Ryan v Electricity Networks Corporation

Federal Court of Australia|2009-06-24|Before: Isaacs J, Siopis J

REASONS FOR JUDGMENT 1 The first three applicants are members of the fourth applicant, the Australian Municipal, Administrative, Clerical and Services Union (the Union). The respondent is Electricity Networks Corporation, which trades under the name of Western Power. 2 Until mid‑June 2009, the first three applicants were, on behalf of the Union, engaged in protracted negotiations with representatives of the respondent for a collective agreement with the Union. However, in mid‑June the negotiations broke down and the respondent announced that it would seek the approval of the employees for a non‑union collective agreement. The respondent announced that the ballot in respect of the approval of the agreement would be conducted by an independent third party, Elections Australia Pty Ltd, by means of online voting. The ballot is intended to commence at 6 pm tonight and conclude at 6 pm on 27 June 2009. 3 This is an urgent application for an injunction. The applicants have today filed an originating application seeking as one of a number of items of relief, a permanent injunction restraining the respondent from commencing to conduct the ballot in respect of the non-union collective agreement. I have also before me a motion, which seeks interlocutory relief to like effect. 4 As I understand their case, the applicants contend that the respondent threatens to contravene s 341 of the Workplace Relations Act 1996 (Cth) (the Act), in that it threatens to lodge a non-union collective agreement, which would not have lawfully been approved by the employees pursuant to s 340 of the Act. Counsel for the applicants has identified a number of respects in which it is contended that the respondent threatens not to comply with the Act, in particular s 340(2) of the Act, in seeking the approval of the employees for the non-union collective agreement. 5 The Court has power under s 414 of the Act to grant an injunction in respect of a threatened contravention of section 341 of the Act. Although the power to grant the injunction is a statutory power, the common law principles in respect of quia timet injunctions are in my view relevant in identifying the considerations to take into account in determining whether to exercise the power of the Court. 6 In the case of Bendigo and Country Districts Trustees and Executors Co Ltd v Sandhurst and Northern District Trustees, Executors, and Agency Co Ltd (1909) 9 CLR 474, Isaacs J observed at 485: The first thing is to ascertain the test which the law applies to such a case as the present. That is stated most clearly in the Royal Insurance Co Case, while Cozens‑Hardy, MR, points out the true nature of the case, that such an action as the present is a quia timet action, and that the decisions all really come down to this, that in a quia timet action you have to satisfy the Court that what the defendant is doing will prove an imminent and substantial damage to the plaintiff's property or business whatever it may be. "The Court," says the Master of the Rolls, has to draw an inference from all the circumstances of the case; ex hypothesi you cannot prove actual damage, but the plaintiff takes upon himself the burden of proving that it is reasonably certain that what the defendant is threatening and intending to do will cause imminent and substantial damage to the plaintiff." (Original emphasis. Footnotes omitted.) 7 In addition, the injunction sought in this hearing is one which, in effect, gives final relief. Accordingly, in assessing the merits, the Court will require a high level of assurance that the apprehended contraventions of the Act are likely to occur. There is, therefore, a heavy burden for the applicants to discharge.

VOTING FRAUD 8 The first apprehended concern of the applicants is that the condition in s 340(2)(b) of the Act, will not be satisfied in respect of the approval of the non-union collective agreement. Section 340(2) of the Act provides: An employee collective agreement or union collective agreement is approved if: (a) the employer has given all of the persons employed at the time whose employment will be subject to the agreement a reasonable opportunity to decide whether they want to approve the agreement; and (b) either: (i) if the decision is made by a vote - a majority of those persons who cast a valid vote decide that they want to approve the agreement; or (ii) otherwise - a majority of those persons decide that they want to approve the agreement. (Original emphasis.) 9 The applicants contend that the expression of the employees entitled to vote that will emanate from the ballot will not be the true expression of the majority of those persons. 10 The evidence is that a person voting online in the ballot will be required to enter his or her name and employee identification number on the online voting form in order to vote. There is also evidence that it is possible for an employee of the respondent to get access to the identification number of another employee, and to use that other person's name and identification number to enter a vote in that other person's name - in other words, to vote by impersonating another person. 11 In my view, this evidence does not permit me to reach the conclusion that it is likely the ballot will not reflect the true expression of the will of the majority of those entitled to vote. It does not follow from the fact that the ballot system is one which may be abused by dishonest people, that it will be so abused in a manner such as to invalidate the integrity of the ballot. There was simply no evidence before me which would permit me to draw that conclusion. 12 Accordingly, the applicants have failed to satisfy me to the requisite degree that it is likely that the result of the proposed ballot will not represent the true expression of the majority will, because the result will be tainted by fraud.

