Metal Trades Industry Association of Australia v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union

Federal Court of Australia|1998-11-04|Before: French J

Introduction In April 1997 employees of the Second Respondent trading as Western Power resolved to oppose proposed changes to industrial legislation by the Government of Western Australia. They gave authority to union officials to coordinate action in opposition to the legislation. The action that was taken included strikes, stoppages and picketing of power station premises. The action was not directed to any dispute with Western Power. It was entirely a response to the Government's proposals for changes to the industrial laws. On 1 May 1997 the Australian Industrial Relations Commission made an order under s 127 of the Workplace Relations Act 1996 (Cth) prohibiting members of the applicant union from taking part in: "Industrial action including engaging in or being party to or concerned in picket lines, strikes, bans and limitations on performance of normal work by the CEPU their officials and agents and employees to whom this order applies…" The order remained in force for a period of one month. On 7 May 1997 proceedings were commenced in the Perth Registry of the High Court seeking writs of prohibition and certiorari on the basis that the order made infringed the implied constitutional freedom of communication concerning government or political matters. The matter was remitted to the Federal Court of Australia.

The proceedings do not involve any challenge to the validity of s 127 but rather assert an implied limitation upon the breadth of the discretion to make orders under that section. They raise questions about the proper construction of the section, the nature of the discretion conferred by the section and the impact of the constitutionally implied freedom upon both the construction of the section and the discretionary power conferred by it.

This application for prerogative relief is made by the Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU). It arises out of events involving action taken by members of the CEPU and the Construction Forests Mining and Energy Union (CFMEU).

