FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - application for final and interim injunction pursuant to s 127(6) and (7) of Workplace Relations Act 1996 (Cth) (“the Act”) against registered organisation to enforce order of the Australian Industrial Relations Commission (“Commission”) made pursuant to s 127(1) of the Act - whether the Court has a duty to ensure that Commission order is a valid order - whether Commission order is valid on the face of the order - whether Commission order too wide and uncertain - whether defect in Commission order can be remedied by the Court .

Workplace Relations Act 1996 (Cth)  s 127

Inner and Eastern Health Care Network v Health Services Union of Australia (Marshall J, 11 November 1997, unreported), applied

Optus Networks Pty Ltd v City of Boroondara, [1997] 2 VR 318, applied

METAL TRADES INDUSTRY ASSOCIATION OF AUSTRALIA v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

VG 674 of 1997

MARSHALL J

MELBOURNE

4 DECEMBER 1997

THE COURT ORDERS THAT:

1.         The application for interim relief be dismissed.

2.         The substantive application be dismissed.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The substantive proceeding in this matter is an application by the Metal Trades Industry Association of Australia (“MTIA”) for an injunction pursuant to s 127(6) of the Workplace Relations Act 1996 (Cth) (“the Act”).  The application sought relief in the following terms directed to the respondent Union.

“1.       An Order restraining the Respondent whether by its officers, delegates, servants or agents or howsoever otherwise from engaging in conduct which constitutes a contravention of the Order made by Senior Deputy President Polites on 29 November 1997 in proceeding C No. 3855802 of 1997, before the Australian Industrial Relations Commission (the Order)

2.         An Order directing the Respondent to give to the Applicant by 10 am on Tuesday 2 December 1997 a letter on the Respondent’s letterhead and signed by an authorised officer of the Respondent, directing members of the Respondent to Comply with the Order.”

The application also claimed “by way of interim and/or interlocutory relief”, the relief sought in the substantive proceedings.  The application was filed in the Registry of the Court at approximately 1:00 pm on Monday 1 December 1997.  The MTIA’s application for an interim injunction pursuant to s 127(7) of the Act was listed for mention at 2.15 pm on that afternoon.  The hearing of the application for an interim injunction commenced at 5.00 pm on the same afternoon.  Proceedings were adjourned at 6.00 pm.  The matter resumed at 8.00 am on Tuesday 2 December 1997.  Counsel’s submissions concluded by noon.  At 12.30 pm the Court made its order in the application for interim relief and informed the parties that it would publish its reasons later.  What follows are my reasons for dismissing the application for an interim injunction.

BACKGROUND FACTS

The MTIA is an organisation of employers registered under the Act.  It represents the industrial interests of large numbers of employers in manufacturing industry.  The respondent Union, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, (“AMWU”) is an organisation of employees registered under the Act.  The AMWU represents the industrial interests of employees employed in a range of industrial pursuits including metal workers.

On 28 November 1997, the MTIA made application pursuant to s 127(2) of the Act to the Australian Industrial Relations Commission (“the Commission”) for an order pursuant to s 127(1) of the Act.  Section 127(1) of the Act provides as follows:

“If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:

(a)       an industrial dispute; or

(b)       the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or

(c)        work that is regulated by an award or a certified agreement;

the Commission may, by order, give directions that the industrial action stop or not occur.”

The application was made in the following form:

“Workplace Relations Act 1996

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Application for an Order to stop or prevent industrial action

In the matter of work that is regulated by the:

.           Metal Industry Award 1984, Part I

.           Metal Industry Award 1984, Part II

.           Metal Industry (Engine Drivers and Firemen’s) Award

.           National Metal and Engineering On-Site Construction Industry Award       1989

            (collectively “the Awards”)

Application is made by Metal Trades Industry Association of Australia for an order under subsection 127(2) of the Act in the following terms:

1.         Title

            This order shall be known as the Victorian WorkCover Industrial Order

2.         Parties Bound

            This order is binding on:

