Smith v University of Ballarat

REASONS FOR JUDGMENT 1 This is an application for interlocutory injunctive relief pending the trial of proceedings which were instituted on 15 February 2006.

the nature of the proceedings 2 The applicant is an academic at the University of Ballarat ("UB"). He is presently employed as a senior lecturer and course co-ordinator of the Bachelor of Arts (Humanities and Social Sciences) course at the Mt Helen campus of UB. He is a member of the National Tertiary Education Industry Union ("NTEU") and holds two official positions with it, namely a member of its national council since 1998 and branch president of its UB branch since 2000. 3 The proceedings are brought by the applicant as a representative party pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). According to the application, the group members whom the applicant represents are 'all academic staff and general staff (other than casual academic staff, casual general staff and TAFE general staff)' employed by UB as at 14 February 2006. 4 The proceedings arise out of allegedly misleading statements that were made by UB to its staff members on 14 December 2005 ("the December 2005 statements"). The applicant alleges that the December 2005 statements contravened s 170WG(2) of the Workplace Relations Act 1996 ("the WR Act"), which provides: "(2) A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA or ancillary document." The December 2005 statements were made in the context of UB offering Australian Workplace Agreements ("AWAs") to its staff. 5 The final relief sought in the proceeding comprises: (a) the imposition of penalties on UB under s 170VV of the WR Act; (b) a declaration that UB contravened s 170WG(2) of the WR Act; (c) injunctions requiring UB to refrain from knowingly making a false or misleading statement to the group members with the intention of persuading them to make an AWA, and to publish a correcting statement; and (d) damages and interest. 6 The applicant seeks the following interlocutory relief pending the hearing and determination of the application or further order: (a) UB refrain from offering, entering into or taking any step to make, formalise, register or have approved an AWA with a group member; (b) UB refrain from knowingly making a false or misleading statement to the group members and/or each of them with the intention of persuading group members and/or each of them to make an AWA; and (c) UB cease contravening s 170WG(2) by publishing to each group member a statement correcting the false and/or misleading statements referred to in the affidavit of the applicant sworn 14 February 2006.

background 7 In recent years, the terms and conditions of employment of staff at UB have been governed by an Enterprise Bargaining Agreement known as the University of Ballarat Enterprise Agreement for Academic and General Staff, 2000-2003 ("the EBA"). The EBA was made pursuant to s 170LJ of the WR Act. Although its nominal expiry date was 30 June 2003, the effect of s 170LX is that it continues to govern the terms and conditions of the employment of relevant employees of UB, other than those employees who have subsequently entered into an operative AWA with UB. 8 Between June 2003 and late 2005, various efforts were made by the NTEU and/or UB to introduce a new agreement that would govern the terms and conditions of employment at UB. Initially, the NTEU unsuccessfully sought to negotiate an agreement pursuant to s 170LJ. Subsequently, UB made two unsuccessful attempts to make an agreement directly with its academic and general employees pursuant to s 170LK. The first of these proposed s 170LK agreements went to a ballot of staff members between 17 and 21 October 2005. The ballot rejected the proposed agreement, with 451 staff members voting against the agreement and 335 for it. The second proposed agreement went to a ballot of staff members between 22 and 23 November 2005. Again, the ballot resulted in a rejection of the agreement, with 401 staff members voting against it and 323 voting in favour of it. In connection with these two ballots, the NTEU and UB distributed a considerable amount of information and other material to affected staff members. This material drew attention to differences that existed between the proposed s 170LK agreements and the provisions of the EBA. 9 After the failure of the second ballot, UB commenced offering AWAs to its staff members. The AWAs were, broadly speaking, modelled on the agreements which had been rejected by the ballots.

