Maritime Union of Australia v Burnie Port Corporation Pty Ltd

Federal Court of Australia|2000-08-24|Before: Ryan J

1 This is an application by the applicant ("the Union") for the imposition, pursuant to s 298U of the Workplace Relations Act 1996 (Cth) ("the WR Act"), of penalties on the respondent, Burnie Port Corporation Pty Ltd ("the Corporation"), and for injunctive relief pursuant to s 170VZ of the WR Act. 2 Since the latter half of 1992 persons employed by the Corporation's predecessor, the Burnie Port Authority, a statutory authority pursuant to the provisions of the Tasmanian Marine Act 1976 (Tas) had their wages and conditions of employment governed by an enterprise bargaining agreement ("the first EBA") negotiated to reflect a labour arrangement which existed at that time. A second certified agreement known as the Burnie Port Authority Integrated Labour Force Agreement 1995 ("the EBA") had been concluded on 30 October 1995 and certified on 8 January 1996. Its nominal expiry date was 8 January 1999 and it applies to administrative and clerical officers, coldstore operatives, airport groundsmen, maintenance workers and port operatives including truck drivers and general hands. Meetings directed to achieving agreement on variations of the EBA were held between representatives of the Corporation and representatives of the Union in December 1998, May 1999 and on 10 August 1999. At the second of those meetings, the representatives of the Union tabled a document later described as a "log of claims" setting out its negotiating position. At the third meeting, on 10 August 1999, Mr Tyson, the Chief Executive Officer of the Corporation, dismissed the Union's claims as laughable and suggested that the Corporation would only consider reaching agreement if wage increases were confined to five per cent for the current year and three per cent for the following year and if some "give-aways" or trade-offs were offered by the Union. Mr Wickham, the Secretary of the Tasmanian Branch of the Union, indicated that he would convey the Corporation's attitude to the National Office of the Union. Thereupon Mr Tyson said, in substance, that by Christmas all members would be glad to sign an Australian Workplace Agreement ("AWA") and that would happen because of the Union's failure to represent them. 3 In the meantime, in April 1999, the Corporation offered all its then current employees employment pursuant to AWAs instead of the EBA to which the Corporation and the Union are parties. To induce them to forego the benefits available under the EBA, each of the existing employees was offered a lump sum of $4,000.00. AWAs have been accepted by five employees who had previously been employed under the EBA and one short-term employee who was offered long-term employment conditionally upon her entering into an AWA. 4 In August 1999, the Corporation was considering the engagement of two persons to fill vacancies in its workforce as port operatives/coldstore operators. A decision was taken that the employment of the person appointed to fill each of those vacancies should be governed by an AWA. 5 The Corporation conducted interviews with six applicants, selected from a number whose standing applications it held on file and others who had heard by word of mouth that the vacancies had arisen. Interviews were conducted by two of the Corporation's officers, Mr Gibbons, the Personnel and Safety Superintendent and Mr House, the Cold Store Manager, and appointments were made by the Deputy Chief Executive Officer, Captain Boss-Walker, on the basis of a joint recommendation made by Mr Gibbons and Mr House, which was accepted by Captain Boss-Walker. The persons selected for the positions were Mr Oates and Mr Donahue, both members of the Union. One of the unsuccessful candidates, Mr Rolls, was also a member of the Union. Each of Mr Oates, Mr Donahue and Mr Rolls gave evidence in the present proceedings. 6 Mr Rolls gave this description of his interview by Mr Gibbons and Mr House: "At the commencement of that interview I was told that if I was successful employment would be offered on the basis of an Australian Workplace Agreement. I was not happy with the proposed agreement and I was also not happy with the prospect of being on different terms and conditions from the rest of the employees at the Port Corporation. The interview continued until I was asked how I would perform under stress and I told those interviewing me that I thought the Corporation was putting stress on people by forcing them to sign Australian Workplace Agreements. At that point Gibbons said it might be best to terminate the interview but House indicated that perhaps it could continue and I could make a decision if I secured one of the positions on offer. At the conclusion of the interview Gibbons thanked me for my honesty." 7 Both Mr Donahue and Mr Oates, the successful candidates for the positions, were aware at their respective interviews that, should they be successful at interview, they would be required to enter into an AWA before beginning work with the Respondent. Mr Donahue and, to a lesser extent Mr Oates, were to some degree aware at interview that the conditions provided for under the AWA differed from those provided for under the EBA, and that conditions for existing employees of the Corporation were in the majority of cases prescribed by the EBA. 8 Both Mr Donahue and Mr Oates also deposed to their employment history and future prospects in Burnie at the time of the interviews. That evidence, which was not seriously questioned by the Corporation, describes that they had gone through four and fourteen months respectively of unemployment, broken by short periods of casual work. They had each applied for various vacancies during those periods of unemployment, but until the positions with the Corporation arose, had been unsuccessful. The evidence further shows that the family circumstances and property commitments of both Mr Donahue and Mr Oates combined to preclude them from moving away from the Burnie area in order to seek work because of the disruption that such a move would cause to themselves and their families. 9 It appears from the evidence of other witnesses, for both parties, that employment opportunities in the Burnie region are more restricted than those in many other parts of Australia. 10 The reasons for the Corporation's decision to offer employment in the relevant vacancies only on condition that prospective employees entered into AWAs were the subject of evidence given by Mr Tyson. In extensive reference to the evolution of competitive pressures upon the Corporation in the provision of stevedoring and other services since 1995, Mr Tyson deposed in his affidavit of 22 September 1999 to the Corporation's intention that arrangements whereby stevedoring conditions, extended to all employees under the first EBA and continued under the EBA, should be dismantled in some way to allow a distinction to be made between the wages and conditions of certain employees of the Corporation including port operatives/coldstore operators and the industrial entitlements of other Corporation employees. It was, according to Mr Tyson, in pursuit of this intended objective that the position described in par 2 of these reasons was taken by the Corporation in negotiations for a new EBA. At par 19 of that affidavit, Mr Tyson said: "At the meeting with the [Union] on 21st December 1998, I told its representatives that the reason [the Corporation] wanted to delete all references to stevedoring wages, classifications and conditions was because the composition of the workforce and the way it was deployed had changed dramatically over the 3 year duration of the EBA. I also said words to the effect that providing stevedoring conditions to employees who did not perform stevedoring functions put [the Corporation] at a disadvantage relative to its competitor ports and we were seeking to remove that disadvantage." 11 Mr Tyson continued at par 22 of the same affidavit: "AWAs were considered appropriate and necessary because the failure of the [Union] to respond to the draft new EBA, even though the current EBA had expired nearly four months before, meant that [the Corporation] had no opportunity of negotiating conditions which reflected the changes which had taken place in the workplace during the life of the most recent EBA. As I understood the position, the expired EBA continued in force and it was only through AWAs, or an EBA on acceptable terms, that [the Corporation] could get appropriate conditions for its operations. …" 12 Some further reference was made by Mr Tyson, under cross-examination, to features of the proposed AWAs which had some attraction for the Corporation. The following exchange occurs in the transcript (at p 85): "… from the point of view of the Corporation is the AWA a better deal than the EBA? --- It would be my preference to have an AWA, therefore, my feeling is that the answer to that question is, yes, because we will again increase productivity." 13 The transcript also contains this passage (at p 87) on the rights of entry, consultation on staffing levels and consultation on future recruitment which are reserved to the Union under the EBA, and are excluded from the AWA: "That is an advantage for the [Corporation], is it not, not having union involvement in the staffing levels? --- One might form that view. Is it a view that you have? --- Certainly, the less people involved in the decision-making process then the less difficulty generally is experienced in reaching a decision. So, is it a view you have? --- I think that is probably fair … Now, the AWA has been drafted by the Corporation to tailor to its needs, [has] it not? --- Correct."