On 20 March 1997 the Honourable Graham Kierath MLA, Minister for Labour Relations in Western Australia, introduced into the Legislative Assembly of Western Australia a Bill entitled the Labour Relations Legislation Amendment Bill 1997. Salient features of the Bill included provisions for: (i) Compulsory secret ballots of union members as a precondition of lawful strike action. (ii) Work resumption orders by the Industrial Relations Commission in various circumstances including disruption of essential services. (iii) Rationalisation of Federal and State award coverage including cancellation of the eligibility of a State registered union to represent employees in the State industrial relations system where that union had sought Federal award coverage. (iv) Prohibition on the use of membership fees for political expenditure albeit money given to a union for that purpose by a member might be so expended. Political expenditure included expenditure incurred in connection with directly promoting or opposing a political party. (v) The onus of showing that a dismissal was harsh, oppressive or unfair to be placed on the employee who challenged it. (vi) The right of entry to business premises by union officials to be limited to those premises in which a member of the union was or had been employed. (vii) The right of inspection of time and wages records to be restricted. (viii) The removal of pro-rata leave entitlements for employees who terminated their employment unlawfully or who were dismissed for misconduct. The Bill so introduced was known as "Third Wave Industrial Legislation" being the third of a three phase reform of the State's industrial legislation. The introduction of the Bill excited public controversy about its merits and the contention that it had not been disclosed to the electorate prior to the previous State general election which had taken place in December 1996. Another element of public debate about the Bill arose from the fact that the Government was proposing to have it passed by the Legislative Assembly and by the Legislative Council before 22 May 1997. But as a result of the December 1996 election the composition of the Legislative Council was to change so that after 22 May 1997 when newly elected members took up office, the Government would no longer have a majority in that House. Not surprisingly there was an adverse reaction from organised labour. On 1 April 1997 a meeting of members of the CFMEU was held at the Kwinana Power Station of the Electricity Corporation, Western Power. The members resolved to oppose the Third Wave Industrial Legislation and gave authority to the union's officials and shop stewards to coordinate action. A meeting of members at the Muja Power Station held on 4 April 1997 endorsed the same resolution. Illustrative of a more widespread reaction from elements of organised labour is a document called "Speakers Notes - Third Wave Campaign" prepared by the Trades and Labour Council of Western Australia in or about March 1997. It gave what was described as "a brief overview" of the Bill by reference to "major aspects of concern". The Bill was also the subject of an editorial in the West Australian of 7 April 1997 under the headline "Kierath's Bill Smacks of Ideology". On 26 April 1997 a meeting of shop stewards and officials of the CFMEU at the Bunbury Power Station of Western Power put in place arrangements for industrial action by employees of the Generation Division of the Corporation. On Sunday, 27 April, the secretary of the CFMEU, Mr Gary Wood, sent letters by fax to the management of Western Powers' power stations at Bunbury, Muja and Kwinana advising of a twenty four hour stoppage commencing 7am on Tuesday, 29 April 1997 "in protest to the State government's proposed Industrial Relations Legislation". The Kwinana and Muja power station letters asked the relevant manager to speak to the appropriate official of the union on Monday, 28 April if there were any matter of a "critical nature which you feel may endanger Plant or Personnel". A strike by coal plant operators and coal samplers employed by Western Power at Muja commenced at 1.30pm on Monday, 28 April. The action was unrelated to any dispute with Western Power. A meeting of members of the CFMEU was held at Muja on that day to ensure that employees were available if required to ensure there was no disruption of electric power. Later on the same day the secretary, Mr Wood, sent a letter by fax to Mr Ballantine, the acting manager of the station, advising that following the meeting of members to discuss the proposed legislation it had been resolved that coal plant operators and samplers would withdraw their labour and would meet again on the Wednesday morning, operators would continue to work as normal but would review their position at a meeting to be held on Tuesday evening. The letter concluded: "I confirm the above action is in response to the Political Industrial Reform proposed by the Court Government." Power plant operators at the Kwinana power station went on strike at midnight on 28 April and at 7.00am the following morning a twenty four hour stoppage by employees at the Bunbury power station commenced. On 29 April a public rally against the Third Wave Industrial Legislation organised by the Trades and Labour Council was held. It commenced with a march through the city to The Esplanade where speakers opposed to the Bill, including the Leader of the Opposition and members of other political parties addressed the rally. It then moved to Parliament House and was attended by a large number of persons including CFMEU members. A variety of pamphlets attacking the proposed legislation and Minister Kierath was circulated by the unions participating in the rally. In addition, a petition directed to the Legislative Council was circulated for signature asking the Council to defer consideration of the Bill until after 22 May 1997. At the conclusion of the rally the Trades and Labour Council and others set up a "Workers Embassy" opposite Parliament House which remained in place for approximately six months. At about 4.00pm on 29 April 1997 CFMEU members established a picket line at the entrance to the Muja power station. The picket line did not prevent entry and exit of staff of the power station who wanted to cross it. However fuel supplies to the power station were disrupted because drivers of fuel tankers did not want to cross the picket line. Thus Western Power was unable to arrange fuel delivery. At about 10.00am on 3 May 1997 a BP fuel tanker arrived at the entrance to the power station but did not enter because the driver declined to cross the picket line. The line remained in place until 3 May. As a result of the strike action Western Power imposed power restrictions on industrial, commercial and domestic users as from midnight on 29 April. A Power Restrictions Notice was published in the West Australian newspaper on 30 April. Use of electricity by residential customers was restricted to essential needs. Electricity was not to be used for industrial purposes except where essential to prevent damage to plant and where special approval had been given in writing. Commercial customers could not use air conditioning or heating equipment and refrigeration, including deep freeze equipment, could be used only to the extent necessary to prevent deterioration of stock. Display window sign and outdoor lighting could not be used except for security lights and internal lighting was to be kept to one third of normal. The impact of the restrictions was seen in peak system load which at 4.15pm on 30 April was 1,313 megawatts. If not for the restrictions that load would have been between about 1,650 and 1,720 megawatts that day. The Muja Unit 1 had run down and been taken out of service, Muja Unit 3 was out of service. The load on Units 4 to 8 inclusive was reduced to conserve coal to help Western Power to cope with the expected peak later in the afternoon. By 1 May, Units 1 to 6 inclusive were shut down. There had been widespread limitations of electricity supply to industry. It was anticipated that by 5.00pm there would be rotating blackouts. The CEPU and its members were at all relevant times employed by the respondent and bound by the Western Power Dispute Settlement Procedure set out in the Western Power Enterprise Bargaining - Generation Division Agreement 1994. Clause 7 of the agreement relating to the dispute settlement procedure provided that any disputes would be processed in accordance with the Western Power Dispute Settlement Procedure Agreement. By cl 1.1 of that agreement the unions who were party to it recognised that statutory and public responsibility of Western Power to provide electricity for the State of Western Australia: "…that it is essential for the welfare, convenience and employment opportunities of the population, for the smooth operation and prosperity of its industry and commerce, and for the purpose of ensuring the economic development of the State, to provide that electricity without any avoidable interruption." For its part, under cl 1.2: "Western Power recognises the traditional right of the unions and their members to take industrial action, including the partial or total withdrawal of labour." By cl 2 the parties recognised that for Western Power to meet its responsibility to provide an uninterrupted electricity supply it was necessary for the parties to adopt procedures to ensure that every effort was made to resolve differences before the unions or their members felt compelled to take industrial action. Mutual commitments of importance in Part 3 of the Agreement were as follows: "3.1 Western Power commits itself to expeditiously deal with any difference that may arise between itself and the unions or any of them and their members. The unions and their members commit themselves to initially seek to resolve differences with Western Power by consultation and negotiation without resort to industrial action. 3.2.1 The unions and their members commit themselves not to take any industrial action during the course of the dispute settlement procedures set out in 3.3 hereof, provided that where the unions and their members believe that the final response of Western Power following the exhaustion of all the procedures in 3.3 hereof is unsatisfactory, they reserve their right to take industrial action. . . . 