the allegedly misleading statements 10 UB commenced offering AWAs to staff members by way of an email sent by the Vice Chancellor of UB to all staff members on 14 December 2005. The email attached a link by means of which a copy of the proposed general staff AWA could be viewed by staff members. 11 On 14 December 2005, shortly after the dispatch of the Vice Chancellor's email, Mr Wesley Walker on behalf of UB sent an email to all staff concerning the AWAs ("the December 2005 email"). Mr Walker was a consultant to UB in relation to workplace relations. He was heavily engaged in the unsuccessful efforts to introduce a new agreement governing staff terms and conditions in the period between 2003 and late 2005. The December 2005 email was headed 'AWA Questions', and provided as follows: "The University has commenced offering AWAs to staff, as notified in an email earlier today. The NTEU has also started its campaign against AWAs by placing posters around the campus that ask you to consider four questions. Well, I'm happy to answer those questions. Q1. Will you be giving away key employment conditions? A. No you won't. All the important employment conditions including hours of work, span of hours, overtime, shift penalties, HDAs, superannuation, incremental progression, meal breaks, and all leave entitlements remain unchanged in the AWA. Q2. Will an AWA now guarantee you future pay increases? A. Yes it will. Three pay increases are guaranteed. An increase of 4.5%, back-paid to July 2004 is guaranteed for those employees signing AWAs prior to 31 March 2006. An increase of 4.5% in January 2006 is guaranteed. An increase of 4.5% in January 2007 is guaranteed. A fourth increase of 4.5% in January 2008 is contingent as before, but is very likely to be paid in full. Q3. Will you be diminishing your job security? A. No you won't. The AWA has nothing to do with your job security. The AWA is concerned with your terms and conditions of employment, just like the proposed collective enterprise agreement. There is no connection between the AWA and your contract of employment. If you have a continuing appointment now, you will still have your continuing appointment after you sign the AWA. Q4. Will you have the right to return to the collective agreement when the AWA expires? A. Yes you will. After the AWA reaches its expiry date it can be replaced by another AWA with further benefits, or it can roll on in its present form, or you can terminate it and return to the collective agreement that is in place at the time. In addition the question and response below should be of special interest to staff. Q5. What happens if a new enterprise agreement (LK to LJ) is settled next year and has conditions better than those contained in the AWA? The University Council at its meeting on 13 December 2005 passed the following resolution 'That any new HEWRR * Compliant EB Agreement (LK to LJ) be settled with conditions of employment and salary levels that are overall not greater than those specified in the collective AWAs available to general staff and academic staff.' Agreements settled after 31 March 2006 will have the requirement that any payment of back-pay, at the very best, be limited to 1 January 2006. Also an AWA may be varied during its operation if the employee and University agree. I'll be happy to answer any other questions you may have about AWAs, but please be a little patient because of the workload this activity has now generated." The applicant founds his case of misleading statements on this email. 12 The applicant alleges that the statements which appear under Question 1 and Question 3 are false and misleading, and contravene s 170WG(2). The essence of the complaint is that, in respect of important employment issues, namely redundancy, probationary employment, termination and discipline and dispute settling procedures, there are significant differences between the terms and conditions in the proposed AWA when compared with the prevailing terms and conditions in the EBA. I shall not attempt to detail the material differences between the two sets of terms and conditions. They are helpfully summarised in the applicant's outline of written submissions. It is unnecessary to set out the detailed differences because UB concedes that there are differences and that the differences are not insignificant. 13 The applicant contends that the statement which appears in the December 2005 email under Question 1 is false and misleading because the significant differences that do exist make it clear that staff members will in fact lose 'key employment conditions' under the AWA which they would otherwise be entitled to under the EBA. Further, he contends that the significant differences that exist between the two sets of conditions also make it clear that 'important employment conditions' in the EBA have been changed by the proposed AWA. UB acknowledges that changes have been made, but disputes the proposition that the changes involve the loss of key employment conditions or a change in important employment conditions. 14 In relation to what appears under Question 3, the applicant submits that the December 2005 email conveys to academic and general staff that the terms of the AWAs being offered by UB have no impact or bearing on the security of employment of staff members who sign the AWA. The applicant submits that this representation is false and misleading, as the proposed AWAs will substantially diminish a number of EBA protections for employees in respect of how termination of employment or discipline may be affected. In short, the allegation is that the AWAs will make it easier for UB to terminate or discipline academic and general staff, thereby adversely affecting their security of employment. It is put that provisions in an industrial instrument which go to the method of termination of employment directly concern security of employment: see Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Limited (1989) 166 CLR 311 at 336 per Gaudron J. 15 Section 170WG(2) is concerned with 'knowingly' false or misleading statements. The applicant submits that this element of the alleged contraventions will be made out because Mr Walker was directly responsible for the negotiation of the EBA, and also had the conduct of the later unsuccessful attempts to introduce a replacement agreement on behalf of UB. As a result, Mr Walker had very detailed knowledge of the terms of the EBA, and the respects in which they differed from the proposed AWAs. In these circumstances, the applicant submits that there is a serious question to be tried that Mr Walker knew all of the essential matters which would go to make up the alleged contravention of s 170WG(2), whether or not Mr Walker perceived that the statements in the December 2005 email were false or misleading: see Yorke v Lucas (1985) 159 CLR 661 at 669 per Gibbs CJ; and King v GIO Australia Holdings Ltd (2001) 184 ALR 98 at 104-106. 16 The applicant contends that the December 2005 statements amounted to continuing representations, which may influence staff members who are contemplating the making of an AWA with UB. Without conceding that there was anything false, misleading or inaccurate about the December 2005 statements, UB disputed the ongoing influence of those statements. UB relies upon an affidavit sworn by Mr Walker on 22 February 2006 which points out that a significant amount of additional information has been provided to staff members since 14 December 2005. 17 On 27 January 2006, UB modified the information on its web page concerning the AWAs. In particular, the section headed 'AWAs: Frequently Asked Questions' was amended to include, inter alia, the following statements: "5. Does the AWA change my employment status? The AWA is concerned with your terms and conditions of employment (just like a collective agreement). Your contract of employment determines whether you are employed on a full-time, part-time, continuing or fixed-term basis. Entering into an AWA does not affect this. So, for example, if your current employment status is as a continuing employee, that status will not change. 6. Will I be giving away key employment conditions if I sign an AWA? Important employment conditions in the current enterprise agreement remain in the general staff AWA. These include hours of work, span of hours, overtime, shift penalties, HDAs, superannuation, incremental progression, meal breaks, all leave entitlements, flexible work arrangements, 48/52 employment, public holidays, annual closedown, broadbanding, make-up pay, and salary packaging. Some of these conditions, for example, overtime, shift penalties and HDAs do not apply for academic staff and have not been included in the academic staff AWA. The current enterprise agreement was drafted 6 years ago and, obviously, provisions in that agreement and the AWAs are not identical. For example: · the dispute resolution procedure in the AWA is the model procedure prescribed by the Employment Advocate; · the AWA does not include appeals or review committees that review decisions made in cases of redundancy, unsatisfactory performance, misconduct and academic probation. The AWA does include a process for appeals in the case of termination of employment. If you have a concern about a particular entitlement that is important to you, you should raise that concern with Human Resources, who will explain any difference between the AWA and the enterprise agreement. … 8. Will I have the right to return to the collective agreement when the AWA expires? After the AWA reaches its nominal expiry date it can be replaced by another AWA, or it can roll on in its present form until it is replaced, or it can be terminated according to the provisions in the AWA and/or the legislation. If you and the University agree, your AWA can be terminated at any time. What happens after an AWA is terminated depends on whether it is a pre-reform AWA, or an AWA made after the amendments to the Workplace Relations Act come into force (expected to be in March 2006). A pre-reform AWA is one that is made before the amended legislation comes into force. If you have a pre-reform AWA and it is terminated at any time, you will revert to the collective agreement that is in place at that time. An AWA that is made after the amended legislation comes into force (ie a post-reform AWA) can be terminated on 90 days notice by you, your bargaining agent (which might be the union), or the University after the AWA reaches its nominal expiry date. Until the terminated AWA is replaced - by another AWA or a collective agreement made after the date of termination - you will revert to the Fair Pay and Conditions Standards set by the Australian Fair Pay Commission, and to protected award conditions. In addition, the University may give an undertaking as to the terms and conditions of employment that will cover you if the University terminates the AWA after it expires." 18 The applicant submitted that this information did not correct all of the misstatements in the December 2005 email, and it was simply posted on UB's web page. In contrast, the December 2005 statements were sent by email to all staff members. 19 Mr Walker deposes that information sessions concerning the proposed AWAs were held with academic and general staff in late December 2005 and in January and February 2006. At these sessions, Mr Walker says that he explained the workplace disputes clause and the differences between the procedure put in place by the AWA when compared with the EBA. In addition, Mr Walker deposes that if any staff member was misled by the December 2005 email, then the information sessions conducted by UB and the changes to the 'AWAs: Frequently Asked Questions' web page would have made clear to them that a number of conditions of employment, including those relating to managing under-performance, discipline for misconduct and serious misconduct, redundancy and the resolution of workplace disputes would be altered by the AWA. 20 UB also relied upon an affidavit by Ms Penelope Faith Irish, a manager employed by UB in the area of accommodation services. She deposes that she signed an AWA after attending an information session with Mr Walker. She refers to differences between the EBA and the AWA in the area of redundancy entitlements, redundancy review processes, dispute resolution processes and the process to manage unsatisfactory performance and allegations of misconduct, but considered those issues to be peripheral and not important to her personally compared with other matters covered by the AWA. 21 UB also relies upon the fact that since 14 December 2005, the NTEU has provided extensive information to staff members drawing their attention to differences between the proposed AWAs and the EBA. In his submissions, Dr Jessup QC, senior counsel for UB, recognised that information published by the NTEU may not have the same authority or significance as correcting information that is published by UB.

