworn 13 August 1998, filed on behalf of Davids. These videos showed activity on the picket after 13 July 1998, when the Supreme Court of New South Wales first granted ex parte injunctions restraining certain persons from impeding the entry and exit of trucks at the premises of Davids. The playing time of these videos was one and a half hours. I told the parties early in the proceedings on 26 August 1998: "HIS HONOUR: I should say to the parties in relation to this that I have taken the chance in the adjournment to view some but not all of the videos that have been exhibited to the affidavit of the respondent which gives me a much clearer idea than words of either counsel did, what was involved in the picket." (transcript 26/8/98, pp 17-18) I then asked counsel for the Union about evidence of violence, as follows: "HIS HONOUR: But is there in any video any film of any violent act such as the breaking of a window - - - MR ROTHMAN: No. HIS HONOUR: - - - because I have not seen it. MR ROTHMAN: No, your Honour, not that I am aware, there is none. ...." (transcript 26/8/98, pp 18-19)

[41]

Reason for dismissal of picketers Then counsel for Davids on the present application contended that there was a reasonable apprehension of prejudgment, lack of neutrality or active predisposition against Davids from the observation, part of which, although set out earlier, is again reproduced for convenience in following the course of events: "MR ROTHMAN: .... It seems, your Honour, that there are two live issues in the case in terms of whether or not the matter is protected action. The first of them is whether picketing can ever be industrial action within the meaning of the Workplace Relations Act. HIS HONOUR: But is that really an issue because let us assume that your opponents are right, the refusal to work is clearly protected action. MR ROTHMAN: Yes, your Honour. HIS HONOUR: If the formalities had been gone through. I mean, if the position is that those whose employment had been terminated has, in fact, been terminated for refusing to work, then you don't need to go into the argument about picketing at all, do you? MR ROTHMAN: No, your Honour, we do not. HIS HONOUR: And I must say from what I have read in Mr Joseph's affidavit, by way of response of the individuals and I must say that this is a very preliminary view and it is subject to being persuaded differently by your opponent but it seems to me that there is an inference open to me at this stage of the case where you are obliged, at worst for you, to establish a serious issue to be tried, that even the early sackings were done in a way which although nominally and expressly, and in response to action over the picket, might be seen by way of all surrounding purposes to be for another reason altogether. MR ROTHMAN: Yes, your Honour. HIS HONOUR: I mean there is a worrying factor that seems to pervade a lot of them [the letters to the picketers] that although a time for showing case was given, it was too short to be meaningful. The person to whom cause was to be shown was rarely available and when available said, in effect, I don't care what you say, you're going to be sacked. I mean, all this might be shown in the end, to be a completely wrong picture but at the moment does that not arguably show that whatever the letters of the company say, underlying the response was, we have not done too well in the state commission nor the federal commission. The only way to get this thing moving is to sack a few people and we will pick out the ones that cause us the most problem. And then they went about doing that - - - MR ROTHMAN: And/or the ones with the longest service, your Honour. HIS HONOUR: Yes. I mean, these are inferences that are open, possibly, on the material, and if that line was taken then the question of picketing being protected does not arise, does it?" (transcript 26/8/98, pp 15-16) Counsel for Davids on the present application said, in relation to this passage: "There is just nothing in the material which would support such an observation and even if there was, it would not bring the applicant within section 298K or L." (transcript 23/9/98, p 109) Later, counsel for Davids on the present application put it thus: "Your Honour should not under any circumstances have concluded, even as a preliminary view, that the terminations were falsely stated to be for the reasons that were given, so that that statement was disguising some other real motive. ...." (transcript 23/9/98, p 114) The submission that there was nothing in the material to show that there was a serious issue to be tried that the reason for dismissal was not participation in the picket is wrong in fact. The affidavit of Mr Joseph raised a number of facts from which it might have been inferred that Davids was not concerned whether the employees had been on the picket or not. For instance, the affidavit said that not all employees who were on the picket were dismissed, some letters were delivered after the time for response, Mr Small was not available to be contacted about the issue before the stipulated time had expired and, in a few instances when Mr Small was contacted, he rejected the explanations as if the issue had been foreclosed. At this point, the evidence and argument on the issue was evolving. The affidavit in response to these factual matters, sworn by Mr Richards, was filed by Davids in Court at the commencement of the hearing on 26 August 1998. There had been no opportunity for me to read it before the hearing. This must have been clear to counsel for Davids when he sought and obtained leave to file the affidavit in Court at the very commencement of the proceeding (transcript p 3). Even without reference to that fact, it must have been clear from the circumstances that the reaction did not take into account any evidence to be relied upon in response by Davids. This position was made explicit by the wide reservations expressed in addressing the issue. I said that the reaction was "a very preliminary view", "is subject to being persuaded differently by your opponent" and that it may be shown in the end "to be a completely wrong picture". The basis for the inference was further addressed in response to a question from the Court concerning the terms of the warning memorandum, dated 18 June 1998, which provided in the last paragraph as follows: "Any employee who, whilst engaged in a strike or otherwise, interferes with the free access to or exit of any vehicles or people from any of the warehouses operated by this company will clearly be guilty of serious and willful [sic] misconduct. Such employee's employment will be terminated with immediate effect." In relation to this paragraph of the warning memorandum, I said to counsel for the Union: "HIS HONOUR: .... I take it that what you say is that that is so obviously wrong in law that it must disguise some other motive. .... It was in other words just a threat to get people back to work?" (transcript 26/8/89, p 25) Counsel for the Union responded as follows: "MR ROTHMAN: In a sense, your Honour, we put it as high as an abuse of process, in that the threat was made for the purpose of destroying the protection given by the Federal legislation for industrial action of the kind undertaken. And, your Honour, we also say that the conduct of the respondent in the way in which it has been effected, or sought to effect, the terminations shows that there was no bona fide attempt to do other than effect an action which could not be justified by what it is was alleged. In other words, your Honour, we say that the way in which the respondent has sought to effect the terminations is further evidence that they have attempted to do something clearly for a motive other than what is suggested in the letter." (transcript 26/8/98, pp 25‑26) In the present application, counsel for Davids said, in relation to my comment: "MR BUCHANAN: .... Your Honour, with respect, is not entitled to take such a position, even on an exploratory basis, because there was no foundation for it." (transcript 23/9/98, p 116) A central question was whether Davids dismissed the picketers for conduct on the picket. The memorandum of 18 June was capable, on its face, of supporting this contention. However, the memorandum suggested that any interference with the passage of trucks would justify dismissal. On first impression, this proposition appeared extreme. While causing obstruction which created minimal interference would justify some disciplinary action, it would not justify dismissal. The adoption of the extreme position in the memorandum was capable of casting doubt on whether it was, in truth, the basis of any proposed action. Again, this was a matter which was appropriate for discussion. Then followed discussion about the balance of convenience. The Court expressed concern that there were unresolved contempt proceedings in the New South Wales Supreme Court arising out of the alleged breach of orders restraining conduct on the picket and, also, concern about the continuance of the picket. The following comment was made: ".... it seems to be wrong to grant a discretionary remedy to one side where the beneficiaries of that order, namely the employees, whether complying with request, directions or otherwise of the organisation or not in fact cause continuing interruption to the supply of goods into Davids warehouses. It seems to be a result that does not connote fairness to me." (transcript 26/8/98, p 28)

[46]

The gravity of the conduct on the picket is a qualitative question. Counsel for the Union had submitted that there was no violence and that, after 13 July 1998, there was no significant delay caused to the entry or exit of trucks. The exchange presently under consideration further explored that qualitative question. In my view, a reasonable observer would take this passage as an attempt between judge and counsel to define the degree of the severity of the conduct on the picket and would not treat it as the expression of a fixed or biased view against the interests of Davids. At the conclusion of the discussion about what constituted impeding, the following exchange occurred: "HIS HONOUR: But if it [the picket] is going to stop tomorrow and everyone go back to work, is it not a small price to pay if it is a price at all - - - MR MURPHY: No, your Honour, with respect. HIS HONOUR: - - - for your clients to take back 54 people until the matter is determined by the court? MR MURPHY: No, your Honour, with respect. It is a very high price and one my client is not prepared to pay. HIS HONOUR: Well, it does not really have a choice. MR MURPHY: Well, your Honour might hear me on that and I do not mean any - - - HIS HONOUR: Well, I mean if there is an order it does not have a choice. It is not a question of deciding whether it will or it will not." (transcript 26/8/98, p 37) Counsel for Davids argued on the present application that the sentence "Well, it does not really have a choice" demonstrated a formed view by the Court that orders would be made to reinstate the picketers. However, that comment was immediately explained. The explanation leaves no doubt that the comment was only directed to a situation, which may or may not occur, in which orders of the Court were made and Davids was bound to observe them. The comment cannot be seen as evidencing a fixed view against Davids. The question whether orders would be made remained open. For instance, well after this exchange, there was an exchange with counsel for Davids, as follows: "HIS HONOUR: Well, I would envisage - if relief is granted at all, I would envisage the ability of your client to return to the court on very short notice in the event that the injunction should be discharged in respect of any person for any reason that you see fit to agitate, and I will be available on the shortest of notice. And if relief goes, Mr Murphy, you can be quite sure that anyone who - in whose benefit the injunction flows who demonstrates the slightest reason for the injunction not being maintained will find that it is dissolved in respect of that person very quickly because I am very ambivalent at the moment in relation to the question of the Supreme Court proceedings." (transcript 26/8/98, p 65).