2.1       Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, its officers and members employed in Victoria on work subject to the awards (or any one of them)

2.2.      The Australian Workers’ Union, its officers and members employed in Victoria on work subject to the awards (or any one of them)

2.3       Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, its officers and members employed in Victoria on work subject to the awards (or any one of them)

2.4       Construction, Forestry, Mining and Energy Union, its officers and members employed in Victoria on work subject to the awards (or any one of them)

2.5       National Union of Workers, its officers and members employed in Victoria on work subject to the awards (or any one of them)

3.         Industrial action to stop

3.1       Industrial action as defined in clause 3.3 including in particular strikes, bans and limitations on the performance of work by persons to whom this order applies shall not occur on Wednesday, 3 December 1997

3.2       Industrial action as defined in clause 3.3 including in particular strikes, bans and limitations on the performance of work by persons to whom this order applies shall not for the duration of this order occur in support of claims by the Unions named in Clause 2 in relation to changes in WorkCover legislation in Victoria

3.3       For the purposes of this Order, the expression industrial action means:

3.3.1    Failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work;

3.3.2    A ban, limitation or restriction on the performance of work, or an acceptance of or offering for work;

3.3.3    The performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of work.

4.         Term and Date of Effect

            This Order shall come into effect at                on

            December 1997 and shall remain in force for a period of 12 months.

            The grounds on which this application is made are as follows:

a)         The aforementioned organisations of employees represented by the Metal Trades Federation of Unions (MTFU) have announced an intention to initiate strike action by their members for a period of 24 hours on Wednesday 3 December in Victoria in those industries covered by the awards referred to in this application.  A copy of an AMWU notice to this effect is Attachment 1.

b)         The industrial action is in response to a refusal by MTIA to accede to demands ‘to negotiate a package which broadly compensates workers for losses incurred as a result of the WorkCover legislation changes of 12 November 1997.’  See Attachment marked ‘2’.

(c)        The proposed strike would be the third occasion on which industrial action has affected members of MTIA in relation to proposed changes to WorkCover legislation in Victoria.

(d)        On 27 October 1997 Senior Deputy President Polites issued a Recommendation in the terms of the attached marked ‘3’.

(e)        The proposed strike action would not, to the best of the applicant’s knowledge and belief, be protected action within the meaning of the Act.

(f)        The proposed strike will cause substantial loss and damage to members of the applicant.

DATED 28th NOVEMBER 1997”

The s 127(1) application was heard by the Commission (constituted by Polites SDP) on 29 November 1997.  The AMWU appeared by counsel on that day.  The MTIA was represented by its solicitor.  The solicitor for the MTIA referred the Commission to the AMWU’s intention to direct its members to stop work for twenty-four hours on 3 December 1997 to attend a protest rally at Parliament House.  The protest was a response to legislative changes being made by the Victorian Parliament which would impact on the rights of workers and their dependents to be adequately compensated for injuries occurring at the workplace.

The Commission made an order in the following terms:

“A.       Further to a decision dated 29 November, 1997 of the Commission the following order is made.

1.         Title

This order shall be known as the Victorian WorkCover Section 127 Order.

2.         Parties bound

This order is binding on:

2.1       Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, its officers, members employed in Victoria on work subject to the awards (or any one of them).

3.         Industrial Action to Stop

3.1       Industrial action as defined in clause 3.2 shall not occur on Wednesday, 3 December, 1997.

3.2       For the purpose of this order, the expression ‘industrial action’ has the same meaning as that set out in s.4 of the Workplace Relations Act 1996.

B.         This order shall come into force on and from 29 November, 1997 and remain in force for a period of 14 days.”

After the Commission made its order on 29 November 1997, solicitors for the MTIA sought an undertaking in writing from the AMWU, by 10 am on 1 December 1997, that it would comply with that order.  No undertaking was given by that deadline.  Consequently, the MTIA issued the application which was before the Court.  Mr Bourke, of counsel, appeared for MTIA.  Mr Bell QC, with Ms Doyle of counsel, appeared for the AMWU.