3.2.3 Subject to 4 hereof the parties commit themselves to maintain the status quo and not to take any industrial action during the course of the dispute settlement procedure set out in 3.3 hereof." Clause 3.3 set out procedures for dealing with disputes or grievances progressing from site discussions to formal meetings between management, either human resources administrator or consultant, a union official and the relevant employee or shop steward. The matter could then progress to discussions with senior management. It is common ground that the dispute settlement procedure was not invoked by the CFMEU or the CEPU in the present case. On 30 April the strikes at Muja and Kwinana were continuing and at midday on that day Mr Wood of the CFMEU sent a fax to Mr Green of Western Power which advised of the outcome of a meeting of CFMEU members held that morning in the following terms: "Members resolved to continue their political protest against the Coalition Government Industrial Relations Legislation and furthermore they would supply sufficient labour to ensure coal supplies to prevent any disruption to domestic customers. The supply of labour to prevent disruption to domestic consumers is obviously dependent upon the agreement of Western Power for this [to] occur." There was in place at the time a Memorandum of Understanding between the CFMEU and CEPU which had been made on 9 September 1994. Under that Memorandum the CFMEU recognised and accepted CEPU representation of the industrial interests of its members who were also employees of Western Power. The CEPU agreed to appoint officials of the CFMEU as its agents for the purpose of representation of the industrial interests of members of the CFMEU within Western Power. The CEPU appointed certain officials of the CFMEU as its agents for that purpose including Mr Garry Wood. On 24 February 1995 the Australian Industrial Relations Commission had made an order under s 118A of the Workplace Relations Act 1988 (Cth) which provided that the CEPU would have the right, to the exclusion of the CFMEU and other unions, to represent the interests of employees in the Generation Division of the State Energy Commission of WA (now Western Power). That order, made initially for a period of two years, was successively extended to October 1997. On 30 April 1997 Western Power lodged an application for orders under s 127 of the Workplace Relations Act 1996 in the Australian Industrial Relations Commission. The orders sought were in respect of the CEPU and not the CFMEU. At the hearing, which took place before Commissioner Laing that afternoon and evening, Mr Game on behalf of the CEPU said as was the case that: (a) The CEPU its officers, members and agents were not involved in any industrial action; (b) Mr Wood and other officers of the CFMEU were not acting as agents of the CEPU in industrial action; and (c) For those reasons an order of the Commission directed that the CEPU and its officers would have no practical effect. At the conclusion of the hearing Commissioner Laing gave the CEPU until 9.30am the following morning to obtain a cessation of the industrial action otherwise it would have to show cause why an order should not be made against it. The CEPU did not obtain a cessation of the action and the strikes at Muja and Kwinana stations continued on Thursday, 1 May. Power restrictions remained in place. The second day of the hearing before Commissioner Laing took place on 1 May. At the conclusion of the hearing the Commissioner gave a statement of decision and made an interim order. The order was in the following terms: 1. This order shall be known as the Western Power - Generation - Industrial Action Interim Order. 2. This order is directed to and binding upon the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and its officials and agents and members of the CEPU and persons eligible for membership of the CEPU employed by Western Power Corporation at the Kwinana, Bunbury and Muja Power Stations in Western Australia on work regulated by the Western Power Interim Award 1995 and the Western Power - Enterprise Bargaining - Generation Division Agreement 1994. 3. Industrial action including engaging in or being party to or concerned in picket lines, strikes, bans and limitations on performance of normal work by the CEPU their officials and agents and employees to whom this order applies, shall not occur or when such action has occurred or doe occur shall stop. 4. For the purpose of this order the expression "industrial action" means actions of the kind identified in the definition of "industrial action" in section 4 of the Workplace Relations Act 1996. 5. This order will come into effect at 3.00pm on 1 May 1997 and shall remain in force for a period of one month or unless otherwise ordered by the Commission." The order made by the Commissioner was accompanied by a Statement of Decision. He set out in the Statement of Decision the reasons for his original show cause order against the CEPU. He referred in his reasons for making the original show cause order to evidence from Western Power that industrial action within the meaning of the Act was taking place in relation to work covered by a Certified Agreement and Award and that employees represented by the CEPU and their agents were engaging in that action in a manner inconsistent with the Certified Agreement and Award and that employees represented by the CEPU and their agents were engaging in that action in a manner inconsistent with the Certified Agreement and the Awards under which they were employed. There was evidence also that significant power restrictions had been imposed on industry and households and that further and more significant general restrictions were inevitable including blackouts of various localities. The Commissioner also had found that the matter in issue was based on a political dispute concerning legislative changes to West Australian industrial laws. The effect of the dispute was that industrial action within the meaning of s 4 of the Workplace Relations Act was in place against Western Power and that there was nothing that Western Power was able to concede or negotiate which could satisfy the demands. On the return of the show cause order which led to the making of the interim order above, the Commissioner referred to an argument that he was without power to make the orders sought because it was inconsistent with the exercise of an implied right to political expression. He said: "It is a well founded and substantial principle that this Commission is bound to accept that the legislation under which it operates is validly made. As a result, the argument of the CEPU is not one which I can properly entertain and must be dealt with elsewhere. The only exception that I am aware of is where the provision is manifestly unconstitutional. That is not the case here. I consider that there is another difficulty with what is put. In short, the unions argument implies that a person is entitled to express themselves [sic] in a way which is contrary to their contracts and awards. If that is indeed the case employees can only enter into conditional employment contracts; a position which is in my view untenable." As to the agency relationship between the CEPU and the CFMEU he concluded that the agency arrangements following under the Commission's s 118A order provided both the authority and responsibility to the CEPU to act as representatives of the relevant employees for the proposed order to have effect. He accepted that blackouts seemed inevitable notwithstanding the capacity of existing supply to meet the greatly reduced demand. This was only being met in the face of economic and other hardships. He said: "It is apparent from the foregoing that there is little this Commission can do to resolve the political dispute. It can and must however deal with the industrial dispute which has resulted from the broader political dispute." And further: "The union and its members have every right to exercise their political rights but they should do without resort in industrial action which imposes an intolerable burden on the community." On the same day, Mr Game, the State Secretary of the CEPU sent a fax to Garry Woods of the CFMEU notifying him of the orders made by Commissioner Laing and said: "We now confirm in writing that the order of Mr Commissioner Laing in respect of actions of your members as being agents for CEPU be complied with immediately." The CFMEU did not take any steps to terminate the industrial action. The CFMEU officers took the view that the interim order of the Commissioner did not apply to the CFMEU. On the following day Mr Game of the CEPU sent a fax to Mr Wood notifying him that the agency credentials of his officers and delegates to act on behalf of the CEPU within Western Power were withdrawn. On that same day Western Power filed an application in the Industrial Relations Court seeking injunctions against the CEPU under ss 127(6) and (7) of the Workplace Relations Act. The matter came on before Wilcox J sitting in Sydney. Following argument his Honour issued an interlocutory injunction in the following terms: "Pending the determination of this proceeding or further order of the Court, the first respondent, its officials and agents, be restrained from engaging in any strike, ban or limitation on the performance of normal work at the Kwinana, Bunbury or Muja Power Stations in Western Australia." He also made orders requiring the CEPU to deliver to its officials, employees or agents having responsibility for matters relating to the Western Power Interim Award and the Western Power Enterprise Bargaining Agreement a letter informing them that there was to be no strike, ban, or limitation on the performance of normal work at the Kwinana, Bunbury or Muja Power Stations until 9 May 1997. Nor were they to request directly or indirectly any person to fail or refuse to attend for work or to perform work at the Kwinana, Bunbury or Muja Power Stations. He directed that the CEPU cause to be published in the West Australian Newspaper of 5 May 1997 a public notice to the effect that it was not continuing or maintaining and would not prior to 9 May 1997 impose any strike, ban or limitation on the performance of normal work at the power stations. On 3 May a further hearing took place before Commissioner Laing in which Western Power sought to have his earlier order of 1 May amended to apply to specified individual workers. And in separate proceedings heard at the same time, Western Power sought to have a similar order made against the CFMEU. Neither application was granted at that time and the proceedings were adjourned to an off the record conference on 4 May 1997. In the event, the order made on 1 May 1997 by the Commissioner remained in force until its expiry one month later. No further hearings have taken place. The employees went back to work on the evening of Sunday, 4 May 1997 and on Monday, 5 May Wilcox CJ adjourned the proceedings in the Industrial Relations Court to 9 May 1997. On 9 May 1997, following a further hearing, Wilcox CJ terminated the orders which he had made on 2 May and dismissed the application on the basis that the CEPU had not defied Commissioner Laing's orders and because industrial action was not continuing.