[47]

Counsel for Davids then addressed the issues raised in the affidavit of Mr Joseph (transcript 26/8/98, pp 38-42). He observed that there was evidence in Mr Richards' affidavit which contradicted the evidence in Mr Joseph's affidavit. He said: "Our position is that all your Honour has before the court at the moment is in the evidence of - the affidavit of Mr Richards that there is evidence that would warrant the termination. In the affidavit of Mr Joseph there is evidence that there is evidence of a contrary view and that is as far as the materials now go." (transcript 26/8/98, p 38) Counsel then indicated, although with some reservation, that he had already put his argument on whether there was a serious question to be tried. Read fairly, this passage adopts the position that Davids did not intend to argue on the facts that Mr Joseph's affidavit did not disclose facts from which it could be inferred that Davids dismissed the picketers for reasons other than that they impeded trucks on the picket, but rather because they were on strike. Counsel for Davids, however, wanted to rely on evidence in Mr Joseph's affidavit on the balance of convenience to suggest that Davids should not have to take back the picketers, even for a short period, because they had engaged in serious misconduct. He emphasised that, at trial, Davids intended to contest the evidence contained in Mr Joseph's affidavit. By way of reassurance that Davids' position at trial would not be prejudiced, I said: "HIS HONOUR: .... Well, I make it - and I have made it quite clear that in a hearing like this you cannot possibly determine the issue of the motive of Davids finally. I mean, it is an impossibility. The best the court can do is to determine whether there is material from which an inference can be drawn that there is a serious issue to be tried that Davids was motivated by an attempt to get rid of people who were on strike rather than for the stated reason. I mean, I make it very clear and any judgment will underscore it that this is an interlocutory proceeding and it is not a final view of that issue but at the moment I must say it seems to me, without you having yet taken Mr Richards' affidavit, that there is evidence from which that inference can be drawn." (transcript 26/8/98, pp 39-40) In accepting this reassurance, counsel for Davids responded by reiterating that the inference was arguably available, but that he wanted to use the evidence for his own purposes to argue that the balance of convenience favoured the refusal of interim orders. He said: "MR MURPHY: Well, your Honour, there is perhaps evidence from which that inference can be drawn but in the same breath and in the same affidavit there is evidence - and this is the evidence of the applicant - that persons, and we have not done an exhaustive analysis of this material, your Honour, so I take you to this by way of example. ...." (transcript 26/8/98, p 40)

[48]

Counsel for Davids on the present application criticised the sentence: "The best the court can do is to determine whether there is material from which an inference can be drawn that there is a serious issue to be tried that Davids was motivated by an attempt to get rid of people who were on strike rather than for the stated reason." (transcript 26/8/98, p 39) by saying "This is in pursuit of your Honour's propositions" (transcript 23/9/98, p 122). As explained earlier, the inference referred to was argued by the Union. Even if it had not been, there could be no criticism of a judge who raised a matter which had not occurred to the parties, provided a proper opportunity to respond was accorded to the parties. But, finally, in this particular context, counsel conceded that there was evidence from which the inference could be drawn and sought to argue only the issue of balance of convenience in relation to this evidence. A proposition put by the judge to which counsel assents can hardly give rise to a reasonable apprehension of prejudgment or lack of neutrality, or of actual bias, by the judge. Counsel for Davids then referred to some of the statements exhibited to Mr Joseph's affidavit, which described the conduct on the picket. Counsel argued that, because of that admitted behaviour of the picketers, Davids should not be compelled to reinstate them pending the final hearing. Counsel took the Court to Mr Allison's statement and to the sentence under the heading "Do you recall what happened that day?", as follows: "In company with approx 70-80 other storepersons I sat on road until removed by Police." Counsel then took the Court to the statement of Mr Boyd, which included the following sentence under the heading "Any other comment": "Why were only 39 sacked when approximately 70 all did same thing and were arrested? This was all recorded on video by Davids and certain people selected for termination." As a reaction to this sentence, I said: "Well, what about the 70 or 80 other people? Why were they not sacked? You see, that is one of the issues that raises the inference. ...." (transcript 26/8/98, p 41)

[49]

Counsel for Davids on the present application submitted that "it doesn't raise any inference at all, and certainly not one that brings it within Part XA" (transcript 23/9/98, p 122). This may be a good argument at the end of the day. But exploring the question with counsel against whose client the argument is put cannot give rise to a reasonable apprehension of prejudgment or lack of neutrality, or of actual bias. The dismissal of some picketers and not others, when all engaged in the same conduct, are facts from which an inference may be drawn that the reason for dismissal was not solely conduct on the picket. Those facts do not, alone, establish what reasons did give rise to the dismissals. But they do suggest that the stated reason was not the actual reason. The argument proceeds in two stages. The first stage is a consideration of the evidence and a determination that the stated reason was not the actual reason. The second stage is a consideration of the evidence to ascertain whether it establishes the actual reason and a determination whether the actual reason was a prohibited reason. Counsel for Davids on the present application drew together the elements in the complaint, as follows: "MR BUCHANAN: Your Honour's approach on this day appeared to proceed upon the basis that the terminations were not justified, that there was therefore some undisclosed reason for the terminations and that that brought the subject matter of the proceedings within Part XA. All of those assumptions, which really are no more than speculation, were adopted in favour of the applicant and against the interests of the respondent. It was not, with respect, an even-handed approach to the issues. Your Honour left no room for the possibility of balance in all of this. Every assumption ran in favour of the applicant and every adverse conclusion was drawn against the respondent." (transcript 23/9/98, p 122) This criticism does not take account of a number of factors. The then most recently filed affidavit of Mr Joseph, which was filed shortly before the hearing, contained material from which an inference could be drawn that Davids did not dismiss the picketers for their conduct on the picket. Next, counsel for Davids accepted that this material raised a serious question to be tried that the reason for dismissal was not the reason stated by Davids. The affidavit from Davids which responded to this material was the affidavit of Mr Richards. As to this material, the following exchange occurred with counsel for Davids: "MR MURPHY: Your Honour, our position is we are not at that point. Our position is that all your Honour has before the court at the moment is in the evidence of - the affidavit of Mr Richards that there is evidence that would warrant the termination. In the affidavit of Mr Joseph there is evidence that there is evidence of a contrary view and that is as far as the materials now go. HIS HONOUR: Well, I do not know what is in Mr Richards' affidavit. You should take me to it because I have not read it. MR MURPHY: Yes, your Honour, well - and again this is very much in summary. It is not our case - it is not the case we put and will put if necessary on a reinstatement application. It is simply to indicate to the court that there is evidence that the available - that the terminations were justified. This is not it but the evidence is available. HIS HONOUR: It is a question of a serious issue, is it not? What - at worst for the applicant it has to show there is a serious issue to be tried. Now, I am sorry, you are really addressing balance of convenience. MR MURPHY: I am at the moment, your Honour. I have put our position on a serious issue. I do not know that I can advance that position any further." (transcript 26/8/98, p 38) In other words, there was material capable of sustaining the inference, and counsel accepted that there was a serious issue to be tried on this aspect.

