National Tertiary Education Union v Monash University

SNADEN J: 1 By its originating application dated 15 September 2022, the applicant (the "NTEU") moves the court for various forms of relief relating to alleged contraventions of s 50 of the Fair Work Act 2009 (Cth) (the "FW Act"). Those contraventions concern payments that are said to have been due (but that were not made) to various employees of the respondent ("Monash") pursuant to two enterprise agreements, namely the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 and its successor, the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (the "2019 EA"). 2 The contraventions focus upon the meaning of the phrase "associated work" and its application under each enterprise agreement to casual academic staff. Specifically, they focus upon a component of the definition of that phrase, namely "contemporaneous consultation", which is also common to both enterprise agreements. As is explored in more detail below, the parties are in dispute as to what is and was meant by those phrases; and the present application appears to turn principally upon whose construction is to be preferred. 3 Of present significance, Monash has commenced in the Fair Work Commission (the "FWC") a proceeding under s 217 of the FW Act. That proceeding involves at least a measure of overlap with this matter, in that it concerns the dispute that has arisen as to the proper construction of the 2019 EA and, in particular, the terms referred to earlier (that is, "associated work" and "contemporaneous consultation"). Monash asks the FWC to vary the 2019 EA so as to remove the ambiguity or uncertainty that it says has given rise to the dispute that now divides the parties; and to do so with retrospective effect. 4 Before the court presently are two interlocutory applications. The first, dated 18 October 2022, concerns an application by Monash for orders that this proceeding be stayed pending (or effectively pending) the determination of the FWC proceeding. The second, dated 19 October 2022, concerns an application by the NTEU for orders that the FWC be joined as a respondent to this matter and, thereafter, be restrained from hearing or determining Monash's application under s 217 of the FW Act. For the reasons that follow, I have resolved to grant the stay that Monash seeks and to dismiss the interlocutory application of the NTEU. 5 Before explaining why, I should note the evidence upon which the parties relied. Each read a single affidavit: in the case of the NTEU, an affidavit affirmed on 19 October 2022 by its in-house solicitor, Ms Kelly Thomas; and, in the case of Monash, an affidavit sworn on 18 October 2022 by its Director of Workplace Relations, Mr Angelo Yoannidis. Both affidavits were relied upon in respect of each interlocutory application. The FWC - which the NTEU seeks to add as a party hereto - filed a submitting notice. 6 It is convenient first to address the applicant's interlocutory application. It is, by nature, an application for interlocutory injunctive relief, the aim of which is to restrain the FWC from hearing or determining the variation application that Monash has brought under s 217 of the FW Act. The principles that regulate the granting of such relief are notorious and not presently disputed. In order that it might secure what it hopes to secure, the NTEU must demonstrate that it has a prima facie case for the relief that it seeks, and that the balance of convenience favours intervention in the form of interim or interlocutory injunctive relief so as to preserve its subject matter: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, 81-82 [65] (Gummow and Hayne JJ). 7 The relief that the NTEU seeks is in the nature of an anti-suit injunction. Such relief will only be granted where the interests of justice so require: Pegasus Leasing Limited v Cadoroll Pty Limited (1996) 59 FCR 152, 156 (Lee and Tamberlin JJ), 161 (Higgins J) (hereafter, "Pegasus Leasing"). It should not normally be granted if doing so risks unjustly depriving an applicant in another proceeding of the benefits that he or she hopes thereby to realise: Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871, 896; Pegasus Leasing, 156 (Lee and Tamberlin JJ); TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433, 442 [29] (Finkelstein J, Stone and Gordon JJ agreeing in the result). 8 Although Monash has identified some concerns with the manner in which it has been pleaded, there does not appear to be any material doubt that the case that the NTEU, by this proceeding, seeks to agitate is at least arguable. I am satisfied that there exists a prima facie case for the relief that is sought. At issue, then, is whether the balance of convenience warrants injunctive intervention at this time (or, more broadly, whether it is in the interests of justice to grant it). 