Kilpatrick Green Pty Ltd v The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia & Anor [1998] FCA 559

Events leading to the present application On 25 February 1998 Kilpatrick Green was awarded a contract for the installation of electrical conduits inside concrete slab pours being carried out as part of the construction of a sporting stadium at the Victorian Docklands. The principal contractor for that project is Baulderstone Hornibrook Pty Ltd ("Baulderstone") and it is common ground that the total project value is approximately $360 million. On the morning of 25 February 1998 the second respondent, Mr Harkins, an organiser employed by the Union told Mr Madigan of Kilpatrick Green that the Union had imposed bans on the Docklands project and no electrical work would be carried out until the Union's claim for a site agreement had been resolved. On 5 March 1998, the Union served on Kilpatrick Green a notice in the following terms: NOTICE OF INITIATION OF BARGAINING PERIOD Notice is hereby given to the Australian Industrial Relations Commission, that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 516-520 Swanston Street, Carlton South Vic 3053 is an organisation of employees and intends to try, or to continue to try: (a) to reach agreement under Division 2 of Part VIB of the Act with the Kilpatrick Green Pty Ltd, 150 Gladstone Street, South Melbourne, 3205 and (b) to have any agreement so reached certified under Division 4 of Part VIB of the Workplace Relations Act 1996 ("the Act"). Particulars as specified in section 170MJ are: (a) the proposed agreement shall cover In relation to all works to be undertaken as part of the Dockland projects: (b) (i) the employees subject to the proposed agreement are all persons employed by the company (ii) the proposed parties to the agreement are: (a) Kilpatrick Green Pty Ltd (b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 516-520 Swanston Street, Carlton South Vic 3053 (c) the matters that the CEPU proposes should be dealt with by the proposed agreement include, in addition to the wages and conditions currently applicable, the following: . a wage increase of 137% based on a commitment by the parties to either implement or continue to implement a process of improving productive performance; . measures to enhance the job security of employees and lead to employment growth in the enterprise; . measures to increase investment in the enterprise which will lead to increases in productive performance, job security and employment growth; . measures to ensure that the benefits of improved productive performance are shared equably among all the employees in the enterprise and; . introduction of career path opportunities for employees; . journey accident insurance and income protection insurance; . 104 weeks accident make up pay; . Meal allowance; . Full Severance Pay $100 per week into Incolink Fund No 3; (d) the industrial dispute to which the proposed agreement relates is a dispute found in C No 20633 of 1993; and (e) the proposed nominal expiry date of the agreement is 5 years from the certification of this agreement. The Commission is not being asked to exercise powers to try by conciliation to facilitate the making of such agreement. The Union continued to maintain bans on the performance of work on the Docklands project until 18 March 1998 when a notification by Kilpatrick Green pursuant to s 99 of the Act of an alleged industrial dispute was heard by Commissioner Tolley in the Commission. As a result of a direction given on that day, work by members of the Union commenced at the Docklands site on 19 March 1998 and proceeded without interruption until 7 April 1998. In the meantime, on 1 April, a meeting was held at the Dockland site office between representatives of Kilpatrick Green , Baulderstone and the Union but no agreement was reached. On 7 April 1998, Mr Harkins advised three employees of Kilpatrick Green who were working at the Docklands site that the bans were back in force and since then no further work has been performed by electricians at that site. On 29 April 1998, the Union gave notice to Kilpatrick Green pursuant to s 170MO of the Act of intention to engage in industrial action from 4 May 1998. The text of that letter was as follows: Under s170MO of the Workplace Relations Act 1996 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU Vic Branch) hereby gives formal notice of the intention of its members employed by Kilpatrick Green Pty Ltd to engage in industrial action. The intended industrial action is for wage increases and other conditions of employment that the Union and its members seek to be included in a Certified Agreement pursuant to the provisions of Division 4 of Part VIB of the Workplace Relations Act 1996. The industrial action will commence from 4th May, 1998. The nature of the intended action is the engaging in, by officers, employees and members of the CEPU, of such action as described below: (i) The performance of work in a manner different from that in which 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 