Wesfarmers Premier Coal Limited v The Automotive, Food, Metals,

REASONS FOR JUDGMENT 1 The proceedings in which the present motion arises for leave to appeal from a judgment given on 23 December 2004 were commenced on 6 October 2004. On 13 October 2004 I made orders in the following terms: '2. The Court shall proceed to hear and determine on 4 and 5 November 2004 in Perth the Applicant's claim for a declaration that: (a) The industrial action of the Respondents on 17 July 2004 to 25 July 2004 being action threatened in a notice by the First Respondent dated 13 July 2004; and (b) The industrial action of the Respondents on 6 October 2004 to 11 October 2004 being action threatened in a notice by the First Respondent dated 1 October 2004; was in each case: (c) Not protected action within the terms of s 170ML of the Act; and (d) Breached s 170NC(1) of that Act.' I further ordered that proceedings as to damages and penalties and any other aspects of the application would be adjourned to a date to be fixed following the hearing and determination of the application for declaratory relief. An amended application was filed on 15 October 2004 framing declarations which in substance threw up the issues defined in the order made on 13 October 2004. 2 The orders made on 23 December 2004, following the hearing of the preliminary issues defined on 13 October 2004, were in the following terms: 'IT IS HEREBY DECLARED THAT: (1)(a) The industrial action that the first, second, third and fourth respondents engaged in pursuant to a Notice of Intention to take Industrial Action dated 1 October 2004 and issued by the first respondent to the applicant was not protected action within the meaning of section 170ML of the Workplace Relations Act 1996 (Cth); (b) The industrial action that the first, second, third and fourth respondents engaged in pursuant to a Notice of Intention to take Industrial Action dated 1 October 2004 was in contravention of section 170NC of the Workplace Relations Act.' It was further ordered that the application be listed for directions as to further relief, if any, and the assessment of damages and penalties on 11 January 2005. A declaration was declined in relation to the conduct of July 2004 on the basis that that conduct was protected by reason of the operation of the recent validation legislation. No order for dismissal of that aspect of the application was made at that time. 3 The matter has come before the Court today for further directions and in the meantime a notice of motion has been filed in which the applicant seeks leave to appeal from that part of the judgment in which I declined to make declarations that the industrial action undertaken from 17 to 22 July 2004 was not protected action in contravention of s 170NC. An order is also sought that the trial of the applicant's claim for damages and penalties be stayed pending the determination of the appeal. There are two aspects to the argument which is advanced in support of the motion for leave to appeal from the judgment of 23 December 2004.

The first is that there is an arguable case that the finding that there was a 'proposed agreement' within the meaning of s170ML when the July industrial action was notified and taken was in error. The applicant contends that there was no such proposed agreement: (a) within the terms of Pt VIB of the Workplace Relations Act; (b) that complied with the requirements of s 170LI; and (c) that was capable of certification. The construction of ss 170MI and 170ML that supported that finding is challenged in a further ground of the proposed appeal. 5 The second aspect of the proposed appeal is reflected in the assertion in the draft notice that there was error in the finding that the AMWU-Cth had made genuine attempts to reach agreement with the applicant within the meaning of s 170MP(1) before the July industrial action occurred. It is contended that there was error in the holding that the extent of prior negotiations for a State enterprise agreement and the involvement of basically the same officers in the negotiations were circumstances that showed such genuine attempts. 6 In respect of the second limb of the notice of appeal relating to whether there were genuine attempts to reach a negotiated agreement, it is said by counsel for the respondents that this was a matter of fact unlikely to be disturbed on appeal by a Full Court. Counsel for the applicant on the other hand says that the issue did involve elements of construction. In my view there are issues of characterisation that could attract appellate intervention if thought to be wrong. In any event it is clear that the first aspect of the grounds set out in the notice of appeal, that is to say the construction of the term 'proposed agreement' for the purposes of ss 170MI and 170ML, raises an important and arguable case of construction. 7 I conclude that there is a seriously arguable case in support of the grounds of appeal. The formulation which would express that conclusion in terms of 'doubt' attending the decision in my opinion sets the bar too high in a case such as the present. 8 The second factor which I have to take into account is a question essentially of case management. It is put by the applicant in terms of prejudice. That is to say if the proceeding were to go ahead to assessment of damages and penalties there would be considerable preparation, witness proofing and documentation involved in getting ready for the assessment hearing. In the event that an ultimate appeal against the first finding relating to the July action were upheld such work might have to be, at least in part, duplicated. The applicant submits that it is preferable to proceed to determine all issues which, as it were, go to liability, at the appellate level, before proceeding to damages assessment. 9 I agree with that view and on that basis, in my opinion, it is convenient and appropriate that leave be granted to appeal against my judgment in terms of the motion which was filed on 21 January 2005 and that the assessment of damages and penalties be held over pending the determination of the appeal. 10 The question whether the respondents might wish to consider any appeal in relation to that aspect of the judgment which is adverse to them is, of course, a matter for them. I would indicate that should the respondents wish to seek leave to appeal in respect of the aspects of the judgment that were adverse to them, or any part of that element of the judgment, I would be inclined to the grant of leave so that all matters as it were going to liability could be dealt with at the one time. The only thing is, I think any such application would need to be made fairly promptly if it were to be made at all. 11 I note that there was no formal order dismissing the application in so far as it sought declarations in relation to the July industrial action. I will make an order in those terms now which reflects the conclusions which I reached and which were expressed in the reasons for judgment given on 23 December 2004. 12 The orders I will make are as follows: 1. The application for declarations in respect of industrial action engaged in by the respondents from 17 July 2004 to 25 July 2004 is dismissed. 2. The applicant has leave to appeal from the dismissal of the application for such declarations on the grounds set out in its draft notice of appeal. 3. The assessment of damages and penalties is stood over until the hearing and determination of the appeal or until further order. 4. There is liberty to apply. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

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