NO REASONABLE OPPORTUNITY TO DECIDE 13 The next apprehended concern is that the approval will be flawed because employees of the respondent have not had a reasonable opportunity to decide whether they want to approve the non-union collective agreement. Accordingly, say the applicants, there will have been a failure to satisfy the requirements of s 340(2)(a) of the Act and, in those circumstances, any subsequent steps taken to lodge the collective agreement will be in contravention of the Act. 14 The applicants say that the absence of "reasonable opportunity" arises from the fact that employees are likely to be misled as to whether the collective agreement, the subject of the ballot, is a non-union or union collective agreement. 15 As previously mentioned, there were until mid‑June 2009 protracted negotiations between the Union and the respondent but these negotiations ultimately proved fruitless. On 17 June 2009, the respondent issued an information pack advising the employees that the respondent intended to conduct a ballot for the approval of a non-union collective agreement. The letter comprising part of the information pack makes it clear that the respondent was unable to reach agreement for a union collective agreement with the Union. 16 The only evidence which was adduced in support of the applicants' contention was in the affidavit of Mr Paul O'Neill, the second applicant. Mr O'Neill said that on 18 June, he accessed the respondent's internal intranet site and followed the "Certified Agreement" link to the page set up in anticipation of voting on the collective agreement. Mr O'Neill entered his surname and employee identification number and found that the question posed on the page at that time was: Do you approve the proposed Western Power and ASU Union Collective Agreement 2009? 17 However, as is apparent from the evidence, that was the last date on which that page on the intranet referred to the "ASU Union Collective Agreement". Since 18 June 2009, the intranet page has not referred to the "ASU Union Collective Agreement". The reference to the "ASU Union" has been deleted. 18 Further, as previously mentioned, the respondent has dispatched to the employees the information package dated 17 June 2009, which makes it clear that the ballot is in respect of a non-union collective agreement and that negotiations in respect of the union collective agreement have failed. 19 The evidence does not satisfy me that it is likely that the employees will be misled into believing that the ballot is in respect of a collective agreement between the Union and the respondent.

MISLEADING CONDUCT 20 The applicants' next apprehended concern relates to an email which the respondent has sent to individual employees. It is said that the email is misleading. The email is in the following terms: Employee Collective Agreement offer Based on your feedback we have made key changes to our offer. This email provides full details of changes covered in the MD's video earlier today regarding the Western Power Employee Collective Agreement 2009. One-off payment for CA employees If a yes vote is received, a one-off payment calculated to 16 February 2009 will be paid to all CA employees. This lump sum payment is based on 7.5 per cent of normal time earnings, calculated on your current rate of pay. Enhanced parental and long service leave conditions for IA employees Western Power has a strong commitment to families and a work/life balance for all employees. We are bringing into alignment the conditions for parental leave and long service leave for employees on a Collective Agreement (CA) and those on an Individual Agreement (IA). Parental leave • 13 weeks paid leave for primary care giver • 1 weeks paid leave for the non-primary care giver (may request a further unpaid period of up to 6 weeks) • 52 weeks unpaid leave which can be extended for a further 52 weeks (2 years leave with a guaranteed return to work) • request to return to work on a part-time basis until your child is of school age Long service leave • first long service leave entitlement after 10 years service • 13 weeks long service leave accrued every 7 years thereafter • option to cash out leave • opportunity to use long service leave by: - halving entitlement and receiving double pay - receiving pay in lieu - doubling the entitlement and receiving half pay - taking it as due Feedback/Queries … Vote 'yes' to the Employee Collective Agreement on June 24-27 21 It is contended that the email is likely to mislead employees because the email does not state how the respondent intends to give effect to the promises which are contained in the email. The applicants say that by issuing the misleading email the respondent threatens to contravene s 401 of the Act (which proscribes misleading conduct that causes a person to approve a workplace agreement), and threatens to deprive the employees of a reasonable opportunity to approve the agreement in contravention of s 340(2) of the Act. 22 The statements in the email are promises. Whether the promises are misleading in respect of their manner of implementation, will depend upon what happens in the future. Whether the respondent conducts itself in such a way as to undermine the expectations engendered by the promises in the email and so give rise to an inference that the promises were misleading, would have to be assessed by reference to what subsequently transpires. 23 Accordingly, the evidence does not satisfy me that if the ballot was allowed to proceed, it is likely that employees will be misled. 24 It was also contended that the email was misleading in another respect. The email contains the following sentence: If a yes vote is received, a one-off payment calculated to 16 February 2009 will be paid to all CA employees. 25 It was contended that this sentence gave rise to a possible interpretation that even if only one person voted "yes", the respondent would come under an obligation to make a payment to all employees under the collective agreement, notwithstanding that the majority voted "no". This contention cannot be accepted. The reasonable construction of the sentence is that the payment will be made if a majority vote is received. The alternative construction contended for by the applicants is, with respect, fanciful. 26 Accordingly, on the merits, the applicants have failed to demonstrate that contraventions of the Act are likely to occur with the high degree of assurance that is necessary to obtain a quia timet interlocutory injunction, in circumstances where the relief is, in effect, final relief.