Jurisdiction to grant and standing to seek injunctive relief. 14 The Corporation challenges the jurisdiction of the Court to entertain a claim for injunctive relief under Div 7 of Pt VID of the WR Act. It also contends that the Union lacks standing to bring such an application. First, it argues that the Court's jurisdiction to grant injunctions under s 170VZ of the WR Act can only be exercised in the context of an application which the WR Act authorises to be made. That argument is erected on the combined operation of several provisions of the WR Act, the first being s 412(1) which provides, so far as is relevant: "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;" … 15 The Corporation then invokes s 170VV(1) which stipulates: "An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision." 16 Sub-section 170VV(3), in turn, provides, so far as is relevant: "An application for an order under subsection (1) that relates to an AWA … may be made by a party to the AWA … ." 17 On behalf of the Corporation, it was submitted that the Court's discretion to grant injunctive relief conferred by s 170VZ only arises where a competent application has been made under Div 7 of Pt VI of the WR Act. Section 170VZ provides: "An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, this Part." 18 Because, by virtue of s 170VV(3) only a party to an AWA may apply for the imposition under s 170VV(1) of a penalty in relation to an AWA, it was submitted that the injunctive relief available under s 170VZ can only be granted to restrain a contravention of Pt VI in relation to an AWA on the application of a party to that AWA. Since the Union necessarily cannot be a party to the AWA, so the argument went, it has no standing to seek an injunction to restrain a contravention of Pt VI in relation to an AWA. 19 Mr Parry, for the Corporation, submitted that the interpretation described in par 18 above is to be preferred in that it is consistent with the construction and general nature of Pt VID, which is (in his submission) a code which is concerned with relations between employers and individual employees. This submission implies that no person, other than a party to an AWA, has a sufficient interest in the observance of Pt VID to attract standing to seek an injunction to compel that observance. 20 In my opinion, this contention should be rejected for the reasons indicated by Gibbs CJ in Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; where it is held, at 35-36 that "special interests" may attract standing when affected by actions which would ordinarily have no effect beyond the immediate parties to a matter: "A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action." 21 Mr Friend, for the Union, submitted that its "special interest", which may be affected by any application of duress by the Corporation in the way alleged, arises because the Union's position in bargaining for a new certified agreement will be affected in that as more employees are covered by AWAs, correspondingly fewer will be covered by the certified agreement. Hence the strength of the Union to bargain on behalf of its members will be diminished unless it can seek to be protected from alleged application of duress by employers by obtaining injunctive relief restraining such duress. Broadly speaking, Mr Friend said, Pt VID of the WR Act is intended provide for an alternative mode of regulating conditions of employment. Part of the maintenance of AWAs as an alternative to, rather than a replacement for, pre-existing modes of industrial regulation, requires that collective bargaining power (as represented by unions), is protected, and is able to protect itself, against diminution through duress applied to individual members to enter into AWAs, contrary to s 170WG of the WR Act. 22 Mr Friend went further to argue that the Union has an interest in representing its members who are alleged to be subject to duress and that interest of itself is also sufficient to attract standing. However, it is more accurate, I consider, to say that the Union members presumptively subject to duress have an interest in enlisting the support of the Union to further their industrial interests and protect them against being coerced to enter into disadvantageous AWAs. Accordingly, this second limb of the contention is rejected, because that interest of the Union members would be protected no less effectively if they were individually joined as applicants and had legal representation provided by the Union. Alternatively they could appoint the Union their bargaining agent under s 170VK of the Act. The distinction between the private right of Mr Rolls, Mr Donahue and Mr Oates in the negotiation of specific AWAs free from duress, and the public right in the assurance that industrial relations will be conducted lawfully, illustrates the special interest of the Union which is described in par 21 above. The present litigation is not concerned with the terms of a particular AWA, which could be agitated in the context of other provisions of Pt VID. Nor is it concerned with hindering or interfering with the negotiation of AWAs. The applicant's compliant in these proceedings is against the alleged unlawful application of duress. Contrary to the Corporation's submissions, that complaint is not related solely to private rights, and, accordingly, the principle set out in Onus v Alcoa of Australia Ltd applies. 23 A further argument against the Corporation's submission, not raised by the Union, necessarily arises from a consideration of the relevant statutory provisions. Section 412(1) of the WR Act confers on this Court: "..... jurisdiction with respect to matters arising under this Act in relation to which: (a) applications may be made to it under this Act;" Under s 170VV(1), an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision. By s 170VV(3), an application for an order under s 170VV(1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document. The definition of "penalty provision" is to be found in s 170VV(4) and includes s 170WG(1) or (2), which provide: "(1) A person must not apply duress to an employer or employee in connection with an AWA or ancillary document. (2) A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA or ancillary document." 24 Section 170VZ provides: "An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, this Part." The effect of these provisions, I consider, is that the claim by the Union for an injunction under s 170VZ brings into existence a "matter arising" under the WR Act in relation to which an application may be made to the Court under the WR Act, albeit not by the Union which cannot be a party principal to an AWA. It follows therefore that the Court's jurisdiction to entertain the Union's claim for injunctive relief is enlivened independently of whether the Union has standing to apply for that relief. For reasons described below, the further challenge to the Union's standing under s 298T is rejected. The proceedings brought by the Union are therefore validly before the Court, and as a matter of law, the Court is not confined to granting only those remedies which the Union has standing to seek, but its jurisdiction extends to grant, if it thinks fit, any of the remedies available under the Act on the application of anybody. 25 When interpreting similar provisions in Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (1998) 157 ALR 531, I said, at 542: "In my view this construction of s 412(1) is to be preferred. 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 where 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)." [original emphasis] 26 Secondly, Mr Parry characterised the issue as one of standing in relation to a contract or agreement to which the Union is not a party, rather than one of public law standing to which the principles in Onus v Alcoa, set out above, would apply. However, as previously stated, the relief sought under s 170VZ is not in relation to the terms of the AWA (or the "contract", in Mr Parry's analogy), but in relation to the alleged application of duress, against which s 170WG is directed. The Corporation's submission must be rejected when it is recognised that the provisions of the WR Act do not import into the concept of duress which appears in s 170WG, the same considerations which apply to "duress" at common law. That matter is addressed in Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 170 ALR 42 ("Schanka"), in the following terms at pars 13-16: "Bennion, Statutory Interpretation, 2nd ed. p.833 formulates the principle exemplified by R v Slator in these terms: "If a word or phrase has a technical meaning in a certain branch of law, and is used in a certain branch of law, and is used in a context dealing with that branch, it is to be given that meaning, unless the contrary intention appears." In the treatment which follows, the same learned author invokes the concept of a "free-standing legal term" as "one that stands on its own feet without the need for any definition" and goes on to enunciate the principle that: "Unless the contrary intention appears, Parliament is taken, when using a free-standing legal term to intend that its meaning in the enactment shall correspond to the legal meaning assigned to it generally." We are not persuaded that "duress" in s 170WG(1) is used in a context dealing with the same branch of the law as the cases in which courts have been concerned to apply it to relieve a victim from the consequences of a contract or a payment procured by duress. Accordingly, we do not regard the expression as "a free-standing legal term" as that phrase is used in the passage just quoted. Nor are we persuaded that there is any ambiguity between the ordinary English meaning of "duress" and its meaning as a legal term with the signification acquired from the authorities in which it has been applied. All that the authorities reveal is that the need to apply the concept has only arisen when the application of duress has resulted in the party, the subject of the illegitimate pressure, changing his or her position, for example, by the making of a contract or payment from which the victim seeks to be relieved. However, the making of such a contract is not an intrinsic part of the "duress" which is alleged to have procured it. The Oxford English Dictionary defines "duress" in the relevant sense as "Constraint compulsion; spec in Law, Constraint illegally exercised to force a person to perform some act."" 27 That case dealt, in part, with a claim in respect of an applicant who had been a party to negotiations for an AWA which had not resulted in his entering into a completed agreement. However, the application of the principle recognised in Schanka means that it is not necessary that a contract (or AWA) be concluded for the question of duress on which s 170WG is predicated to arise. Nor will the standing of applicants raising that question depend upon their being parties to the AWA in question. 28 I accept that the Union has demonstrated a "special interest" sufficient to accord it standing to apply for injunctive relief under s 170VZ.Even if that be wrong, I also accept that it is within the jurisdiction of this Court, notwithstanding that an application under s 170VV(1) has not been made, to grant the injunctive relief contemplated by s 170VZ.