History of these Proceedings On 7 May 1997 a motion was filed in the Perth Registry of the High Court whereby the CEPU sought an order that Commissioner Laing show cause why writs of prohibition and certiorari should not issue, that there be a stay of the proceedings before him and alternatively, a stay of the interim order which he had made until the determination of the application for prerogative relief. On 29 May 1997 Toohey J ordered that Western Power be added as a second respondent to the proceedings and that the motion be remitted to the Perth Registry of the Federal Court. The matter eventually came on for hearing on 21 May 1998. The facts were agreed as set out in a statement of agreed facts together with a number of annexed documents. The CEPU appeared by counsel and the Attorneys-General for the Commonwealth and for the State of Western Australia both intervened. The Commissioner made a submitting appearance and his counsel withdrew at the commencement of the hearing.

The Reamended Notice of Motion The originating motion in these proceedings was reamended 18 May 1998. The motion does not in terms seek an order nisi. Rather, it sets out the grounds for the relief sought without in terms specifying the relief. That ground is in substance as follows: "The order made by Commissioner Laing on 1 May 1997 ("the Order") was, in whole or in part, invalid and of no legal effect in that it was beyond the power conferred on the Australian Industrial Relations Commission by s 127 of the Workplace Relations Act 1996 (Cth) ("the Act")." Particulars are then given. It is not necessary to set them out here as they are adequately referred to in the summary of contentions which follows.

