The Age Company Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

REASONS FOR JUDGMENT 1 The applicant, The Age Company Ltd, is a publisher. It owns a printing facility at 250 Spencer Street, Melbourne where it prints The Age, The Sunday Age and sufficient copies of The Australian Financial Review newspapers for distribution in Victoria. The applicant seeks the imposition of a penalty on the respondent unions, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical and Plumbing Union of Australia (CEPU), under s 170NF of the Workplace Relations Act 1996 (Cth) for a contravention of s 170NC and an injunction under s 170NG to retrain any further contravention of the section. The unions concede that the facts which the applicant has proved, and I will summarise in a moment, establish that there has been a contravention of s 170NC. So, the only issue that requires resolution is whether, and if so what, penalty should be imposed and whether, and on what terms, an injunction should be granted. 2 Section 170NC is in Pt VIB of the Workplace Relations Act, which part is concerned to establish a regime for the negotiation through collective bargaining, execution, certification and giving effect to agreements to regulate terms and conditions of employment. Subsection (1) provides: "A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, or not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mentioned in paragraph (c)." 3 However, there is an exception to the prohibition created by the section. Section 170NC(1) does not apply to "protected action": s 170NC(2). Speaking generally, protected action (which is defined in s 170ML) is industrial action that is carried out during a period of negotiations for a proposed certified agreement (s 170MI) provided a notice is given that industrial action is to be taken (s 170MO). 4 If industrial action which is not protected action is taken with intent to coerce a person to agree to making a certified agreement, there will be a contravention of s 170NC. In that event, s 170NC being a "penalty provision" (s 170ND(e)), the Federal Court may impose on a body corporate, such as a union, a penalty of not more than $10,000 (s 170NF(1) and (2)) which is payable to the Commonwealth or to the person who instituted the proceeding (s 356). The court may also "grant an injunction requiring a person not to contravene, or to cease contravening" a penalty provision (s 170NG). 5 The applicant and each union respectively were parties to a certified agreement whose nominal expiry date has passed. The certified agreement with AMWU had a nominal expiry date of 30 June 1999. The certified agreement with CEPU had a nominal expiry date of 31 December 1999. 6 In April 2000 negotiations began for new certified agreements. Many matters have been agreed, but a number of important issues remain unresolved. The unions believed that they needed to break the impasse in the negotiations. Accordingly on 27 September 2000 AMWU served notice, under s 170MO, of its intention to take industrial action starting 1 October 2000. The threatened industrial action was to involve thirty-minute rolling stoppages for three months or until agreement was reached. On 6 October 2000 CEPU served notice of intention to take industrial action from 13 October 2000 for two months. The threatened industrial action comprised stop-work meetings and rolling stoppages in the maintenance department. On 14 November 2000 CEPU served a further notice of intention to take industrial action commencing 20 November 2000 for six weeks. The proposed industrial action was rolling stoppages in the maintenance department. 7 On the morning of 22 November 2000 the applicant received from the two unions a draft agreement to replace the existing certified agreements. That same day Mr Shirvington, the production director of the applicant, discussed with Mr Dargavel, the assistant state secretary of the Metals Division of AMWU, the possibility of convening a meeting to discuss the draft agreement. A meeting was organised for 6.00pm that day. At the meeting the representatives of the applicant included Mr Shirvington, Mr Jones, the Victorian employee relations manager of the applicant, Mr Dargavel, Mr Rogers, an organiser with the Printing Division of AMWU, and Mr Burton, a CEPU delegate. During the discussions Mr Dargavel said to the applicant's representatives: "If you are not prepared to sign off on this tonight we will give you a bit of a nudge." One of the applicant's representatives, probably Mr Shirvington, replied that the applicant needed time to consider the draft agreement and told Mr Dargavel that the applicant would wish to meet with the unions the following day. Mr Dargavel replied: "We're happy to meet tomorrow, but as far as I'm concerned this is the last chance." The meeting ended around 9.00pm. 8 Within ten or fifteen minutes after the meeting concluded the unions organised their members to park a number of motor vehicles across the loading dock doors of the Spencer Street site. The vehicles blocked six roller doors and a garage door. Meanwhile, some fifty people congregated outside the Lonsdale Street entrance of the Spencer Street site. By 10.00pm more than thirty vehicles were parked on the pavement outside the loading dock, and at least 100 people were picketing the premises. Some of the picketers held red banners with AMWU insignia. Mr Dargavel and Mr Johnson, AMWU's state secretary, actively participated in the blockade. 