Standing under s 298T 29 As described later in these reasons, submissions for the Union have relied, in relation to the alleged breach of Pt XA, on s 298G as providing that the conduct complained of is conduct to which Pt XA applies. This raises an issue as to standing in relation to the application for relief under Pt XA which it is convenient to deal with here. 30 Section 298T prescribes when applications may be made to this Court, and relevantly provides in subs 2 that - "The application may be made by: … (c) in the case of a contravention of this Part by virtue of the operation of section 298G … - an industrial association of which the person is a member; or …" 31 The course of submissions and evidence for the Union revealed that the conduct complained of under Pt XA is an alleged refusal by the Corporation to employ Mr Rolls, who, I accept, is a member of the Union, by virtue of Rule 6(c) of the Union's rules. The Union answers the description of "an industrial association" for the purposes of s 298T(2)(c) of the WR Act.

Has the Corporation contravened s 298K? 32 The Union has asserted, as part of its case, that s 298K(1) in Pt XA of the WR Act proscribes the kind of conduct in which the Corporation engaged when it required that prospective employees enter into an AWA as a condition of engagement and refused to employ them if they did not agree to that condition. Section 298K(1) relevantly provides that: "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: … (d) refuse to employ another person …" 33 Section 298L provides further that - "Conduct referred to in subsection 298K(1) … is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: … (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or …"

(a) What is the conduct complained of? 34 The Union's submissions alleging a breach of s 298K(1) imputed to the Corporation that it had refused, or threatened to refuse, to employ Mr Rolls when it stipulated that the positions on offer would only be filled by applicants who were prepared to enter into an AWA. Given that Mr Rolls had effectively declined, at interview, to enter into an AWA, he fell, on the Union's argument, into a category of persons who would never be accepted for employment.

(b) Has the Corporation engaged in "conduct to which [Pt XA] applies"? 35 Section 298C of the WR Act provides that Pt XA applies only to the extent provided for in Div 2 of Pt XA. The submissions of Counsel have raised the question of whether Pt XA applies to the conduct complained of by virtue of s 298F(2) or, in the alternative, s 298G. 36 Section 298G provides that - "This Part applies to : (a) conduct by a constitutional corporation; and …" 37 As defined in s 4(1) of the WR Act "constitutional corporation" means, amongst other things: "(b) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or (c) a body corporate that is, for the purposes of paragraph 51(xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; ...." 38 The Corporation was formed (as the successor to the Burnie Port Authority), by virtue of the Port Companies Act 1997 (Tas). That Act, in s 7, prescribes the principal objectives of a company formed under that Act as being "(a) to facilitate trade for the benefit of Tasmania; and (b) to operate its activities in accordance with sound commercial practice". I accept the submission of the Union that the Corporation is a "constitutional corporation" for the purposes of the WR Act, and, accordingly, that the alleged conduct of the Corporation is conduct to which Pt XA applies. It is therefore unnecessary to consider the extensive submissions for the Corporation contending that the conduct complained of is not conduct to which Pt XA applies, by virtue of s 298F(2).

(c) Is the conduct attributable to the Corporation? 39 The evidence in this matter does not permit an affirmative finding that the decision to undertake the relevant conduct was taken by the "directing mind and will" of the Corporation so as to make it a decision of the Corporation in accordance with the general law as explained, for example, in Tesco Ltd v Nattrass [1972] AC 153 at 171. 40 Although it is not apparent whether the decision was formally considered at a Board meeting, it is clear from Mr Tyson's evidence that the decision was either made or impliedly approved by the Corporation's Board. The inference that what was done was approved by the Board can be drawn from the fact it was within the knowledge of the Board and was not expressly disapproved, although there was opportunity to do so. I draw that inference and find, in the context of s 349(2) of the WR Act, that the relevant conduct was engaged in by the Corporation. As to s 349(2), a Full Court of this Court has said in reasons published today in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188, (unreported, FCA, 24 August 2000) ["Hanley"] at par 77: "Section 349(2) operates where the relevant conduct is engaged in by an "officer, director, employee or agent" of the body corporate "on behalf of" the body corporate and "within the scope of his or her actual or apparent authority". It will be recalled that s 349 is in substantially the same terms as s 84 of the Trade Practices Act 1974 (Cth). In Walplan Pty Ltd v Wallace (1985) 8 FCR 27, Lockhart J (with whom Sweeney and Neaves JJ agreed) said of the latter provision (at 38): "Section 84(2) is an enlarging provision of general application under the Act. It extends to proceedings, both civil and criminal, and is designed to eliminate the necessity to apply the various and at times divergent tests of the common law relating to a corporation's responsibility for the acts of its servants or agents. It extends those common law principles in order to facilitate proof of a corporation's responsibility.""