The Contentions The CEPU contends that the order made by Commissioner Laing on 1 May 1997 was in whole or in part invalid as beyond the power conferred on the Australian Industrial Relations Commission by s 127 of the Workplace Relations Act. This contention is put on the basis that the section is to be read subject to the implied constitutional protection of freedom of political speech. Thus it is said s 127 should be read as subject to an implied limitation that it may not authorise the making of any order that: "burdens freedom of communication concerning government or political matters in its terms, operation or effect unless the order is reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government." It is said that on the facts the CEPU and its members were engaged in political action undertaken in order to bring to the attention of and inform members of the public of Western Australia, including those eligible to vote in State and Federal elections, views critical of and opposed to the passage of the Third Wave Industrial Legislation through the Western Australian Parliament. The order made by the Commissioner is said to have prohibited all industrial action in connection with Western Power without limitation including engagement in picketing or local political demonstrations which were not capable of being "industrial action". The order is said to have so restricted forms of political protest by the CEPU and its members that it thereby burdened their freedom to communicate political views about the proposed amendments. The order was said to have been in excess of what was reasonably and appropriately adapted to and was in fact disproportionate to securing what was capable of being a legitimate end within the contemplation of s 127 of the Act. The burden imposed by the order was also said not to be compatible with the maintenance of the system of representative and responsible government prescribed by the Commonwealth Constitution, the Constitution Act 1889 (WA) and the Constitution Act Amendments Act 1899 (WA). The Attorney-General for the Commonwealth intervening submitted that the order did not burden political communication protected by the implied constitutional freedom because it did not prohibit or regulate what was otherwise a right or liberty of the CEPU or the relevant employees. The industrial action, it was said, did not constitute political communication. The order did not affect the exercise of freedom of choice of electors at Federal elections and the communication in question did not touch upon matters relevant to Federal elections. Even if the order did burden a relevant communication it was validly authorised under s 127 and was reasonably appropriate and adapted to the achievement of legitimate ends compatible with responsible and representative government. In any event it was submitted that as a matter of discretion the Court ought to decline to grant prerogative relief in the circumstances of this case as the order has long expired. The implied freedom of political communication, it was submitted, is not a free standing right but rather a limitation on legislative power preventing any interference with that which is necessary to maintain the system of representative and responsible government provided for by the Commonwealth Constitution. The only constitutional question therefore is whether the relevant law is valid. If valid it applies according to its terms and no further inquiry is required. Particular circumstances in which the present industrial action was taken or the purposes for which that action was taken are said to be irrelevant both to the question of the validity of s 127 of the Act and to the question whether s 127 of the Act should be read down so as to accommodate the constitutional prohibition or limitation. Further, it was submitted that as in the case of the Commonwealth Attorney-General, that the law in question is reasonably appropriate and adapted to achieving a legitimate object or end. In assessing that a distinction is to be drawn between laws which target communications about relevant government or political matters and laws which only incidentally effect those communications. In the case of laws impacting on relevant communications only incidentally a margin of appreciation is allowed to Parliament and it will be sufficient if it were open to Parliament to take that view. The authorising of the Commission and the Court to prohibit the taking of industrial action in appropriate circumstances has as its aim the end of preventing industrial disruption and a mechanism to ensure continued supply of contracted or essential services. Nothing in that aim, it was submitted, is incompatible with the system of elections for which the Commonwealth Constitution provides. It was pointed out that the taking of industrial action would generally constitute either a breach of contract or a tort and so be prohibited at common law. In addition it was said the constitutional implication of freedom of speech extends only so far as is required for the protection of the Commonwealth electoral system. Therefore if the terms of the Workplace Relations Act are to be read down to accommodate an implied limitation or prohibition that should not extend to prohibit interference with communications as to purely State matters such as the passage of legislation through a State parliament.

Statutory Framework The order of the Australian Industrial Relations Commission which is the subject of these proceedings was made under s 127 of the Workplace Relations Act. That section provides: "127(1) If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to: (a) an industrial dispute; or (b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or (c) work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur. (2) The Commission may make such an order of its own motion, or on the application of: (a) a party to the industrial dispute (if any); or (b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or (c) an organisation of which a person referred to in paragraph (b) is a member. (3) The Commission must hear and determine an application for an order under this section as quickly as practicable. (4) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act. (5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order. (6) The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation: (a) has engaged in conduct that constitutes a contravention of subsection (5); or (b) is proposing to engage in conduct that would constitute such a contravention. (7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6)." The term "industrial dispute" is defined in s 4 of the Act relevantly as follows: ""industrial dispute" (except in Part XA) means: (a) an industrial dispute (including a threatened, impending or probable industrial dispute): (i) extending beyond the limits of any one State; and (ii) that is about matters pertaining to the relationship between employers and employees; or (b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a); and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State);" The term "industrial action" is also defined in s 4 as follows: ""industrial action" (except in Part XA) means: (a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where: (i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or (ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; (b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; (c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or (d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if: (i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer of a group of members of the organisation acting in that capacity; or (ii) the failure or refusal is in connection with an industrial dispute; or (iii) the persons are employed by the Commonwealth or a constitutional corporation; or (iv) the persons are employed in a Territory; but does not include: (e) action by employees that is authorised or agreed to by the employer of the employees; or (f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or (g) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (iii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform."

The issues raised on this application may be approached by posing a number of questions.