[50]

Balance of convenience Counsel for Davids then said he would address "the real, and perhaps the most important matter before your Honour .... the balance of convenience" (transcript 26/8/98, p 42). He argued that the Court should take into account the conduct on the picket, that it should take into account that, at the final hearing, Davids might succeed and should take into account that the picketers had rights to take unfair dismissal proceedings in the State Industrial Relations Commission. As to the conduct on the picket, the earlier submissions made by Davids, that there was some violence on the picket, had been persuasive because, at this point, I asked the following question: "Can I just add this, Mr Murphy, accepting even for a moment that they engaged in conduct which was reprehensible - and I cannot from the material be satisfied that all of them did. I mean, the general impression I get from the picket is that there were outbreaks of wickedness at times that the predominant activity was obstructive in the way that I have described earlier, sauntering around on the roadway but not fisticuffs and not violence in a direct physical way. If you imagine that most of the 50, saving for a few exceptions, engaged in that sort of activity in common with a lot of other employees, in the heat of a dispute what is the problem about them going back for the moment?" (transcript 26/8/98, p 46) Counsel answered by saying that it would be wrong for the Court to require Davids to take back picketers who had engaged in misconduct. He also said that 81 people at Blacktown, 12 at Silverwater and 18 in the ACT had not gone on strike. There would be difficulties in the return to work of the picketers because of the mingling of non-strikers and picketers. At this point, counsel for the Union interposed with an offer of an undertaking that there would be no retaliation against those who had remained at work or had returned to work. Counsel for Davids then conceded that there was no evidence of the potential for conflict between the picketers and the non-strikers. He further observed that the majority of picketers had been dismissed over a month before, and had not sought reinstatement. He also contended that, if the picketers returned to work, some training given to casual employees would be lost to Davids. Again, he acknowledged there was no evidence on this matter. I observed that these matters should have been the subject of affidavits. Counsel for Davids rejected this approach and the following exchange occurred: "MR MURPHY: .... See, the question of convenience .... so clearly weighs against an interlocutory reinstatement that that is the position that ought prevail. .... HIS HONOUR: Well, if that is the way you have analysed it, Mr Murphy, I have got to say we have a point of departure right at the beginning because whatever balance of convenience involves I do not see it as a clear issue favouring your side nor necessarily a clear issue favouring the other side, but a question of balance in which as is always the case it is very hard. ...." (transcript 26/8/98, p 52) Counsel for Davids then responded to the argument which had been put by the Union, that there had been no dismissal of the picketers. I then suggested that the opposition of Davids to taking back some picketers may disappear if there were discussions about the circumstances of individual picketers because, according to Mr Joseph's affidavit, there had been little discourse about the matter. Counsel for Davids said he would get instructions. He suggested that there should be no interim orders but, rather, an early trial. It was put that the delay in relation to the picketers' claims was the fault of the Union. I responded "Well, I see the force of that point" (transcript 26/8/98, p 58) and, a little later, "Well, I think there is some strength in that point" (transcript 26/8/98, p 59). At this stage of the argument, just prior to the lunch adjournment, I said: "Well, I would say to both of you the adjournment might give you an opportunity to think about some means of bridging this, what seems to be a final gap relating to the 54. My present view is that even what has been put to me from the bar table about the difficulties and the inconvenience of dates in having the sacked employees 'back' does not at the moment persuade me that it over-rides the right of the employees to the protection of Section 170MU pending the final trial of the matter. The matter is not concluded, my mind remains open. That is my preliminary feeling about it and it, I think, would be assisted by the parties having some discourse on the question of David's resistance to having the 54 back in the light of the fact that the stories from the 54, because of the circumstances, do not seem to have been fully told. I will adjourn till 2.45." (transcript 26/8/98, p 60) After the lunch adjournment, counsel for Davids reasserted that Davids would not reinstate the picketers, and wanted time, if necessary, to file an affidavit as to the difficulties which would be caused by the intermingling of the picketers and the non-strikers. He then sought to make an open offer in Court, which had not been put to the Union. The following exchange occurred:

[58]