9 At about 11.00pm Mr Jones told Mr Dargavel that the applicant was of the view that the picketing was not protected action. Mr Jones also assured Mr Dargavel that if the picketing ceased, he would meet with the unions the next day. Mr Dargavel replied that he was happy to meet with the applicant's representatives but that the picketers were going to remain. 10 The blockade and the presence of the picketers, unless dispersed, would have prevented the applicant distributing copies of The Age and The Australian Financial Review the following morning. Accordingly very late in the evening the applicant made an urgent application to Marshall J for an injunction restraining the picket. Marshall J made the following order: "That [the AMWU], its officers, servants and agents and members employed by the Company [the applicant] at its Spencer Street site at Melbourne be prevented from interfering with entry to or egress from the Spencer Street site of the Company by persons or vehicles seeking such entry or egress until 4.00pm on 23 November 2000 or further order." 11 At about 12.30am the following morning, 23 November, a police officer attempted to serve a copy of Marshall J's order on Mr Dargavel but he refused to take it. The copy that was to be served fell to the ground. Mr Dargavel picked it up and read it. 12 At about 1.15am Mr Shirvington announced the terms of the order from a vantage point on the roof of the Spencer Street site. He used a megaphone so that he could be heard. The crowd jeered and heckled Mr Shirvington. Mr Jones who was standing towards the back of the crowd could hear only part of what was said. But it is likely that many picketers heard all that Mr Shirvington said. Notwithstanding Mr Shirvington's announcement of the terms of Marshall J's order, the AMWU took no action to stop the picket, and the picketers remained at their positions. They did not disperse until around 7.00am. 13 Further, not only had the unions organised the picket, they also procured their members who worked in the applicant's production and maintenance departments not to show up for work. Approximately 200 employees did not attend that day. Almost all of them were members of the AMWU or the CEPU. 14 Early in the morning of 23 November some people entered the applicant's premises. At around 1.30am three people forced their way into the pressroom. A security guard escorted them out of the building. A short time later approximately thirty intruders entered the plant, assisted by Mr Marshall, the assistant secretary of another union. Mr Marshall used his security pass to gain entry. Some of the intruders, including Mr Marshall, broke the paper on the printing presses and pressed emergency stop buttons to stop the presses. One of the intruders turned off the yellow ink valve on one of the printing presses, so that it printed the paper without yellow ink. 15 The foregoing description of the actions taken by the unions shows why they do not challenge the claim that they breached s 170NC. Much of their conduct (organising the picket) was not "industrial action" as defined, and that which may have been (the strike) was not the subject of a notice under s 170MO. 16 Later in the morning of 23 November the applicant approached the Australian Industrial Relations Commission for an order under s 127 that the industrial action cease. Mr Dargavel who appeared for AMWU and Mr Maddison who appeared for CEPU informed the Commission that the previous night's industrial action was part of a 24-hour strike and was not continuing action. The proceeding before the Commission was adjourned on the understanding that all employees would return to work and that no further industrial action would occur. In fact that is what occurred. On the evening of 23 November all employees reported for work and after a twenty minute meeting they commenced work. 17 As mentioned, this proceeding was commenced late on 22 November. Two days later, CEPU withdrew its notice of 14 November 2000 to take industrial action. On 27 November the solicitors for both unions conceded that their clients had contravened s 170NC and indicated that they proposed to address the court only on the appropriate penalty to be imposed. 18 Although the industrial action lasted for only ten hours or so, it has caused significant loss. First, the applicant was not able to distribute The Age and The Australian Financial Review on 23 November. This is only the second occasion in the 146 year history of The Age that the newspaper could not be published. In consequence, the applicant suffered loss of revenue. Presumably it also suffered some loss of goodwill. Advertisers who had placed advertisements in the two newspapers will be given a refund, a free advertisement or discounts for future advertisements. It is not only the applicant that has suffered loss. The Age and The Australian Financial Review are distributed by approximately 500 newsagents and 5,300 sub-agents. The newsagents receive a percentage of the price of the paper which they share with the sub-agents. All of them have lost their commission for the day. There is also the potential loss by carriers who deliver the newspapers. They are paid for cartage work actually undertaken. All in all, the strike and the picket caused considerable loss for many people. 