(d) Was there a refusal to employ, or a threatened refusal? 41 The Union contends that Mr Rolls, because of his expressed objection to entering into an AWA, was in a class of persons who would never be employed by the applicant, and that this constituted a refusal to employ under s 289K(1)(d). However, as I put to Counsel during the hearing, that submission is more accurately directed towards the reason for any refusal to employ that may have occurred. 42 Counsel referred to Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117, in which the following passage appears at 121, where Moore J considered the construction of s 334(2) of the Industrial Relations Act 1988 (Cth): "On one view, the opposite of "refuse to employ" is "agree to employ". "To employ" may mean, in context, to enter a contract of employment. It is entirely consistent with the ordinary meaning of "refuse", and for that matter, "agree", to treat "refuse to employ" as describing a situation where the employer does not do what otherwise would be done, namely, agree to employ by entering a contract of employment." 43 Counsel for the Corporation sought to characterise the decision taken by the Corporation as a decision to prefer two other candidates over Mr Rolls for employment, which would amount (in the terms discussed by Moore J in the passage cited above), to a failure to agree to employ, rather than an active decision to refuse employment. However, Fletcher v Fraser Constructions Australia Ltd arose in a different context, as is evident when regard is had to the concluding passage in Moore J's reasons, also at 121: "Having regard to the context in which the expression "refuse to employ" appears in s 334(2), I have concluded that it relates to a refusal by an employer to employ a person for a proscribed reason when employment would or might otherwise occur. That is, it concerns the refusal of an employer to employ a person by refusing to enter a contract of employment. That arises, in my opinion, only if a position of vacancy exists to which the employment would have related at the time of refusal. (emphasis added)" 44 In the present case there were two vacancies for which Mr Rolls had applied and was under active consideration. The refusal to employ him occurred when the Corporation decided to employ two other applicants in preference to Mr Rolls. To hold otherwise would make it impossible to predicate of Mr Rolls, or any other person passed over for selection, a "refusal to employ", or an "agreement to employ". Whether the refusal occurred because there was a class of persons whom the Corporation would never employ (because they refused to enter into an AWA) or because two other candidates were preferred on merit, is relevant to the reasons for that refusal.

(e) Is the EBA an "industrial instrument"? 45 The Corporation sought to characterise the EBA as something other than an award or agreement for the purposes of the WR Act. Part XA of the WR Act in s 298B contains the following relevant definitions; 'industrial instrument means an award or agreement, however designated, that: (a) is made under or recognised by an industrial law; and (b) concerns the relationship between an employer and the employer's employees, or provides for the prevention or settlement of a dispute between an employer and the employer's employees" "industrial law means this Act or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees." 46 Although the Corporation does not admit that the EBA is a certified agreement within the meaning of the WR Act, it cannot be disputed that the EBA applies to employees of the Corporation by force of an "industrial law" (whether the WR Act or another statutory prescription). If it were not so, the Corporation would not be able to acknowledge, as it does, that the EBA applies by force of law to future and current employees who are employed on some basis other than an AWA. The EBA is then, in the relevant sense, an "industrial instrument" and it is unnecessary to examine further the Corporation's submission on this point.

(f) Was Rolls entitled to the benefit of the EBA? 47 To succeed in its claim under s 298K of the WR Act, the Union must demonstrate that Mr Rolls, although not employed by the Corporation at any time, was "entitled to the benefit" of the EBA as that phrase is used in s 298K(1)(d). By cl 3 of the EBA, it is expressed to be binding on: "… the Maritime Union of Australia, Australian Maritime Officers Union and the Burnie Port Authority in respect of employment by the Burnie Port Authority of persons who are eligible to be members of the above Unions in connection with the integrated port labour force." 