THE HEARING ON 9 SEPTEMBER 1998 On this occasion, Davids was represented by senior and junior counsel who had not previously appeared in the matter. The new counsel had not seen the reasons for decision handed down on 26 August 1998. Counsel for Davids sought to reopen the whole argument whether interim orders should be made, despite the position adopted by previous counsel on 26 August 1998 that the "real" matter between the parties was the balance of convenience. As counsel sought to re-argue the legal questions going to the existence of a serious issue to be tried, I explained: "HIS HONOUR: .... the basis upon which the matter was left, as I recall it, and I don't claim to have gone back to the transcript, but my own recollection of it was that the only question that your client, at the end of the day on the last occasion, sought to agitate in relation to balance of convenience was the disruption and acrimony that would flow from an intermingling of the striking workforce and pre-strike workforce. That was the issue at the end of the day which your client ultimately wanted ruled upon and I ruled upon it. .... It was ruled upon in circumstances where your client had had ample, if not generous, opportunity to produce evidence of the dangers that were [thought] to reside in a return to work in those circumstances. There was no evidence and it was put to me that it was self-evident that the circumstances would be productive of difficulty. Now, in my determination, rightly or wrongly, I indicated that it was, in my view, not self-evident. It was in response to that situation that I indicated that I did not want to see your client suffer [an]injustice by reason of not having the opportunity of producing evidence which, although as it seemed to me was fundamental to the claim that your client was making about balance of convenience, had not, on that occasion, been brought forward. It was for that reason that the matter was adjourned to allow your client to set aside or vary the order, really upon the limited basis that you may find evidence which was significant in the question of whether the intermingling of the workforces should continue or not until trial. Now, I mean it's true of course that at any time you can come back to the court and seek a variation and I particularly invited that on short notice, but one has to draw a line in relation to the extent to which interlocutory proceedings can take up the time of the court and save for any persuasion that you might seek to provide today, I have come to the court on the basis that what is to be dealt with is any evidence which you should have had last time to support the contention that the balance of convenience favoured a course against intermingling and that that's the narrow issue." (transcript 9/9/98, p 5) After counsel for Davids urged that the wider issues be reopened, I said: "Now, I'm open to persuasion that either it wasn't dealt with by concession or, even if it was, nonetheless it's a matter which should be reagitated but I must say that I'm very conscious that this is about the third or fourth occasion on which this has been back to the court." (transcript 9/9/98, p 7) Shortly after, counsel for Davids said: "But, in any event I hope I've made it clear that we ask your Honour to consider the issues again. They are important issues, they go to the power of the court to grant the orders, of course to the power of the court to extend the orders." (transcript 9/9/98, p 9) The passage which followed is the subject of criticism in the present application. In order to understand that passage, it is necessary to refer to a letter, dated 1 September 1998, sent by Davids to its employees following the making of the orders on 26 August 1998. It should be remembered that the letter was sent the day before the first strikers returned to work, and after Davids had urged the Court not to reinstate the picketers because that would cause acrimony in the workforce. The letter said: "Dear Fellow Employee, Industrial Action in NSW has temporarily ceased, as a result of a two week injunction issued by a Federal Court Judge. The injunction requires Davids to accept back 52 terminated workers who had committed acts of 'gross misconduct'. The Union has given an undertaking to the Federal Court to cease all Industrial Action. The result has been a return to work without any wage increases or changes to working conditions. Davids has appealed the injunction in an effort to remove the terminated workers from our warehouses and ensure we are in a position to manage our operations and protect the interests of our employees and customers. The Appeal will be heard by a full Court of the Federal Court on 9 September. The company had made an offer of a 6% wage rise, while maintaining the 36 hour week. The Union was not willing to accept this or any other new agreement unless the 52 workers terminated for 'gross misconduct' were reinstated. The Union was warned that the offer would be retracted if it was not accepted by a certain date. That date has passed and accordingly the offer was retracted. Proceedings before the NSW Industrial Commission are currently in progress, where a new Award is being arbitrated. This Award will replace the current EBA and should be in the best interests of all parties. Many employees have lost over 8 weeks wages, that can never be regained. The company's business and customers have been damaged, which can only reduce job security for all of us. It has become apparent that the dispute was controlled by people who are not even Davids employees. Outside agitators, other unions and union officials have effectively been in control. Employees like you, with families that suffered, have been forgotten. Davids has demonstrated a commitment to continued operations, servicing customers and providing employment to people who want to work, regardless of picket lines, threats and boycotts. This commitment will continue. The company has provided Security Guards to ensure that employees are protected from potential acts of intimidation and retribution, while in the warehouse and while entering and leaving the sites. If you have any questions or concerns, please contact Ray Richards, David Small or Grant Gearing." The letter was an exhibit to an affidavit of Val Gostencnik, sworn 7 September 1998 and filed on 8 September 1998. Again, I read this affidavit before the hearing resumed on 9 September 1998. Returning now to the response to the statement by counsel that he intended to re-argue the application, the following exchange occurred: "HIS HONOUR: Yes, but there has to be an end, Mr Buchanan, and you see there may well be perhaps another barrister brought in next week who thinks up another point and do we reconvene and have another little debate. One has to be realistic and I am, I must say, very surprised that your clients don't see it as in their interest to have a clear determination of the fundamental issue which is balance of convenience and get on with trying to observe it rather than as I must say, from the material that I've read so far, what I deduce from the material is that your client has dragged itself unwillingly and unco-operatively to an unwilling and churlish compliance with the orders. MR BUCHANAN: There is absolutely no foundation for that deduction and if your Honour is disposed to proceed - - - HIS HONOUR: I will in due course Mr Buchanan want to hear, just so I flag this issue at an early stage so that you understand how I view it, at the moment uneducated by further argument or evidence, but one of the affidavit[s] that has been filed on behalf of the union since the last adjournment, (an affidavit of Mr [Gostencnik] sworn 7 September, exhibits a letter dated 1 September from your client to the employees. I made no particular orders about how the terms of the orders were to be notified. The union gave an undertaking that it would ensure no victimisation. I didn't make any reciprocal orders on your client to ensure that the existing work force was controlled to the extent that your client had it in its power to do so, and the evidence that's before me at the moment, or will be presumably in due course when this affidavit is formally tendered, starts with the following two sentences: Industrial action in New South Wales has temporarily ceased as a result of a two week injunction issued by Federal Court judge. The injunction requires Davids to accept back 52 terminated workers who had committed acts of gross misconduct. It's hardly the sort of representation of the order that is calculated to ensure that the acrimony that you said might erupt would not erupt. On the [face] of it, it appears to me to be capable almost of being an inducement by the existing non-strike work force. That's a preliminary view that I have and which might bear upon at least the question of the balance of convenience for continuation. I tell you that for your information at this stage, Mr Buchanan, it's something that struck me rather forcefully. MR BUCHANAN: I regret to say, with respect, that it's not an appropriate characterisation and it takes your Honour well beyond the legitimate role of the court in relation to these issues. If your Honour is burdened by views of that kind then your Honour should seriously consider whether your Honour should continue to sit in the matter. HIS HONOUR: It's a preliminary view, Mr Buchanan, and I'm eager to hear what you say, but it has to be viewed in the background of the case where an issue today is balance of convenience. The issue on the last occasion as it turned out was the difficulty that your clients foresaw of the intermingling of the work force. I frankly would have expected in the light of the union's undertaking that your client would have notified its work force in a way which indicated that everyone hoped that there'd be a non-acrimonious resumption. But maybe you did, I don't know, it's not evident at the moment but maybe you'll be able to tell me. MR BUCHANAN: Your Honour took the position that the people dismissed were dismissed for good cause. We put the position plainly before your Honour that it did not want them back, that there would be difficulties at the work place and that it was regarded as a most undesirable outcome that they should be put back by order of the court. There's never been any doubt the position that my client has taken in relation to these issues of fact and substance. HIS HONOUR: But you can't say, look, as a matter of balance of convenience there's going to be acrimony, that's self-evident. The court determines that it's not self-evident, asks you to come back in two weeks if you still want to agitate that question. In between the two weeks let us just say for example, and I'm not saying that's what happened in this case at all, but let's say, for example, the employer organised a vigilante group to pick out the leaders of the strike and then came to court and said, well, you see we told you that there was going to be acrimony. In order words if it's induced by the employer itself then the argument for balance of convenience it seems to me fails. In any event I think perhaps we're - - - MR BUCHANAN: I don't know why your Honour postulates these extreme examples. There's nothing in the material. HIS HONOUR: I said that it wasn't this case but I'm arguing by analogy, Mr Buchanan, that - - - MR BUCHANAN: Analogies, your Honour, with respect, seem to fall in one direction but never the other. HIS HONOUR: Well is there evidence that's going to be led to show that your client took all reasonable steps to soothe the possible trouble? MR BUCHANAN: Not at the moment and it's not relevant. It's not relevant to the matters that we want to raise." (transcript 9/9/98, pp 9-11) Counsel for Davids on the present application contended that, while the view expressed was said to be a preliminary view, taken with previous instances, it was not in fact a preliminary view. This submission is rejected. The view expressed was, as recorded, a preliminary view. It acknowledged that the view was uneducated by further argument or evidence and included an invitation to put submissions on the issue. Indeed, some little time later, counsel for Davids listed the affidavits sworn since 26 August 1998 and upon which Davids sought to rely on 9 September 1998, and explained their contents. The following exchange occurred: "MR BUCHANAN: Now, your Honour, there are then further affidavits which really, your Honour, go in response to the issues that were raised by Mr [Gostencnik's] affidavit. HIS HONOUR: Yes. Have these been filed, Mr Buchanan? MR BUCHANAN: Yes, they have, your Honour. The ones I'm about to refer to now were filed, I think, this morning, and brought to court, but your Honour may not have had a chance to - - - HIS HONOUR: Well, I haven't had them and so obviously what I've said in relation to Mr [Gostencnik's] affidavit has to be read or has to be received in the light of the fact that I have not seen any further material other than what you have just identified, Mr [Gostencnik's]] fourth affidavit I think it is, and I have not seen what you are now getting to." (transcript 9/9/98, p 18)

[59]

After the initial exchanges just referred to, counsel for Davids listed the affidavits upon which Davids sought to rely in the resumed hearing. Those affidavits included nine affidavits sworn after the hearing on 26 August 1998 - five were sworn on 4 September 1998 and four were sworn on 9 September 1998. In respect of the affidavit of Mr Blazejko, sworn 4 September 1998, counsel for Davids said: "Your Honour, it goes as we would seek to use it today to a number of issues. Firstly the basis for selection of employees, a matter about which, as I read the transcript, your Honour, was inclined to speculate on the last occasion." (transcript 9/9/98, p 15) Counsel for Davids then handed up a written outline of argument and the Court adjourned to allow time to read the outline. The outline included the following paragraphs: "31. Section 170MU is directed to dismissals for engaging in protected action. During proceedings on 26 August 1998 there was some speculation to the effect that the motivation for termination might be inferred to be not as disclosed but for some other reason so that 'the question of picketing being protected does not arise' - see transcript 26.8.98 pp. 15-16. 32. It is not to the point that some of the picketers were not dismissed. 33. Any such issue could only go to the fairness of the termination and does not relate to issues arising under s.170MU or s.298K, which sections are only invoked in relation to the conduct which each proscribes. 34. In any event further evidence is now available in the affidavits of Ray Richards, Henry Blazejko and Joseph Zammit (each sworn 4 September 1998) deposing to the basis of the terminations in question, namely the specific identification of individuals acting to prevent or impede the access or egress of vehicles to or from the Respondent's premises. 35. There is no doubt about the occurrence of the obstruction which is deposed to by the Applicant's own witness, Mr Andrew Joseph, in his affidavit sworn 25 August 1998 para 4. The videos confirm it. 36. Considerable support is also available from the responses provided to Mr Joseph (and attached to his affidavit) from persons who had been dismissed. More than enough material is available to support the proposition that a substantial level of obstruction was intended and occurred. And see Transcript 26 August 1998 p.28. 37. No inference is, at this stage of the proceedings, reasonably available to the effect that the termination of fewer than the whole number of picketers is due to an undisclosed motivation. 38. Nor is it appropriate to speculate about some other motivation. 39. To the extent that it is suggested that the bare possibility of an undisclosed motive might take the issue beyond any concern about the existence of 'protected action' that will serve to remove the circumstances entirely from both the operation of s 170MU and the scope of the remedy being sought from the Court. 40. Nor is it appropriate to deride the decision to dismiss as being occasioned by 'sauntering' in front of trucks - see transcript 26 August 1998 p 21, 22, 27, 46, 67. Such a description is not complete nor, in substance, accurate. 41. It is not the law that conduct on a picket line must be accepted or is lawful providing it falls short of violence or malicious damage. 42. If, as is contended, the conduct in question was not 'protected action' then the Court has no role to examine the fairness or otherwise of a decision to terminate for the reasons which have been explained."

