Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry

REASONS FOR JUDGMENT There were before the Court this morning two notices of motion which have been filed in this proceeding. The proceeding is an application pursuant to section 127(6) of the Workplace Relations Act 1996, ("the Act"). The applicant, Inner and Eastern Health Care Network, ("the Network"), is a body corporate pursuant to the Health Services Act 1988 (Vic). The first respondent, Health Services Union of Australia, ("HSUA") is an organisation of employees registered under the Act. The second respondent, Jan Armstrong, is a member of HSUA who is the Branch Secretary of the Health Services Union of Australia Victoria No. 1 Branch ("the Branch"). The Branch is a branch of HSUA. It has no corporate status and is not an independent entity from HSUA. As a matter of administrative convenience fourteen branches have been established by HSUA to which HSUA's members are attached for the purposes of local and sometimes occupational based industrial representation. Rule 46 of the registered rules of HSUA permits the National Council of HSUA to establish branches of HSUA. The third, fourth and fifth respondents respectively are also members of HSUA attached to the Branch. The third respondent is the Assistant Secretary of the Branch. The fourth respondent is an Industrial Officer of the Branch, the fifth respondent is an Organiser of the Branch. On 6 November 1997 the Network applied pursuant to section 127(6) of the Act for an injunction to compel the respondents to comply with certain orders made by Commissioner O'Shea of the Australian Industrial Relations Commission ("the Commission"), on 29 October 1997. At the same time that the application was filed the Network sought by way of notice of motion an interim injunction to compel compliance with the Commission's order pending the hearing of the Network's substantive application. The notice of motion was supported by affidavit material which described, from the Network's point of view, the circumstances leading up to the Commission's order of 29 October 1997. The order which is sought to be enforced in this Court was made after the Network applied to the Commission on 20 October 1997 pursuant to section 127(2) of the Act. Section 127 of the Act is entitled "Orders to Stop or Prevent Industrial Action". It provides as follows: "(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 application by the Network of 20 October 1997 is appendix 1 to these reasons for judgment. It can be seen from a perusal of the application that the Network sought from the Commission the making of an order against the Branch. Mr Burchardt, of counsel, who appeared for the Network conceded that the words "the HSUA" were used in the application to define the Branch. Even in the absence of that concession so much is plain on the face of the application. The application identified the industrial action which the Network desired the Commission to prohibit as "industrial action", as defined by s 4 of the Act. Proceedings before Commissioner O'Shea were conducted on 22, 24 and 28 October 1997. On 29 October 1997 the Commission issued an order in the following terms: "Further to the Commission's decision in this matter [Print P6316] the Commission Orders as follows pursuant to s. 127 of the Workplace Relations Act 1996: A. 1. This order is binding upon the Health Services Union of Australia (Victoria No. 1 Branch) (HSUA No. 1) and upon members of the HSUA No 1 employed by the Inner and Eastern Health Care Network (Network). 2. This Order concerns work performed by members of the HSUA No. 1 at the Network which is regulated by the Health and Allied Services - Public Sector - Victoria Consolidated Award 1996 and the Agreement between the Inner and Eastern Health Care Network and the Health Services Union of Australia (Victoria No. 1 Branch) Regarding the Market Testing of Hospital Support Services [Doc P4874]. 3. The HSUA No. 1 and members of the HSUA No. 1 employed by the Network are directed to cease current bans and limitations. 4. The HSUA No. 1 and members of the HSUA No. 1 employed by the Network are further directed not to engage in, commence or resume industrial action in connection with the issue of market contestability. B. This Order shall come into effect from the first shift on 30 October 1997 and shall remain in force for a period of one month or until otherwise varied, extended or revoked by the Commission." This is the order which the Network has applied to the Court to be enforced against the respondents pursuant to s 127(6) and (7) of the Act. When the Network's notice of motion of 6 November 1997 was called on this morning in Court, Mr Bell, of counsel, announced his appearance for the respondents. He informed the Court that the respondents intended to submit that Commissioner O'Shea's order was a nullity and that the Court did not have the jurisdiction to enforce it. To that end Mr Bell filed in Court a notice of motion to strike out the Network's application. By consent the respondents notice of motion of 11 November 1997 was heard concurrently with the Network's notice of motion in which it sought an interim injunction against the respondents. The respondents notice of motion was supported by an affidavit of Ms Armstrong sworn today. The registered rules of HSUA were exhibited to that affidavit. Mr Bell contended that the order of the Commission, being directed to the Branch, was not directed to a juristic person. He also submitted that the terms of the Commission's order were too wide and uncertain to be valid and were not directed to the conduct sought to be enjoined but