general principles governing interlocutory injunctions 22 The general principles governing the grant of interlocutory injunctions are well settled. The Court must be satisfied that there is both a serious question to be tried in the principal proceeding, and that the balance of convenience favours of the grant of an injunction: see Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618; American Cyanamid Co v Ethicon Ltd [1975] AC 396; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1983) 57 ALJR 425; Tableland Peanuts Pty Ltd v The Peanut Marketing Board (1984) 58 ALJR 283; Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55; and Patrick Stevedores Operations (No 2) Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 ("Patrick Stevedores"). These two questions are not considered in isolation from each other; the strength or weakness of the claim will have a bearing on what is required by way of balance of convenience: see Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. 23 The High Court has recently stressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ("ABC") that an interlocutory injunction is granted in aid of some legal or equitable right to final relief: see Gleeson CJ at 217 [11]-[12] and 218 [16]; Gaudron J at 232 [60]; and Gummow and Hayne JJ at 240-241 [88]-[91] and 248 [105]. Gummow and Hayne JJ said that the basic proposition where interlocutory injunctive relief is sought is that it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature (at 241 [91]). I leave aside for the moment, as the High Court did, cases where interlocutory injunctive relief is sought in some special statutory jurisdiction, and cases where the integrity of the judicial process is protected by forms of relief such as the Mareva order or anti-suit injunctions. 24 The purpose ordinarily served by an interlocutory injunction is to preserve the status quo. The way in which Gleeson CJ put it in ABC was that the justice and convenience of imposing an interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of the right that is sought to be vindicated by the proceedings before there has been an opportunity to have its existence finally established (at 217 [12]). This formulation may not be apt in every case, but it draws attention to the fact that there must be an appropriate connection between the form of interim relief that is sought, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. 25 The Court will also consider whether damages are an adequate remedy. This can be undertaken separately from an examination of the balance of convenience: see, for example, Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148. But it can also be undertaken as part of the assessment of the balance of convenience, and this is, perhaps, the more common approach. 26 One final and perhaps obvious point that bears repeating is that the Court does not embark on anything resembling a trial of the action when it deals with an application for interlocutory relief. Ordinarily, the Court will not attempt to reach any conclusion as to the facts or matters in dispute, beyond satisfying itself as to whether there is a serious question to be tried, or about other matters that may bear on the balance of convenience or discretionary considerations.