work. (ii) Bans, limitations or restrictions on the performance of work, or an acceptance of or offering for work. (iii) 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. (iv) Protests at or around the place where agreement is sought .and/or other relevant places. (v) Some combination of the above, either at the same time or at different times. Interpretation of the Certified Agreement in the Context of the Act Section 170MN of the Act provides, so far as is relevant: (1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: (a) any employee whose employment is subject to the agreement or award; (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. (3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action. I am satisfied that industrial action has been and is intended to be engaged in by employees of Kilpatrick Green at the Docklands site for the purpose of supporting claims made in respect of those employees. The critical question is therefore whether the employment of those employees is subject to the certified agreement, the nominal expiry date of which has concededly not passed, so as to attract the proscription embodied in s 170MN. For Kilpatrick Green it is argued that sub-cll 1.1 and 1.2 of the certified agreement do not restrict the range of work that is subject to it but provide an exception to the prohibition contained in cl 2 against the pursuit of extra claims. In support of that construction, reference was made to the proviso in sub-cl 1.2 that any specific site agreement is to take precedence over the certified agreement. That was said to contemplate that both the certified agreement and the specific site agreement, if concluded, would remain in operation. That much may be allowed but the language of sub-cl 1.2 does not entail co-existence of a specific site agreement and the certified agreement. It is open to the parties, I consider, to conclude a specific site agreement which is so detailed that it "covers the field" otherwise regulated by the certified agreement so as to leave the latter no room for operation. Mr Bromberg of Counsel who appeared with Ms M. Richards for the Union contended that cl 1 of the certified agreement makes it applicable to all employees of Kilpatrick Green engaged in any occupations specified in the Electrical Contracting Industry Award except in one or other of the circumstances instanced in sub-cll 1.1 and 1.2. The exception in sub-cl 1.2 was said to come into operation when the Union "opts to negotiate a specific site agreement" for a project having a value in excess of $56.2 million "with terms and conditions in excess of those in the (certified agreement) and which will operate instead of it". In support of that construction, Counsel for the Union have pointed to the fact that cl 1 is framed as an "application clause" designed to indicate the area or scope of application of the certified agreement. Accordingly, it is said, sub-cll 1.1 and 1.2 should be construed as marking out areas of employment excepted from the scope indicated in general terms by the opening words of cl 1. Kilpatrick Green argues against this interpretation by contending that it necessitates that the certified agreement will come to an end upon the exercise of the option imputed to the Union leaving the wages and conditions of employees on the relevant site to be governed by the common law unless and until a specific site agreement has been concluded and certified under Pt VIB of the Act. To leave the matter to be governed by the common law in that way would, it was argued, expose employees and the Union to all the difficulties of enforcement and other uncertainties exemplified by Ryan v Textile, Clothing and Footwear Union [1996] 2 VR 235. The parties should not be held, so it was argued, to have intended that such a result could be brought about by the unilateral election of one of them. In my view, two answers can be made to the contention which I have just examined. In the first place, an area of employment excepted from the operation of the certified agreement, and therefore not inconsistent with it, remains subject, as Kilpatrick Green acknowledged, to the Award by force of s 170LY of the Act. If, on the interpretation which I favour, the areas of work designated in sub-cll 1.1 and 1.2 are excepted from the application of the certified agreement upon the existence of one or other of the circumstances specified in those sub-clauses, there is no question of the certified agreement's "unilateral" termination otherwise than with an order or the approval of the Commission in accordance with one or other of ss 113(2A), 170LX(2) or (3), 170LV, 170ME, 170MG, 170MH, 170MHA and 170LY(2). It is as if the certified agreement never had any application to the excepted area of work. Similarly, on this construction, there can be no suggestion that the Commission, in certifying an agreement in the present form, has countenanced the possibility of its being varied, perhaps very substantially, without such a variation being certified as required by s 170MD(2) of the Act. Such a suggestion would, I