9 The NTEU's application proceeds on the basis that the application that Monash has commenced in the FWC will, or might, prejudice the application upon which the NTEU moves in this court. That proposition is straightforward enough. It is said that, if the FWC proceeds to vary the provisions that are in dispute - and to do so retrospectively and in a way that is consistent with Monash's preferred construction of them - then that will summarily compromise the basis upon which those claims under the 2019 EA are here sought to be agitated (though it will, for obvious reasons, have no bearing on those that are brought in reliance upon the earlier enterprise agreement). 10 Although it is unnecessary now to decide, that proposition appears to be sound. If the FWC agrees to vary the 2019 EA in a way that prefers the textual constructions to which Monash adheres - and if it does so with retrospective effect - then that would appear very likely to extinguish at least part of the cause of action that the NTEU seeks to prosecute in this court. Likewise, were the FWC to accept that the 2019 EA was attended by relevant ambiguity or uncertainty, and to resolve it by giving effect to the NTEU's preferred construction, it seems inevitable that that would impact upon Monash's defence of the claims put here (or some of them). 11 There is, though, no real doubt that, unless the FWC is restrained from proceeding in the way that the NTEU hopes to restrain it, there is at least some prospect that the NTEU's causes of action here will be irreparably compromised. 12 That, though, is often the case in applications for anti-suit injunctions. Where, as here, it may be accepted that there exist on foot two related proceedings, which turn to some degree upon a common question (here, the construction of clauses in the 2019 EA), the challenge for the court is to assess which of the competing jurisdictions is the most appropriate; or, to phrase it in the unfortunately imprecise language of the authorities, which aligns most with the interests of justice. 13 There are a number of circumstances here that inform the court's assessment in that regard. 14 First, the nature of the power that Monash has asked the FWC to exercise is, I think, of some significance. The power to vary an enterprise agreement under s 217 of the FW Act is a specific statutory power of long-standing. There is no basis upon which this court might assume (and it is not suggested) that it might be exercised improperly or in a manner that exceeds the jurisdiction so conferred. The NTEU, it must be presumed, will have appropriate opportunities before the FWC to oppose the relief that Monash hopes to secure. The possibility that it might do so successfully does not seem beyond fancy (though, to be clear, that is not for this court to decide). 15 The prejudice that will befall Monash if interim or interlocutory injunctive relief is granted, then, lies in its being denied the opportunity to benefit from those specific and long-standing statutory processes. Those benefits include that the processes before the FWC are designed and intended to be administered quickly and cost-effectively; and that, if it succeeds in persuading the FWC to grant the relief that it seeks, that will (or may) go at least some way to resolving the controversy now before the court. 16 Second, the fact that Monash has commenced its proceeding in the FWC at least in part so as to defeat some of the rights that are asserted in this litigation is of no moment. Absent some suggestion that the proceeding in the FWC has been brought to further some improper purpose or purposes (which is a conclusion that the court was wisely not invited to draw), or some reason to think either that the FWC might exceed or misapply its jurisdiction, or that the case before it is foredoomed to failure (a topic to which I shall shortly return), this court should, I think, be slow to interfere with the due progression of matters put conventionally before a specialist tribunal that is charged by statute to do precisely what has been asked of it. Particularly should that be so where, as here, the appropriate and orthodox determination of such matters might legitimately and properly bear upon the conclusions that are warranted in related proceedings before this court. Why, it might rhetorically be asked, should an applicant be able to defeat, by means of an anti-suit (or equivalent) injunction, a defence to a claim that might otherwise and legitimately be (or become) sound? 17 Third, the demands of the court at present are such that this application is unlikely to be heard before the end of 2023. The proceedings in the FWC, by contrast, are likely to be heard and determined much more quickly (as the proper discharge of its statutory functions envisages). It is the case, as the NTEU contended, that the disposition of the application might involve a process of appeal; but, even assuming that that proves so, there remains little doubt (and I accept) that the matter will be determined much more quickly than this one will be. Save that the landscape upon which this action is fought might or might not change, there will otherwise be minimal prejudice to the parties in letting the FWC process play out as it may. That is to be contrasted with the position that will inure if injunctive relief is granted: the FWC proceeding would need to be parked for a considerable period whilst this action plays out. This proceeding might well end with the