serious question to be tried 27 On the material before me, I have concluded that there is a serious question to be tried as to whether the December 2005 email contained statements which were knowingly false or misleading, and which were made to staff members of UB with the intention of persuading them to make an AWA with UB. In reaching this conclusion, I have taken into account the significant differences that exist between the EBA and the proposed AWAs, and evidence indicating that Mr Walker has a detailed knowledge of both instruments. 28 This conclusion, however, does not end the inquiry, as UB challenges the applicant's legal entitlement to relief on other grounds. Dr Jessup submitted that the applicant has not established that the interim relief he seeks is properly connected with any final relief to which the applicant has a legal or equitable right. In this context, Dr Jessup relies upon the width of the claims for interlocutory relief. Despite criticism of the terms of relief, the applicant did not seek to narrow the form of the interlocutory injunctions it seeks. As to the first order, Dr Jessup submitted that s 170WG(2) would not support an interim injunction restraining UB from taking any further step to enter into an AWA with a group member. This form of relief, he said, was not directed at restraining the making of, or containing or ameliorating the consequences of, allegedly misleading statements, and would go beyond the relief that could be granted at final trial. Dr Jessup criticised the second order on the grounds that it was expressed in broad and sweeping terms, and no Court would issue a restraining order in terms that UB must refrain from making false or misleading statements to group members. Such an order would do no more than replicate the general terms of s 170WG(2). Dr Jessup criticised the third injunctive order that was sought on the ground that a mandatory order requiring UB to correct the false or misleading statements in the December 2005 email would prejudge the outcome of the case. In my view, there is some force in these criticisms. 29 Next, Dr Jessup submitted that the applicant cannot seek an interim order preventing UB from making an AWA with him in circumstances where the applicant asserts that he has not been misled and will not in any event make an AWA. In Dr Jessup's submission, the applicant is not seeking an interlocutory remedy for himself, but is trying to do so for other members of the group. For those members of the group who have already made an AWA, and for those like the applicant who do not intend to make an AWA, it is difficult to say that the interlocutory relief that is being sought is in aid of final relief. The form of relief that is sought is arguably relevant only to those members of the group who have not yet made an AWA, but who may wish to do so. 30 An applicant in a representative proceeding must himself or herself have standing to sue a particular respondent: see Symington v Hoechst Schering Agrevo Pty Ltd (1997) 78 FCR 164. There is no doubt that the question whether conduct challenged under the Trade Practices Act 1974 (Cth) was misleading or deceptive can warrant determination on a representative basis, notwithstanding the fact that inducement might be an element of each individuals cause of action: see King v GIO Australia Holdings Ltd [2000] FCA 1543 at [13]-[14]. The applicant submitted that a representative action can be brought seeking final declarations and final injunctions in respect of a contravention of s 170WG(2). 31 In Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186, the Full Court (comprised of Ryan, Lee and Branson JJ) considered objections to standing in respect of a proceeding that alleged contravention of s 170WG(1) of the WR Act. The proceeding in question was a representative proceeding under Pt IVA of the FCA Act. The Full Court rejected an argument that a penalty could not be imposed under s 170VV in respect of a contravention of s 170WG(1) unless the conduct constituting the duress brought about the making of an AWA. The Full Court said that such a construction should be rejected because it would allow even the most reprehensible conduct engaged in by a party in relation to a proposed AWA to go unexamined by a Court if no concluded agreement were to come into existence. On its proper construction the WR Act supported a wider availability of the remedy afforded by s 170VV. In addressing this issue, the Full Court also considered whether the trial judge, Moore J, had erred in adding an individual, Mr James Burns, as an additional applicant. The alleged error was said to have arisen because Mr Burns had declined the offer of employment and so had never become a party to an AWA. The Full Court construed the reference in s 170VV(3) to 'a party to the AWA or ancillary document' so as to include a party to negotiations. 32 It follows therefore that an action for penalties and injunctive relied under ss 170VV and 170VZ can properly be constituted as a representative action: see Finance Sector Union of Australia v Commonwealth Bank of Australia (1999) 94 FCR 179. I also note that s 33C of the FCA Act provides that a representative proceeding may be commenced whether or not the relief sought is the same for each person represented. And I entirely accept the proposition that nothing in s 170VZ excludes this Court's powers under s 23 of the FCA Act to grant an interim or interlocutory injunction in an appropriate case: see Patrick Stevedores at 29 [27] per Brennan CJ; and Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd (2000) 104 FCR 80 at 103 [96]. Nonetheless, it may be a different question whether an applicant can bring an application for interlocutory relief in a representative proceeding, where the applicant has no individual entitlement to that relief, but the relief is sought on the basis that it may be relevant and necessary for other members of the group. 33 Dr Jessup's submissions may also raise issues about the identification of the group members. In this case, the application alleges that a common issue of law and fact arises, namely whether the December 2005 statements made on behalf of UB were knowingly false or misleading with the intention of persuading the academic and general staff to make the AWA, within the meaning of s 170WG(2) of the WR Act. In respect of these issues, the group may be composed of three different classes of members: first, those like the applicant, who have not signed the AWA and do not intend to do so; second, those who have not signed the AWA and who may wish to do so; and third those who have signed the AWA. The affected groups or sub-groups may need to be defined more precisely: ss 33Q and 33ZB of the FCA Act. 34 I have not had the benefit of full argument on any of the issues raised by these submissions. I do not propose to express from views about the submissions discussed in [28] to [29] above. In all the circumstances, I am prepared to proceed on the basis that the applicant has demonstrated a serious question to be tried as to its entitlement to relief at trial. In view of the matters relied upon by Dr Jessup, however, I consider that the case that has been demonstrated by the applicant at this stage is towards the weaker end of the spectrum. As will appear it is unnecessary for me to be more definitive, as I have reached the conclusion that the application for interim relief should be refused on other grounds.

breach of an implied term of trust and convenience 35 The applicant's outline of written submissions contains an allegation that an implied term of trust and confidence should be implied into each group member's contract of employment with UB: see generally Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144; Thomson v Orica Australia Pty Ltd (2002) 116 IR 186; and Heptonstall v Gaskin (No 2) (2005) 138 IR 103. The outline further alleges that there is a serious question to be tried that UB breached this implied term by recklessly or knowingly making false or misleading statements to its staff members concerning the terms and conditions of employment which would apply to them if they entered into the proposed AWAs. 36 The application by which these proceedings was instituted does not contain any reference to these allegations. Nor is it mentioned in any of the affidavits that were filed by the applicant in support of its application for interlocutory relief. The first notice that UB had of these allegations came when the applicant's counsel handed up the outline of written submissions at the commencement of the interlocutory hearing. In these circumstances, Dr Jessup said that he did not intend to address any submissions to these allegations. 37 I am not satisfied at this stage that there is a serious question to be tried that UB breached any such implied contractual term. The basic case that has been put is simply that Mr Walker made statements that were false and misleading in circumstances which gave rise to a contravention of s 170WG(2). 38 In view of the lack of notice of these allegations to the respondent, and the lack of evidence directed to the breach of the alleged implied term, I do not propose to discuss these allegations any further. I note as well that the applicant hardly addressed any submissions to the alleged breach of implied term.