48 For the Corporation, it is said that s 298K(1)(d) should be construed to exclude those persons who are not currently employees (including Mr Rolls) from those who are "entitled to the benefit of" the EBA. This submission is based upon the interpretation of similar provisions found in the Conciliation and Arbitration Act 1904 (Cth) in Leontiades v FC Mansfield Pty Ltd (1980) 43 FLR 193 ("Leontiades"), where it was held that the equivalent expression meant "entitled as a matter of legal right". That was followed in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 165 ALR 67 ("Geraldton"), at par 189, where Nicholson J said: "The GPA admit that the second applicants are persons entitled to the benefit of the Award. I accept the submission for the GPA that the Award does not apply to work done by persons who are not employees of the GPA; that is, it does not apply to work done by persons who are employees of stevedores operating in the Port. In order to be a person having the benefit of an award, a person must be entitled to bring proceedings for breach of the award …" 49 It is evident from his Honour's treatment of this issue in Geraldton, that Nicholson J was not concerned with the determination of whether a person who is an applicant for a position, and who, upon employment, would be entitled to bring proceedings for breach of an applicable industrial instrument, is "entitled to the benefit" of that instrument. In Leontiades, Keely J, after accepting that it is necessary to consider carefully the context in which "entitled" appears, applied the reasoning in R v Graziers' Association of New South Wales (1964) 112 CLR 619, to the effect that the employer did not owe a duty to non-members [of the union] because they were not parties to the dispute settled by the award, and concluded that the informant in that case was not entitled to the benefit of the relevant award. These authorities are inapt to answer the question which arises in this case. 50 In Moss v Fantil Pty Ltd (1994) 58 IR 118, Hill J at 125 contrasted the New South Wales legislative scheme with which he was concerned with the predecessor to ss 298K and 298L, s 334(2) of the Industrial Relations Act 1988 (Cth). The latter section, his Honour considered, could not be limited in its effect to those persons presently entitled by virtue of current employment to the benefit of an award, because s 334(2) of the Industrial Relations Act specifically provided that "An employer shall not refuse to employ a person … because the person … (e) is entitled to the benefit of an award". Hill J concluded that such a limitation would render the provision nugatory and was therefore contrary to the legislative intention discernible from the terms of the Industrial Relations Act. 51 An examination of the phrase "is entitled to the benefit of an industrial agreement" in s 298L must be informed by the purpose of its introduction. In CFMEU v BHP Steel (AIS) Pty Ltd [2000] FCA 1008; (unreported, FCA, 27 July 2000),Wilcox J addressed the purpose of Pt XA of the WR Act, saying, at par 48: "It is fundamental to the notion of freedom of association that employees should be free to join, or refuse to join, industrial organisations; and not be subject to discriminatory action or victimisation on account of their choice. Likewise, it is fundamental that employees should be free, if they choose to do so, fully to participate in the affairs of registered organisations and in lawful actions designed to protect and further the interests of such organisations and their members. Once again, they must not be penalised for taking that course. Similarly, employees should be allowed, without penalty, to take advantage of entitlements provided by, or under, the Act, including award benefits. To victimise, or discriminate against, an employee who insists on obtaining and receiving award benefits, is to offend notions of freedom of association; such an action undermines the right of collective action." 52 The Corporation in support of its contention points out that, contrary to the views expressed in Moss v Fantil Pty Ltd, s 298L(1)(h) will continue to have an operative effect on persons "entitled" (in accordance with the Corporation's contention) to the benefit of an award who are not employees in respect of seniority lists, preference clauses (despite the fact that such clauses may be caught by s 298Z) and the like. However, it is not to the point that the alternative construction, may leave some severely limited work for that paragraph if it is clearly inconsistent with the objects of a relevant part of the legislation, as discussed, for example, by Wilcox J in the passage just quoted. 53 The limitation sought to be imposed by the Corporation on the availability of a remedy afforded by Pt XA would give rise to a similar hypothetical situation to that which led the Court in Schanka to remark at par 34, in a different context: "The construction for which [the respondent] contends would allow even the most reprehensible conduct engaged in by a party in relation to a proposed AWA to go unexamined by a court if no concluded agreement were to come into existence. We would only impute to Parliament such an intention to limit the scrutiny of conduct of persons in an industrial relationship if the language of the legislation intractably compelled that result." 54 The same consideration has led me to conclude that, for the purposes of Pt XA of the WR Act, Mr Rolls, as a serious applicant for a position in which he would have been entitled to the benefit of the provisions of the EBA, was "entitled" to the benefit of that EBA. The fact that the Corporation expressed a clear intention that no successful applicants would have their wages and conditions regulated by the EBA (since they were to be employed on an AWA) does not entail a different conclusion. The Corporation' intention was to preclude any appointee from being able to compel observance of the EBA, and it thereby acknowledged that, as a matter of law, the provisions of the EBA would apply in the absence of an AWA.