consider, implicate the Commission in an improper delegation or abdication of its duty of certification. Secondly, it is not unreasonable to impute to the framers of the certified agreement an expectation that the specific site agreement, upon being concluded, would itself be certified under Pt VIB of the Act. It was also submitted on behalf of Kilpatrick Green that the use of the word "negotiate" where twice appearing in sub-cl 1.2 reinforces the construction that the certified agreement retains its full application even to a site having a project value in excess of $56.2 million unless, and only to the extent that, it is supplanted by a specific site agreement. That argument requires "negotiate" in each instance to be read as synonymous with "conclude" or "agree" and not as equivalent to "bargain for". The first definition of "negotiate" given by the Oxford English Dictionary is "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise". The same work suggests the following further meaning: "to arrange for, obtain, bring about (something) by means of negotiation". In my view, it is consistent with ordinary usage for the word to have the former connotation when used in the present or imperfect tense and to be synonymous with "conclude" when used in the perfect or pluperfect in conjunction with "agreement". It conforms with this usage to say of the same parties that "they are negotiating an agreement", i.e. are bargaining towards an agreement and that "they have negotiated (i.e. concluded) an agreement". I am disposed to read "negotiate" in each of the places in which it occurs in sub-cl 1.2 in this latter sense. That interpretation is reinforced by the injunction in the last sentence to the parties to make "every endeavour ... to negotiate the specific site agreement prior to the close of tender by the electrical contractor". That is a rational and sensible attempt to give the contractor the certainty which would follow from a binding site agreement having been negotiated, in the sense of concluded, before preparation of its tender for the project having a total value in excess of $52.6 million. However, to ascribe that meaning to the word "negotiate" in sub-cl 1.2 does not of itself shed any light on whether cl 1 has any application to a specific site having a total project value in excess of $56.2 million or where a specific, more advantageous, site agreement has been signed by the CEPU (Electrical Division). It is equally open, after giving that meaning to "negotiate" to regard the words in sub-cl 1.2 "where the company undertakes to do work at a specific site or project with a total project value in excess of $56.2 million" as indicating the second set of circumstances constituting an exception to the general application of the certified agreement indicated by the introductory words of cl 1. On this view, what follows in sub-cl 1.2 merely indicates a facility open to the parties to supply the deficiency created by the earlier words denoting the exception by concluding a specific site agreement which may incorporate by reference provisions of the certified agreement but over which it is to "take precedence". Consistently with this view, what I have called the "injunction" in the last sentence of sub-cl 1.2 is simply an exhortation that, if the deficiency is to be supplied by agreement, it should be done sooner rather than later. Mr Fajgenbaum QC who appeared with Mr Bourke of Counsel for Kilpatrick Green also pointed to the stipulation in cl 1.2 that the specific site agreement there contemplated is to be "in excess" of the certified agreement. That was said to indicate a facility to pursue extra claims during the life of the certified agreement, not to pursue a site agreement in substitution for it. On the other hand, it is contended for the Union that such a facility would be in conflict with cl 2 of the certified agreement because it is inconceivable that any site agreement specific to a project having a total value in excess of $56.2 million would be concluded if the Union did not first "pursue any extra claims" in respect of the relevant site. There is considerable force in that objection because, on the interpretation contended for by Kilpatrick Green, the Union would be confined to "requesting" the relevant site terms and conditions "in excess" of the certified agreement. If that request were not acceded to, the certified agreement would remain applicable to the site in all respects. Having regard to what I perceive to be the policy underlying Pt VIB of the Act, and in particular Div 8, I consider that the framers of the certified agreement should be taken to have intended to deny to one party recourse to protected industrial action to pursue claims apparently contemplated as open during the life of the agreement, only if the language they have chosen intractably dictates such a construction. Had it been intended that the Union was to be precluded from engaging in protected industrial action even in pursuit of claims related to sites in respect of which site agreements containing terms more favourable