THE COMPETING CONTENTIONS

The AMWU submitted that the Commission’s order was invalid.  It raised several submissions in support of that contention.  One such submission was that the effect of the order was “to inhibit the exercise of the constitutional protection of freedom of communication on matters of government and politics”.  It was also submitted that none of the fundamental requirements contained in s 127(1) of the Act had been fulfilled.  Further, it was submitted that the order was invalid having regard to its content.

The MTIA submitted that the order of the Commission did not infringe any implied constitutional right of freedom of communication.  It submitted that s 127(1)(c) of the Act provided the foundation for the order.  It further submitted that the content of the order did not render it invalid.

PROPER APPROACH TO SECTION 127(6) AND (7) APPLICATIONS

In considering whether or not to grant an injunction under s 127(6) and (7) of the Act the Court is not a mere rubber stamp for any order of the Commission purportedly made under s 127(1) of the Act.  The Court has a duty to ensure that any order of the Commission it enforces by way of injunction is a valid order.

In Inner and Eastern Health Care Network v Health Services Union of Australia (Marshall J, 11 November 1997, unreported), I said as follows:

“The making of an order by the Commission under s 127(1) of the Act is a very serious step.  Persons who are required to comply with such an order must know with certainty that it is directed towards their conduct.  Furthermore, an order under s 127(1) of the Act is the foundation upon which an application may be made under s 127(6) and (7) of the Act.  Failure to comply with orders of the Court under those subsections may lead to contempt of court proceedings.

It is critical for the purposes of proceedings in the Court pursuant to section 127(6) and (7) of the Act that the order made by the Commission under s 127(1) of the Act be a valid order.  It is also critical that such an order clearly identify the persons upon whom it is binding and the precise conduct which it seeks to prohibit.”

I adhere to those views.

INVALIDITY ON THE FACE OF THE ORDER

Clause 2.1 of the Commission’s order is expressed so as to make the order binding upon the AMWU, its officers and “members employed in Victoria on work subject to the awards (or any one of them).”  No awards are identified in the order.  A purpose of the order, indeed its reason for existence, was to ensure that certain AMWU members did not cease work on 3 December 1997.  Clause 2.1 of the order fails to identify the AMWU members to whom it is addressed.  The application identified four awards which regulate the wages and conditions of some members of the AMWU but those awards were not specified in the order of the Commission.  After Mr Bell made submissions identifying this fundamental defect in the order of the Commission, I was informed by Mr Bourke that after the proceedings in the Court were adjourned at 6.00 pm on 1 December 1997, but before the hearing resumed at 8.00 am on 2 December 1997, MTIA had approached Polites SDP on an ex-parte basis to rectify what was a “slip” in the order the subject of this application.  Mr Bourke sought to tender the “replacement order”.  Mr Bell objected to the tender but consented to the Court simply marking the “replacement order” for identification.  By the time submissions were concluded Mr Bourke did not press for the tender of the “replacement order”.  It is therefore not in evidence before me.  However it would be remiss of me not to observe that I view with disdain the conduct of the MTIA in attempting to remedy a defect in the order during a break in the Court proceedings when a live issue in the hearing was whether or not the order was void by virtue of defects of that kind.  If Mr Bourke had pressed for the tender of the “replacement order” I would have rejected it given that, at the very least, it was obtained in circumstances where natural justice was denied to the AMWU given that the AMWU was not afforded an opportunity to be heard on the variation of the order.  I will say no more about the “replacement order”.

Clause 2.1 of the order cannot be altered by the Court to remedy its defect.  As I said in Health Services Union of Australia:

“It is not the function of the Court to re-draft orders made by the Commission under s 127 of the Act.  It is the function of the Court to exercise its discretion as to whether or not it should grant an injunction to restrain contravention of the order made by the Commission.”