(g) Was Rolls' entitlement to the benefit of the EBA a reason for the Corporation's refusal to employ him? 55 The Union has contended that the Corporation refused to employ Mr Rolls because he would have been entitled to the benefit of either the relevant award, or the EBA. However, the claim as it has been put in argument is that Mr Rolls was discriminated against because the Corporation has sought to have its employees' conditions governed by the AWA as opposed to the EBA. It is significant to note the concession of the Union that the AWA would not be disallowed by the "no disadvantage" test when compared with the relevant award. It follows therefore that the Corporation did not refuse to employ Mr Rolls in order to avoid according him some terms and conditions prescribed by the EBA, which were financially more advantageous to him, and more expensive for the Corporation, than those available under the proposed AWA. 56 However, the prohibited reason identified in s 298L(h) is that the employee is entitled to the benefit of an industrial instrument, not that the employee is entitled to a benefit, or to benefit, under or by virtue of such an instrument. There are several respects in which the benefit of the EBA might have prompted the Corporation to exclude it as far as possible from existing employees or prospective employees, like Mr Rolls. They include the role assigned to the Union by the EBA and the prospect of the initiation of a bargaining period in order to negotiate improvements in the wages and working conditions prescribed by the existing EBA. 57 It is not necessary that one of the prohibited reasons identified in s 298L be the sole or dominant reason for the conduct struck at by s 298K(1). As the prefatory words to that sub-section make clear, if the conduct is engaged in for several reasons a contravention will be made out if those reasons "include" a prohibited reason; Geraldton, par 224. The prohibited reason need only be one of a number of reasons actuating the proscribed conduct. Even in the absence of those prefatory words, it would be sufficient if the prohibited reason were a substantial or operative reason for the conduct imputed to the employer; see Hanley at par 45 citing General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235. 58 In this context the Corporation had to overcome the reverse onus of proof imposed by s 298V which provides: "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." 59 In my view the Corporation manifestly failed to discharge that onus. Indeed, when regard is had to the evidence of its Chief Executive Officer, Mr Tyson, it is clear that the Corporation was concerned to render the EBA inapplicable to port operatives and coldstore operators in order to bring the wages and working conditions of the Corporation's employees in those classifications into line with those of corresponding employees of competitor ports. When regard is had to the uniform insistence on all candidates for appointment to the August 1999 vacancies being willing to enter into an AWA if appointed, the inference is irresistible that refusal to employ those who would not agree to that condition was actuated substantially, if not wholly, by a concern to exclude the appointees from the benefit of the EBA. The evidence of Mr Gibbons and Captain Boss-Walker has not persuaded me that Mr Rolls was excluded from consideration for appointment solely "on merit" without regard to his foreshadowed refusal to enter into an AWA. No evidence was adduced from Mr House. 60 For these reasons I am satisfied that a contravention of s 298K(1) has been made out.