than the certified agreement have been signed or which have a total project value in excess of $56.2 million, it would have been easy to say so expressly. As well as by the matters outlined above, I consider such an intractable expression of intention to be precluded by the fact that the "no extra claims provision" in cl 2 invoked by Kilpatrick Green contains no mechanism at all whereby the Union can seek to overcome a refusal of its request for wages and conditions in excess of those in the certified agreement. Sub-cl 2.1, it is true, contemplates the resolution of a disagreement by reference to the Electrical Contracting Industry Disputes Board but that is confined to "a disagreement regarding the interpretation and/or application" of the certified agreement. Thus the present issue could have been referred to the Disputes Board but the claims which the Union actually seeks to pursue in respect of the Docklands site could not. Some support for the construction of the certified agreement for which the Union contends is provided by the tentative view expressed by North J about a certified agreement in substantially identical terms between the Union and Siemens Ltd in Australian Paper Ltd v Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (unreported, 2 April 1998). The only difference between cl 1 of the agreement there considered and the present was the use in cl 1.2 of the expression "in addition to this agreement" instead of "in excess of this agreement" which appears in the sub-clause under consideration. His Honour said, at p 10: This argument [advanced by the applicant] depends upon construing the application clause of the agreement, set out earlier in these reasons, to mean that, while the parties could negotiate further conditions upon the existing base, the certified agreement continues to apply until its specified expiry date. This construction lays emphasis on the words "in addition to this agreement" to establish the continued operation of the certified agreement as such. On this view, the certified agreement continues in force at Maryvale at all relevant times and, consequently, s 170MN(1) prohibits industrial action in relation to employees covered by the agreement. The wording of the application clause, however, commences with the phrase that the agreement applies except in the circumstances set out in the subclauses which follow. Subclause 1.2 provides that the agreement does not apply where Siemens undertakes work on a project with a value over $56.2 million. In those circumstances, the subclause provides that the parties may negotiate a specific site agreement. In my view, the wording indicates that the certified agreement applies to a project such as the M5 project, which has a value over $56.2 million, unless, at any time during the project, either party opts to negotiate a specific site agreement. If the option is exercised, the certified agreement ceases to apply and a new agreement has to be negotiated. The statutory scheme for the process of bargaining becomes available for the negotiation of the new agreement. On this basis, s 170MN(1)(a) does not apply to the present situation. The Union has opted to seek different wages from those set under the agreement and the Union was, therefore, entitled to initiate a bargaining period for that purpose and to take protected action in support of the negotiations for a new certified agreement to apply for the M5 project. The view I have formed on the construction of the agreement is a preliminary view, based on limited argument on the issue. The applicant's contrary argument is not untenable, but it is weak. As indicated above, the use in cl 1.2 of "negotiate" as a synonym for "conclude" leads me to doubt whether the exception to the application of the certified agreement has been framed to come into operation on the exercise by the Union of an option or election to bargain for more advantageous wages or conditions on sites answering the description in sub-cl 1.1 or 1.2. I prefer the view that each of those sub-clauses operates immediately to except from the application of the certified agreement a site to which the respective circumstances pertain. On this view, the additional verbiage of sub-cl 1.2 simply indicates a facility available to the parties, unstated in sub-cl 1.1, to conclude a separate agreement to cover the area from which the certified agreement has been excepted. However, my preference in this respect does not diminish the significance of North J's instinctive lack of attraction to the diametrically opposed interpretation for which the employer has contended in each case. Further support for the view just expressed is provided by the presence in the certified agreement of sub-cl 7.11 which obliges the parties to apply the conditions contained in Appendix B as appropriate to sites where the Victorian Building Industry Agreement applies. Appendix B includes a provision in sub-cll 20.6.3 and 20.6.4 in respect of sites having a total project value in excess of $56.2 million that "the site allowance will be determined by project