If no awards are specified in the Commission’s order, members of the AMWU will be justifiably confused about whether the order applies to them.  In my view the deficiency in clause 2.1 of the order renders the entire order meaningless and void.  The order as framed is unenforceable by injunction.

But that is not its only flaw.  I also accept Mr Bell’s submission that the order is void because it fails to adequately specify the particular conduct which it seeks to prohibit.  Clause 3.1 of the Commission’s order prohibits industrial action on 3 December 1997.  Clause 3.2 defines “industrial action” by reference to its meaning in s 4 of the Act.  That definition is not annexed to the order.  There was no evidence before me of the availability of copies of the Act at workplaces where persons allegedly subject to the order are employed.  Even so, properly construed, the definition of “industrial action” in the Act travels well beyond the conduct sought to be prohibited by the MTIA.  The purpose of the MTIA application under s 127(2) of the Act was to prevent a stoppage of work on 3 December 1997.  The definition of “industrial action” in the Act is extends to “go slows” and other forms of limitations.  It is not confined to stoppages.  The Commission’s order is therefore too wide and uncertain and not directed to any particular industrial action.  As I said in Health Services Union of Australia:

“... anyone who is the subject of an order of the Commission under s 127(1) of the Act, should not be left in any doubt as to what her or his obligations are pursuant to that order.  There should be no room for doubt or ambiguity as to the obligations of those affected by such an order.”

Further, as Charles JA said in Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318, 336 - 337:

“The relevant principles relating to the wording of interlocutory injunctions are well-settled, although their application is often a matter of difficulty.  Because a restraining injunction prevents the person affected from acting in a particular way, on pain of penalties for contempt of court, it is essential that the injunction be certain in its terms, so that the defendant may know precisely what may or may not be done pursuant to the injunction.  Imprecision and ambiguity must, so far as possible, be avoided in the launguage used: Australian Consolidated Press Ltd. v. Morgan (1964) 112 C.L.R. 483 at 503, 515; Redland Bricks Ltd. v. Morris [1970] A.C. 652 at 666-7; Meagher, Gummow and Lehane, Equity, Doctrines and Remedies, 3rd ed, (1992), pp. 619-20.  Furthermore an interlocutory restraining injunction should be made no wider in ambit than is necessary: National Australia Bank Ltd. v. Bond Brewing Holdings Ltd [1991] 1 V.R.. 386 at 556-9.”

These observations of Charles JA were directed to the wording of interlocutory injunctions.  Nevertheless they are, in my view, of assistance when considering the wording of an order of the Commission made pursuant to s 127(1) of the Act, in the context where any injunctive relief granted by this Court to enforce that order may expose a party to contempt proceedings.

It is also pertinent to observe that the opening and concluding words of s 127(1) of the Act indicate that particular industrial action as distinct from industrial action in general is what is sought to be prohibited.  The jurisdiction of the Commission is to “by order, give directions that the industrial action stop or not occur” (emphasis supplied).  The word “the” has been chosen instead of the word “any”.

Therefore I am also of the view that the order of the Commission is void for its want of specificity in relation to the particular industrial action sought to be stopped.

JURISDICTIONAL FOUNDATION

Having found that the order of the Commission is invalid it is unnecessary for the Court to deal with Mr Bell’s submission that the stoppage of work is not in relation to work but in relation to a political protest and therefore not capable of being prohibited by s 127(1) of the Act.

CONSTITUTIONAL ISSUE

It is also unnecessary for the Court to express any views on Mr Bell’s submission that s 127 of the Act cannot operate so as to inhibit the free expression of political opinion..

ORDER

For the above reasons the Court ordered on 2 December 1997 that the application for an interim injunction be dismissed.  In light of that order I invited Mr Bourke to address me on the orders he proposed for the conduct of the substantive proceeding.  I agreed with him that there was no utility in the substantive proceeding remaining on foot.  Mr Bourke invited me to dismiss the substantive application and I did so.

Associate:

Dated:              4 December 1997