Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia

REASONS FOR JUDGMENT Introduction 1 The present matter concerns threats alleged to have been made by the respondents to take industrial action that would interfere with the televising by the applicant, Seven Network (Operations) Limited ("Seven Network"), of the Australian Football League finals ("the AFL finals"), the Brownlow Medal count and the Olympic Games in August and September 2000. 2 Seven Network claims that the threats contravened s 170NC(1) of the Workplace Relations Act 1996 (Cth) ("the Act") as they were made by the respondents with "intent to coerce" Seven Network: · not to agree to enter into a national certified agreement under the Act ("the national enterprise agreement") with the Media Entertainment Arts Alliance ("MEAA"), the Community and Public Sector Union ("CPSU") and the Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU"); · to agree to enter into a local certified agreement ("the local enterprise agreement") with the CEPU in respect of Seven Network's employees employed in Melbourne, including an agreement for a 5% wage increase during the period covering the AFL finals and the Olympics Games. 3 Seven Network seeks the imposition of penalties pursuant to s 170NF of the Act in respect of the alleged contraventions. 4 The CEPU, Dean Mighell, State Secretary of the CEPU (Electrical Division) ("Mighell") and Alex McCallum, a CEPU organiser ("McCallum") do not dispute that threats of industrial action were made, but claim that they did not act in contravention of s 170NC as at all material times they intended that the industrial action taken was to be protected action under the Act. 5 Seven Network also seeks a declaration that a notice of the CEPU, dated 11 August 2000, did not initiate a bargaining period for the negotiation of an agreement under Div 2 of Pt VIB of the Act in relation to employees of Seven Network. The respondents contend that the notice validly initiated a bargaining period under Div 2 of Pt VIB of the Act and dispute Seven Network's entitlement to the declaration it seeks. Background 6 Since January 2000 Seven Network, a national television network, has been endeavouring to negotiate a national enterprise agreement under the Act with the MEAA, the CPSU and the CEPU to cover all of Seven Network's employees in Australia. 7 Most of Seven Network's employees in Melbourne who were involved in televising sporting events were members of the MEAA. A number of those employees were dissatisfied with the manner in which the MEAA was proceeding with negotiating a new national enterprise agreement with Seven Network and approached the CEPU to negotiate a local enterprise agreement on their behalf. The CEPU claimed that it subsequently recruited up to 80 of Seven Network's Melbourne employees as "members" and appears to have become entitled to receive payment of approximately $300 as an annual "membership" fee from those persons. The individuals concerned were listed by the CEPU as members of the union on its register of members. 8 Under its rules, certified under s 207 of the Act, the CEPU is, in general, only able to admit as members persons engaged in occupations that fall within the electrical industry. Seven Network only employed one such person in Melbourne, an electrician, who played no role in the televising of sporting events. Thus, the CEPU only had one employee at Seven Network in Melbourne who was eligible to be a member of the union in accordance with its Rules. Evidence was given by Mighell and McCallum that it was arguable that some of the employees they recruited might have been eligible to be members of the union. However, it is fairly clear that they did not really believe that the individuals they recruited as "members" (camera operators, assistant operators, video editors and sound recordists) were eligible to be members of the CEPU. I am satisfied that Mighell and McCallum believed that only one electrician employed by Seven Network in Melbourne was eligible to be a member of the CEPU. Indeed, the CEPU's evidence was that it was the eligibility of that employee that enabled it to initiate a bargaining period under Div 2 of Pt VIB. 9 At the request of certain of the individuals recruited by the CEPU, the union became involved in negotiations for a certified agreement for Seven Network's Melbourne employees in November 1999. Mighell, acting as State Secretary of the CEPU, advised and assisted about 30 Seven Network employees employed in the Melbourne News Department to give individual notices under Div 2 of Pt VIB of the Act initiating bargaining periods; to give individual notices of intention to take industrial action under s 170MO of the Act; and to take industrial action against Seven Network in accordance with the notices. The CEPU represented to Seven Network that the employees concerned were members of the CEPU and Seven Network invited the CEPU to represent those employees in negotiating a resolution of the industrial dispute. After that particular dispute was resolved, albeit temporarily, Seven Network commenced negotiations for a national enterprise agreement with the MEAA, the CPSU and the CEPU. The CEPU continued to claim that it was representing its "members" employed by Seven Network in enterprise agreement negotiations with Seven Network. 10 During July 2000 the CEPU tabled a proposed local enterprise agreement but Seven Network informed the CEPU that it wanted to negotiate a national, and not a local, enterprise agreement. On 10 August 2000 Seven Network received a notice, pursuant to s 170MI of the Act, of initiation of a bargaining period for a certified agreement under Div 2 of Pt VIB from the CEPU dated 9 August 2000. The notice, relevantly, stated: "the employees subject to the proposed agreement are those persons who are members or who are eligible to be members of the CEPU engaged in classifications covered by the relevant award (Metal Engineering and Associated Industries Award)" 11 After the 9 August notice was sent the respondents realised it referred to the wrong award. Consequently, the CEPU substituted a second notice of initiation of bargaining period dated 11 August 2000 which was received by Seven Network on 18 August 2000. The 11 August notice differed from the 9 August notice in that it made no reference to whether the employees were eligible to be members of the CEPU, stated that the proposed agreement was to relate only to Seven Network's business in Victoria and that: "the employees subject to the proposed agreement are those persons employed by [Seven Network] and all subsidiary companies" 12 Between about 14 August and 21 August 2000 threats of possible industrial action were made by Mighell and McCallum in a number of media interviews. In substance, the threats related to the disruption of Seven Network's coverage of the AFL finals, including the Grand Final and the Olympic Games. It was not in dispute that any relevant conduct of Mighell and McCallum was conduct of the CEPU and that the statements made in the media interviews, which were authorised by the CEPU, were made with the intention of bringing "pressure" on Seven Network to accede to the CEPU's claim for a local enterprise agreement. The timing of the statements is significant. The period in which industrial action was being considered was the most important period for live coverage by Seven Network in the history of its business. 13 Seven Network responded by seeking undertakings from the CEPU that no industrial action would be taken by its members. The CEPU refused to give those undertakings. 14 By 18 August Seven Network had received legal advice that many of the employees who the CEPU was representing, and was claiming were its members, were not eligible to be members of the CEPU and that the industrial action threatened by the CEPU on behalf of those employees would not be protected action under the Act. A letter to that effect was immediately sent by Seven Network to Mighell, although Mighell claims he did not see the letter until several days later. 15 On 21 August 2000 the CEPU sent Seven Network a notice of intention to take industrial action pursuant to s 170MO of the Act. The notice, relevantly, stated: "NOTICE IS HEREBY GIVEN that officers and employees of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and members of the CEPU employed by you intend to organise and engaged [sic] in industrial action in accordance with the provisions applying to 'protected action' set out in the Workplace Relations Act 1996. The particulars of this notice are as follows: Commencing Friday August 25, 2000.