balance of convenience 39 The grant of an interlocutory injunction is discretionary. In exercising that discretion, the Court will closely examine the balance of convenience. This involves weighing up the extent of any impending prejudice or inconvenience to the applicant if injunctive relief is not granted pending trial, and weighing that against the extent of any hardship that the grant of the injunction may cause the respondent. It also needs to be borne in mind that the purpose of an interlocutory injunction is to preserve the status quo, and that the interlocutory injunction is granted so as to preserve or protect the legal or equitable rights that are sought to be vindicated in the proceedings. One relevant inquiry for the Court will be whether irreparable injury which is not compensable in damages will result if relief is not granted. 40 The applicant submits that irreparable harm will occur if injunctive relief is not granted. He submits that the Court is not empowered to revoke an AWA even if it is made in reliance on false or misleading statements made in contravention of s 170WG(2). This is said to follow from the fact that an AWA, once filed, takes on a statutory character. Section 170VM sets out the circumstances when an AWA may be terminated, and the applicant points out that none of them apply to the present circumstances. Further, the applicant submits that the Court is not empowered to make an order for damages in respect of any loss suffered in consequence of a breach of s 170WG(2). UB also submitted that the Court is not empowered to set aside an AWA after it has been filed, and takes on a statutory character. 41 The applicant's case for interlocutory relief was based on the premise that the December 2005 statements were continuing to operate, and might mislead staff members into making an AWA between the time of the hearing and the determination of the proceeding. The interim relief is not relevant to those members of the group who have already made AWAs, or those members of the group who, like the applicant, possess full information and do not intend to make an AWA. 42 In my opinion, the legitimate purpose of an interlocutory injunction at this point, pending trial, is to eliminate or mitigate the risk that staff members of UB might be misled by the December 2005 statements into making an AWA if no relief is granted. 43 The starting point, therefore, is to consider what relief, if any, is just, convenient or necessary at this point to address the risk that the December 2005 statements are continuing to operate and may influence staff members to enter into an AWA with UB. 44 UB has submitted that the continuing influence of the December 2005 statements is likely to be minor, if they have any continuing effect at all. UB submits that the academic community at UB is generally well informed about the differences between the EBA and the proposed AWAs. Moreover, UB submits that the December 2005 statements have been overtaken by a substantial amount of subsequent information. While there is some force in these submissions, there must remain a risk that the December 2005 statements may have some ongoing influence on some staff members. 45 UB has submitted that any case which might otherwise have existed for the grant of interim relief is met by UB's preparedness to offer an undertaking to the Court. A form of undertaking was provided to me during the course of the hearing. In essence, the undertaking is to the effect that UB will make a further extensive clarification statement to all staff members identifying the differences between the proposed AWA and the EBA. Further, UB said that it would undertake to refrain from entering into AWAs with its staff members until the expiry of a period of seven days after the publication of the new information to its staff members. By this means, UB submitted that any risk that staff members might enter into an AWA on the basis of misleading or false statements would be removed. 46 At the time of the hearing of the interlocutory application, the applicant and his counsel had not had a full opportunity of considering the terms of the proposed undertakings. I directed that the parties consult with each other about the terms of the proposed undertakings. I further directed that UB submit a final form of the proposed undertakings after a process of consultation had taken place. UB has now submitted a final form of the proposed undertakings. I have been informed that the parties have agreed upon the terms of the clarification statement, but no agreement was reached about other aspects of the proposed undertakings. I shall not set the proposed undertakings in these reasons, as they are recorded in the orders which I propose to make. 47 In my opinion, the undertakings proposed by UB are a complete answer to the application for interim relief. The proposed undertakings remove any real risk that staff members will be induced to enter into AWAs between the date of my order and the date of trial as a result of the allegedly misleading statements that were made in December 2005. 48 In the light of the undertakings proffered by UB, I consider that the hardship that would be occasioned by the grant of wide interlocutory injunctions of the kind sought by the applicant outweighs any prejudice or inconvenience to the applicant and other group members that would be occasioned by withholding relief. The undertakings afford the best means of preserving the status quo pending trial, and address the risk that the December 2005 statements may have a continuing influence on staff members. In short, the undertakings produce an outcome that is both just and convenient. 49 A number of other factors support the conclusion that it is neither just nor convenient to grant the interlocutory relief sought by the applicant. Some of them are discretionary factors. 50 First, the relief sought by the applicant is cast in extremely wide terms and arguably goes beyond relief that could be legitimately sought in this proceeding. 51 Secondly, the relief sought by the applicant would seriously impinge upon the rights of third parties. An injunction restraining UB from entering into an AWA with its staff members pending the trial of this action would seriously affect the rights of those staff members, including their entitlement to back-pay. The applicant submits that the risk that such employees would lose their entitlement to back-pay if AWAs cannot be concluded by 31 March 2006 is an arbitrary limitation that was imposed by UB, and it can be varied at UB's discretion. I will assume that this is so. Nonetheless, it is relevant to the exercise of my discretion that the form of relief that has been sought will significantly affect the rights of other staff members. Their rights will be affected if the injunction were to go, whether or not the employees have fully informed themselves about the differences between the EBA and the proposed AWA. Employees may be so affected even if they opt out of the represented group. If there is another alternative that protects staff members from the risk that they will be misled by the December 2005 statements, such as that offered by the undertakings, it is a relevant consideration that the more drastic alternative proposed by the applicant will affect the rights of third parties. 52 The applicant submits that the position of third parties will be protected by its undertaking as to damages. The usual form of undertaking in this Court extends beyond the damages which may be suffered by the respondent consequent upon the interlocutory order, and includes damages that may be suffered by other persons. In this case, the applicant has proffered his own undertaking jointly with an undertaking by the NTEU. I accept that a joint undertaking as to damages by the applicant and the NTEU is one of substance. However, I do not consider that the availability of the undertaking can justify the making of an interim order that will seriously affect third party rights, in circumstances where there is another alternative that is both just and convenient and which will not adversely affect third party rights. 53 In this case, I would not discount the significance of the impact on third party rights in the way that Finkelstein J did in Finance Sector Union v Commonwealth Bank of Australia (2000) 106 IR 139 at [57].

conclusion 54 For the foregoing reasons, I propose to dismiss the application for interlocutory relief. I do so upon the basis of the undertakings proffered to the Court by UB.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

Associate: Dated: 24 February 2006 Counsel for the Applicant: Mr K. Farouque

Solicitors for the Applicant: Maurice Blackburn Cashman

Counsel for the Respondent: Dr C. Jessup QC and Mr C. O'Grady

CLARIFICATION STATEMENT - ACADEMIC STAFF 1 Set out below is a statement by the University of Ballarat (University) to all staff. 2 This statement is a clarification of statements initially made in an email dated 14 December 2005 to all staff at the University. The statements were made in response to questions set out in a poster the NTEU had placed around the University's campus. The statement was to the effect that a staff member would not be giving away any key employment conditions. 3 The purpose of this statement is to identify and clarify, for all academic staff, some of the specific differences between some of the employment conditions under the AWA and the University of Ballarat Enterprise Agreement for Academic and General Staff 2000-2003 (EBA).