specific negotiation". Clause 7.11 of the certified agreement and those sub-clauses of the Building Industry Agreement have a combined operation in the limited area of site allowances on projects having a total value in excess of $56.2 million similar to that which I have attributed to cl 1.2 in relation to wages and conditions generally on projects answering the same description. I was invited on behalf of each party to rely on certain extrinsic evidence which was said to support its interpretation of the certified agreement. However, the admissibility of some of that evidence is disputed. Moreover, I am not persuaded that it does more than explain, first, why the Union might have been concerned, when it concluded the certified agreement, to qualify its application to sites where the Union had signed or might sign a more advantageous site agreement with a head contractor or where the total project value exceeded $56.2 million. Secondly, it makes clear what could reasonably be inferred without the extrinsic evidence, that Kilpatrick Green had an interest to ensure that entitlements of the relevant employees were known before it submitted a tender for electrical work on such sites. The extrinsic evidence does not appear to go so far as to indicate a basis for imputing to Kilpatrick Green an intention to acquiesce in qualifications of the kind which the Union, on its evidence, was presumptively concerned to preserve. In any event, although the language of the certified agreement is not free of difficulty, I consider that the interpretation for which the Union has contended emerges sufficiently unambiguously from the relevant clauses construed in the context of the instrument as a whole to make unnecessary any resort to extrinsic evidence. Have the respondents engaged in industrial action? In case I be wrong in the conclusion just expressed as to the proper interpretation of the certified agreement I should indicate my firm finding that the industrial action which has occurred, at least since 7 April 1998, has been engaged in by the Union and the second respondent, Mr Harkins, as well as by the employees who have absented themselves from work for Kilpatrick Green at the Docklands site. It was conceded by Counsel for the Union that it had "organised" that industrial action. However, they submitted in reliance on some further observations of North J in Australian Paper Ltd (supra) at p 11 that organisation of industrial action by a union or a union official could not amount to "engaging" in industrial action in contravention of s 170MN. His Honour there suggested: The terms of s 170MN(1) present a greater obstacle to the applicant's success. There is a curiosity about the section in the overall context of Division 8. The section only prohibits engaging in industrial action during the period of the certified agreement, and not to organising industrial action in that period. Throughout Division 8, there is a distinction drawn between engaging in industrial action and organising industrial action (see ss 170ML(2) and 170MM(1) and (2)). Engaging in industrial action is the taking of direct action which interferes with usual work patterns, while organising industrial action involves procuring others to take the direct action. A union official or employee who is not employed at the worksite which is the subject of disruption does not engage in industrial action for the purposes of Division 8 by encouraging employees to stop work. This conduct amounts to organising industrial action. Section 170MN(1) is only contravened by engaging in industrial action while a certified agreement is in place. If, contrary to my preliminary view, the agreement with Siemens continues in force as a certified agreement, the relevant respondents would not contravene s 170MN(1) by organising industrial action during the period of the agreement, even if the employees would contravene the section by engaging in industrial action in that period. It is accepted on both sides that those conclusions were reached by his Honour without the benefit of any argument and, with respect, I am unable to adopt them. It is true that s 170ML(2) appears to speak disjunctively of an entitlement to "organise or engage in industrial action directly against the employer". However, the entitlement is not conferred distributively on the organisation of employees and its officers on the one hand and the members employed by the employer and employees who are negotiating parties on the other. In other words, the concluding part of s 170ML(2) contemplates that an organisation of employees may "engage in" as well as "organise" industrial action and a member of the organisation employed by the relevant employer may similarly "organise" industrial action against the employer as well as engage in it himself or herself. Sub-ss 170MN(1) and (2) preserve the same dichotomy between engaging in and organising industrial action but not in a mutually exclusive way that confines the former activity to employees of the relevant employer and the latter to the registered organisation and