What limits are there, derived from the express terms of s 127, upon the kind of conduct to which it may apply? 2. To what extent is picketing industrial action for the purposes of the section? 3. How is the discretion under s 127 to be exercised where it may affect freedom of expression? 4. Can s 127, consistently with its express terms, be applied to stop or prevent communication concerning government or political matters? 5. If so, is s 127 to be read subject to an implied constitutional limitation that it does not apply to such conduct unless its application is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 6. Does the order made by the Australian Industrial Relations Commission on 1 May 1997 burden freedom of communication concerning government or political matters? 7. If so, is the order nevertheless reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

Conduct to Which Section 127 Expressly Applies The Australian Industrial Relations Commission is empowered by s 127 of the Workplace Relations Act only to make orders relating to "industrial action". The definition of "industrial action", in its various aspects, confines it to bans, limitations or restrictions on the performance of work or on acceptance of or offering for work, failure or refusal to attend or perform work and performance of work in a manner different from that in which it is customarily performed. The conduct which may be stopped or prevented by an order under the section is limited to that which affects the performance, the acceptance of or the offering for work. It may extend to strikes, stopwork meetings, work to rule or go slow practices. It is not confined to stoppages - Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 77 IR 87 at 92 (Marshall J). The class of conduct to which the section applies is further narrowed by the requirement that as "industrial action" it relate to an industrial dispute, the negotiation or proposed negotiation of an agreement under Division 2 of Part VIIB or work that is regulated by an award or a certified agreement. That is to say it must have "a relation to the matters specified in subpars (a)-(c)" - Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 29 (North J). Notwithstanding these limitations it has been said and in my opinion correctly, that for the purposes of s 127 "industrial action" is widely defined - Coal and Allied Operations Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 at 321 (AIRC Full Bench). It extends to conduct by way of communication. While par (a) of the definition relates to the "performance of work", par (b) is more broadly expressed. It refers to "a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work….". The central meaning of the term "ban" in the industrial, as in its ordinary usage, is to "prohibit or interdict" - Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a "ban". And while the notion of "limitation" or "restriction" may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed. In the ordinary course such communication will be verbal whether oral, written or in electronic form. Being intended to affect or affecting the performance of work it is industrial action because of its instrumental character. Notwithstanding that it is communication it falls within the terms of the definition. So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee's perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 implies. Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application. To the extent that the action the subject of Commissioner Laing's order in the present case comprised the withdrawal of labour and bans, limitations or restrictions on the performance of work by CEPU employees of Western Power, it was industrial action to which the section expressly applied. For the action related to work regulated by an award, being the Western Power Interim Award 1995 and the Western Power Enterprise Bargaining - Generation Division Agreement 1994. There is no doubt a spectrum of conduct within the class of industrial action which ranges from that which is primarily disruptive and designed to impose sanctions on the employer in relation to a grievance to that which is primarily intended to send a signal or make a communication whether about a grievance or some collateral matter and involves little or no disruption or inconvenience. It is now necessary to consider whether picketing is capable of being industrial action. If it is it may, according to circumstances, occupy the less disruptive end of the industrial action spectrum.

Picketing as Industrial Action The Commission's order of 1 May 1997 extended to prohibit "industrial action including …. being party to or concerned in picket lines". On the face of it, it covered a wider range of picketing conduct than that which had actually occurred. The agreed facts disclosed that a picket line was established at the entrance to the Muja Power Station on 29 April 1997. It did not prevent entry and exit of staff of the power station who wanted to cross it. Nevertheless, fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line. The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 114 ALR 551 at 555-557. It is apparent that it is a wider class of conduct than industrial action under s 127. At common law it is not necessarily unlawful but may become so if it involves obstruction and "besetting" - Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA). To constitute "industrial action" under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a "ban, limitation or restriction on the performance of work". So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purposes of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127. In this case the Commission's order literally applied only to such participation in picket lines as was industrial action. The term "industrial action" provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in par 4 of the order to the application of the statutory definition of industrial action "for the purposes of this order". The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers however did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket. The uncertainty of the terms of the order in this respect illustrates the vice of broadly stated directions of this kind to which further reference is made below.

Freedom of Expression and the Discretion under Section 127 The question whether an order should be made under s 127 stopping or preventing industrial action involves the exercise of a discretion by the Australian Industrial Relations Commission. It will also involve the exercise of a discretion by the Court if it is sought to enforce the order by the grant of injunctive relief under s 127(6).

The scope of the discretion has been described by the Full Bench of the Australian Industrial Relations Commission as "manifestly at large" - Coal and Allied Operations at 320. In the particular context of that decision, however, I take that to be a statement contrasting the discretion under s 127(1) with a discretion subject to some statutory tie or condition upon its exercise. For no statutory discretion transcends the object of the statute which creates it.

The Commission accepted, in my view correctly, in Coal and Allied Operations that action to which s 127 applies includes:

"Action taken … for economic or social campaigns, or to secure union organisational objectives…" (at 323) The discretion to be exercised by the Commission is properly informed by a principle that any restraint imposed be no wider than is necessary for the purposes of the case at hand. Such a principle derives from considerations analogous to those which lead the court to a like approach in relation to the grant of interim injunctions under s 127(6) and generally - Australian Paper Limited (supra) at 22-24. Broad restraints whose applications require evaluative or interpretative judgments are difficult to obey and enforce. In this respect the form of order made by the Commissioner leaves much open to legal interpretation, it being directed to "industrial action including engaging in or being party to or concerned in picket lines, strikes, bans and limitations on performance of normal work etc….". Such orders do not identify with any precision the conduct to which they are directed. And any injunction granted under s 227(6) is unlikely to be so widely framed. The injunction granted by Wilcox J on 2 May 1997 was considerably narrower in its terms. At a more fundamental level such orders may interfere unduly with basic liberties. When the conduct in question involves a significant element of communication about matters of public interest no constitutional implication is necessary to say that the value attached by democratic societies, by the common law and by developing norms of international law to freedom of expression should be respected and given weight in the exercise of the discretion to stop or prevent the conduct. The principle informing the exercise of the discretion in cases in which industrial action is brought as or as an incident of, expression of opinion on a matter of public interest, should require a conservative approach to the orders which are made. This is an application by analogy of the general proposition that statutes which would impair or abrogate fundamental freedoms should be conservatively construed. As was said by the High Court in Coco v R (1994) 179 CLR 427 at 437: "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." The passage quoted dealt with the question of statutory construction. It also applies to mandate a conservative approach to the exercise of a discretion which may affect fundamental freedoms and, in particular, freedom of expression. This is not to say that established principles of construction require the discretion conferred by s 127 to be read down so as not to authorise the making of any order which would restrict freedom of expression. The application of s 127 to bans, limitations and restrictions necessarily negatives any such suggestion. And the application, which in my opinion it has to industrial action, notwithstanding that it is or is incidental to communication on a matter of public interest, would also negative such a suggestion. Rather it is to say that the effect of a particular order on freedom of action and specifically on freedom of expression is a matter relevant to and properly to be taken into account in the exercise of the discretion. So much can be concluded from established principles of construction and without resort to any implied, incidental constitutional freedom.

The Application of Section 127 to Stop or Prevent Communication Concerning Government or Political Matters Communication concerning government or political matters is a protean concept. It may occur in a variety of manifestations. Industrial action as defined for the purposes of the section may arguably comprehend such communication but only if that communication also has the instrumental character of affecting or being intended to affect in some way the performance of work. Communication about government or political matters which, because of its instrumental character, falls within the definition of industrial action does not exhaust the ways in which communication about those matters may occur. Thus the CEPU and its members and the employees of Western Power were entirely free to communicate to the public their concerns about the Third Wave Industrial Legislation in a variety of ways that were not and could not have been industrial action for the purposes of s 127. These could extend to rallies and pickets at Parliament House, letters to the press, pamphlet drops, public meetings, use of radio talkback, lobbying members of parliament and the like. There is no doubt however that to the extent that any communication also constitutes industrial action for the purposes of the section, it is amenable to the application of the section. Nothing in the language of s 127 exempts such action from its potential application.

Whether the Application of Section 127 to Communication about Government Or Political Matters is Subject to an Implied Constitutional Limitation As federal legislation, the provisions of s 127 of the Workplace Relations Act are subject, as are all laws of the Commonwealth, to the implied freedom of communication with respect to public affairs and political discussion. That freedom is, of course, subject to the qualification referred to by Mason CJ in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 142: "In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of "an ordered society" or a "society organized under and controlled by law". Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public." It is analogous to the qualification which has led to a limitation on the protection given to labour related picketing under the First Amendment in the USA - "Labour Picketing and Commercial Speech: Free Enterprise Values in the Doctrine of Free Speech" (1982) 91 Yale Law Journal 938. In International Longshoreman's Association, AFL-CIO et al v Allied International Inc 456 US 212 (1981) at 226 the Supreme Court said, referring to prohibitions under s 8(b)(4)(B) of the National Labour Relations Act: "We have consistently rejected the claim that secondary picketing by labour unions in violation of section 8(b)(4) is protected activity under the First Amendment…It would seem even clearer that conduct designed not to communicate but to coerce merits still less consideration under the First Amendment. The labour laws reflect a careful balancing of interests. See NRLB v Retail Store Employees 447 US at 617… There are many ways in which a union and its individual members may express their opposition to Russian foreign policy without infringing upon the rights of others." The power conferred by s 127 is not directed to the content of political or other communications but rather to activity which constitutes "industrial action". This is relevant to the distinction between laws which seek to regulate the content of political communications and laws which may affect communications in the course of or as part of some other activity. In Australian Capital Television at 143 Mason CJ said: "A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted. In the first class of case, only a compelling justification will warrant the imposition of a burden on free communication by way of restriction and the restriction must be no more than is reasonably necessary to achieve the protection of the competing public interest which is invoked to justify the burden on communication. Generally speaking, it will be extremely difficult to justify restrictions imposed on free communication which operate by reference to the character of the ideas or information." And further: "On the other hand, restrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible of justification….Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary to achieve the competing public interest. If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication." See also McHugh J at 234-235 and Deane and Toohey JJ at 169. In the latter passage their Honours stated that: "…a law whose character is that of a law with respect to the prohibition or restriction of [political] communications…will be much more difficult to justify…than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications." See also Levy v State of Victoria (1997) 146 ALR 248 at 271 (Gaudron J). The validity of s 127 is not attacked by the applicants and that is appropriate for in its terms it is directed to conduct in its character as industrial action for the purposes of the supervision and regulation of a system of industrial relations established by Commonwealth law. The question is whether it is to be read down in some way by reference to the constitutional implied freedom. In my opinion it is not to be read down. The freedom of communication in relation to public affairs and political discussion which is protected by constitutional implication confines legislative power but will not invalidate a law enacted to satisfy some legitimate end if that law is compatible with the maintenance of representative and responsible government under the Constitution and is reasonably appropriate and adapted to achieving the legitimate end - Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 108. This single standard will subsume and allow for application of the distinction made in Australian Capital Television between laws directed to the content of communication and laws directed to modes of communication or activities affecting communication. The limitation of the application of s 127 to industrial action and the confinement of that subject matter to conduct relevant to the performance of work marks the section as one which is, in my opinion, enacted to satisfy a legitimate end compatible with the maintenance of representative and responsible government under the Constitution and reasonably appropriate and adapted to achieving that legitimate end. The section derives that character in part from the limitations which are imposed by its express language upon the kind of conduct to which orders made under the section can apply. Those limitations being express and answering to the constitutional standard there is no requirement to impose some additional implied limitation upon the exercise of the discretion itself.

The Order of 1 May 1997 The order of 1 May 1997 in my respectful opinion is more widely expressed than is desirable given that it imposes a duty under s 127(5) the breach of which is unlawful conduct. I doubt very much that there are any circumstances in which it would be appropriate for a court to impose an injunction in terms as wide as that order. Indeed the injunction subsequently granted by Wilcox J was considerably narrower. It is arguable that in the proper exercise of the discretion, consideration would have been given to confining the application of the order so that it left less room for debate about its interpretation and application particularly given the political character of the conduct to which it was directed. However the order was in its terms confined to "industrial action" within the meaning of the Act. To the extent that it applied to picketing, it applied only to picketing which fell within that definition. No doubt there could have been debate, and perhaps extensive debate, about whether the particular pickets established by the union were within the order. Fortunately, the question of enforcement would only arise acutely in relation to a more narrowly expressed injunction. And in this case the injunction made no reference to pickets as such. But to say that the order was undesirably wide does not involve assent to the proposition that it was an impermissible burden on freedom of communication concerning government or political matters. The Act being valid and itself within the constitutional standard, the exercise of the discretion within the terms of the Act was not to be impugned by reference to the implied constitutional freedom. The question whether the order was reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which was compatible with the maintenance of the constitutional prescribed system of representative and responsible government is answered in the affirmative on the basis that the statute under which it was made complied with that requirement in the limitation which it placed upon the exercise of the discretion. As a matter of substance it is, of course, important in this case to note that notwithstanding the arrangements which the CEPU sought to make with Western Power, its industrial action did have the potential to affect significantly the supply of power to the State and the order made was plainly directed to the conduct of the union by reference to its character as industrial action and because of its impact on an essential service.

CONCLUSION For the reasons outlined above, I am satisfied that the validity of the order of 1 May 1997 has not been impugned upon the basis of contravention of the implied constitutional limitation on freedom of communication about political matters. The question whether the discretion might otherwise have been impugned is not before me except to the limited extent that it was contended that picketing is not "industrial action". As I have pointed out, the terms of the order are confined to picketing as a species of industrial action. It would be necessary to show that any picketing said to contravene the order fell within the definition of industrial action. I should add that I express no opinion on the question whether the implied constitutional freedom extends to freedom of communication in relation to matters arising in the State political arena. But given the inter-relationship between State and Federal law and political issues and the possible involvement of Australia's obligations under international labour law, clear distinctions may not readily be made, even if relevant. In the event it is not necessary that I express any concluded view on that issue. For these reasons the motion will be dismissed. I certify that the preceding twenty-seven (28) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French

Counsel for the Applicant: Mr J. Courtis

Solicitors for the Applicant: Wojtowicz Kelly

Counsel for the First Respondent: No Appearance

Counsel for the Second Respondent: Mr S. Ellis Solicitors for the Second Freehill Hollingale & Page Respondent: Counsel for the Attorney-General of the Commonwealth Intervening: Solicitors for the Attorney-General of the Commonwealth Intervening: Mr K. Pettit and Mr M. Moshinsay Counsel for the Attorney-General of Western Australia Intervening: Solicitor for the Attorney-General of Western Australia Intervening: Australian Government Solicitor Mr R.M. Mitchell P.A. Panegyres, Crown Solicitor for the State of Western Australia

Date of Hearing: 21 May 1998

Date of Judgment: 4 November 1998

Workplace Relations Act 1996(Cth)

Workplace Relations Act 1988(Cth)

Constitution, the Constitution Act 1889(WA)

Amendments Act 1899(WA)

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (4)

Cases Cited (8)