Did the Corporation apply duress in connection with the AWA? 61 It will be recalled that s 170WG(1) stipulates: "A person must not apply duress to an employer or employee in connection with an AWA or ancillary document." 62 It is common ground between the parties that merely informing interviewees for positions that the successful candidate must enter into an AWA as a condition of engagement is not "duress" for the purposes of the section, but presence or absence of duress will depend upon the particular circumstances: see Geraldton at pars 396-399, and Schanka at pars 21-22. 63 The Union contends that the Corporation's conduct in this case went beyond merely requiring successful applicants to enter into AWAs as a condition of engagement and amounted to "duress". That contention relied on the combination of two circumstances surrounding that requirement. First, employment opportunities in the Burnie region were, to the Corporation's knowledge, abnormally restricted, and, secondly, it was said, the Corporation's motive in requiring the new employees to enter into AWAs, which revealed by the evidence to be the Corporation's pursuit of increased productivity. Those circumstances, it was submitted, combined to support the conclusion that the Corporation had taken unfair advantage of the situation of prospective employees in its pursuit of increased productivity (and presumably, profit). To exploit an unfair bargaining advantage of that kind, it was said, was to apply duress in connection with an AWA in contravention of s 170WG. 64 The Full Court in Schanka analysed the concept of duress in s 170WG and concluded at pars 23-24 that: "In our view, the answers given by [Moore J] to the questions which he identified involved his discerning from s 170WG in the context of Part VID as a whole, an intention that an employer should not, in an endeavour to induce an existing or prospective employee to enter an AWA containing particular terms, apply pressure which, in the circumstances, is illegitimate. That intention is consistent with what appears to be the policy underlying Part VID that AWAs should be negotiated and concluded openly and freely at arm's length without outside interference and without either party being deceived or misled. The legislature's concentration on the quality of the conduct and intention of the person against whom duress is alleged is also borne out by the fact that the proscription in s 170WG(1) is cast in the form "a person must not apply duress". It is significant in the same context that the prohibition is against the application of duress "in connection with an AWA"." [original emphasis] 65 It must be acknowledged that the WR Act is generally concerned to regulate the conduct of industrial relations which it is governs. The need for regulation is born of the competing interests of employers and employees to achieve the most favourable terms on which work is respectively utilized and provided. Employers are often (though not always) motivated by a desire to achieve an advantage over, or at least maintain parity with, their competitors through increased productivity and profit. Regulation under the WR Act is a means by which the effect of this instinct on employees is mitigated in the public interest, as determined by Parliament. 66 There is discernible in many provisions of the WR Act, including s 170WG, a policy that wages and working conditions are to be determined by a process of bargaining at arms' length using weapons, including protected industrial action, which the legislation impliedly regards as fair, but without resort to proscribed tactics or techniques which are to be characterised as unfair. 67 It can readily be envisaged that an employer in pursuit of its own economic advantage will seek from the bargaining process contemplated by the WR Act, to restructure its workforce or to achieve economies through greater flexibility without endeavouring to reduce in real, or even relative, terms, the remuneration of the employees concerned. 68 If accepted in its entirety, the Union's submission would preclude an employer from utilising the legislatively-sanctioned employment instrument of an AWA (within other limitations set out by the WR Act) to achieve the object to which I have just referred, solely because entry into an AWA, whatever its terms, was insisted on as a term of engagement of new employees. 69 I cannot agree that Parliament in enacting s 170WG intended that the concept of duress should be capable of an application as wide as that. The WR Act expressly limits the advantage to an employer which might be gained by requiring an AWA as a condition of entry into an employment contract. That limitation somewhat diminishes the force of the Union's submission so far as it is directed to showing that the Corporation's object was to increase productivity whatever the cost to its employees. The WR Act conditions the operation of each AWA on its passing the "no disadvantage" test prescribed by s 170XA. The result is to narrow considerably the detriment that can be imposed on an employee and the advantage that can accrue to the employer when the latter successfully insists that their relationship be regulated in future by an AWA. 70 It may be that, in future, if the designated award that provides the criteria for application of the "no disadvantage" test is not adjusted to reflect market trends evidenced by relevant certified agreements and AWAs, the utility of the "no disadvantage" test in ensuring minimum standards will gradually diminish. However, that circumstance is not said to have arisen here and it is unnecessary therefore to consider its impact in bringing the conduct of the Corporation in relation to its AWAs within the concept of duress.. 71 This is not a case in which those alleged to have been subjected to duress were in any relationship with the Corporation, other than that of applicants for the vacant positions. If such a relationship, from pre-existing employment or otherwise, had existed, it would have been relevant to examine the circumstances of the employer's conduct to determine whether there were features which rendered illegitimate or unconscionable a threat or inducement offered to procure entry into an AWA and thereby amounted to duress. 72 The terms of the proposed AWA in relation to those available to the rest of the employer's workforce and the relevant labour market as a whole will also have a bearing on this question of duress. In the present case, the Corporation has sought to compel prospective employees to enter into AWAs which are not markedly disadvantageous in their terms. Having regard to those considerations, what is left of the alleged duress in the present case is that entry into the AWAs was made a condition of appointment to vacancies in circumstances where the prevailing scarcity of employment made it more likely that the condition would be accepted by those interviewed. I have been unable to discern any positive conduct by the Corporation beyond its decision to offer employment under the AWAs, albeit with some knowledge of that circumstance. This, I consider, does not amount to illegitimate pressure of the kind needed to establish duress under s 170WG.