court accepting the NTEU's claims that Monash has breached provisions of the 2019 EA; and those terms might then be changed with retrospective effect when the variation application before the FWC is reanimated. That scenario, were it to eventuate, would lead to obvious absurdity. I say so conscious of the reality that the NTEU's claims in this court extend beyond the terms of the 2019 EA; and that this matter will proceed to trial regardless of what happens in the variation application before the FWC. 18 Fourth, the matters that are common to the two proceedings are not such that this court should be preferred as the jurisdiction in which to resolve them. It is, as the NTEU contended, the case that this court "is a superior court of record…whereas the [FWC] is an inferior tribunal". That, though, is not dispositive of anything. The power to vary an enterprise agreement to remove ambiguity or uncertainty vests in the FWC alone. It is the specialist jurisdiction within which questions concerning the proper construction of enterprise agreements routinely arise. I do not consider that the interests of justice should incline to the view that this court is better placed, or a more suitable venue in which, to determine what requires determination. 19 Fifth, in the (hopefully unlikely) event that the FWC exceeds or misapplies its jurisdiction in some way, it will be open to the NTEU to amend the present proceeding to seek prerogative relief directed to addressing that error. That will be so regardless of whether or not the FWC gives permission to appeal the determination of the variation application to a full bench: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2016) 247 FCR 138, 147-148 [36]-[41] (Barker, Rangiah and Wigney JJ). Prerogative relief would not necessarily be limited to relief in the nature of certiorari and mandamus; relief in the nature of prohibition may well be appropriate in preference to mandamus: Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) (2022) 316 IR 258, 280-281 [95]-[97] (Snaden J, with whom Bromberg and Wheelahan JJ relevantly agreed). 20 Sixth, although it might be accepted that the question of underpayment in the higher education sector (and probably in any sector) is a matter of public importance, that is no reason to prefer the resolution of the present dispute by this court. The FWC is a specialist tribunal and its expertise quite clearly extends to cover the issues presently in focus. 21 On balance, I am not persuaded that the circumstances - or, to be strangely less precise, the interests of justice - here warrant a grant of interim or interlocutory injunctive relief. 22 That conclusion goes some way to answering (although it does not dispose of) the question inherent in Monash's application to stay this proceeding pending the determination of its applications before the FWC. 23 It is well established that the court has a discretion to stay proceedings if (at the risk of repetition) it is in the interests of justice to do so: Websyte Corporatioin Pty Ltd v Alexander (No 2) [2012] FCA 562, [53] (Dodds-Streeton J). In ResMed Limited v Australian Manufacturing Workers' Union (No 2) (2015) 243 FCR 366, Perry J identified (at 379 [48]-[52]) the following points of principle that regulate the exercise of that discretion: …The question of whether a stay should be granted must be resolved in the exercise of discretion having regard to the potential impact of the applications before the FWC on the utility of the relief sought in these proceedings. In this regard, Bennett J in Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 identified a number of guidelines as generally apposite to assist in identifying how the discretion to grant a stay should be exercised. In that case, the respondents sought a stay of proceedings in the Court which sought the revocation of a patent pending the decision of the Australian Patent Office on whether to grant or refuse a patent the subject of a notice of opposition filed by Apotex. The guidelines identified by her Honour at [9] included that: a. Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court (Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 (Rochfort) at [19]). b. It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification of proper grounds (Rochfort at [19]). c. The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson Ltd v Bhetcha [1979] 2 All ER 1108 at 1113). d. The Court's task is one of "the balancing of justice between the parties", taking account of all relevant factors (Jefferson at 1113). e. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (Jefferson at [1113]). I agree with and adopt that approach. Relevant also, as her Honour accepted, is s 37M of the FCA Act providing that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 24 I gratefully adopt that summary. Here, the court should not lightly take any step to delay its resolution of a matter properly brought before it for resolution. The NTEU can rightly expect that the court will be concerned to apply itself accordingly; and that expectation is a factor that properly informs the judicial exercise of the discretion now in focus: Finance Sector Union of Australia v Commonwealth Bank of Australia (2004) 205 ALR 582, 586 [9] (Moore J). 