BALANCE OF CONVENIENCE 27 I now consider the question of balance of convenience. 28 If the employees approved the proposed collective agreement at the ballot, that approval will not result in the collective agreement immediately coming into effect. That will only occur after the collective agreement is lodged pursuant to s 341 of the Act. Therefore, if the applicants' apprehended concerns in respect of the ballot and approval process come to fruition, the applicants will have an opportunity to seek injunctive relief preventing the lodgment of the agreement after the result of the ballot is known and before the agreement is lodged. 29 Counsel for the applicants, however, contended that this circumstance did not tilt the balance of convenience in favour of the refusal of injunctive relief. First, counsel contended that there was a risk that the respondent would surreptitiously keep the results of the election to itself and not advise anybody thereof until such time as it had lodged the collective agreement. There is no evidence that this is likely to occur. It would also be inconsistent with the terms of the letter which the respondent has written saying that it will announce the results on 29 June 2009. In my view, it is highly unlikely to occur. 30 Secondly, counsel for the applicants contended that, even if, after the ballot was held, the applicants were successful in enjoining lodgment of the agreement on the grounds that the apprehended concerns have come to fruition, the result of the ballot would, nevertheless, have an effect on a subsequent ballot. There was no evidence to support this assertion by counsel, and I place no weight on it. 31 Thirdly, counsel contended that s 409 of the Act, which empowers the Court to set aside a certified agreement, would not be an effective source of relief for the applicants because it would, if granted, leave a vacuum as to the employment terms that would be applicable to those covered by the agreement. Whilst that is a consideration to bear in mind, I do not place much weight on that contention because the Court would be able to make orders dealing with that issue at the time of the hearing. 32 Another factor that I take into account in the balance of convenience is that by reason of amendments to the Act, the approval process proposed by the respondent will not be possible, unless the ballot is conducted by 30 June 2009. Accordingly, if any injunction is granted now, there will never be a ballot. 33 In my view, this application is premature. The balance of convenience does not favour the grant of the injunction. Further, as mentioned, the merits of the applicants' case are not sufficiently strong to warrant the grant of an interlocutory injunction. 34 It follows, therefore, that the application for the interlocutory injunction is dismissed.

COSTS 35 In my view, this is a case in which I should make an order for costs because the applicants have engaged in unreasonable conduct in bringing this application for an injunction. The unreasonable conduct has caused the respondent to incur costs in defending this application today. For the reasons which I have mentioned, it was open to the applicants to pursue the injunctive relief they have sought, by waiting until the ballot had occurred, making an assessment of whether the apprehended contraventions had come to fruition and then bringing an application for relief before the respondent lodged the agreement. 36 Had that been done, the injunction application could have been fought on the basis of events which have actually occurred. The applicants would not have been prejudiced had they waited to bring the application after the ballot. However, the applicants have brought this application at this time on the spurious basis that the respondent was likely not to disclose the results of the election to the employees, before lodging the agreement. In the circumstances, I find that s 824(2) of the Act applies. 37 The Union should pay the costs of the respondent of this hearing. There will be no order for second counsel. I certify that the preceding thirty‑seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 9 July 2009 Counsel for the Applicants: Ms R Cosentino

Counsel for the Respondent: Mr S Penglis and Mr R Allen

Workplace Relations Act 1996(Cth)ss 340, 341, 401, 409, 414, 824(2)

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