19 This brings me to the penalty that should be imposed. The maximum penalty that can be imposed is not high. If the offender is a body corporate the penalty is $10,000 and if an individual it is $2,000. In part the low penalty is a reflection of the fact that it is often only by resort by a union or its members to industrial action, whether lawful or unlawful, that there will be improvements in the terms and conditions of employment. Be that as it may, an appropriate penalty should bear some relation to the loss that has been caused. It should also reflect the deliberateness of the defendant's conduct. Moreover, in a case where an organisation exhibits a disregard of the public interest, there will be little reason to display leniency. 20 Of course, matters to be taken into account in determining the appropriate penalty extend beyond an assessment of the cost of a contravention. Although we are not concerned with the commission of a criminal offence, various of the matters that are considered when imposing a sentence for a breach of the criminal law are also relevant. For example, it cannot be denied that deterrence is one object of the imposition of a penalty. The flagrancy and deliberateness of a breach are other factors. On the other side, if there are mitigating factors, they should be taken into account. Here I have in mind matters such as the offender's past good behaviour and his remorse. In a case where there is a frank admission of unlawful conduct that would reduce the need for a penalty that deters. 21 Bearing these general considerations in mind, there are two aspects of this case that should significantly influence the penalty. The first is the serious harm that has been occasioned not only to the applicant, but to other persons who are not in any way involved in the industrial dispute. Secondly there is, at least in the case of AMWU, the blatant disregard, if not defiance, of the order made by Marshall J. Frankly, I find it disturbing that the union officials who were manning the picket took no account whatsoever of the order that had been made. While there has not been, and no doubt will not be, any proceeding for contempt, I will not disregard the events that occurred after Marshall J's order was announced. 22 In my opinion, having regard to the great loss caused by the contravention, the deliberateness of the conduct, the involvement of senior officials of a major union, and the defiance of Marshall J's order, an appropriate penalty to impose on the AMWU is $8,000. In the case of CEPU, a lesser penalty should be imposed because the order made by Marshall J was not directed to that union and neither it nor its officials were arguably in contempt. It is only for that reason that I regard a penalty of $6,000 as appropriate. 23 Finally I turn to the question whether an injunction should be granted. Injunctions are typically granted to restrain threatened conduct. Sometimes power is given in a statute to grant an injunction even where there is no risk that the proscribed conduct will be engaged in: see eg s 80 of the Trade Practices Act 1974 (Cth). Such a power is sometimes conferred on a court because the purpose of the injunction is to uphold the public interest and so the traditional principles dictating when a court would intervene have only a limited role to play. 24 Nevertheless, for my own part, I do not regard it as appropriate to grant an injunction so that a party can have an additional means of enforcing compliance with s 170NC, in proceedings by way of contempt. Put another way, unless I was satisfied that there was a real risk of repetition of unlawful industrial action, and there is no evidence of that, then, speaking generally, I do not think it appropriate to grant an injunction. Of course there may be exceptions. If there were the prospect of substantial damage by a contravention of a provision such as s 170NC and the court was not satisfied that the risk of repetition was slight, it may be appropriate to make an order although the court could not assess the degree of risk involved. Perhaps there will be circumstances where it will be appropriate to grant an injunction although little risk of repetition is shown. But these will be exceptional cases. Here I do not consider there to be any or any sufficient risk of the unions engaging in further unlawful industrial action to warrant the grant of an injunction. 25 Accordingly the orders that I propose to make are that AMWU pay a penalty of $8,000 and that CEPU pay a penalty of $6,000, in each case within 21 days. There being no reason to depart from the usual order, those penalties will be paid to the applicant. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.