25 As a general proposition, it would not ordinarily be in the interests of justice to stay an extant proceeding in this court in order to permit a litigant first to pursue relief in other proceedings elsewhere: see, eg, Financial Services Union of Australia v Australia and New Zealand Banking Group Ltd [2005] FCA 62, [3] (Finkelstein J). That general proposition might be displaced, however, when the relief in question involves a sufficiently arguable application for relief that will have retrospective effect and that, if granted, will bear upon the questions to be determined in the matter that is sought to be stayed: Warramunda Village Inc v Pryde (2002) 116 FCR 58, 74 [61] (hereafter, "Warramunda Village"; Finkelstein J, with whom on this point Lee and Gyles JJ agreed). 26 As to that, the NTEU submits that, on the evidence now before this court, Monash cannot establish that its application under s 217 of the FW Act has, to borrow from Finkelstein J in Warramunda Village, "…some prospects of success". His Honour, in that case, was concerned to consider the appropriateness of deferring a hearing in order to enable an application to be made to vary an award. On that, his Honour observed (at 72 [55]): Surely it must be necessary for the party to place before the court some material to show the application might succeed. It could hardly be supposed that a judge would defer a trial if the application to vary the award was bound to fail. In that case, there would be no point to deferring the trial. It would just be a waste of time. Thus, it was for the appellant to persuade the trial judge that something was to be gained by putting off the hearing. 27 It is at this juncture that attention should turn to the clauses of the 2019 EA that are disputed. In doing so, the court is concerned to identify whether they might be attended by ambiguity or uncertainty upon which Monash's application under s 217 might be brought to bear. It is unnecessary that the court should conclude one way or another; it will suffice that I should inform an impressionistic view: see, by analogy, Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604, 610 [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ); MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, 482-483, 486 [21], [38] (Tracey, Perry and Charlesworth JJ). At issue is whether there is some prospect that Monash will be able to establish the ambiguity upon which its application under s 217 proceeds. 28 I turn, then, to the terms of the 2019 EA. Clause 25.1 of that instrument provides that "…Teaching Associate staff [will be] paid a sessional or hourly rate as specified in Schedule 2 of this Agreement." Schedule 2 to the 2019 EA then identifies rates of pay that are applicable to different categories of work. Schedule 3 sets about defining the tasks that comprise each such category. Insofar as concerns work undertaken by "Teaching Associate" staff (in respect of whom the present dispute arises), it distinguishes work associated with the provision of tutorial and lecture-based learning from "[o]ther required academic activity". The latter is defined to include "consultation with students (other than as contemporaneous consultation for a tutorial and lecture)". 29 Clauses 1 and 2 of Schedule 3 to the 2019 EA concern work associated with, respectively, tutorials and lectures. Each identifies that Teaching Associate staff will be required to engage in "associated work", which is, in each case, defined to include "contemporaneous consultation with students involving face-to-face and email consultation prior to and following a [tutorial/lecture]." 30 The dispute that has arisen (and upon which the present proceeding and Monash's application under s 217 of the FW Act focuses) concerns student consultations in which Teaching Associate staff have engaged in connection with tutorials and lectures otherwise than immediately prior thereto or thereafter. The NTEU maintains that such consultation was not "contemporaneous consultation" and, therefore, qualified as "[o]ther required academic activity". Monash maintains that such work was sufficiently contemporaneous with tutorials and lectures so as to qualify as "contemporaneous consultation". 31 The scope for legitimate debate about what is or not contemporaneous consultation is immediately apparent on the face of the instrument. Perhaps it is limited, as the NTEU contends, to consultation that occurs immediately prior to or after a tutorial or lecture; perhaps it extends by some measure to consultation that occurs within some period either side of a tutorial or lecture. Contemporaneity is, conceptually, a question of degree. Ill-defined (or undefined), it is a concept that, naturally and for want of clear boundaries, lends itself to disputation. 