[60]

On the present application, major emphasis was placed by Davids on the events which occurred on 26 August 1998. The obvious time to make complaint about those events was on the application for leave to appeal against the orders made on 26 August 1998. Not only was prejudgment or lack of neutrality not raised as a proposed ground of appeal but, as has just been related, further steps were taken after 26 August 1998 which suggest that Davids did not regard the matter as finally determined against it at that time. A number of affidavits were sworn and filed which related to the issues which are now said to have been predetermined against Davids. The outline of argument included submissions which responded to the issues which are now the subject of the present application. Counsel for Davids then addressed argument throughout the morning session concerning the power of the Court to make the orders sought. These arguments have been addressed earlier in these reasons. Shortly after the commencement of the afternoon session, counsel for Davids referred to some of the matters which had been raised by the Court on 26 August 1998, as follows: ".... we've tried to deal [in the outline of argument] with what appeared to be an exploratory series of questions from your Honour about whether it was necessary to examine the question of picket conduct at all. The flaw, with respect, in your Honour's approach was that your Honour was moving into questions of fairness. Things like inadequate opportunity to provide an explanation and - - - " (transcript 9/9/98, p 50) This elicited my response, as follows: "You have totally misconstrued the point of those questions I am afraid to say. I was not at all concerned about fairness. That's not, clearly not, a subject that concerns me. It was a question of what motivated the alleged terminations that it seems to me that those things go to. You see, the case that the applicant puts under section 170MU is that it accepts the reason proposed by Davids that the terminations were because of engagement in picketing and then they go on to argue that that's protected action. It's quite possible that in the light of the facts as they have come out to infer that the selection of some and not other persons for termination casts doubt on the expressed reason at this interlocutory stage. There is no way that I can make final findings but if the facts are that the employer says, 'You 50 are sacked because you've engaged in gross misconduct unless we hear from you in explanation'; and then if the facts go on to show that there was no opportunity given for explanation at all and where a person was able to provide some explanation it was peremptorily dismissed - and, again, I'm not saying these are the facts of the case but there were indicators in the evidence which were capable of giving rise to an inference that the purported reason was a charade, that what was really happening was that certain persons, a smaller group out of a larger group who engaged in precisely the same activity, were selected for dismissal, and then you get into the area of a possible case under 298K. That is what I was putting by way of exploring the issue and it had nothing whatsoever to do with considering the fairness or otherwise of the terminations. It was directed to a serious issue under 198 [s 298]. MR BUCHANAN: Well, there are a couple of important problems with it, your Honour. Firstly, it takes the circumstances outside the embrace of section 170MU because once one moves away from protected action as being the action one is outside 170MU. So one can put that to one side. HIS HONOUR: Yes. This was looking at the 298 case. MR BUCHANAN: Secondly, this was not the way that the applicant wished to argue its case and, with respect, it was not for your Honour to substitute an alternative thesis. HIS HONOUR: Well, I'm presented with facts and I'm presented with an application under the Act and I can't close my eyes to conclusions which obviously flow, even if Mr Rothman doesn't propose them. MR BUCHANAN: Your Honour, you don't start with an assumption that it would be desirable to grant an interlocutory injunction. HIS HONOUR: I don't start with that assumption at all. I look at the facts and see whether there is a cause of action that is arguable. MR BUCHANAN: The applicant's arguable case was that this was a breach of 170MU. I know they said 298 as well. Your Honour proposed for them a version of events, which, with respect, had no support in the evidence, as an alternative basis on which to bring their application for interlocutory relief; and, with great respect, your Honour should not have done so." (transcript 9/9/98, pp 50‑51) The issues were also addressed over the next ten pages. The following extracts give a picture of the course of the argument: "HIS HONOUR: Well, there is material that people got show cause letters one night, tried to ring, couldn't get through or did ring and were told, 'We're not interested in your explanation', and then were sacked. Now, I suggest that that sort of evidence on its own and left unanswered - and you say there is an answer now but left unanswered as it was - gives rise to an inference that the real reason for termination was not as was argued. That's all. That's just arguable. .... The question we are looking at is, what can be derive from the evidence about the purpose and if the response of the company to conduct at the lower end of the scale was to deem it gross misconduct and terminate people, then one is left scratching one's head and asking, well, what's the real reason, because surely it couldn't have been concerned about people simply - even infringing the company's right to have free access of trucks along the roadway, but in the context of an industrial dispute, I can't accept, at least on the face of it, that just momentary or inconsequential interruption would be cause for saying you show me cause by tomorrow why you shouldn't be terminated. It doesn't make sense to me. .... MR BUCHANAN: .... The letters say to people, this is what you have been observed doing, unless you provide an explanation which is acceptable to us, your employment will be terminated. .... HIS HONOUR: What were they seen doing?" MR BUCHANAN: Obstructing trucks. HIS HONOUR: Yes, but what is that? Is that walking across the road so that a truck has to slow down? There were some people on the video who simply did that, who walked across the road in a group causing a truck to slow down. Now did a person who did that receive a letter? MR BUCHANAN: I don't know, but your Honour can't assume that that's the position. HIS HONOUR: But that's your evidence. They are your videos. I looked at your videos and I saw crowds of people, some of whom just did that. MR BUCHANAN: But you also saw, no doubt, people jostling with the police, people refusing to move on, people linking arms. HIS HONOUR: That's the significance of the fact that not all persons were the subject of these letters. I don't know how you selected them except you say they were observed obstructing and that's where the difficulty is created in knowing what the observer meant by saying what obstructing is. You can't tell me whether a person who simply walked in front of a truck causing it to slow down together with a group of people was sent a letter. If such a person was then, as I repeat to you, Mr Buchanan, the gross disproportion between the act and the letter and the threat from Davids causes me to wonder what the real purpose in sending the letter was. MR BUCHANAN: But your Honour is introducing a value judgment against the bare possibility that one person, as your Honour has put, received a letter for slowing a truck down. It wouldn't really matter if he had, if it was obstruction and if the company was entitled to have the vehicles moved in and out without obstruction. But that's not a fair characterisation of the whole of the material. HIS HONOUR: Can you link particular people of the 50 to particular events?

[61]

MR BUCHANAN: If that has to be done in due course, well it will have to be done, but in the meantime your Honour can't, with respect, nor can the applicant, conjure up an arguable case out of such speculation. HIS HONOUR: Why assume in your favour that the 50 were people who were involved in the more serious elements of participation on the picket or the less serious or what? MR BUCHANAN: It's not a question of assuming anything in the respondent's favour. This is a task for the applicant and making value judgments about degrees of seriousness, your Honour, with respect, is not relevant to the present task. HIS HONOUR: It's relevant to the question of purpose, Mr Buchanan, which is what we are discussing, inferences about purpose. The trail of reasoning is this: purpose is an element to be established by the applicant. Purpose is a factor particularly at interlocutory stage which ordinarily is proved by inferences from established facts. One of the facts established in this case was that the company purported to terminate people for participation in obstructing trucks. The evidence of obstruction ranged from minimal interference to more significant interference. There is no identification in your material of any criteria of behaviour that is any degree of obstruction which your client used as a guideline to select the 50. I therefore am left in the position where some of those 50 have been selected solely on the basis that they were at a picket and wandered in front of a truck, causing it as many pictures show, not to stop but to slow down." (transcript 9/9/98, pp 52, 57, 58-59) In order to get a sense of the issues, it is desirable to include the following: "HIS HONOUR: But you have now gone on oath and said, here's the way we select people. We have selected them because we saw them obstructing. You haven't I think, and I haven't looked at it carefully enough to determine this finally, but I don't think your deponents anywhere say that there was any particular criteria for selection other than being there on a picket. There was no act designated as attracting notice. MR BUCHANAN: They shouldn't have to go further, your Honour, this is not a question where assumptions run against the respondent. HIS HONOUR: No, it's a matter of inferring purpose." (transcript 9/9/98, p 60)

