Thiess Contractors Pty Ltd v Construction, Forestry, Mining & Energy Union

REASONS FOR JUDGMENT 1 The first and second applicants operate an underground coal mine ("the Alliance Mine") as joint venturers trading as the Thiess Namoi Joint Venture. The respondent trade union is a registered organisation under the Workplace Relations Act 1996 (Cth) ("the Act"). The applicants and the respondent are parties to the Alliance Mine Agreement which is a certified agreement under Part VIB of the Act. The agreement was certified on 21 December 1998 and has a nominal term of twelve months. Production employees employed by the applicants are covered by the Alliance Mine Agreement and most of the production employees are members of the respondent trade union. 2 At about 3.00 pm on 8 April 1999 production employees, who are also members of the respondent, stopped work for a period of twenty-four hours. Both the applicants' material and the respondent's material describe the stoppage as "a protest" over staff employees operating production equipment and the refusal of the mine manager to direct a staff employee to cease operating production machinery underground in the mine on that date. 3 The applicants, on 9 April 1999, filed an application, a statement of claim and an affidavit of Mr Brett Foster, the Human Resources Manager responsible for the Alliance Mine joint venture in support of the interlocutory relief pleaded in the application. The application seeks permanent injunctive relief against the respondent aimed at preventing the respondent or its members from taking industrial action as defined in s 4 of the Act in respect of mining operations at the Alliance Mine. Although the interlocutory relief sought originally was directed at bringing to an end the twenty-four hour stoppage, with the expiration of that period the application was amended to seek injunctive relief restraining any industrial action by the respondent or its members employed at the Alliance Mine, pending trial of the action. 4 The case for both permanent and interlocutory relief was outlined by counsel on behalf of the applicants in a written outline of submissions in support of interlocutory relief. 5 The right to injunctive relief is claimed under s 170NG of the Act, which states : "170NG An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision." 6 A penalty provision is each of the provisions specified in s 170ND of the Act. One of those provisions, and the one on which the applicants rely, is s 170MN. That section provides : "170MN(1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: (a) any employee whose employment is subject to the agreement or award; (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. (3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected. (4) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3); comes into operation until its nominal expiry date has passed, the employer must not, for the purpose of supporting or advancing claims in respect of the employment of employees whose employment is subject to the agreement or award, lock out such an employee from his or her employment. (5) If the employer does so, the lockout is not protected action. (6) Engaging in industrial action, or locking out an employee, in contravention of section 170VU is not protected action." 7 The applicants submitted that the twenty-four hour stoppage by the employees between 3.00 pm on 8 April 1999 and 3.00 pm on 9 April 1999 was "industrial action" within the meaning of s 4 and s 170MN(1) of the Act. It was further submitted that the industrial action occurred during the period the certified agreement in respect of the Alliance Mine was in operation. Finally, it was submitted that the action was taken by employees and the respondent who were respectively subject to and bound by the certified agreement. The consequence of these three circumstances, it was submitted, was that the stoppage which occurred was prohibited by s 170MN(1) and constituted a contravention of that subsection by the employees and the respondent trade union. 8 The applicants submitted that on the trial of the proceedings on the facts revealed in the affidavit material, they will be entitled to final injunctions restraining the respondent from contravening s 170MN(1) of the Act during the currency of the certified agreement. That is, until it nominally expires on 20 December 1999. For the purpose of the interlocutory application it was submitted that there was a serious question to be tried that there had been a contravention of s 170MN(1) of the Act by the respondent and that permanent injunctions would be granted under s 170NG of the Act in the form sought in the prayers for relief. Further, it was submitted that there was no prejudice to the respondent in granting the interlocutory relief, whereas significant financial loss had been sustained by the applicants as a consequence of the twenty-four hour stoppage and they would suffer further financial loss by a repetition of such conduct. The balance of convenience, it was submitted, was therefore entirely in favour of the applicants. 9 The principal contention of the applicants' argument was that, on its proper construction, s 170MN(1) bans all industrial action as defined on the part of employees covered by the certified agreement and by the respondent during the period the certified agreement operates, or alternatively all industrial action in support of any claim on behalf of an employee, during the same period. Such a construction is, in my view, erroneous. 10 Section 170MN forms part of Division 8 of Part VIB of the Act which relates to negotiations for certified agreements under Division 2 or Division 3 of the Part. The Division provides for the initiation of a bargaining period by the service of a notice stating that the initiating party intends to try to make an agreement with the other negotiating parties under Division 2 or 3 and to have any agreement made certified under Division 4 (s 170MI). 11 Under s 170ML certain action is identified as protected action which, by s 170MT, is immune from legal action as provided by that section. Section 170ML(2) provides : "170ML(2) During the bargaining period: (a) an organisation of employees that is a negotiating party; or (b) member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party; is entitled, for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement; or (f) responding to a lockout by the employer of employees who se employment will be subject to the agreement; to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action." 12 For present purposes it is sufficient to note that s 170ML(2)(e) allows the taking of industrial action for the purpose of "supporting or advancing claims made in the proposed agreement." There are similar protections provided to the employer in s 170ML(3). However, both s 170ML(2) and s 170ML(3) are subject to the following provisions of Division 8 (s 170ML(7)). 13 Section 170MN, in the context of Division 8 and on its proper construction, qualifies the operation of both s 170ML(2) and s 170ML(3). 14 Section 170MN(1) only prohibits industrial action "for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement ...". That is, where there is an existing certified agreement and there is in existence a bargaining period in respect of a new or further certified agreement, industrial action in support of the claims in the proposed agreement, although protected under s 170ML(2), must be postponed until after the nominal expiry date of the existing certified agreement. The claim referred to in s 170MN(1) is the same claim as that referred to in s 170ML(2)(e) of the Act. 15 If industrial action is taken supporting or advancing claims made in the proposed agreement prior to the expiry of the nominal termination date of the existing agreement by either the employees or the relevant organisation on the one side, or the employer on the other, two consequences follow. Firstly, the action is not protected action (s 170MN(1); s 170MW(5) and s 170MW(6)). Secondly, the contravention exposes the contravener to a penalty (s 170NF(1)). 16 The constructions of s 170MN(1) contended for by the applicants ignore the purposive nature of the industrial action required by the subsection and renders the requirement superfluous. They also ignore the context in which the section is placed and operates. 17 Notification of a dispute under clause 12 of the Alliance Mine Agreement on 1 April 1999 with respect to staff employees operating underground production machinery, without more, was not the making of a claim on behalf of employees employed under the agreement for the purposes of s 170MN(1) of the Act. 18 On the material filed by the applicants in support of the relief sought, even when regard is had to the more expansive material filed by the respondent, there was no industrial action organised by the respondent or taken by its membership at the Alliance Mine in support of, or to advance a claim made in a proposed agreement within the meaning of either s 170ML(2) or s 170MN(1). The stoppage at about 3.00 pm on 8 April 1999 was a protest by certain production employees present at the Alliance Mine at the time of the shift changeover at the refusal of the applicants' mine manager to direct a staff employee to cease operating production machinery underground. 19 For the above reasons, I am of the view that there is no serious question to be tried that the respondent has contravened s 170MN(1) of the Act and that there is no reasonable prospect, on the material presently before the Court, that the applicants will obtain final injunctive relief of the nature sought in the application under s 170NG of the Act. In these circumstances no question of the balance of convenience arises. 20 The application for interlocutory relief is dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.