Redundancy 4 Under clause 42.2 of the AWA, the University is obliged to only inform staff members concerned where it has determined that it has staff members in excess of its requirements. Under clause 29.2 of the EA, the obligation included notifying the union. 5 Under the EBA, where the University has decided on redundancy an employee is entitled to a length of service notice component and an aged based notice as follows: (cl.29.6.1) Age Notice 45 or over 22 weeks 40 - 44 20 weeks 39 or under 18 weeks

Under the AWA, where the University has decided on redundancy an employee is entitled to a length of service notice component (same as EBA) and a flat 20 weeks notice. The notice is subject to a overall cap of 74 weeks. 6 Under the EBA, an employee who is made compulsorily redundant is entitled to payment on a pro rata basis for long service leave, a payment on a length of service scale and payment in lieu of notice according to the following age based scale Age Notice 45 or over 22 weeks 40 - 44 20 weeks 39 or under 18 weeks

Under the AWA, an employee who is made compulsorily redundant is entitled to payment on a pro rata basis for long service leave, a payment on a length of service scale (same as EBA) and payment in lieu of 5 weeks notice. The notice is subject to a overall cap of 74 weeks. 7 Under clause 42.7.1 of the AWA, the value of the outplacement and retraining support has been increased to $500 ($300 under clause 29.7.1 of the EA). 8 Agreement concerning reasonable expenses to be paid by the University if a staff member is required to move house as a result of a redeployment are to be agreed between the staff member and the University under clause 42.9 of the AWA. Under clause 29.10 of the EA, such agreement was to be between the University and the union. 9 Under clause 44 of the AWA, the University expresses its commitment to exploring all reasonable measures to avoid forced redundancies. 10 Under the EBA an employee who had been given notice of termination on grounds of redundancy is entitled to seek a review of the termination decision on the following grounds: the uni did not act fairly and properly, natural justice was not applied, the decision was discriminatory. Under the AWA, an employee may appeal termination to a Appeal Committee against a decision to terminate on grounds that ; relevant procedures in the agreement have not been followed and natural justice has not been afforded 11 The EBA Review Committee is constituted by an agreed independent chairperson, a representative of the union and a representative of the University. Under the AWA, the Appeal Committee is constituted by: an independent chairperson nominated by the VC, a representative of management and a representative of staff nominated by the employee from a pool of elected staff member. 12 Under the EBA, the EBA Review Committee makes recommendation to the VC who must take into account findings. If Review Committee recommends that the that UB did not act according to the principles - the matter is referred back to the VC who determines an appropriate course having regard to the findings of the Review Committee. Under the AWA, the Appeal Committee advises the VC who will considers the report before finalising the termination decision.

Managing allegations of misconduct or serious misconduct 13 Under the EBA, where an employee denies in part or in full an allegation of misconduct or fails to respond to such allegation, the VC shall refer the allegation to a Misconduct Investigation Committee. The EBA Misconduct investigation Committee consists of the following: a person agreed by VC and union to act as chairperson, a person chosen by the union and a person chosen by VC (cl.25.10). Under the AWA, the Head of School may investigate an allegation of misconduct or arrange for an independent person to investigate (40.1). Under the EBA, the Misconduct investigation Committee is to report to the VC on the facts relating to the alleged misconduct/serious misconduct including mitigating circumstances (25.12 & 24.14). Under the EBA, having considered the report, the VC may take disciplinary action or if the VC decides there has been no misconduct inform the staff member (25,15). Under AWA, the Head of School (after having considered response of the employee and met with the employee) will report to VC. DVC or PVC including providing a recommendation which may include disciplinary action (40.4). Under the AWA, VC, DVC or PVC ultimately make decision on disciplinary action (having provided employee with an opportunity to submit a reasons why disciplinary action should not occur) (40.6) 14 Under the EBA, a suspension without pay can occur as a preliminary step when an allegation of serious misconduct is made in the context of a disciplinary action investigation. A decision to suspend without pay must be reviewed and confirmed or reversed by the Misconduct Investigation Committee at its first meeting. Under the AWA, suspension with or without pay is not part of the managing misconduct process. Under the AWA, the VC may summarily suspend the employee for a defined period for behaviour considered by the VC to be sufficiently serious to warrant summary action. Under the AWA, prior to suspension with without pay, the employee is to be given an opportunity to respond by the VC. 15 The notice period provisions set out in clauses 25.21 to 25.25 of the EA have not been replicated in the AWA. However, the University is still required to provide to a staff member the minimum notice period it must provide at law (whether that be under statute or contract). For example, the obligations that the University would have under the relevant provisions of the Workplace Relations Act 1996 are similar to the requirements set out in clauses 25.22 to 25.25 of the EA. 16 The definition of the term "misconduct" in clause 1 of the AWA extends and clarifies the definition of the same term set out in clause 6 of the EA by providing examples. The definition of "serious misconduct" has also been amended to provide further clarity of the conduct the University considers would constitute serious misconduct. The definition of "disciplinary action" in clause 6 of the EBA expressly excluded termination as an option for misconduct. This exclusion has been removed from the definition of "disciplinary action" in clause 1 of the AWA.

Managing unsatisfactory performance 17 Under the EBA, an employee may request a review of a VC's decision in relation to allegation of unsatisfactory performance which is conducted by the "Unsatisfactory Performance Review Committee". (24.12). Under the AWA there is no review/appeal process except in the case of termination. Under the AWA, an employee may appeal to an Appeal Committee against a decision to terminate. The EBA Unsatisfactory Review Committee is constituted by: chairperson agreed by union and VC, a person chosen by the union and a person chosen by the VC. Under the AWA, the Appeal Committee is constituted by an independent chairperson nominated by the VC, a management representative and a staff representative nominated by the employee from a pool of elected staff members. Under the EBA, the Unsatisfactory Performance Review Committee's terms of reference are to review the application of performance management procedures and the procedures in relation to the Vice-Chancellor's investigation set out in cl.27.6 - 27.9 (27.15). Under the AWA, the grounds of the appeal are: whether relevant procedures in the agreement have not been followed and whether natural justice has not been afforded. Under the EBA, the Unsatisfactory Performance Review Committee reports to the VC who will reconsider his/her decision if the Committee finds that the procedures were not properly followed (24.18). Under the AWA, the Appeal Committee advises the VC who will considers the report before finalising the termination decision.