32 The NTEU contends that, in order that it might establish some prospect of success in its application under s 217 of the FW Act, Monash ought to have led (but did not lead) evidence before this court to establish that the relevant provisions of the 2019 EA fail to give effect to the common intention of its parties. Misalignment of that nature would, it is true, assist in demonstrating relevant ambiguity or uncertainty (and, in particular, how the FWC might resolve it); but it is not the only way in which prospects of success might be made impressionistically apparent. I am satisfied that there is at least some prospect that Monash will be able to establish relevant latent (and probably patent) ambiguity solely on the strength of the words that the provisions employ. 33 The NTEU's submission assumes that the court should not grant the stay that is sought unless it has some basis for supposing not only that the 2019 EA is attended by relevant ambiguity or uncertainty; but also that the FWC might resolve it in a way that accords with the construction that Monash favours. I am not persuaded that that is so. At issue presently is whether there is "no point" in deferring this matter, or whether doing so "would just be a waste of time" (see above, [26]). The court's discretion is properly informed by the prospect that the FWC might determine the s 217 application in a way that bears upon the issues that this matter raises. That requires some basis for supposing that it might accept that the provisions are attended by relevant ambiguity or uncertainty, which it might address by the exercise of power under s 217 of the FW Act. I accept that that is in prospect. Whether the FWC might favour the construction that Monash prefers is not a matter to which the court's attention need turn. 34 That alone suffices to establish the impression upon which I proceed (namely, that there is a prospect that Monash might successfully have the 2019 EA varied under s 217 of the FW Act so as to remove ambiguity or uncertainty). Nonetheless, there are other circumstances that underline the conclusion to which I am drawn. Key amongst them are the efforts to which both sides have gone to prosecute their respective construction of the relevant terms. The fact that a dispute has arisen regarding the correct construction does not, in and of itself, mean that those terms are relevantly ambiguous or uncertain. But I am here concerned not with whether there is ambiguity or uncertainty; but with whether there is some prospect that the FWC will consider that there is. That sophisticated parties that are advised by experienced practitioners have expended the energy that they have in preferring their respective constructions of the relevant provisions is itself a circumstance that suggests that the competing constructions are open to be advanced (and that the provisions in question are, in that sense, ambiguous or uncertain). 35 Allied to that observation is the likely approach of the FWC to Monash's application. It has been said that "…the [FWC] will generally err on the side of finding an ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention": Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385, 400 [70] (Flick, White and Perry JJ) citing Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 [49] (Ross VP, O'Callaghan SFP and Foggo C). 36 Beyond those headline considerations, there is a range of factors that favour the relief for which Monash moves. First, it does not seem controversial to observe that parties to litigation should not be required to address the same issue (or issues that are very similar or related) at the same time in multiple actions and multiple jurisdictions. Second, some allowance should be made for the prospect that Monash might succeed in its application under s 217 of the FW Act in persuading the FWC that the 2019 EA is relevantly ambiguous or uncertain. That would likely, as has been observed, have an obvious effect on this proceeding. Third, the delay that a stay of this proceeding might occasion is unlikely to be onerous: the FWC is very likely to hear the matters (and can reasonably be expected to determine them) far more promptly than this court. In any event, this is, at its core, a money case. It already dates back to 2014. There is no obvious or immediate urgency inherent in it. Fourth, this proceeding is very much in its infancy, such that any resultant delay is unlikely to visit additional costs on either party. Fifth, the affidavit material before me suggests that there is likely to be a debate to be had here about the adequacy of the applicant's pleading. That is something that might be ameliorated to some degree (though perhaps not much) in the event that Monash were to succeed in persuading the FWC that the terms of the 2019 EA are ambiguous or uncertain. 37 Overall - and not without some hesitation - I consider that the interests of justice favour the grant of a stay. The court should take no further steps (including steps associated with further pleadings) in this matter until the FWC resolves the proceeding before it. 38 It follows that I will grant relief consistent with that which Monash seeks. The NTEU's interlocutory application will be dismissed. No doubt in light of the limitations imposed by s 570 of the FW Act, neither side has raised the issue of costs and no such order will be made. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.