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Counsel for Davids on the present application complained that these passages were "just a continuation of the same theme" (transcript 9/9/98, p 136), by which I take him to adopt his earlier arguments relating to the events of 26 August 1998. However, he correctly referred, in the outline of argument and, orally, on 9 September 1998, to the exchanges on 26 August 1998 as being "exploratory". The same is true of these exchanges on 9 September 1998. Being exploratory, they do not evidence a lack of neutrality or actual bias. Counsel for Davids then moved to address the Court on the question of the balance of convenience (transcript 9/9/98, p 61). In order to fully appreciate the context of the next events, it is necessary to record a comment I made at the start of this part of Davids' argument. I said: "Perhaps it might help you, Mr Buchanan, if I indicate to you that - I mean, I'm not blind to the possibility that certain issues will arise. One always lives in the hope that the ordinary commonsense, practical difficulties can be ironed out between the parties. If that is not possible, then I have indicated and would always make it a concomitant of such an order as this, that you could return to the court on short notice as the need arose, and indeed I think my chambers were notified early last week and I think it was Tuesday and I indicated that - maybe it was Wednesday - but I indicated that there was immediate availability, I think the following day or two days later on the Thursday which didn't suit the parties. But those sorts of difficulties I would have thought are capable of being answered sensibly by cooperation between legal advisers and if not then by bringing the matter back to court." (transcript 9/9/98, p 63) Shortly following is a passage, to which exception is taken, as follows: "HIS HONOUR: But you see in the absence of such orders there's no reason [why] Davids couldn't simply dismiss - achieve now what it on the basis of the preliminary findings intended to achieve - I'm sorry, not the intended, the possible finding of an arguable case of breach. If that finding were made and there were no restraint on further dismissals Davids could turn around tomorrow and simply do that very thing, achieve exactly what it hasn't been able to achieve up to date immediately the court adjourns. MR BUCHANAN: Your Honour can't in any circumstances assume such a motivation. That is with respect a most monstrous suggestion. HIS HONOUR: Well, let us assume there's been a finding of a serious issue. MR BUCHANAN: But that's all, and as we put on the flimsiest of bases, but at the very least upon a process of mild inference." (transcript 9/9/98, p 63) On the present application, counsel for Davids said, in relation to that exchange: "But your Honour did appear inclined to propose, without the slightest basis for the suggestion in our respectful submission, that Davids would manipulate events or engineer circumstances so as to achieve something which it was prevented from doing by the court's order, so that it could get rid of the 52 on some pretext or other. That's what your Honour is suggesting." (transcript 23/9/98, p 137) This submission misconstrues the passage. The passage merely stated that, if not restrained, Davids would dismiss the picketers and thereby achieve what the existing orders prevented. That was a statement of fact. The next exchange about which complaint was made concerned the question whether there would be acrimony between the picketers and the other workers such that the balance of convenience favoured the refusal of orders. It will be recalled that counsel for Davids asserted, on 26 August 1998, that the existence of such acrimony was self-evident. I rejected that proposition, but allowed Davids time to file evidence on the matter. The affidavits, sworn on 4 September 1998 and filed on behalf of Davids, did not go to the issue. The Union, however, filed the fourth affidavit of Val Gostencnik on 8 September 1998. This affidavit exhibited 17 statements of employees of Davids who had returned to work and who claimed certain acts of harassment by other employees and by management, and some acts of vandalism and theft by unknown persons. As the affidavit was filed before the hearing on 9 September 1998, I had read it before the hearing. The events recorded in the affidavit were limited to the first few days of the return to work and were, in the main, minor. Davids had not, at this stage, filed any further material relating to the existence or possibility of acrimony in the workplace. On the morning of the hearing, Davids filed an affidavit which answered some matters raised by Mr Gostencnik's fourth affidavit. I had not read this affidavit, as was made clear to counsel for Davids. With this background, I set out the following exchange: "HIS HONOUR: Mr Buchanan, when you think about it, I mean the workforce went back to work about two weeks ago. All that's been scraped up for the purpose of this occasion to persuade me that there was - - - MR BUCHANAN: I wouldn't use terms like 'scraped up'. HIS HONOUR: Well, it seeks to underscore the fact that of the - I think it is - is it 18 or 13 of the statements attached to Mr [Gostencnik's] affidavit - they represent, when you analyse them as I've quickly done predominantly that is, I think, more than half, incidents of minor vandalism to the striking workers lockers. Now that's unfortunate, perhaps understandable, but it's past history. It all happened or became evident on the first day of work. So that's the predominant flavour. MR BUCHANAN: Of that material, from one side. HIS HONOUR: Yes, and does your material - - - MR BUCHANAN: Yes, it answers it directly. HIS HONOUR: And what does it say, because I haven't seen - - - MR BUCHANAN: In relation to the vandalism, for example, it says that it can find no support for it and there is a suspicion it might have been self inflicted. HIS HONOUR: Let's assume that's right. My point is that both of you, particularly your side who predicted mayhem, acrimony and unworkability, the best that's happened is there's been a bit of vandalism which may be self inflicted, may not be but it's 10 people out of a workforce of 300. That's the picture given to the court, on the first day back at work. So what? " (transcript 9/9/98, p 68) Counsel for Davids on the present application submitted that the reference to "scraped up" was dismissive of Davids' position (transcript 23/9/98, p 139). This, again, is a misreading of the reference. The reference to evidence being "scraped up" was a reference to the Union's material on acrimony in the workplace - the only material which had been read. If the passage was dismissive, it was dismissive of the Union's evidence. The discussion proceeded as follows: "HIS HONOUR: Can I just put to you this, Mr Buchanan: if your client had following the decision and following protestation of its fears of unworkability in the workplace, returned to the workplace and said, we seek from all of you non-striking employees to observe the spirit of the order which is that there be an orderly return to work with no victimisation; we, the company, ask you to do that and we will view any acts of victimisation from our employees as seriously as sauntering in front of the truck. Had that been done and you had come to court and told me that it had been done and then it had appeared that there was ongoing serious acrimony, then I might be persuaded about the bona fides of your client to act in an attempt to get the workplace back to work, but where all that I've got is a letter as I read to your earlier which says the federal court, in effect, has inflicted on us persons who are guilty of gross misconduct and then the evidence that comes up about the workplace is that nothing terribly much has happened apart from ordinary teething problems of the day or two after the return to work, what should I regard as the likelihood of your client acting in the exercise of its discretion between now and the trial to act in conformity with the requirements of the law? MR BUCHANAN: There's absolutely not the slightest basis to doubt that it will act in accordance with the law and the evidence of its - - - HIS HONOUR: There's a very grudging, half hearted, inadequate attempt to address what it saw as a concern, relating to balance of convenience, or tell me if I'm wrong about that Mr Buchanan, because is there anything more that your client did than send out the newsletter of 1 September which says in the second sentence: The injunction requires Davids to accept back 52 terminated workers who'd committed acts of gross misconduct MR BUCHANAN: You will find in the material - your Honour is not entitled to make the assumptions, much less act on them. You will find in the material and I think I am bound to say, your Honour, that it's capable of evincing such a serious predisposition against the respondent in these circumstances that it raises very serious questions about your Honour's participation in the trial. HIS HONOUR: You say that, Mr Buchanan, I'm asking you at the moment for a response to an initial reaction I have had to those lines in the document. MR BUCHANAN: It's a statement of the company's position. They're very unhappy, of course, about the consequences of your Honour's order but your Honour was told they would be. They did take the view that it was gross misconduct. They do take the view that the reinstatements were not justified and will not be justified at the trial. HIS HONOUR: But you see, you are saying, look, it's very wrong for the court to restrain until the trial this company in these circumstances from exercising its usual right to terminate because it's going to create all sorts of problems. What I'm seeking to explore with you is, if your client was serious in putting its concern about balance of convenience as it put last time, that there would be acrimony in the workplace - - - MR BUCHANAN: There has been obviously. HIS HONOUR: In a sense it's been provoked. MR BUCHANAN: Your Honour can't assume that. HIS HONOUR: I can read the letter. MR BUCHANAN: Your Honour hasn't even read the affidavits which we filed. HIS HONOUR: And that's what I'm asking you to explain to me, how they bear upon this initial reaction that I have. MR BUCHANAN: They bear upon it in this sense, that they do give - - - HIS HONOUR: Perhaps you should take me to the particular parts, Mr Buchanan. MR BUCHANAN: They are full of explanations of investigation of the complaints which have been made by both non-striking and striking employees. HIS HONOUR: I haven't read them, they do raise an important issue and I think you should take me to them in some detail." (transcript 9/9/98, pp 69‑71) The passage as a whole starts from tentative conclusions drawn from the affidavits which I had read that Davids, having raised the possibility of acrimony in the workplace, had done little thereafter to ensure that such acrimony was avoided. The passage proceeded to invite counsel to point to specific parts of the affidavits filed on the morning and not yet read, which might affect that "initial reaction". Particular complaint is made about the sentence: ".... what should I regard as the likelihood of your client acting in the exercise of its discretion between now and the trial to act in conformity with the requirements of the law?" (transcript 9/9/98, p 69) The sentence contains a question seeking information. The sense of it, in context, is made clear by the elaboration which followed counsel's observation that there was no basis to doubt that Davids would act in accordance with the law. The elaboration was as follows: "HIS HONOUR: There's a very grudging, half hearted, inadequate attempt to address what it saw as a concern, relating to balance of convenience, or tell me if I'm wrong about that Mr Buchanan, because is there anything more that your client did than send out the newsletter of 1 September which says in the second sentence: The injunction requires Davids to accept back 52 terminated workers who'd committed acts of gross misconduct". (transcript 9/9/98, p 69) The whole point of this exchange was to explore whether any acrimony which had occurred had been contributed to by Davids' own actions. This was a legitimate and important matter for inquiry, relevant to the determination of the balance of convenience . Counsel for Davids then returned to the basic proposition that the balance of convenience favoured the making of no interim orders at all. He suggested that orders preventing not only reinstatement of employees but the subsequent termination of employment of those employees was "a serious and intrusive restriction" (transcript 9/9/98, p 74). In response, I said: "I keep repeating, Mr Buchanan, these orders are interlocutory, they are designed to ensure that the status quo remains. If it was clear that your client had acted quickly and with determination to settle the workplace down, I think I'd be much more open to persuasion. I have the difficulty that the immediate response to the situation was to circularise the workplace with the letter that I've referred to which was not conducive to settling things down and stands on the rights that it has to appeal and so forth. I mean, I can't stop it but it doesn't encourage me to think that what is necessary in this case is the most stringent regulation of the conduct until the court can determine the case." (transcript 9/9/98, p 74) This passage raised with counsel for Davids the "difficulty" which I saw in the conduct of Davids after the making of order on 26 August 1998. It assumed that a serious question to be tried had been raised, and was exploring whether the failure to take sufficient steps to avoid acrimony in the workplace might justify the making of wide interim orders. The complaint made by counsel for Davids on the present application was that the passage suggested that Davids may not behave properly without wide restraint. This was the issue raised. But there was evidence about Davids' conduct which needed discussion. To raise a matter which does not put a party in a favourable light is not the subject of legitimate complaint. This was a relevant matter, even if not favourable to Davids. The issue was taken a little further on the next page. The question here was, again, whether there was any justification for interim orders beyond reinstatement. Counsel for Davids urged that, even if the Court was justified in reinstating the employees, it could not be justified in restricting Davids' power to terminate their employment thereafter. To that, I said: "Let me put this to you, Mr Buchanan. If, having failed in this interlocutory proceeding [and reinstatement orders were made], the company determined to provoke a number of employees whom it wanted to be rid of into a situation where it was able to terminate them for saying 'get stuffed' [a reference to an actual incident giving rise to a threat of dismissal] or something similar, it could achieve the exact same result as was sought to be achieved at least so it is found on this assumption and it is not my finding at this stage but on an assumption that there's an arguable case of breach of 170MU or 298K. The position of the employer is so capable of being manipulated to achieve the same, that I would be looking if I was being asked to release control in the interim period, of some demonstration of bona fides and acting in a way which accepted that this was the regime that was going to apply until the hearing of case. Now, what do I in fact see the company have done?" (transcript 9/9/98, p 75) Again, counsel for Davids in the present application argued that this passage demonstrated a view that Davids would not act properly. This is not a reasonable construction of the comment. The comment raised a theoretical reason for viewing the balance of convenience as favouring wide orders. As the Union had not put its arguments in response by the end of the hearing on 9 September 1998, the matter was adjourned until 22 September 1998. The existing orders were continued in a slightly modified form. A reason for the continuation was the very fact that orders were then in place. I said to counsel for Davids: ".... the orders are being made today because there are extant orders or were, yes there are extant orders. I have by no means determined either to accept or reject your submissions. They have been well put, they are not free from merit, and I will want to consider them, but one has to be realistic about the interim situation. There have been orders in place so far. The resumed hearing can only occur on the 22nd. In the meantime I will continue the orders but you oughtn't to take that as any dismissive treatment of your arguments. I will consider them carefully. They've raised matter[s] which are, if not new, at least put in a much more amplified way." (transcript 9/9/98, p 85) Counsel for Davids submitted that Davids should be free to dismiss employees who misconducted themselves at work. It was alleged that Mr Pucar had harassed Mr Younan although, as to the nature of the conduct, counsel for Davids said: "I apologise for this, your Honour, I really should be in greater command of this material, but it's almost as new to me as it is to your Honour. I can't turn it up, your Honour. I had an impression that there was some more material about Mr [Younan] but I confess I can't find it at the moment." (transcript 9/9/98, p 87) In order to limit the continuing disputation, I fixed the trial for hearing on 9 November 1998. I then gave short reasons for the temporary continuation of the modified orders, as follows: "Firstly that the trial is estimated on the basis of information presently available to take up to five days. The venue for the trial will be decided on 22 September 1998. Next, it should be noted that the purpose of the adjournment until 22 September is to allow the completion of argument on the application for interlocutory relief and the respondent's notice of motion seeking variation or discharge of the injunctions. I have decided to continue orders in a slightly modified form in the meantime but emphasise that such orders are not made in any way as a reflection of the strength or weakness of the argument presently put comprehensively by Mr Buchanan on behalf of the applicant. I remain open-minded about the final result of the interlocutory application. Mr Buchanan has raised in the course of today's proceedings the difficulties in relation to termination by the company of certain employees for breaches of discipline. As I understand it that problem presently relates to Mr Pucar, Mr Taylor and Mr Dobson but he has pointed to the possibility that the current orders inhibit the company's ability to deal with disciplinary matters effectively. I am conscious of the problem that this may cause for the company and consequently invite the company in the appropriate case to approach my associate for an urgent listing of any particular disciplinary incident that needs immediate attention. In particular, should the company require the position of Mr Pucar to be ventilated, I have indicated that I am in Sydney in the next two days and would make some short time available for the purpose. Thereafter it will be a matter for - to approach my associate, but in any event the matter will be dealt with expeditiously. That protection is made available to the company in the light of the arguments so far put by Mr Buchanan and of course, not having heard what Mr Rothman has to say about the issue in detail. It is desirable in my view that if urgent applications are to be made in relation to Mr Pucar or any others on disciplinary matters that the parties whether directly or by lawyers should confer to see if there is any common ground available so that the expense of further proceedings and the inconvenience necessarily connected with them can be avoided. Similarly, it would in my view be highly desirable for the parties to confer in relation to the 52 employees the union has undertaken to engage in such conference and I encourage Davids to do likewise. It does seem to me also to be a matter of importance that Davids take positive steps to try and ensure as best the employer can that the workplace return to normality between now and 22 September during which time my orders will be in effect. It does seem to me from the perhaps limited view that I've gained in the course of the proceedings today that the communications with the employees in the letter of 1 September might in the current circumstances need some further explanation. The position presently is that there are in place orders which should have the effect of returning the workplace to normal and it is desirable in my view that that message be communicated by the employer with the authority that that carries even though, as I recognise, the present orders are not the orders which the respondent would seek to have in place. Nonetheless they are in place and they will remain in place until 22 September barring any further legal proceedings and it would, I think, assist the matter if Davids took a positive step to bring that fact to the attention of their employees. The extent to which Davids does so may well bear on the approach that I will have to take to the question of the balance of convenience for the period between 22 September and the date of the trial on 9 November. I say 'may' because I will, of course, hear argument as to the relevance of the conduct of Davids between now and 22 September, if indeed, there is evidence before me as to that matter. ...." (transcript 9/9/98, pp 94-95)