its officers. It is clear that s 170MN(2) makes the prohibition in s 170MN(1) which is confined to engaging in industrial action during the life of a certified agreement applicable to: (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. as well as to employees whose employment is subject to the certified agreement. It must therefore contemplate that an organisation of employees can "engage in" industrial action in the sense in which that expression is used in s 170MN(1). The argument is clinched by s 4(8) of the Act which provides: In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct. An organisation of employees which through officers or employees counsels, procures or "organises" the taking of industrial action by employees whose employment is subject to a certified agreement is at least indirectly a party to or concerned in that industrial action. Thus in Yorke v Lucas (1983) 49 ALR 672 a Full Court of this Court observed at 682: The words "party to the contravention" necessarily connote, in our view, that a person assents to or concurs in the conduct which constitutes the contravention. He must therefore know or be aware of the essential facts or matters which must be proved to establish the contravention... In our opinion, the words "party to the contravention" refer to a person who participates in, or assents to the contravention in question. To be regarded as participating in or assenting, such a person must actually or constructively be aware of the elements constituting the contravention. To our minds, it is not sufficient to render an individual liable if he is shown to be aware of some only of those elements. Where the contravention in question relates to engaging in trade or commerce in conduct that is misleading, one of the elements involved is that the conduct is misleading. If a person sued under s 82 for damages as a person involved in the contravention is unaware of the essential facts and matters constituting the contravention, then he lacks knowledge of an essential element of the contravention. He cannot, in our view, in those circumstances, be regarded as a party to the contravention. See also R v Tannous (1987) 10 NSWLR 303 at 306-307 and Ashbury v Reid [1961] WAR 49 at 51. Mr Bromberg, while not resiling from his contention that the Union had "organised" the bans imposed on the performance of work at the Docklands site, argued that the evidence did not support a finding that any employee who had absented himself from work did so at the instigation of the Union and without the consent of Kilpatrick Green. The short answer to that is provided by the evidence of one of the employees, Mr Rice, who deposed: On Tuesday, 7 April 1998, at approximately 8.30am, I attended the Docklands site together with Mr Hopper, and another electrician employed by the Company, Mr Steve Merrell. At approximately 9.00am we were approached by Mr Kevin Harkin, who said that bans were back in force due to a court ruling which had been handed down in the Latrobe Valley regarding projects valued at or above $56.2M. Mr Harkin said "You know I'm here to kick you off site, don't you?" We then left the site. That evidence makes clear, in my view, that Messrs Rice, Hopper and Merrell left the site because Mr Harkins, in his capacity as an officer of the Union, asked them to. It affords no basis for inferring that Kilpatrick Green acquiesced in their ceasing to work so as to deprive that conduct of the character of industrial action by force of paragraph (e) of the definition of "industrial action" in s 4 of the Act. That paragraph stipulates that industrial action does not include "action by employees that is authorised or agreed to by the employer of the employees". Injunctions and penalties Had the applicant established a contravention of s 170MN, I would have been disposed to grant injunctions pursuant to s 170NG restraining the respondents until the nominal expiry date of the certified agreement from organising or otherwise engaging in industrial action for the purpose, or for purposes that include the purpose, of supporting or advancing claims against Kilpatrick Green in respect of the employment of employees whose employment is subject to the certified agreement. However, the Union's contention that the actual industrial action which it organised or foreshadowed was not prohibited by s 170MN was eminently arguable. Indeed, it was upheld by North J in Australian Paper Ltd (supra) and I have found it compelling. Accordingly, had I come to the opposite conclusion I would have exercised the discretion conferred by s 170NF(1) by declining to impose a penalty on either of the respondents. However, in the result Kilpatrick Green has not made out its entitlement to either form of relief and its application must be dismissed. I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: Counsel for the Applicant: Mr J Fajgenbaum QC with Mr J Bourke

Solicitor for the Applicant: Freehill Hollingdale & Page

Counsel for the Respondent: Mr M Bromberg with Ms M Richards

Solicitor for the Respondent: Maurice Blackburn & Co