Probation 18 Under clause 7.3.1 of the AWA, the duration of a staff member's appointment is not taken into consideration when determining the length of the probationary period (see, for comparison, clause 22.3.1 of the EA). 19 Under clause 7.6 of the AWA, it is no longer the role of the supervisor during the probationary period to make a recommendation/decision to confirm or not to confirm employment, after a final review (see, for comparison, clause 22.6 of the EA). This step now forms the process for recommendations to be made under clause 7.7 of the AWA. 20 Under the EBA, a probationary employee may appeal against a decision to terminate and an Appeal Committee will hear the appeal (22.10). Under the AWA, there is no Appeal Committee for probationary academic staff. Under the AWA, where a final probation report to VC recommends termination of employment the employee has the opportunity to have face to face meeting with VC or nominee (7.9) Under the EBA, the Appeal Committee is constituted by a senior academic nominated by VC, an NTEU nominee and mutually agreed chairperson. Under the EBA, the Appeal Committee provides a written report and recommendation to the VC. (22.10.5). Under the AWA, the VC decision is final and the employee has no right to challenge under the Resolving Workplace Disputes Clause (clause 35). Under the EBA, the Appeal Committee can recommend to: dismiss the appeal, uphold the appeal and confirm the continued employment or extend the probation period for up to 12 months. Under the EBA, the VC may approve or not approve the recommendation of the Appeal Committee (22.10.7). Under the EBA, the VC's decision is final (22.10.8). 21 Under the EBA, a probationary employee is entitled to 6 months notice of termination. Under the AWA, a probationary employee is entitled to 3 months notice of termination.

Dispute resolution process 22 The dispute resolution process in clause 45 of the AWA is not as structured as the process set out in clause 55 of the EA. 23 The dispute resolution procedure in the EBA allows a party to refer a dispute or grievance to the AIRC for conciliation or arbitration about a dispute relating to the application of the agreement. The parties are bound by the decision of the AIRC. The AWA' workplace disputes procedures do not provide for a dispute or grievance to be taken to the AIRC but the AWA provides for a process of mediation that is based on the model dispute resolution clause contained in the Workplace Relations Act 1996. 24 Under the EBA, whilst the required dispute resolution steps prior to reference to the AIRC are being undertaken, the parties are obliged to work in the normal matter, the union(s) and UB cannot take industrial action, UB cannot change work, staffing or the organization of work (if these matters are the subject of the dispute) and UB cannot take any other action to exacerbate the dispute (EBA cl.55.6). Under the AWA, whilst the parties attempt to resolve the matter, the parties are required to work in accordance with their contract of employment unless the staff member has a reasonable concern about imminent risk to his or her health or safety (academic AWA cl. 45.6.1 & general staff AWA cl.56.6.1). 25 Under the EBA, there is no restriction on a party commencing enforcement proceedings in a Court for breach of an obligation under the EBA whilst the dispute procedure is being followed. Under the AWA, a party is restricted from commencing enforcement proceedings in a Court for a breach of the AWA for a certain period of time. Fixed Term Employment 26 Under the EBA, only certain specified categories of positions can be filled on a fixed-term basis. Under the EBA, fixed term staff such as those employed as specific task or project or research only receive severance payments of up to 8 weeks. Under the AWA, all limits on the use of fixed term contracts are removed, but severance payments are limited to those categories of staff currently entitled to severance payments. Superannuation 27 Under the EBA, in addition to the obligations in the Superannuation Trust Deeds, there is an obligation to maintain superannuation arrangements in respect of membership of, access to, and contribution rates, as existed as at the date of certification of the agreement. Under the EBA, in addition to the obligations under the Superannuation Trust Deed, any changes to the superannuation arrangements will only be by agreement between the University and the unions. Under the AWA, in addition to the obligations in the Superannuation Trust Deeds, the University is obliged to maintain current employer contributions and arrangements that are in effect when the AWA comes into operation, until the nominal expiry of the AWA, subject to those superannuation arrangements being consistent with the UniSuper Trust Deeds and the relevant State Government Schemes.

CLARIFICATION STATEMENT - GENERAL STAFF 28 Set out below is a statement by the University of Ballarat (University) to all staff. 29 This statement is a clarification of statements initially made in an email dated 14 December 2005 to all staff at the University. The statements were made in response to questions set out in a poster the NTEU had placed around the University's campus. The statement was to the effect that a staff member would not be giving away any key employment conditions. 30 The purpose of this statement is to identify and clarify, for all general staff, some of the specific differences between some of the employment conditions under the AWA and the University of Ballarat Enterprise Agreement for Academic and General Staff 2000-2003 (EBA).

Redundancy 31 Under clause 53.2 of the AWA, the University is obliged to only inform staff members concerned where it has determined that it has staff members in excess of its requirements. Under clause 30.2 of the EA, the obligation included notifying the union. 32 Under the EBA, if at the end of the eight (8) week transition period, the University is unable to redeploy the employee or avoid termination, the employee will be retrenched. The employee then has the choice between: · Length of service severance payment ie 4 weeks per year of service for each completed year of service up to 10 years service and then 2 weeks per year of service thereafter; or · Reverting to PACCT Award redundancy provisions which provide that the employee will serve another (18) weeks as notice and after termination takes effect receive income maintenance. Under the PACCT Award, the income maintenance may compensate an employee for up to 12 months. Under the AWA, if at the end of the (8) week transition period, the University is unable to redeploy the employee or avoid termination, the staff member will be retrenched and receive a severance payment ie 4 weeks per year of service for each completed year of service up to 10 years service and then 2 weeks per year of service thereafter. (cl53.4.6) 33 Under clause 53.5.1 of the AWA, the value of the outplacement and retraining support has been increased to $500 ($300 under clause 30.5.1 of the EA). 34 Agreement concerning reasonable expenses to be paid by the University if a staff member is required to move house as a result of a redeployment are to be agreed between the staff member and the University under clause 53.6 of the AWA. Under clause 30.6 of the EA, such agreement was to be between the University and the union. 35 Under the EBA an employee who had been given notice of termination on grounds of redundancy is entitled to seek a review of the termination decision on the following grounds: the uni did not act fairly and properly, natural justice was not applied, the decision was discriminatory. Under the AWA, an employee may appeal termination to a Appeal Committee against a decision to terminate on grounds that; relevant procedures in the agreement have not been followed and natural justice has not been afforded. The EBA Review Committee is constituted by an agreed independent chairperson, a representative of the union and a representative of the University. Under the AWA, the Appeal Committee is constituted by: independent chairperson nominated by the VC, a representative of management and a representative of staff nominated by the employee from a pool of elected staff member. Under the EBA, the EBA Review Committee makes recommendations to the VC who must take into account its findings. If the Review Committee recommends that UB did not act according to the principles - the matter is referred back to the VC who determines an appropriate course having regard to the findings of the Review Committee. Under the AWA, the Appeal Committee advises the VC who considers the report before finalising the termination decision.