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THE HEARING ON 11 SEPTEMBER 1998 Pursuant to the liberty reserved on 9 September 1998, Davids applied urgently to me to discharge the injunction to the extent necessary to allow Davids to dismiss Mr Pucar. This time, counsel who appeared on 26 August 1998 again appeared. No application was made that I should not hear the matter. The liberty to apply was reserved for urgent problems. I rejected the application on 11 September 1998 because there was insufficient urgency. I gave the following reasons for the decision: "I think it is desirable that I indicate very briefly why I refused today's application. On Tuesday, 9 September I reserved liberty to apply to the parties on short notice. In exercise of this liberty the respondent has applied for orders varying the existing orders to permit the respondent to terminate the employment of Mr Pucar. The only question that I will deal with today is whether the matter is of such urgency that it should be dealt with today rather than on the adjourned date for the application proper in 11 days time. I have indicated that I refused to deal with the matter as a matter of urgency today. It is essentially for the following reasons. Firstly, the incidents with which the application is concerned today are about 10 days old. There is no evidence that there has been any difficulty in the prevailing situation over the previous 10 days in relation to Mr Pucar's conduct. The remaining approximately same period between now and the resumed date should not therefore, it seems, give rise to any particular difficulty. Second, one disadvantage outlined by Mr Murphy of retaining Mr Pucar on the payroll is the need to pay him wages for the next 10 days. The answer to this is that the undertaking as to damages in operation in favour of the respondent would protect the respondent from any payment of wages which turned out to have been unnecessary. Third, I have given careful consideration to the events upon which the respondent has formed the view that Mr Pucar should be terminated. It is possible to envisage circumstances which would justify a variation of such orders as are in place as a matter of urgency. In particular, if there was threatening conduct which was of recent origin and which was threatened to be repeated there may be cause, but the circumstances as outlined in Mr [Younan's] affidavit accepting it is over the objections not yet [enunciated] by Mr Rothman but accepting it at face value, do not suggest to me such circumstances as require attention today rather than on 22 September. Speaking broadly, the incidents which have given rise to the application began with a confrontation between Mr [Younan] and a Mr Hill. It is undoubted on the material upon which I am presently acting that Mr Hill's action in blocking aisle seven was wrong. Mr Hill is no longer an employee of the respondent. He has resigned. The situation between Mr Hill and Mr [Younan] escalated, it appears, because Mr [Younan] took matters into his own hands rather than seeking the assistance of management. He shifted the obstruction which prompted a reply by a fellow worker which caused a series of interchanges escalating in intensity and descending to the absurdity of the following exchange. As Mr [Younan] proceeded on his pallet mover along the now unobstructed aisle seven he passed one of the employees involved in the obstruction and that employee said 'You fuck wit'. That provoked the response by Mr [Younan] 'Did you swear? Why did you swear?' The emphasis I interpolate being on the wickedness of using bad language. Not receiving an answer, Mr [Younan] responded 'Don't fuck up with me. Don't talk to me.' It seems to me clear that the stated abuse had become quite nonsensical by this point. Matters moved on and on the following Monday there was further verbal disputation between Mr Hill and Mr [Younan] which seems from the material so far to have followed on from the events of Friday. In the presence of Mr Pucar, Mr Hill said to Mr [Younan] 'You bugger, we're going to take you home tonight and you're not going to work at Davids any more'. Within a few sentences Mr [Younan] responded 'Michael, if you want to do something to me, see me one to one'. It was at this point that Mr Pucar's first intervention occurred. He said 'Do you know you're a scab, you fucking scab'. It should be noted that Mr Pucar's first intervention was verbal. It was after a discussion between Mr Hill and Mr [Younan] and it was particularly immediately after Mr [Younan] had invited Mr Hill to settle the matter one to one. Shortly afterwards as Mr Hill opened his car boot in the car park Mr [Younan] said to Mr Hill 'Michael, are you going to see me on Forge Street?'. This appears in the way it is related in the affidavit to have been said by Mr [Younan] as a further stage in the invitation to settle their differences. Mr Hill responded 'Yes, we're going to see you there'. At this point it is said that Mr Pucar ran up and said to Mr [Younan] 'You are a fucking scab. What do you think you are, smart coming back to work, you fucking cunt I'm going to kill you' and I think it fair to say that at this point Mr Pucar was restrained by other employees. Again, I think it proper to observe that this interchange occurred in the context of a conversation initiated by Mr [Younan] between Mr [Younan] and Mr Hill who had been involved in controversy and Mr Pucar should be seen as a participant in the animosity of two others. As I have remarked on a number of occasions one of those others, Mr Hill, has now left the employment of Davids. None of these conclusions should in any way be taken by the parties to suggest that the Court condones the alleged conduct in any way whatsoever. Indeed as I have made it plain in argument such conduct, particularly if more remote from the time of commencement of employment, that is if such conduct were to have occurred later and in close proximity to the present, would cast real doubt upon the continuance of the orders but that is not the issue currently before the Court. The question is whether this conduct in all the circumstances is sufficient to invoke the liberty to apply for urgent relief. To return to the narrative, Mr Pucar then apparently, although the facts are not entirely clear despite Mr Murphy's attempted explanation of them - apparently Mr Pucar at this stage left the carpark with Mr Hill and drove to some spot. Then an incident occurred in which Mr Hill followed Mr [Younan] from the carpark, overtook him, pulled in .... in front of him and slowed down. Mr Murphy explained that it was not the allegation of Mr [Younan] that Mr Pucar was involved in this incident. It is not entirely clear to me that there is any significance of threat at this point. The affidavit of Mr [Younan] then continues to identify Mr Pucar at some point on the Great Western Highway in that group of other people and that congregation apparently gave Mr [Younan] cause to be frightened. It seems to be, however, that that was because of the prior incidents and not because of anything that was particularly done at that time. This narrative of the events outlines an unlovely and regrettable course of events. However as I said, Mr Pucar is presently suspended, there is no suggestion that he will be at the workplace in the next 11 days. The conduct is not of a nature in my view that it calls for urgent attention outside the consideration of the primary application for interlocutory relief. Yes, is there anything further - the court is adjourned." (transcript 11/9/98, pp 34-37)