Implied Constitutional Immunity Defence 73 Subject to exceptions which are not presently relevant, it is well-settled that there exists for a State a constitutional immunity from the effect of a federal law which would impinge on the ability of a State to determine the number and identity of persons whom it wishes to employ. It is equally well-settled that this immunity does not extend to a federal law prescribing only the minimum terms and conditions upon which a State has to accord to employees other than those having special functions or responsibilities. The Corporation invokes this immunity in the event that its actions are found to be in breach of Pt XA or, alternatively, s 170WG, of the WR Act. 74 The immunity arises in respect of the actions of a State, or of an emanation of a State (in the sense discussed in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192 and Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188). That the Corporation is a body entitled to the benefit of that immunity was not seriously challenged by the Union, and without making a concluded finding, I proceed on the basis that the Corporation is an emanation of the State of Tasmania. 75 The relevant principle was enunciated by the High Court in Victoria v Commonwealth (1996) 187 CLR 416 at 498, in these terms: "The prohibition was most recently considered in Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188. The majority in that case identified the scope and content of the prohibition as follows: "The limitation consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities (''the limitation against discrimination') and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments" There are three matters to be noted with respect to the second element of the prohibition identified in Re Australian Education Union. First, it precludes the "exercise of Commonwealth legislative or executive powers 'to control the States' " for that would constitute "an exercise of power inconsistent with the continued existence of the States as independent entities and their capacity to function as such". The second matter is that, as was held in that case, it precludes laws which prevent a State from exercising its 'right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss … on redundancy grounds". Finally, in the case of those employed at the higher levels of government, it precludes laws which prevent the State from determining "the terms and conditions on which those persons shall be engaged"." 76 The only effect s 170WG could have upon a State as relevantly defined is to require that the State "not apply duress to an … employee in connection with an AWA …". On its face, that is not a requirement which could affect the determination by the State of either the number or identity of persons whom it wished to employ. 77 Similarly, Pt XA of the WR Act relevantly requires of a State or, in this case, the Corporation, that it not discriminate against a person on the basis that he or she is entitled to the benefit of an industrial instrument (which may include, for example, a State award). The numerical strength of its workforce and the identity of the persons who comprise it remain entirely within the discretion of the Corporation, which is only affected to the extent that it seeks to preclude the application to a prospective employee of the minimum terms and conditions prescribed by the relevant instrument. As Nicholson J explained in the following passage from Geraldton (par 478), such a prescription will not impinge on the functioning of the State: "The principle is that the protected matters are those critical to the capacity of the State to function, namely the right to determine the number and identity of the persons whom it wishes to employ, the term of employment of such persons and the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds. However, in Victoria v Commonwealth and in Re AEU the High Court has accepted the continued validity of the administrative services exception to the principle of implied immunity. Prescription by a Federal Award of minimum wages and working conditions would not infringe the implied limitation provided such award took account of any special functions or responsibility attaching to the employees in question: Re AEU at 232. The question is one involving "matters of degree, including the character and responsibilities of the employee": AEU at 233. See also Victoria v Commonwealth at 501-503." 78 Putting the matter in another way, it might also be said that the Corporation was exercising its right to determine the number and identity of persons to be employed by it when it conducted interviews with the prospective employees. The free exercise of that right was not infringed because there can be no suggestion that any person was excluded from participating in an interview, or from being offered employment. The substance of the issue arising in this case has been the basis upon which the vacancies were offered, and not the effect of the different terms and conditions of employment on the selection of one candidate in preference to another. 79 For these reasons I have not been able to find that the Corporation is entitled to the benefit of the immunity in respect of either of the contraventions alleged.

Conclusion 80 For the reasons which I have endeavoured to explain there will be a declaration that the Corporation contravened s 298K(1) in August 1999 when it refused to employ Mr Rolls. In the circumstances, I do not consider it appropriate to grant an injunction restraining the Corporation from future contraventions of the same kind. Those circumstances include the fact that the Corporation has undertaken during the course of the proceedings to offer to terminate any AWA made between it and an employee who accepted employment conditionally upon entry into an AWA if, as I have found, that conduct contravened s 298K, although, in the event, this does not assist Mr Rolls. 81 As well, an injunction framed in general terms against future contraventions would be tantamount to a mere direction to the Corporation to obey the law. Another consideration militating against such an injunction is that it raises the spectre of the Court's supervising the filling of each comparable vacancy in the Corporation's workforce. Courts have traditionally set their faces against injunctions which require supervision of that kind. 82 I shall adjourn the further hearing of the proceedings to a date to be fixed for the receiving of further submissions and, if necessary, evidence directed to the question of the penalties which should be imposed for the contravention of s 298K(1). The need for that further hearing can be obviated if the parties agree that the question of penalty can adequately be addressed by written submissions. 83 Since the claim under s 170WG has not been made out, the application will be otherwise dismissed.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Applicant: Maurice Blackburn Cashman

Dates of Hearing: 5 and 6 October 1999

Workplace Relations Act 1996(Cth)ss 49(2), 170VK, 170VV, 170VZ, 170WG, 170XE, 298B, 298C, 298F, 298G, 298K, 298U, 412

Tasmanian Marine Act 1976(Tas)

Industrial Relations Act 1988(Cth)s 334(2)

Trade Practices Act 1974(Cth)

Conciliation and Arbitration Act 1904(Cth)

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Judgment (17 paragraphs)

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