Dispute resolution process 36 The dispute resolution process in clause 45 of the AWA is not as structured as the process set out in clause 55 of the EA. 37 The dispute resolution procedure in the EBA allows a party to refer a dispute or grievance to the AIRC for conciliation or arbitration about a dispute relating to the application of the agreement. The parties are bound by the decision of the AIRC. The AWA workplace disputes procedures do not provide for a dispute or grievance to be taken to the AIRC but the AWA provides for a process of mediation that is based on the model dispute resolution clause contained in the Workplace Relations Act 1996. 38 Under the EBA, whilst the required dispute resolution steps prior to reference to the AIRC are being undertaken, the parties are obliged to work in the normal matter, the union(s) and UB cannot take industrial action, UB cannot change work, staffing or the organization of work (if these matters are the subject of the dispute) and UB cannot take any other action to exacerbate the dispute (EBA cl.55.6). Under the AWA, whilst the parties attempt to resolve the matter, the parties are required to work in accordance with their contract of employment unless the staff member has a reasonable concern about imminent risk to his or her health or safety (academic AWA cl. 45.6.1 & general staff AWA cl.56.6.1). 39 Under the EBA, there is no restriction on a party commencing enforcement proceedings in a Court for breach of an obligation under the EBA whilst the dispute procedure is being followed. Under the AWA, a party is restricted from commencing enforcement proceedings in a Court for a breach of the AWA for a certain period of time.

Managing unsatisfactory performance 40 Under the EBA, an employee may appeal the VC's decision on disciplinary action to an Appeal Committee (27.6). Under the AWA, there is no appeal process except in the case of termination. Under the AWA, an employee may appeal to an Appeal Committee against a decision to terminate. Under the EBA, the Appeal Committee is constituted by a Chairperson agreed by union and the VC, a nominee of the union and a nominee of the VC (27.7). Under the AWA, the Appeal Committee is constituted by: an independent chairperson nominated by the VC, a representative of management and a representative of staff nominated by the employee from a pool of elected staff member. Under the EBA the grounds of the appeal are whether the matter should have been dismissed, a miscarriage of process has occurred or the penalty is too harsh or is unjust in the circumstances (27.7). Under, the AWA the grounds are whether relevant procedures in the agreement have not been followed and whether natural justice has not been afforded. Under the EBA, the Appeal Committee may do any of the following: dismiss the appeal, find a miscarriage of process and rescind the penalty and refer the penalty back to the informal process stage, find the penalty too harsh or unjust and them impose a lesser penalty or determine that no penalty action be taken or confirm decision of VC (27.9). Under the AWA, the Appeal Committee advises the VC who will considers the report before finalising the termination decision. 41 Under the EBA, there is no right to suspend an employee without pay. Under the AWA, the VC may summarily suspend the employee with or without pay for a defined period for behaviour considered by the VC to be sufficiently serious to warrant summary action. Under the AWA, prior to suspension, the employee is to be given an opportunity to respond by the VC. Under the AWA, suspension with or without pay is not part of the managing unsatisfactory performance process. 42 Clause 51 of the AWA introduces a process under which allegations of misconduct that are made against a staff member may be investigated. Merit Based Promotion 43 Under the EBA, promotion of a general staff employee to another position at a higher level shall be by way of appointment on merit to an advertised vacancy. Under the AWA, there is no comparable requirement. Fixed Term Employment 44 Under the EBA, only certain specified categories of positions can be filled on a fixed-term basis. Under the EBA, fixed term staff such as those employed as specific task or project or research only: receive severance payments of up to 8 weeks. Under the AWA, all limits on the use of fixed term contracts are removed, but severance payments are limited to those categories of staff currently entitled to severance payments. Classification - General Staff 45 Under the EBA, position descriptions are to be maintained for all general staff and the position description formats will be consistent with the HEW Position Classification Standards (cl.32). Under the AWA, there is no requirement for a position description. 46 Under the EBA, there is a review of a position description on request and annually. Under the EBA, changes to the position description are by agreement (cl.32). Under the AWA, there are no comparable requirements. 47 Under the EBA, there are extensive procedures regarding reclassification including a Classifications Committee and Classifications Appeals Committee but the decision of VC is final (cl.32). Under the AWA, there is no comparable provision. Superannuation 48 Under the EBA, in addition to the obligations in the Superannuation Trust Deeds, there is an obligation to maintain superannuation arrangements in respect of membership of, access to, and contribution rates, as existed as at the date of certification of the agreement. Under the EBA, in addition to the obligations under the Superannuation Trust Deed, any changes to the superannuation arrangements will only be by agreement between the University and the unions. Under the AWA, in addition to the obligations in the Superannuation Trust Deeds, the University is obliged to maintain current employer contributions and arrangements that are in effect when the AWA comes into operation, until the nominal expiry of the AWA, subject to those superannuation arrangements being consistent with the UniSuper Trust Deeds and the relevant State Government Schemes.