[64]

In the present application, counsel for Davids relies upon two paragraphs in the 37 pages of transcript of the hearing on 11 September 1998. The issue in both is the same. They both concern paragraph 4 of an affidavit sworn by Mr Younan on 10 September 1998 which, in part, said: "From the moment that striking employees returned to work on Friday 28 August 1998, I observed a number of those storemen blocking aisles in the warehouse. This conduct hindered me in the normal performance of my work. I clearly recall one incident in particular which occurred at approximately 9:00pm on Friday 28 August 1998. On that occasion I was in aisle number 7 and it was just before I was due to commence my break. I observed Mr Michael Hill and a person who is known to me as 'Bradsy' standing in aisle number 7. I do not know Bradsy's surname but I recognise him as a storeman who had been on strike during the period 8 July 1998 to 28 August 1998. As I approached these two men on my pallet mover they moved their pallet movers so as to block the aisle so that I could not proceed any further. It was apparent that they were aware of my presence and that they were deliberately coordinating their movements to prevent my passage through aisle 7. As a result of their conduct I had to wait for approximately 10 minutes in aisle number 7. I then got off my pallet mover and went to Bradsy's pallet mover and moved it out of the way so that I could proceed. As I did this Bradsy said to me: 'When you finish your work bring my crown back.' I said: 'You wait here and see if I bring it back.' I then got back onto my pallet mover and proceeded along aisle number 7 passed [sic] Bradsy and Michael Hill. As I passed them Bradsy screamed out: 'You fuck wit.' I drove back to him and said: 'Did you swear - why did you swear?' Bradsy did not answer me. I said to Bradsy: 'Don't fuck up with me, don't talk to me.'" The first comment about which complaint is made is: "HIS HONOUR: .... So what happens, Mr Hill admittedly on this evidence starts the ball rolling. Mr [Younan], I am looking now at the sentence just before the first conversation: I then got off my pallet mover and went to Bradsie's pallet mover and move it out of the way so I could proceed. In the circumstances, Davids gave Mr [Younan] no guidance as to what to do so he takes the law into his own hands." (transcript 11/9/98, p 16) The second comment about which complaint is made is: "HIS HONOUR: I am seeking to put to you that what I derive at the moment from your evidence in paragraph 4 is that and I put it to you, that undoubtedly the starting point was apparently a wrongful act by Mr Hill no longer an employee. That is the starting point and there is no escaping in your favour that that was a wrongful act on this evidence but why is it that Mr [Younan] responds in a way that is provocative if Davids had done the responsible thing and put in place a procedure to balance the other side of the undertaking then what escalated it seemed to me over a number of days between Mr Hill and Mr [Younan] into which Mr Pucar was drawn, may not have happened." (transcript 11/9/98, p 18)