to unspecified "industrial action". Mr Burchardt did not seek to contend that the Branch was a juristic person. Essentially he described the reference to the Branch in the Commission's order as a matter of "misdescription". He said that HSUA does exist but it was not properly identified in the Commission's order. He further submitted that the Court was able to re-draft the order of the Commission in a way "that seeks to advance the objects of the Act". The making of an order by the Commission under s 127(1) of the Act is a very serious step. Persons who are required to comply with such an order must know with certainty that it is directed towards their conduct. Furthermore, an order under s 127(1) of the Act is the foundation upon which an application may be made under s 127(6) and (7) of the Act. Failure to comply with orders of the Court under those subsections may lead to contempt of court proceedings. It is critical for the purposes of proceedings in the Court pursuant to section 127(6) and (7) of the Act that the order made by the Commission under s 127(1) of the Act be a valid order. It is also critical that such an order clearly identify the persons upon whom it is binding and the precise conduct which it seeks to prohibit. The order of the Commission, the subject of the application before the Court, places no obligation upon any person who is named as a respondent to the application. It is not drafted so as to be binding upon the HSUA. It is drafted so as to bind the Branch. The Branch is not and cannot be a respondent to the application before the Court. See Royal Australian Nursing Federation (Tasmanian Branch) v Fawdry (1986) 12 FCR 113; Williams v Hursey (1959) 103 CLR 30 at 53 to 55, and Re McJannet; ex parte Minister for Employment (Q) (1995) 184 CLR 620 at 640 and 663. I reject Mr Burchardt's submission that there has been a misdescription in the order of the Commission and that the misdescription can be cured by the Court. It is not the function of the Court to re-draft orders made by the Commission under s 127 of the Act. It is the function of the Court to exercise its discretion as to whether or not it should grant an injunction to restrain contravention of the order made by the Commission. There is no basis upon which the Network's application could succeed as against HSUA. I am positively satisfied that the Network's application against HSUA is hopeless. It is even clearer that the application has no prospect of succeeding against the other respondents. They are also not persons to whom the order of the Commission is addressed. Having found that the order of the Commission, which is fundamental to the Network's application to the Court, places no obligation upon any respondent to that application, it is strictly unnecessary for the Court to deal with the submission of Mr Bell that the Commission's order was too wide and uncertain and not directed to any particular industrial action. However, it is important to observe that anyone who is the subject of an order of the Commission under s 127(1) of the Act, should not be left in any doubt as to what her or his obligations are pursuant to that order. There should be no room for doubt or ambiguity as to the obligations of those affected by such an order. See by way of analogy in the context of the lockout provisions of the Industrial Relations Act 1988: Lennie v Hawkes (Marshall J, 4 October 1996, Industrial Relations Court of Australia, unreported) at 30 to 31 where the following is said: "The notice dated 8 May 1996 might be said in one sense to 'take the next step' in so far as it fulfils the expectation created in the notice of 22 April 1996. However, there is a circularity in that notice which deprives it of certainty. The last two sentences of the second last paragraph of the notice refer respectively to 'the day or days on which you are locked out' and 'any day you are locked out'. The first sentence refers to the consequences of a lock out, that is, a loss of remuneration. The second sentence is in the form of a direction. The direction states: 'You are directed not to work or to resume work on any day you are locked out'. However, nowhere in the notice does it state when the recipients of the notice will be locked out. Certainly there is a reference to 10 May 1996, but in my view the sentence just quoted would raise in the mind of the recipient an expectation that something will occur beyond the receipt of this notice at some point in the future which will make it abundantly clear that the recipient is in fact locked out for a particular period of time. The notice is ambiguous on the issue as to when lockout action will occur." Had it been necessary to do so I would have upheld Mr Bell's objection regarding the uncertainty and vagueness of the Commission's order made on 29 October 1997. A direction to cease "current bans and limitations" leaves room for later debate as to what the extent of such bans and limitations were at the time of the order. Similarly, a direction "not to engage in, commence or resume industrial action in connection with the issue of market contestability" leaves room for debate as to whether any such action is so connected let alone "industrial action". It is not to the point that the learned Commissioner himself knew what industrial action was actually being undertaken or the circumstances of it. As Mr Bell submitted, it is more important that those to whom the order is addressed, be informed as to the precise conduct in relation to which they are prohibited from engaging in by virtue of the order of the Commission. In the circumstances the Court will make the following orders: