Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108

1999FCA1108 - Corrigendum

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Termination of employment – Application for leave to appeal against interlocutory orders restraining employer from termination or requiring the reinstatement, of the employment of 53 employees – Whether primary judge erred in holding there was a serious question to be tried in relation to alleged contraventions of ss170MU and 298 of Workplace Relations Act - Whether primary judge should have disqualified himself on the ground of perceived bias – Dispute over log of claims resulted in industrial action involving picketing – Whether picketing is “industrial action” within the meaning of the Workplace Relations Act - Whether notice necessary for “protected action” was given – Whether the picketing was in concert with other unions or persons – Whether reinstatement orders may be made under s298U of the Act only after final determination of the matter.

Workplace Relations Act 1996, ss4, 170ML, 170MM, 170MO, 170MT, 170MU, 170NG, 170NH, 298K, 298L, 298U and 298V.

DAVIDS DISTRIBUTION PTY LIMITED v NATIONAL UNION OF WORKERS

NG900 of 1998

WILCOX, BURCHETT and COOPER JJ

SYDNEY

13 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 900 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DAVIDS DISTRIBUTION PTY LIMITED Applicant
AND:	NATIONAL UNION OF WORKERS Respondent
JUDGES:	WILCOX, BURCHETT and COOPER JJ
DATE OF ORDER:	13 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to appeal against the orders made by North J on 1 December 1998.

2. The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 900 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DAVIDS DISTRIBUTION PTY LIMITED

Applicant

AND:

NATIONAL UNION OF WORKERS

Respondent

JUDGES:	WILCOX, BURCHETT and COOPER JJ
DATE:	13 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 WILCOX and COOPER JJ: Davids Distribution Pty Limited (“Davids”) has applied to the Full Court for leave to appeal against interlocutory orders made by a judge of the Court (North J) on 1 December 1998. Those orders were made in a proceeding instituted against Davids by the National Union of Workers (“NUW” or “the Union”) on 11 August 1998 and arising out of an industrial dispute between NUW and Davids. The orders replaced earlier interlocutory orders of North J. In accordance with a direction made by the Court, counsel for the parties put full argument, as on the appeal itself.

Background to the litigation

2 NUW is an employee organisation registered under the Workplace Relations Act 1996 (formerly the Industrial Relations Act 1988 (“the Act”)). Davids carries on business as a grocery wholesaler and distributor. For that purpose it operates distribution centres in two Sydney suburbs, Blacktown and Silverwater, and at Fyshwick in the Australian Capital Territory. At the time when the industrial dispute commenced, Davids employed about 300 people at Blacktown, about 60 at Silverwater and about 20 at Fyshwick. Amongst those persons were many NUW members.

3 In October 1997 NUW served on Davids a log of claims seeking a new industrial agreement. The demands included higher wages for employees at the distribution centres. Davids refused to accede to the claims and there was a long running dispute involving proceedings in both the New South Wales and the Australian Industrial Relations Commissions.

4 At 16 June 1998, the dispute remained unresolved. On that day, NUW served on Davids a notice of intended industrial action. The notice was presumably intended to be a notice under s170MO of the Act, a provision contained in Part VIB of the Act dealing with certified agreements.

5 The 16 June notice referred to an indefinite stoppage. That notice was withdrawn only two days later. In the meantime, however, it apparently caused Ray Richards, Davids’ New South Wales Distribution Manager, to send to all warehouse staff at Blacktown, Silverwater and Fyshwick the following memorandum, dated 18 June 1998:

“The National Union of Workers has advised us that its members employed by us will be commencing an indefinite stoppage from tomorrow. As union delegates have commenced asking for annual leave we are forced to assume that there will be such a strike.

You should be aware that whilst your union is advising you that the strike is ‘protected action’ under Federal Industrial legislation, our legal advice is that it is not. This matter will not be resolved until well after the strike.

If our legal advice is correct and the strike was not protected action, then it is clear that if you take part in the strike you will be guilty of misconduct. Of course if the union is correct then you will not. It is a matter for you to decide whether to risk your employment on the basis of the union’s advice.

Regardless of the above issue, it is clear that stopping trucks entering and leaving the premises is not, and never can be, protected action.

Any employee who, whilst engaged in a strike or otherwise, interferes with the free access to or exit of any vehicles or people from any of the warehouses operated by this company will clearly be guilty of serious and wilful misconduct. Such employee’s employment will be terminated with immediate effect.”

6 On the same day NUW served on Davids a fresh s170MO notice in which it foreshadowed “protected action in the form of bans and rolling stoppages” by NUW members employed at the three distribution centres. The notice said the action “shall commence on Thursday, 25 June 1998” and “relates to the bargaining period initiated by the National Union of Workers in C No.21555 of 1998”. The notice was signed by Frank Belan, Branch Secretary of the New South Wales Branch of NUW.

7 North J made findings, which have not been criticised by counsel, as to what followed:

“On 25 June 1998, rolling stoppages commenced as notified. Then, at about 3 pm on 8 July 1998, an indefinite strike began and pickets were formed outside the entrances to the three distribution centres. On the next day, 9 July 1998, Mr Zammitt, the Assembly Manager at the Blacktown Distribution Centre, and Mr Blazejko, a Warehouse Supervisor at the Blacktown Distribution Centre, were instructed by Mr Richards, the State Manager for Distribution in New South Wales and the ACT, to take the names of employees whom they observed interfering with the free access of vehicles or persons at the Blacktown Distribution Centre. There were about 70 or 80 picketers present. Mr Zammit and Mr Blazejko identified 35 employees. On the same day, Davids sent letters to the 35 employees, in the following form:

‘Dear Sir,

You were observed at a picket line at the entrance of this company’s Distribution Centre at 37 Bessemer Street, Blacktown during the afternoon of Thursday, 9 July 1998.

Whilst on that picket line you were observed to interfere with the free access to or exit of vehicles and/or persons at the Distribution Centre. On the 18^th of June 1998, I wrote to you advising you that your employment would be terminated if you engaged in conduct of that kind.

As you are aware your conduct represents a dismissible offence. If you have any matter that you wish us to consider before taking action in respect of your conduct, your [sic] are invited to phone Mr David Small at or before 10:00am on 10 July 1998 on 9208-1358.

Failing any satisfactory explanation or matter in mitigation being raised with us by that time your services will be terminated and cheque will be forwarded to you for outstanding monies.’

On 14 July 1998, Davids sent letters in similar terms to four more picketers in relation to alleged obstruction which occurred on that day and, on 20 July 1998, Davids sent a further ten letters to more picketers in relation to alleged obstruction which occurred on that day. On 20 August 1998, Davids sent a letter to Mr Reti in generally similar terms, although it alleged particular incidents against Mr Reti. It stated that he had damaged a bus window on 14 August 1998 and a prime mover window on 15 August 1998. On 21 August 1998, Davids sent letters in generally similar terms to Mr Prasad and Mr Carratt, although they alleged a particular incident against both, namely, damaging a bus window on 11 August 1998. In total, Davids sent such letters to 52 picketers.”

8 Many of the employees to whom letters were sent claimed difficulty in contacting Mr Small before the deadline fixed in their letters; he was unavailable and did not return their call. Others claimed that Mr Small appeared uninterested in their explanation, he was concerned only to ascertain whether they were involved in the picket. Whatever the truth of these claims, between 10 July and 25 August 1998, Davids purported to terminate the employment of all 52 employees. Davids claimed before North J that all these employees were dismissed because they engaged in picketing, despite Mr Richards’ warning letter of 18 June 1998. It seems to be common ground that the 52 employees were involved in the picket, although there is no agreement or finding as to the nature of their individual activities. No doubt because of their involvement in the picket, North J adopted the convenience of referring to the 52 employees as “the picketers”. He referred to the remainder of the employees, who engaged in the indefinite stoppage, conducted between 8 July to 28 August 1998, as “the strikers”.

9 Shortly after the return to work, Davids threatened to dismiss one of the strikers, Alexander Pucar, ostensibly because of his involvement in an incident said to have occurred on 31 August. However, North J restrained Davids from carrying out the threatened dismissal.

The Supreme Court proceeding

10 On 13 July 1998 Davids commenced a proceeding in the Supreme Court of New South Wales. The detail is important to an appeal in that proceeding heard by us immediately before this application. For present purposes we need do no more than repeat North J’s summary:

“On 13 July 1998, Davids obtained an ex parte injunction from the Supreme Court of New South Wales against the Union and three officers, restraining them from impeding the entry or exit of persons or vehicles from the New South Wales distribution centres. On 15 July 1998, Davids filed a motion for contempt, based upon the alleged breach of the ex parte orders obtained two days before. The hearing of this motion commenced on 27 July 1998, and concluded on 7 August 1998. The day before the hearing concluded, Davids sent the Union an offer to settle the dispute. On the day the hearing concluded, 7 August 1998, Davids sent a letter to the strikers, in the following terms:

‘Dear Fellow Employee,

As you would be aware, the industrial dispute at our Blacktown and Silverwater sites has now been going for seven weeks. Whilst the company has made a substantial offer on increased wages, the union has apparently declined to even tell you of the offer or allow you to vote on it. Contrary to the misinformation contained in union circulars, the offer contains a number of changes to which the union has agreed and provides for a 6% wage increase whilst maintaining the 36 hour week.

Regardless of acceptance of the offer or otherwise the company is going to have to take some steps to return its operations to normal.

In early July we informed employees that the NUW maintained that the strike upon which employees were embarking was ‘protected action’. This has now changed.

Mr Belan, the NSW Secretary of the NUW, has announced on Radio 2KY and Radio 3CR that the action is being taken in conjunction with other unions including the MUA, the CFMEU, the AMWU, the CEPU and the Clerks Union. Section 170MM of the Workplace Relations Act makes it clear that industrial action is not protected if more than one organisation is involved. In other words, the strike is no longer a ‘protected action’. We have enclosed a copy of the section of the Act to assist you in obtaining advice. You should check Independent Legal Advice in relation to continuing with your strike.

As the strike is no longer a ‘protected action’, any further absence from employment by you is unauthorised absence from work for which you will be liable to termination.

UNLESS YOU ARE AT WORK ON OR BEFORE THE FIRST ROSTERED SHIFT ON WEDNESDAY THE 12^TH AUGUST, YOU WILL BE REQUIRED TO SHOW CAUSE WHY YOUR EMPLOYMENT SHOULD NOT BE TERMINATED.’”

The proceeding before North J

11 On 11 August 1998, the day before the deadline for return to work, NUW filed in the Victorian Registry of this Court an Application seeking the following orders:

“1. A declaration that the Respondent has engaged in conduct in contravention of s.170MU of the Workplace Relations Act 1996 (the ‘Act’) in dismissing or threatening to dismiss employees, members of the Applicant, engaged in industrial action.

2. A declaration that the Respondent has engaged in conduct in contravention of Part XA of the Act in dismissing or threatening to dismiss employees, members of the Applicant, engaged in industrial action.

3. A declaration that the purported termination of employees, members of the Applicant, engaged in industrial action on and after 8 July 1998 was and is ineffective and void.

4. An order that the Respondent treat all persons employed by it on 8 July 1998 as employees of the Respondent and any purported termination of such person as void.

5. An order restraining the Respondent, its servants or agents from taking any and all steps to give effect to any purported termination of employment effected on or after 8 July 1998 and/or to give effect to any threat of termination made on or after 8 July 1998.

6. Penalties.”

12 The Application also foreshadowed the following claim for interlocutory relief:

“1. An order that, until further order of the Court, the Respondent, by its servants and agents, take no steps to give effect to any purported termination of employees of the Respondent who are members of the Applicant.

2. An order that, until further order of the Court, the Respondent, by its servants and agents, take no steps to give effect or carry out any threat to dismiss or terminate any employee of the Respondent, being an employee who is a member of the Applicant.”

13 The application for interlocutory relief came before the Melbourne duty judge, North J. It is convenient for us to reproduce his Honour’s account of the various hearings before him:

“On 11 August 1998, most of the employees of Davids were on strike and many of them were present on the picket. At the first hearing, on 11 August 1998, Davids gave undertakings not to dismiss any employees until 4.15pm on Friday, 14 August 1998, and the further hearing was adjourned until then.

On Friday, 14 August 1998, the matter was again mentioned. Davids expressed concern about the continuance of the picket and alleged continuing breach of the orders of the Supreme Court of New South Wales. The Union was not able to offer an undertaking in respect of the continuance of the picket. Consequently, the hearing was adjourned for mention by videolink on Monday, 17 August 1998, to allow the Union to consider the question. No injunctions were granted in the meantime.

On Monday, 17 August 1998, the Union was still not able to undertake that there would be no picket action by its members. But it indicated that the question would be considered by a meeting of members on Wednesday, 19 August 1998. Consequently, no injunctions were granted and the application for interim orders was adjourned for full argument until 26 August 1998.

On 26 August 1998, the application for interim orders was argued. The Union offered undertakings as to damages and an undertaking to cease industrial action. Davids indicated that it wanted the employees, other than the picketers, to return to work. For practical purposes, the only issue between the parties at the end of this day was whether the balance of convenience favoured the making of orders. The only issue of substance urged by Davids on this question was that the return of the picketers would cause acrimony in the workplace. As there was no evidence of this likelihood and Davids was prepared to take back strikers who had been on the picket but had not been dismissed for their attendance, the Court granted injunctions in the following terms, on the undertakings set out below:

‘UPON THE APPLICANT by its Counsel undertaking to pay to any party adversely affected by these Orders such compensation (if any) as the Court thinks just, in such manner as the Court directs –

AND UPON THE APPLICANT by its Counsel further undertaking that from 3:00pm on Friday 28 August 1998 it will not engage in any industrial action relating to the negotiations with the Respondent concerning an enterprise agreement –

In this undertaking ‘industrial action’ does not include any action by an employee if:

(a) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(b) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another work place, that was safe and appropriate for the employee to perform.

AND UPON THE APPLICANT by its Counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998.

AND UPON THE APPLICANT by its Counsel further undertaking to enter into an agreed process of discussion with the Respondent as to the circumstances of the purported termination of each of the 52 employees with a view to narrowing the differences between the parties on this issue.

THE COURT ORDERS THAT:

1. Until 4:00pm on 9 September 1998, the Respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons employed by it on 8 July 1998 as employees of the Respondent with continuity of service save and except for the purpose of payment of wages; and

2. Until 4:00pm on 9 September 1998, the Respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, be restrained from taking all and any steps to give effect to any purported termination of employment effected on or after 8 July 1998 or to give effect to threat of termination made on or after 8 July 1998.

3. The further hearing of this application be adjourned to 10:15am on 9 September 1998 to consider the extension of the above orders beyond 9 September 1998 and for directions.

4. Liberty to apply on very short notice.’

Reasons for decision were given. The further hearing was adjourned until 9 September 1998 to allow Davids to adduce evidence on the narrow question of the possible difficulty arising in the workforce from the continued presence of the picketers at work.

As a result of the orders, the strikers and picketers returned to work in shifts commencing on 28 August 1998.

On 9 September 1998, new counsel appeared for Davids. They sought to reopen the entire argument. In the end, I reluctantly agreed to hear argument on all issues and Davids’ argument took the entire day. In the course of argument, counsel for Davids raised the problem that the existing orders prevented resignations of employees and prevented Davids recognising the abandonment of employment by some employees. Consequently, the orders made on 26 August 1998 were slightly modified, by adding a new paragraph 2, as follows:

‘2. Order 1 does not apply to employees of the Respondent who resign or abandon their employment.’

Otherwise, the orders made on 26 August 1998 were continued until 22 September 1998, the date fixed for the Union to put its argument in response.

On 22 September 1998, the Union put its argument and Davids foreshadowed an application for disqualification. This application, which is dealt with in detail later in these reasons, was heard on 23 September 1998. On 23 September 1998 I reserved my decision in relation to the application for interim relief and on the application for disqualification. The orders made on 26 August 1998, as modified on 9 September 1998, were continued until the determination of the application for interim orders.

The Union argued that the existing orders should be further continued and Davids argued that the orders should be discharged.”

The orders of 1 December

14 North J considered the arguments put to him at the hearings he identified. On 1 December 1998 he made new orders and delivered comprehensive reasons for judgment. The orders were as follows:

“UPON THE APPLICANT by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the Court directs –

AND UPON THE APPLICANT by its counsel further undertaking that it will not engage in any industrial action relating to the negotiations with the respondent concerning an enterprise agreement –

In this undertaking ‘industrial action’ does not include any action by an employee if:

(a) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

AND UPON THE APPLICANT by its counsel undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents, or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor on account of the participation or non-participation in industrial action or on account of the performance or non-performance of any work during the period between 8 July 1998 and 28 August 1998.

THE COURT ORDERS THAT:

1. Until further order, the respondent, Davids Distribution Pty Ltd by itself, its servants and agents, treat all persons named in the schedule to this order as employees of the respondent with continuity of service save and except for the purpose of payment of wages; and

2. Until further order, the respondent, by itself, its servants and agents, is restrained from terminating the employment of the said employees and Alexander Pucar.

3. Paragraphs 1 and 2 do not prevent the respondent accepting the resignation of any of the said employees or Alexander Pucar.

4. Liberty to the parties to apply on the giving of 24 hours’ notice in writing to the other party.

5. The respondent’s application for disqualification is dismissed.”

The Schedule contained 52 names. As we understand the position, they are the names of the 52 people Davids had purported to dismiss between 10 July and 25 August.

Relevant statutory provisions

15 In order to understand North J’s reasons for these orders, it is necessary to be aware of some provisions of the Workplace Relations Act. First, Part VIB deals with certified agreements. We do not need to discuss the nature or effect of certified agreements. However, we must refer to Divisions 8 and 10 of the Part.

16 Division 8 commences with s170MI. That section permits an employer, an organisation of employees or an individual employee to initiate a “bargaining period” for negotiating a proposed certified agreement. This is done by giving a written notice to each other negotiating party. Particulars must be supplied (s170MJ) and the bargaining period begins seven days after the notice was given (s170MK). Section 170ML creates an entitlement to take “protected action” during the bargaining period. As the form of that section assumed some importance in the argument before us, we set out its relevant parts:

“(1) …

(2) During the bargaining period:

(a) an organisation of employees that is a negotiating party; or

(b) a 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 whose 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.

(3) Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:

(a) supporting or advancing claims made by the employer in respect of the proposed agreement; or

(b) responding to industrial action by any of the employees whose employment will be subject to the agreement;

to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.

(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.

(5) …

(6) …

(7) This section has effect subject to the following provisions of this Division.”

17 The term “industrial action” is defined by s4 of the Act:

“industrial action (except in Part XA) means:

(a) 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 the work, where:

(i) the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or

(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute;

(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;

(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or

(d) a 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, if;

(i) the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or

(ii) the failure or refusal is in connection with an industrial dispute; or

(iii) the persons are employed by the Commonwealth or a constitutional corporation; or

(iv) the persons are employed in a Territory;

but does not include:

(e) action by employees that is authorised or agreed to by the employer of the employees; or

(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or

(g) action by an employee if:

(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.”

18 Sections 170MM and 170MN impose some limitations on permissible industrial action. Only s170MM is presently relevant. It provides:

“170MM(1) Engaging in industrial action is not protected action if:

(a) it is engaged in in concert with one or more persons or organisations that are not protected persons; or

(b) it is organised other than solely by one or more protected persons.

(2) Organising industrial action is not protected action if;

(a) it is organised in concert with one or more persons or organisations that are not protected persons; or

(b) it is intended to be engaged in other than solely by one or more protected persons.

(3) In this section:

protected person means:

(a) an organisation of employees that is a negotiating party; or

(b) a member of such an organisation who is employed by the employer; or

(d) an employee who is a negotiating party.”

19 Section 170MO(1) provides that action mentioned in s170ML(2) by an organisation of employees (amongst others) is not protected action unless the requirements of s170MO(2) are met. That subsection provides:

“(2) The requirements are that:

(a) if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement – the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or

(b) in any other case – the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days’ written notice of the intention to take the action.”

Subsections (3) and (4) contain counterpart requirements for notice by employers. Subsection (5) states that a written notice or other notification under the section “must state the nature of the intended action and the day when it will begin”.

20 It is possible to pass over ss170MP to 170MS. Section 170MT confers some immunities on parties engaging in protected action. It reads:

“170MT(1) An order made by the Commission under section 127 does not apply to protected action.

(2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action.”

21 Section 170MU is of central importance to NUW’s argument. It reads:

“170MU(1) An employer must not:

(a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

(b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.

(2) Subsection (1) of this section does not apply to any of the following actions taken by the employer:

(a) standing-down the employee;

(b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;

(3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.”

The remainder of Division 8 is not presently material.

22 Division 10 relates to enforcement and remedies. By s 170ND, it identifies certain “penalty provisions”, including s170MU, and, by s170NE, “eligible courts”, including this Court. Section 170NF empowers an eligible court to impose a penalty on a person who contravenes a penalty provision. The section specifies maximum penalties and the persons by whom applications may be made. Section 170NG deals with injunctions and s170NH with reinstatement of employees. They read:

“170NG An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision.

170NH(1) If an employer contravenes section 170MU, an eligible court may order the employer;

(a) if the contravention was constituted by dismissing an employee – to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and

(b) in any case – to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.

(2) The rights of and relating to reinstatement that are conferred on a person by this section do not limit any other rights of the person.”

23 Second, reference must be made to Part XA of the Act, relating to freedom of association. It includes Division 3 headed “Conduct by Employers”. The Division includes s298K which relevantly provides:

“298K(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a) dismiss an employee;

(b) injure an employee in his or her employment;

(d) refuse to employ another person;

(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person.

(2) …”

24 In argument before North J, NUW relied on paras (e), (l) and (n) of s298L(1). They read:

“298L(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

“…

(e) in the case of an employee – has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or

…

(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or

…

(n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i) lawful; and

(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.”

25 Division 6 of Part XA (ss298T – 298V) deals with remedies. Subject to some presently immaterial qualifications, 298T permits the making of applications to the Court for orders under s298U in respect of conduct contravening Part XA. Section 298U provides:

“In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

(i) in the case of a body corporate - $10,000; or

(ii) in any other case - $2,000;

(b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;

(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;

(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;

(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;

(f) any other consequential orders.”

26 Section 298V relates to onus of proof;

“298V: If:

(a) in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.”

North J’s reasoning

27 North J commenced his reasons for judgment by setting out the relevant statutory provisions and dealing with some procedural issues raised by counsel for Davids. He then dealt with a submission that s298U did not empower the Court to make interim orders for reinstatement. This submission had two aspects. First, it was said orders under s298U of the Act could be made only after a final determination that there had been a contravention of Part XA. North J rejected this submission as being inconsistent with the view expressed by a majority of the High Court of Australia in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 at 655. The second proposition was that s298U did not authorise an interim order for reinstatement, as distinct from enjoinder of dismissal. North J said:

“Counsel for Davids contended that there was a general power to grant interim injunctions in s298U(e). The power to grant specific relief by way of reinstatement was contained in s298U(b). This specific power was not expressed to include a power to grant interim reinstatement. Consequently, it was argued, Parliament must be taken to have intended that the power to order reinstatement was limited to the making of final orders. The Union relied on s23 of the Federal Court of Australia Act as the source of power to make interlocutory orders for reinstatement. It provided:

‘The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.’

Davids then responded that s298U was an exclusive code, restricting the relief available by way of reinstatement to final orders.”

28 After considering authorities, including Patricks Stevedores in the Full Court of this Court and the High Court, North J concluded:

“In the same way that the majority of the High Court in Patricks held that s298U(e) was not an exclusive code of the remedies available under that section, I hold that s298U(b) is not an exclusive code of the remedies available. Section 23 of the Federal Court of Australia Act allows the Court to make interlocutory orders for reinstatement.”

29 Turning to Part VIB of the Act, North J accepted Davids’ submission that s170NH, dealing with reinstatement, applied only to past contraventions. But he rejected the further submission that this precludes the making of an interim order. His Honour said:

“Counsel for Davids, however, submitted that s170NG and s170NH permitted the Court to make final orders only. In respect of s170NH, this conclusion flowed from the opening phrase ‘If an employer contravenes section 170MU …’. It was argued that these words required the establishment of a proven contravention before any orders could be made. Doubtless, the purpose of these words is to specify the jurisdiction of the Court to make final orders. In my view, that is the only purpose of the phrase. It has nothing to say, either expressly or by implication from its context, about the circumstances in which interim orders may be made. Section 170NH is not an exclusive code in relation to reinstatement orders. It does not exclude the operation of s23 of the Federal Court of Australia Act in respect of the power to make interlocutory orders for reinstatement.

…

In my view, s23 of the Federal Court of Australia Act gives power to make interlocutory orders in cases in which final orders may be made under s170NG or s170NH. Nothing in these sections suggests that they restrict the application of s23. Section 23 is available in the same way and for essentially the same reasons as it is available in relation to 298U.”

30 North J noted the established principles relating to the making of interlocutory injunctions. In connection with the issue whether there was a serious question to be tried, his Honour mentioned the contention of counsel for Davids that:

“the picketing was not protected action because:

(a) the notice of intention to take industrial action did not conform to the requirements of s170MO;

(b) picketing was not industrial action within the definition in s4(1) of the Act;

(c) the action was taken in concert with other Unions and was therefore not protected, as a result of the operation of s170MM.”

31 North J expressed views about these contentions (to which we will return) before concluding that, “on the evidence as a whole, the Union has established that there is a serious issue to be tried that the picketers were dismissed, at least partly, for the reason that they engaged in protected action in contravention of s170MU(1)(a)”. [Despite the absence of a comma after “protected action,” his Honour undoubtedly meant there was a serious issue that the dismissal was in contravention of s170MU(1)(a).] He also said NUW had established a serious question to be tried:

“that Davids threatened to dismiss the strikers, at least in part, for the reason that they were engaging in protected action, namely, participating in the continuance of the strike, in contravention of s170MU(1)(b).”

North J emphasised these conclusions were necessarily preliminary; they were made on the basis of affidavit evidence that had not yet been tested by cross examination.

32 His Honour then turned to the question whether there was a serious question to be tried that Davids dismissed the picketers, and threatened to dismiss the strikers, all of whom were members of an industrial association that was seeking better industrial conditions, because they were dissatisfied with their conditions: see s298L(1)(l) of the Act. For reasons that he gave, and to which we will return, North J held there was such a question.

33 North J gave attention to a number of matters relevant to the proper exercise of his discretion: the strength of the applicant’s case on the issue of serious question to be tried and the balance of convenience in relation to the strikers, the picketers and Mr Pucar. We need not go into these matters. Counsel for Davids did not seek to persuade us we should interfere with the manner of exercise of the Court’s discretion, assuming there was power to make the orders, and NUW’s case raised a serious question to be tried.

The application for disqualification

34 After indicating the relief that he thought appropriate, North J dealt with the application made by Davids’ counsel on 22 September 1998 that he disqualify himself from determining the application for interim orders and further hearing the case, on the ground of reasonable perception of bias. His Honour detailed his reasons for rejecting that application. We think he was correct to do so. We have had the advantage of reading the reasons for judgment of Burchett J. His Honour there sets out the relevant principles. We agree with, and gratefully adopt, his Honour’s analysis. We have considered for ourselves the passages of transcript upon which counsel relied to support the claim of perceived bias. We agree with Burchett J that they do not establish the claim.

Power to grant interim relief

35 Counsel for Davids repeated to us the submission put to North J that the Court had no power to grant interim relief restraining an employer from terminating an employee’s employment in contravention of s170MU or s298K of the Act. Counsel’s argument is that “jurisdiction to found the orders must be identified in the Workplace Relations Act, that being specific legislation which sets about directly dealing with the power conferred on the Court”. In particular, counsel contended the Court was not entitled to apply s23 of the Federal Court of Australia Act 1976. Counsel cited three authorities: Thompson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, Dunham v Randwick Imaging Pty Ltd (1994) 122 ALR 323 and Jackson v Sterling Industries Limited (1987) 162 CLR 612.

36 Like North J we think this submission is resolved against Davids by the decision of the High Court in Patrick Stevedores. Contrary to counsel’s submission to us, the High Court did not hold s23 of the Federal Court of Australia Act to have been available in that case only because there was an allegation of conspiracy. At para [27] Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said:

“Once the jurisdiction conferred on the Federal Court by the Act is invoked, that court has power under s23 of the Federal Court of Australia Act 1976 … to make ‘orders of such kinds, including interlocutory orders … as the Court thinks appropriate’. That power may be exercised in any proceeding in which the Federal Court has jurisdiction unless the jurisdiction invoked is conferred in terms which expressly or impliedly deny the s23 power to the court in that class of proceeding. It cannot be invoked to grant an injunction where the court acquires its jurisdiction under a statute which provides an exhaustive code of the available remedies and that code does not authorise the grant of an injunction. But this is not such a case.”

In using the words “this is not such a case”, their Honours were referring to a case in which the Federal Court had been asked to restrain a threatened breach of s298K by employers. They held, in effect, that para (e) of s298U of the Workplace Relations Act did not exclude the general powers conferred on the Court by s23 of the Federal Court of Australia Act. As North J pointed out, parity of reasoning must lead to the same conclusion about the argument that s298U(b) provides an exclusive code of remedies.

37 In Patrick Stevedores the High Court was not concerned with Division 8 of Part VIB of the Act; there was no “protected action” situation. However, the same line of reasoning must apply to Davids’ argument that s170NG provides an exclusive code of remedies. There is nothing in Division 8 that provides express or implicit support for that proposition.

38 Both Thomson and Jackson were considered by the High Court in Patrick Stevedores. Their Honours saw no inconsistency between those decisions and the view they expressed. Nor do we.

39 If Dunham was inconsistent with Patrick Stevedores, we would have to conclude it was wrongly decided. But it is not. The only presently relevant portion of Dunham is what appears at 327-329. Wilcox CJ there discussed s431 of the Industrial Relations Act and its predecessors. Section 431 was framed in substantially similar terms to the present s170NG. Far from supporting Davids submission, the discussion indicates that a provision in the form of s170NG would normally empower the Court to make an interlocutory order restraining a threatened contravention of statutory provisions. The reason the Industrial Relations Court could not take that course in Dunham was the existence of s170EH, which specifically excluded the application of s431 to a contravention or proposed contravention of the sub-division of the Industrial Relations Act on which Mr Dunham’s case depended. There is no counterpart of s170EH in this case. As Mr Dunham had not yet been dismissed, Wilcox CJ did not need to consider whether, but for s170EH, s431 of the Industrial Relations Act (or s419 which corresponded to s23 of the Federal Court of Australia Act) would have empowered the Court to make an interlocutory reinstatement order.

40 We reject the submission that the orders made by North J were beyond the power of the Court.

Serious question to be tried

41 As North J appreciated, the first matter that needs to be considered, in relation to the granting of an interlocutory injunction, is whether there is a serious question to be tried. When the proceeding was commenced, there was a threat by Davids to terminate the employment of the strikers, if they did not return to work on 12 August. They did not return to work that day but did return on 28 August. Notwithstanding the delay, Davids took no action to dismiss any of the strikers, except Mr Pucar, and counsel for Davids informed North J that none of the strikers would be dismissed for having been on strike. Consequently, the dismissal threat disappeared from the case. The only remaining questions, at least on an interlocutory basis, were, first, whether or not the Court should make an order requiring Davids, in effect, to reinstate the picketers pending final disposal of the proceeding, and, second, whether or not the Court should restrain Davids from dismissing Mr Pucar. It followed that, in considering the question of serious issue to be tried, the main matter North J had to consider was whether there was an arguable case that the dismissals of the picketers were in contravention of the Act. As already recounted, NUW relied on alleged contraventions of two provisions: ss170MU and 298K. Davids submitted the evidence before North J did not disclose an arguable case in relation to either section. If that is correct, there was no basis for an interim injunction. In order to determine whether it is correct, it is necessary to examine the position in relation to each section.

The s170MU claim – the issues

42 Davids did not dispute NUW’s assertion it had dismissed the 52 picketers. It claimed it did so because those employees were guilty of serious and wilful misconduct in that they interfered “with the free access to or exit of any vehicles or people” from one of the company’s warehouses; that is, they were involved in a picket that stopped trucks approaching the warehouse whilst people involved in the picket attempted to persuade the driver not to proceed further. NUW said this was “protected action” within the meaning of Division 8 of Part VIB of the Act and, consequently, the dismissals contravened s170MU. Davids argued the picketing was not “protected action” for any one of three reasons:

(i) the picketing was not “industrial action” within the meaning of the Act; therefore, it could not be “protected action”;

(ii) even if the picketing was “industrial action”, NUW had given no notice of that action, as required by s170MO of the Act; therefore it was not “protected action”; and

(iii)even if the picketing was initially “protected action”, it lost that status when NUW first acted in concert with other organisations: see s170MM.

We will deal separately with each of these points.

Is picketing “industrial action”?

43 The question whether picketing falls within the statutory definition of “industrial action”, quoted above at para 17, is not free from difficulty. The question has been touched on in several cases but not conclusively resolved. Counsel for NUW argued picketing does fall within the definition and particularly relied on para (c). Counsel said the picket imposed in this case was a “ban, limitation or restriction on the performance of work”, (by those whose trucks were stopped) that was adopted (by NUW and some of its members) in connection with an industrial dispute. Counsel acknowledged para (c) might be read as referring only to bans, limitations and restrictions on the activities of those imposing them, but they argued this reading unwarrantedly restricts the words used in the paragraph; the better view is that Parliament intended para (c) to be given a wide interpretation. They argued picketing has been a familiar form of industrial action for generations; it is therefore unlikely that Parliament chose to exclude it, when it adopted the current paras (a) to (f) in 1988. Counsel referred to a comment about the definition in the Explanatory Memorandum circulated, by the then Minister for Industrial Relations, with the Bill for the 1988 Act:

“Industrial action’ is given a wide meaning, and is capable of applying to conduct by any persons, whether employers, organisations, employees or others. Under paragraphs (e) and (f) of the definition, conduct described in the definition is not to be regarded as industrial action by employees where agreed to or authorised by their employer, or as industrial action by an employer where agreed to or authorised by, or on behalf of, employees of the employer.”

(The 1988 definition differed from that used in the previous legislation, the Conciliation and Arbitration Act 1904, primarily by the addition of para (c). The 1904 Act definition included paragraphs substantially identical to paras (a), (b) and (d), but not para (c).) Counsel also referred to a comment made by a later Minister for Industrial Relations, in his Second Reading Speech for the 1993 Bill that first introduced into Commonwealth law the concept of “protected action”:

“Industrial action – including strikes and lockouts – which takes place during a bargaining period for a proposed single business certified agreement will be immune from sanctions. Action involving personal injury, wilful or reckless damage or the unlawful taking of property, or defamation, will, however, not be immune from sanctions. This aspect of the legislation will give effect to Australia’s international obligations in respect of the rights of workers to engage in industrial action, subject to reasonable restrictions.

For access to the bargaining period, a party must give notice to the other party of an intention to seek an agreement and must comply with directions from the commission regarding bargaining in good faith. The commission will be able to terminate a bargaining period on application if it considers a party is not genuinely trying to reach an agreement or is not complying with directions related to bargaining in good faith. The commission may terminate the bargaining period if the industrial action is threatening to endanger the safety, health or welfare of the public or cause significant damage to the Australian economy.”

44 Counsel for Davids turned their opponents’ argument back upon them. They conceded picketing was a well-known form of industrial action in 1988 and argued it should therefore be concluded that, if Parliament had intended to include picketing in the definition, it would have referred to it by name. Counsel for NUW responded by pointing out the definition also fails to make express reference to strikes and lockouts; yet these were clearly intended to be “protected action” within the meaning of the 1993 amendment, and therefore a species of “industrial action”.

45 In F H Transport Pty Ltd v Transport Workers’ Union of Australia (1997) 145 ALR 366, Drummond J was asked to restrain action “in which TWU officials … have intervened at terminals operated by NQX, John Bain Transport and United Transport Services, to prevent the applicants’ vehicles and drivers loading and unloading goods, including containers”. There was a question whether this was “protected action”. Drummond J held it was arguable it was not, but only because it seemed the conduct was being undertaken with the additional purpose of coercing companies, other than the employer, to increase their wage rates. His Honour seems to have accepted, although probably without argument on the point, that picketing activity was “industrial action”.

46 Castlemaine Perkins Pty Limited v Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia [1997] S.C.Qld (2 December 1997) was a decision of Derrington J. The case concerned a claim under Queensland industrial legislation that was modelled on the federal legislation. The Queensland legislation contained a definition of “industrial action” that was similar to that in s4 of the Workplace Relations Act. It also made no express reference to picketing. Derrington J commented:

“It [picketing] is such a significant part of industrial action that if it were intended to have been excluded it might be thought, firstly, that that would somehow be made plain rather than depend upon an exclusive reading of fairly broad provisions of a definition; and secondly, that it would have been referred to in the Minister’s speech.”

47 The question whether picketing might constitute “industrial action” was debated before the Australian Industrial Relations Commission (“the Commission”) in proceedings relating to the termination of a bargaining period: see (before Justice Boulton) Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269 and (on appeal to the Full Bench) Coal and Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union (1998) 80 IR 14. There was a division of opinion on the point. At first instance Justice Boulton thought picketing might constitute “industrial action”, as did Justice Munro on appeal. President Giudice took the opposite view. Commissioner Larkin left her position unclear.

48 The Full Bench decision in Coal and Allied Operations came under challenge before a Full Court of this Court (Spender, Moore and Branson JJ): see Construction, Forestry, Mining and Energy Union v Giudice (“CFMEU”) (1998) 159 ALR 1. In granting writs of certiorari and mandamus, the Court dealt with many matters, one of which was “the relevance of picketing in deciding whether to terminate a bargaining period”. In connection with that topic, the Full Court heard argument as to whether picketing was “industrial action” within the meaning of s4 of the Act, but their Honours did not express a final conclusion about the matter. They said at 13-14:

“The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in para (c) of the definition. That is, if it is a restriction on the performance of work or on the acceptance of or offering for work. The word ‘picketing’ may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace. The word ‘picketing’ may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere).

Even if used to describe the latter situation, it is unlikely that picketing is conduct comprehended by the expression ‘a … restriction on the performance of work’ as it appears in para (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression ‘a … restriction … on acceptance of or offering for work’ in para (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in para (c) relate to circumstances of the type just discussed. It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.”

49 It is clear from the Full Court’s reasons in CFMEU that their Honours were aware of the judgments of Drummond J and Derrington J mentioned above. It is not clear whether they were referred to the 1988 Explanatory Memorandum or the 1993 Second Reading Speech. Nor is it clear whether argument was addressed to the consequences of adopting one view or the other. There is at least one important consequence. Section 127(1) of the Workplace Relations Act provides:

“(1) 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

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

Subsection (2) permits the Commission to make an order under subs (1) of its own motion or on the application of a party to the industrial dispute, a person who is directly affected, or likely to be directly affected, by the industrial action or an organisation of which an affected person is a member. Subsection (5) requires the addressee of an order to comply with it and subss (6) and (7) empower this Court to enforce the order by injunction. It will be obvious that, if picketing is not “industrial action”, the Commission has no power directly to deal with it.

50 In assessing the significance of this point, it is relevant to note that, in the 1988 Act, s127 took a more limited form; it applied only to “industrial action by persons engaged in the public sector”. Nonetheless, to the extent that such persons might engage in picketing, the point was the same.

51 The relationship between s127 and the definition of “industrial action” was discussed by French J in a decision given only two days before the Full Court CFMEU judgment: Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (“CEPU”). The case arose out of stoppages at three power stations, in protest against industrial legislation introduced into the Western Australian Parliament. A picket line was established at Muja power station. Commissioner Laing made orders under s127 of the Act prohibiting the CEPU, its officials, agents and employees taking part in industrial action “including engaging in or being party to or concerned in picket lines, strikes, bans and limitations on performance of normal work”. In a proceeding remitted to the Federal Court by a Justice of the High Court of Australia, CEPU challenged Commissioner Laing’s orders on a number of grounds. One question was whether the picketing activity at Muja was “industrial action”, as defined in s4 of the Act. At 88 French J noted the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, “but fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line”. He went on:

“The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 114 ALR 551 at 555-7. It is apparent that it is a wider class of conduct than industrial action under s127. At common law it is not necessarily unlawful but may become so if it involves obstruction and ‘besetting’: Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA).

To constitute ‘industrial action’ under s127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a ‘ban, limitation or restriction on the performance of work’. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer’s premises and from carrying out their work could constitute a ban for the purposes of s127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s127. In this case the Commission’s order literally applied only to such participation in picket lines as was industrial action. The term ‘industrial action’ provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in para 4 of the order to the application of the statutory definition of industrial action ‘for the purposes of this order’.

The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers, however, did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket.”

Australian Builders’ Labourers’ v J-Corp, referred to by French J, was a case under s45D of the Trade Practices Act 1974. That section did not use the words “picket” or “picketing”. The value of the passage cited by French J is that it demonstrates that activities falling within the general description of “picketing” may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress.

52 Activity that merely involves communication of information to persons entering or leaving a site is not “industrial action”, within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a “ban, limitation or restriction on the performance of work” by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of “industrial action”. However, consistently with the tentative view of the Full Court in CFMEU, we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely Parliament intended to confine the paragraph in this way.

53 It will be recalled that s170MT(2) excludes from its immunity “industrial action” that “has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

North J thought the presence of this exception was a pointer to the meaning to be ascribed to “industrial action”. He said the limitation of the immunity:

“is likely to have been drawn with picket conduct in mind. If picketing was not industrial action, the limitation would apply only to injury to person or property associated with strikes or conduct such as work to rules. Personal and property injury is far more likely to be associated with a picket than with a refusal to work or a work to rules.”

54 We understand that reaction but are not persuaded the limitation arose out of consideration of the width of the definition of “industrial action”. There have been, and remain, many exclusions in this Act identical to those contained in paras (a), (b) and (c).

55 When originally enacted in 1988, the Act contained a provision (s164) which excluded actions under a law of a State or Territory against a trade union, or an officer, member or employee of a trade union in relation to what the Act called “boycott action”. No limitations were imposed on the extent of that immunity. However, in 1993 s164 was amended so as to exclude from the immunity “conduct that has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

Also a new subs (3) was inserted, dealing with defamation actions.

56 At the same time a new section was added, as follows:

“166A(1) Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission :

(a) has certified in writing as mentioned in paragraph (6)(a) or (c) in respect of the conduct; or

(b) has certified in writing as mentioned in paragraph (6)(b) in relation to the person in respect of the conduct.

(2) Subsection (1) does not apply to:

(a) conduct that has resulted in :

(i) personal injury; or

(ii) wilful or reckless destruction of, or damage to, property; or

(iii) the unlawful taking, keeping or use of property; or

(b) conduct arising out of a demarcation dispute; or

(c) conduct arising out of a dispute relating to a claim for payment to employees in respect of a period during which the employees engaged, or engage, in industrial action.

(3) A person who wants to bring an action in tort in respect of conduct to which subsection (1) applies may give written notice to a member of the Commission or a Registrar stating that the person wants to bring the action.

(4) If a notice under subsection (3) is given to a Registrar, he or she must tell a member of the Commission as soon as practicable.

(5) If such a notice is given, the Commission must take immediate steps to try, or to continue to try, by the exercise of its powers under this Act, to stop the conduct.

(6) If:

(a) after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or

(b) the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or

(c) the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct;

the Commission must immediately certify in writing to that effect.”

57 It will be noted that the formula used in s166A(2)(a) differs from that in s164 (and the present s170MT(2)) in that it limits the exclusion of immunity only by reference to actual outcomes of the conduct, as distinct from actual and likely outcomes. It will also be noted the exclusion applies to any conduct by an organisation, or an officer, member or employee of an organisation acting in that capacity, whatever the nature of that conduct; provided only that the conduct is undertaken in contemplation or furtherance of claims in an industrial dispute. However, the immunity may be brought to an end by a certificate of the Commission under subs (6).

58 The 1993 amendments also added to the Act a new Part VIB providing for certified agreements and enterprise flexibility agreements. The Part included Division 4 dealing with immunity from civil liability. That Division contained s170PM(3), which excluded action under any State or Territory law “in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

It will be noted the exclusion formula was similar to that in s166A(2)(a), except that it included action that had one of the stipulated likely outcomes.

59 The 1996 amending Act repealed the old Part VIB. It substituted a new Part VIB, dealing only with certified agreements. That Part contains s170MT(2), whose terms are substantially identical to the old s170PM. The amending Act also added Part VID relating to Australian workplace agreements. Division 8 of that Part contains a provision giving a limited immunity, conditional on giving three days’ notice of intention to take the action. Section 170WC(1) provides that, subject to a qualification about defamation actions:

“(1) … no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of AWA industrial action unless the action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

The term “AWA industrial action” is defined by s170WB, in relation to an employee’s action, as “any industrial action taken by an employee directly against an employer for the purpose of compelling or inducing the employer” to make an AWA. Although the definition includes the words “industrial action”, this term does not have its s4 meaning; it is defined for the purposes of the Division by s170WB as meaning:

“(a) 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 the work; or

(b) a ban, limitation or restriction on the performance of work, or acceptance of or offering for work; or

60 Significantly, this definition is intended to be used in relation to action taken by a single employee against an employer. The definition reflects that included in s4, but without the exclusions contained in paras (e), (f) and (g) of that definition. Presumably those exclusions were regarded as inapplicable to action in support of the making of an Australian workplace agreement. Such an agreement is, by definition, an agreement between an employer and an individual employee (see s170VF), although two or more agreements may be collectively negotiated (see s170VE). For present purposes the interesting point is that, even in that context, Parliament thought it appropriate to exclude action involving personal injury etc from the immunity conferred by s170WC.

61 It is also interesting to note that Division 8 of Part VID employs a concept called “general industrial action”. This concept is defined by s170WB as meaning:

“… any action taken by an employer or employee for the purpose of:

(a) compelling or inducing an employer or employee to accept particular terms or conditions of employment; or

(b) enforcing compliance with any demand relating to employment.”

The action referred to in this paragraph is not limited to the particular types of action specified in either the s4 or s170WB definition of “industrial action”.

62 Particularly having regard to the terms of ss170WB and 170WC, it seems erroneous to conclude that Parliament must have had picketing in mind when deciding to limit the immunity conferred by S170MT(2) on “industrial action”. Rather, it seems to us, the explanation is that Parliament was prepared to concede a right to strike, the essence of which is withdrawal of the employee’s own labour, but only provided the exercise of this right does not have unacceptable consequences. One possible consequence is economic damage; hence the powers of the Commission under s166A(6). Another possible consequence is actual or likely personal injury, destruction of, or damage to, property or the unlawful taking, keeping or use of property. As a matter of general policy, reflected in various provisions, Parliament was not prepared to confer immunity against State and Territory law where one of these consequences occurred or was likely to occur.

63 We do not see inherent improbability in this conclusion. Although we agree that personal injury or property damage is a more likely outcome of picketing that involves obstruction and besetting than of a mere ban by employees upon the performance of all or part of their own duties, it is not difficult to envisage circumstances in which a restriction on the employee’s own activities might occasion personal injury or property damage. For example, a limitation by a road traffic controller might create a risk of injury to members of the public; similarly, in the case of persons having the care of ill or disabled people or young children. A sudden withdrawal of labour might have the result of damaging sensitive equipment.

64 We think Part VIIIA of the Act, inserted in 1996, is also relevant to the interpretation of “industrial action”. That Part contains s187AA which prescribes a general rule that an employer “must not make a payment to an employee in relation to a period during which the employee engaged, or engages, in industrial action”: see s187AA(1). Section 187AB forbids an organisation or an officer, member or employee of an organisation, to make a claim for such a payment or threaten or take industrial action with intent to coerce the employer to make such a payment.

65 The concept of “industrial action” is central to those prohibitions. It is therefore important to note that the 1996 amendments added para (g) to that definition. That addition had the effect of excluding from the concept of “industrial action” activities reasonably attributable to health and safety concerns. Employees were not to be penalised for actions based on those concerns.

66 The prohibitions in s187AA(1) and s187AB relate to all industrial action which falls within the definition in s4(1), whether or not it is protected action within the meaning of s170ML(1) of the Act or AWA industrial action within the meaning of s170WB(1) of the Act: Independent Education Union of Australia v Canonical Administrators, Barkly Street Bendigo (1998) 157 ALR 531 at 553-554.

67 The prohibitions are presumably to be justified on the basis that they do no more than reflect the common law rule that denies remuneration to an employee who has refused to perform the work required by his or her contract of employment: see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 466; Miles v Wakefield Metropolitan District Council [1987] 1 AC 539 (HL) at 552, 561, 565, 574; Wiluszynski v Tower Hamlets London Borough Council [1989] ICR 493 (CA) at 500, 503 and 506; Re Independent Education Union of Australia at 548 - 552. There could be no such justification in the case of an employee who continued to perform his or her normal duties, whilst also supporting a picket; unlikely though this might be in actual practice.

68 Counsel for NUW submit there are policy reasons why the definition of “industrial action” in s4 should be interpreted in such a way as to include picketing. Their reason is the matter mentioned by French J in CEPU; a construction that excludes picketing from the definition prevents the Commission from making orders under s127 of the Act, including orders made on the Commission’s own motion, to prevent or stop picketing. Counsel submit Parliament should be taken as regarding such a power as a desirable one.

69 A “picket”, in the industrial relations setting, is a person who stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment. “To picket” is to post or serve as a picket at an establishment. A “picket line” is a line of persons acting as pickets. As French J pointed out in CEPU, picketing is unlawful only if it involves obstruction and besetting. The requirements of obstruction and besetting, before picketing will constitute an actionable tort, were discussed by Murphy J in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 where his Honour said (at 388 - 389) :

“I am also satisfied that the acts of all the defendants which have now been repeatedly performed over many months cannot be considered to be a lawful form of picketing, but amount to a nuisance involving, as they do, obstruction, harassment and besetting. The form of picketing which the evidence discloses here is not peaceful but amounts clearly to an interference with the rights of a person wishing to enter or at least to proceed and make deliveries or take supplies to or from the plaintiff’s premises. In fact, so often as they are able, the defendants physically prevent persons and vehicles from approaching and entering the plaintiff’s premises. This, as I have said, is done by obstruction, threats and besetting, the latter meaning, in this context, to set about or surround with hostile intent. Besetting is appropriately a term applied to the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their own safety or the safety of their property. ...”

70 Such conduct constitutes an actionable tort at the suit of the person who is denied entry to the premises of the employer in derogation of that person’s right to enter (see Williams v Hursey (1959) 103 CLR 30 at 77 – 78) or at the suit of the employer: see J Lyons & Sons v Wilkins [1899] 1 Ch 255 (CA) at 267 - 268, 271, 274 and Sid Ross Agency at 767.

71 As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of “industrial action”; it does not relate to the performance of work in the circumstances specified in paragraphs (a), (b), (c) or (d) of the definition. Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone. Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.

72 Picketing which interferes with a person’s liberty and freedom of movement infringes that person’s common law rights; in particular, the right to free passage in public places and on public roads and footpaths: see Williams v Hursey at 78 - 79; Melbourne Corporation v Barry (1922) 31 CLR 174 at 196, 206; City of Keilor v O’Donohue (1971) 126 CLR 353 at 363; Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 at 186. There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: Baker v Campbell (1983) 153 CLR 52 at 123.

73 To interpret para (c) of the definition of “industrial action” in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that Parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property.

74 The fact that the Commission may not make orders under s 127 of the Act prohibiting picketing does not mean that picketing, undertaken and incidental to industrial action of the type falling within the jurisdiction of the Commission, is irrelevant to a decision by the Commission whether or not to direct that the industrial action stop or not occur. Nor is picketing irrelevant to a determination by the Commission whether or not it is satisfied of the existence of one or more of the circumstances specified in s 170MW(2) to (7) of the Act, when it has to decide whether or not to suspend or terminate the bargaining period under s 170MW(1): see CFMEU at 14. Further, actionable picketing engaged in by an organisation of employees, or by the officers or employees of such an organisation is covered by s 166A(1). The Commission has power under s 166A(6) to exercise conciliation powers to stop the picketing, if it receives a notice under s 166A(3).

75 Additional support for our conclusion comes from s 4(9) of the Act which provides, so far as is presently relevant :

“4(9) For the purposes of the Act:

(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment.”

76 The consequence for the present case is that the picketing did not constitute “industrial action”, and so could never have constituted “protected action” within the meaning of s170ML(1) of the Act; it could not therefore attract the immunity provided by s170MT.

The notice of action

77 Our conclusion about the proper interpretation of “industrial action” makes it strictly unnecessary for us to determine Davids’ submission that the notice of action given by NUW on 16 June 1998 was ineffective to make the picketing “protected action”. However, as the issue is of some general importance and was fully debated, we think it appropriate to indicate our view.

78 Leaving aside action taken in response to a lockout by the employer, the effect of s170MO(1) is that industrial action by an employee organisation is “protected action” only if “the organisation … has given the employer at least 3 working days’ written notice of the intention to take the action”. The term “working day” is defined by s170LF, in relation to a single business or part of a single business, as “a day on which employees normally perform work in that business or part”. The Act does not specify the requisite particularity in the notice’s description of “the action”.

79 Counsel for NUW argued the Act does not require particulars of the proposed industrial action; “notification of industrial action simpliciter is sufficient provided the nature of the action is stated”. They explained that, by “nature of the action”, they meant the “genus of the action”; that is, in the case of action by an employee or employee organisation, whether it falls within s170MO(2)(a) (action in response to a lockout) or 170MO(2)(b) (action not in response to a lockout) and, in the case of an employer, whether or not it takes place in response to employee action: see s170MO(3) and (4). Alternatively, counsel submitted, the notice given in this case on 18 June 1998 covers the picketing activity undertaken by NUW.

80 Counsel for Davids contended the picketing activity “was of an entirely different form to that notified by the applicant. An indefinite total stoppage of work accompanied by picketing cannot properly be characterised as part of ‘bans and rolling stoppages’; particularly when the applicant had earlier notified an indefinite strike and then withdrawn that notification”.

81 Counsel for both parties mentioned a comment by Wilcox J in Construction, Forestry, Mining and Energy Union v Curragh Queensland Mining Limited [1998] FCA 1231. In that case, CFMEU faced the difficulty that its more recent notice of action failed to allow enough time; it did not provide “at least 3 working days’ written notice” of its intention to take the action. In an endeavour to avoid that difficulty, counsel for CFMEU fell back on an earlier notice. Wilcox J said:

“The position is not clear but it is possible this notice gave three clear days’ notice of proposed industrial action. However, it identified the proposed industrial action as ‘overtime bans, bans on the use of contractors, work-to-rule, stop-work meetings and rolling stoppages’. That type of industrial action is different in kind from a complete cessation of work, which was the form of industrial action in place on 6 August 1997. Section 170MO(2)(b) of the Act requires ‘at least 3 working days’ written notice of the intention to take the action’. No doubt some latitude is permissible, having regard to the dynamics of industrial conflict, but I think the Act should be construed as protecting only industrial action of the same kind as that described in the notice.” (Original emphasis)

82 In dealing with the sufficiency of the notice of action, North J said this:

“What is meant by ‘the nature of the intended action’ is governed by the context in which s170MO(5) appears. Unlike the equivalent United Kingdom legislation: Trade Union & Labour Relations (Consolidation) Act 1992 (UK),the Act provides a comprehensive definition of industrial action. In the absence of subsection (5), the only requirement would be to notify that ‘industrial action’ was to be taken. The presence of subsection (5) allows me to assume that, in its absence, a simple reference to the expression ‘industrial action’ in a notice would suffice. The function of subsection (5) is to require notice of the ‘nature’ of the action. The ‘nature’, in my view, is a reference to the specific element of the definition of industrial action which applies to the situation. This is a limited requirement to specify the general type of action to be taken. It can be contrasted to a requirement to notify ‘particular’ action intended to be taken. There is good reason for a limited notice requirement. The construction, which I favour, has the advantage of certainty. Those notifying need only choose a description from the list of action within the definition. A requirement to notify particular action would often lead to controversy as to whether the action notified fell within the definition. This would inject uncertainty into a process which requires as much certainty as is possible. That Parliament has opted for certainty at some expense to comprehensiveness of description is evident from the requirement to specify the time of commencement of the industrial action. There is no requirement to specify the duration nor, as is required by the United Kingdom legislation, whether the action is to be continuous or discontinuous.

To determine what reference to the definition will suffice as a description of the nature of the industrial action to be taken, it is necessary to examine the definition of industrial action. The definition covers three types of activity. A strike is covered by subparagraph (d), and work to rules or go slows and like conduct is covered by subparagraph (a). Both provisions refer to the action taken by an employee in respect of the employee’s own work. Subparagraphs (b) and (c) include actions of employees in relation to others. They both relate to bans, limitations or restrictions on the performance of work, the acceptance of work, or offering for work. This subject matter remains constant throughout both subparagraphs. The remaining matters in each subparagraph are directed to the jurisdictional basis of the provision. Thus, if the notice refers to ‘bans’, it must be taken to be a reference to the bans referred to in subparagraphs (b) or (c) of the definition, that is to say, bans on the performance of work, the acceptance of work, or the offering for work. The description ‘bans’ sufficiently describes the nature of the industrial action where the person notifying intended, at the time of notification, to impose bans at the time designated in the notice. Reference to the jurisdictional basis of the provision is not necessary in order to describe the nature of the industrial action for the purposes of s170MO(5).”

83 North J then turned to the reference, in the notice of 18 June 1998, to “bans and rolling stoppages”. He said there was a “serious issue to be tried that the notification of ‘bans’ was a sufficient notification of the action of the picketers in attending the picket” and “the action of the strikers was sufficiently notified by reference in the notice to ‘rolling stoppages’”.

84 The question addressed by North J in the lengthy passage just quoted is one of considerable difficulty, about which people may reasonably reach different conclusions. Parliament did not indicate what degree of specificity it intended by the term “nature of the intended action”. To interpret this term, on the one extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division.

85 North J appreciated these points. He also appreciated the need for simplicity of application and certainty. His answer was to relate the phrase “nature of the intended action” to the various paragraphs in the s4 definition of “industrial action”. However, while we appreciate the factors that drove North J to that answer, we have difficulties with it. In the first place, nowhere in the Act is there any cross-reference between the s4 definition and s170MO(5). The subsection does not use the term “industrial action”. Rather it uses the definite article, in speaking of “the intended action”. It seems to us this implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition. On this approach, an employees’ notice that adopted the wording of para (c) of the definition would cover a total ban on a particular work activity, a partial ban or limitation or a ban on the use of particular equipment. It would tell the employer very little. The converse comment may be made about an employer’s notice under s170MU(3) that referred merely to a “lockout”.

86 Another reason for rejecting North J’s approach is that it places a premium on legalism. Framers of notices would need to undertake a careful analysis of the definition of “industrial action”, in the way North J did, in order to identify the paragraph which best fits the contemplated activity. Bearing in mind that notices will often, perhaps ordinarily, be prepared by non-lawyers acting without legal advice, it is unlikely Parliament intended that result.

87 We think s170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension. For example, a union might react to a notice by an employer of intent to lockout some employees by giving notice that all employees will strike indefinitely as from the commencement of the lockout. Similarly, an employer might respond to an employees’ notice of bans by giving notice of a lockout of some or all employees.

88 It will be apparent we think it necessary, and sufficient, for parties to describe the intended action in ordinary industrial English; for example, “an indefinite strike of all employees”, “a lockout of all employees employed in the AB fabrication plant”, “a ban on overtime”, “a ban of the use of MN equipment”, “rolling stoppages throughout the mine”, “a ban on the servicing of delivery vehicles”.

89 If we are correct in this approach, it follows that a notice that refers only to “bans and rolling stoppages”, without any indication of the nature of the bans or the location of the rolling stoppages, does not adequately disclose “the nature of the intended action”. It certainly does not convey to a reader an intention to mount a picket at which truck drivers will be hindered in entering the employer’s premises.

90 It seems to us that, if picketing fell within the definition of “industrial action”, there would be two deficiencies in the notice relied on in the present case. First, the word “ban” would be inappropriate to the picketing that was adopted. Even if the picketing could be described as a “limitation” or “restriction” on the work performed by the truck drivers, it could not properly be described as a “ban”; a “ban” is a prohibition. Second, an activity so significant as the pickets in this case would need specific mention in a notice designed to reveal the “nature” of the intended action.

91 We conclude that, even if picketing fell within the definition of “industrial action”, the notice of 18 June 1998 would not cover the picketing activity by NUW against Davids. As this notice is the only s170MO(5) notice relied upon by NUW in relation to that activity, the picketing would not be “protected action” within the meaning of Division 8 of Part VIB of the Act.

Action in concert

92 In view of our earlier conclusions, it is unnecessary for us to determine Davids’ further submission that the picket failed, or ceased, to be protected action because it was undertaken in concert with one or more unprotected persons or organisations: see s170MM. However, we make three observations. First, we agree with North J that there is a difference between taking action “in concert” and action in conjunction. Action “in concert” is action undertaken as a result of communication between the parties to the action. It is not enough that there be spontaneous actions by two or more persons, even if those actions occur at the same time; although, of course, such actions may “naturally … lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement”: The King and the Attorney-General of the Commonwealth v The Associated Northern Collieries (1911) 14 CLR 387 at 400, per Isaacs J. Nor is action “in concert” simply because the action of one person or organisation is supported by others. It follows, and this is our second observation, that, in order to establish that a picket was undertaken “in concert” between two unions, it would not be enough to show that members of a second union participated in a picket arranged by the first unless, in the circumstances, the inference of concert were appropriate. Those members may have attended the picket as individuals, rather than at the instigation of their union. Even if they attended at the behest of their union, this might have been because their union wished to indicate support for the first union, and/or the picketers as individuals, without any collaboration between the two unions. Third, if the subject pickets had ceased to be “protected action” because of collaboration in their maintenance between NUW and one or more unprotected persons or organisations, this would not affect the status of the picket at an earlier point of time, or the availability of Division 10 of Part VIB in respect of any action taken by Davids in relation to employees’ participation in the picket at that time.

93 If s170MM remained a live issue in this case, it would be necessary to examine in detail the evidence concerning support for NUW by other unions, or their members, so as to determine whether it amounted to action in concert, and, if so, the chronological relationship between the commencement of that support and the conduct that caused Davids to make its various dismissals. As that evidence appears controversial, the task would appropriately be left until the final hearing.

Disposition of the s170MU claim

94 NUW’s argument in relation to S170MU of the Act depended (as North J found) on there being a serious issue to be tried in favour of the proposition that one of the reasons for the 52 picketers being dismissed was that they participated in the picket. However, if the picket was not “protected action”, as we hold, the dismissals could not constitute contraventions of s170MU; the basis of the s170MU claim disappears. North J’s orders cannot be sustained by reference to that section.

The s298K claim

95 We have mentioned that North J held there was a serious issue to be tried in connection with NUW’s assertion that Davids dismissed the picketers, and threatened to dismiss the strikers, for the reason that each of them was a member of an industrial association (NUW) and was “dissatisfied with his or her conditions”. An important element in his Honour’s conclusion was the presumption enacted in s298V of the Act. The terms of that section are set out above at para 26. Referring to the High Court decision in Patrick Stevedores at 153 ALR 647, North J held s298V applies to interim injunctions. He went on:

“As in Patricks, there was no express denial by Davids that it acted for this reason. The person responsible for the dismissal seems to have been Mr Ray Richards, the District Manager for New South Wales and ACT. He prepared the memo dated 18 June 1998 and gave instructions for its distribution. He instructed various employees of Davids to observe the picket and report the names of employees who obstructed trucks on the picket. He signed the letters to the picketers, and he instructed Mr Craddock to prepare termination statements and cheques for the picketers. He swore two affidavits, one on 25 August 1998 and one on 4 September 1998. In neither of these affidavits did Mr Richards directly deny the allegation that the dismissals were made for the reason that the picketers were members of the Union which was seeking better industrial conditions and the picketers were dissatisfied with their conditions. Mr Gary Johnson, the National Industrial Relations Manager, swore a very extensive affidavit on 13 August 1998 concerning the history of the dispute and the details of the daily happenings on the picket. He swore another affidavit on 4 September 1998, well after the extent of the Union’s allegations had been ventilated. He also made no express denial of the allegations made by the Union. On the basis of the silence of Mr Johnson and/or Mr Richards, the case under s298K is made out as a result of the failure of Davids to discharge the onus of proof.”

96 North J turned to an argument apparently advanced by Davids:

“It may be suggested that it was implicit in Davids’ case that it acted against the picketers solely for the reason that they were obstructing trucks on the picket. In my view, there is a serious question to be tried that Davids did not dismiss the picketers solely because they obstructed trucks on the picket. The videos of the conduct on the picket after 13 July 1998 show conduct on the picket ranging from picketers wandering onto the roadway in a group and causing trucks to stop for a few minutes to violent resistance to police attempting to drag picketers from the roadway in front of trucks. In respect of the conduct on the picket before this, the Union conceded that there had been significant obstruction to trucks. In almost all cases, Davids did not identify particular conduct of individual employees upon which it based its decision to dismiss that employee. Davids’ position was that it would dismiss employees if they were involved in any obstruction of trucks, however minor. It is unlikely, in my view, that Davids would have believed that such conduct would justify dismissal in all the circumstances. It is arguable, on the evidence at this stage, that Davids was committed to dismiss some of its employees who were on strike whatever the extent of their conduct on the picket or even if such conduct had minimal effect on the movement of trucks. There was advantage to Davids in asserting picket conduct as the reason because it contended the picketing could not be protected action. That Davids was not solely concerned with conduct on the picket is indicated by evidence which suggests that Davids was not interested to hear any explanation from the picketers of their conduct. Although the letter to the picketers invited them to phone and explain their position prior to termination, there is evidence that the invitation was issued, in some cases, after the time for explanation had passed, that, in other cases, there was no answer on the phone number given in the invitation and, in several cases, when employees were able to speak to Mr Small, he was not interested in any explanation but seemed to have determined upon dismissal in any event. The evidence suggests that the decision to dismiss the picketers was not solely because they obstructed trucks on the picket. Davids has denied that the picketers were not given a proper opportunity to explain their actions. There is a serious issue to be tried on this matter. I emphasise that I make no final findings as to the reasons for Davids actions. That is not the present task. But the evidence does satisfy me that the reason for dismissal of the picketers was not only for obstructing trucks on the picket.”

97 Finally, North J dealt with the claim under s298(1)(l):

“The next question, then, is whether there is a serious issue to be tried that a reason for the decision to dismiss the picketers was a prohibited reason. It is undoubted that the Union was seeking better conditions and that the picketers were dissatisfied with their conditions. The dismissals occurred in the context of a long-running industrial dispute about wages and conditions. Particularly in the absence of an express denial, it is likely that part of the reason for the action against the picketers and the strikers was that they were members of the Union which was seeking better conditions and that they were dissatisfied with their conditions. Thus, in my view, the Union has established a serious issue to be tried that Davids acted for the prohibited reason set out in s298L(1)(l) in respect of both the picketers and the strikers. In the light of these conclusions it is not necessary to consider whether the Union has made out a case under s298L(1)(e) or (n), or a case that the purported terminations of the picketers were ineffective and void.”

98 In submissions to us, counsel for NUW emphasised the presumption provided by s298V of the Act and the other points made by North J. They referred to evidence that some of the letters inviting an explanation were issued after the time for explanation had passed, the difficulty some employees experienced in making contact with the officer appointed to hear any explanation and evidence indicating that officer’s lack of interest in hearing any explanation. Perhaps more significantly, they cited evidence in an affidavit dated 25 August 1998 of Andrew Joseph, an NUW official, that on 17 July 1998 he attended a meeting convened by John Robertson of the New South Wales Labor Council involving Gary Johnson, Davids’ Industrial Relations Manager. According to Mr Joseph’s affidavit, during that meeting Mr Johnson said to him words to the effect: “Davids intends to terminate another ten people”. On 24 July, Davids terminated another ten NUW members, allegedly for attending the picket on 20 July.

99 Although Mr Johnson made three affidavits after 25 August 1998, on 4 September, 10 September and 5 December 1998, he did not deny the statement attributed to him by Mr Joseph; and this despite the fact that his last affidavit referred specifically to the sending of letters to ten employees demanding explanations of their conduct on 20 July and their terminations four days later. Counsel for Davids offered no answer to their opponents’ reference to Mr Joseph’s evidence.

100 The suggestion of NUW’s counsel was that the dismissals were an exercise in intimidation; Davids thought it would assist their cause in the industrial dispute to terminate a number of the employees and they used their alleged picketing activity as an excuse. Counsel claim this is revealed by the fact that Mr Johnson was able to specify on 17 July that there would be ten further dismissals, yet the relevant picketing had not yet occurred.

101 We have considered the affidavits referred to by North J and counsel for NUW. Not only was it correct for his Honour to say neither Mr Richards nor Mr Johnson directly denied NUW’s allegation that the dismissals were made for the reason referred to in s298L(1)(l) of the Act, neither of these men directly asserted the 52 picketers were dismissed for picketing. The nearest approach to such an assertion was in Mr Richards’ affidavit of 25 August 1998. He there referred to the sending of letters to persons identified to him as picketers by named Davids’ officers and reports to him of alleged responses and non-responses to those letters. In relation to each batch of letters, he then said: “In the absence of any satisfactory explanations employees numbered [numbers stated] have now had their employment terminated”. Mr Richards did not identify the person who made the termination decisions or specify any reason. It is not apparent whether or not he was involved in any of the decisions to terminate or whether or not he agreed with them.

102 Davids’ affidavit evidence was extensive. The affidavits were compiled over a period of almost four months. Throughout that time, Davids was represented by experienced counsel and solicitors. The reason for the termination of the picketers was a central issue in the case. Under these circumstances, it must be concluded Davids made a deliberate decision to refrain from proving the identity of the person who decided on the terminations, or to adduce evidence from that person as to his or her reasons. Perhaps this was a tactical decision; Davids might have thought it would assist NUW’s s170MU claim if Davids proved that picketing was the sole reason for the terminations. However that may be, the result is there is no evidence rebutting the presumption provided by s298V.

103 In relation to para (l), counsel for Davids submitted:

“… it is clear that there was simply no evidence before his Honour that any dismissed employee was dissatisfied with his conditions, even if it be accepted that the union was seeking better industrial conditions. There were a number of people engaged in the conduct identified by the respondent as the reason for termination who were not even employees. It cannot be (and ought not to have been) inferred that persons who engaged in the conduct complained of did so because they were dissatisfied with their conditions.”

104 This submission is disingenuous. Whether or not their presence on the picket line was the sole reason for their dismissal, it appears to be common ground that all the dismissed employees participated in the picket. They did this after having been told by Davids on 18 June 1998 that any employee who interfered with access to or exit from any of the warehouses will be guilty of serious and wilful misconduct and the “employee’s employment will be terminated with immediate effect”. It must have required some courage and resolution for individual employees to defy this threat. While we appreciate employees might have been under peer pressure to participate in the picket, it is reasonable to infer, at least for interlocutory purposes, that most of the picketers were actuated by dissatisfaction with their industrial conditions. Without widespread dissatisfaction, it seems unlikely the picket could have been maintained.

105 We hesitate to accept the suggestion of intimidation made by counsel for NUW; it attributes to Davids a high measure of duplicity. But it is not necessary for us to determine that matter. The question is whether we are satisfied that North J erred in holding there were serious issues to be tried regarding NUW’s claim that “the decision to dismiss the picketers was not solely because they obstructed trucks on the picket” and that one of the reasons was the reason proscribed by para (l) of s298L(1) of the Act. We are not so satisfied.

106 Section 298K forbids an employer from dismissing an employee for a prohibited reason or for reasons that include a prohibited reason. The prohibited reasons are contained in s 298L. Each of the reasons relates to the exercise of the right of an employee or independent contractor to join, or refuse to join, an “industrial association” (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests. Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions. The objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee’s right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and association.

107 In the context of the Act, Part XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. In this regard the Act operates in the same way and to the same ends as similar legislation in the United States of America (National Labor Relations Act ss 2(3), 7, 8(a)(1,3), 13 as amended 29 U.S.C.A.S. 152(3), 157, 158(a), (1,3), 163); American Ship Building Company v National Labor Relations Board 85 S.Ct 955 (1965); National Labor Relations Board v Brown 85 S.Ct 980 (1965). That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions: American Ship Building Company at 965.

108 Section 298K requires that an applicant for relief under s 298U must prove that the motive for the conduct was a prohibited reason. That is, the applicant must prove the state of mind of the employer. Where an employee is dismissed, the reason for the dismissal must be a reason falling within s 298L(1) of the Act.

109 Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment. It also requires it be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions, and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Division 6 of Part XA of the Act for a contravention of a section in Part XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged in for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Division 6 of Part XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: The King v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507.

110 Where there is an application for interim relief in proceedings under the Division, the onus remains upon the applicant to demonstrate that there is a serious question to be tried that the dismissal occurred for a prohibited reason. If a serious question to be tried is made out in respect of the other ingredients of the alleged contravention, s298V operates to establish there is a serious question to be tried that the dismissal was for a prohibited reason. It remains available to the employer to demonstrate at the interlocutory stage that the reason for the dismissal was other than for a prohibited reason. The weight of that evidence may be such as to persuade the court there is no serious question to be tried.

111 In the present proceedings Davids submitted that the weight of the evidence is against a finding that dismissal was for any reason other than taking part in picketing which impeded the movements of trucks into and out of Davids’ premises. The submission is that the employees were warned before the picketing commenced that those employees who engaged in picketing which impeded movements into and out of the premises would be dismissed and Davids acted throughout in accordance with that warning. Because the conduct was consistent with the warning, Davids submit s 298V cannot operate in such a manner as to make the mere allegation of a prohibited reason enough to make out a serious question to be tried on the s298L(l) issue. The essence of the submission is that dismissal for unlawful picketing does not contravene s 298L(1)(l).

112 The difficulty with Davids’ submission is the uncontradicted evidence of Mr Joseph that, on 17 July 1998, Mr Johnson, informed him that Davids intended to terminate another ten people. That statement was evidence of a present intention of Davids to terminate in the future a specific number of employees. The reason for such a proposed course of conduct was not given. Specifically, it was not tied to the stated policy to dismiss only picketers who impeded movements into or out of Davids’ premises. The subsequent dismissal of another ten employees on 24 July 1998, for engaging in picketing on 20 July, put in issue not only whether or not those ten employees were dismissed for a reason other than picketing, but also whether or not the employees previously dismissed were dismissed solely for the reason that they were picketing in such a way as to impede access. The statement of Mr Johnson was itself evidence that there was a serious question to be tried that there was a different or additional reason for the dismissals, which was a prohibited reason.

113 Section 298V of the Act, having regard to the allegations in the proceedings and the state of the evidence, provides sufficient proof of a prohibited reason for the purpose of interlocutory relief. The evidence relied upon by Davids was not of sufficient weight to deprive the NUW of the benefit of the presumption in the proceedings before North J. Even if the reason of Davids for terminating the employees was their engagement in the strike action and picketing, having regard to the concept of membership of an industrial association being wider than the right to join, there remains a serious question to be tried as to whether the dismissal of the employees for engaging in the collective industrial action taken by the NUW as part of an industrial campaign for improved industrial conditions was conduct falling within s 298K(2) and s 298L(1)(l) of the Act.

114 We should mention that counsel for Davids submitted it was not sufficient that NUW establish the facts said to give rise to the proscribed reason, “[i]t must go further and establish that the employer knew those facts to be the position, prior to any effect being given to s298V”. In support of that submission they cited Joiner v Muir (1967) 15 FLR 340 at 353, a decision of the Commonwealth Industrial Court. The case involved a statutory provision, s5(4) of the Conciliation and Arbitration Act 1904, that placed a burden on the defendant to prove he or she was not actuated by the proscribed reason alleged in the charge. The passage from the judgment of Dunphy and Kerr JJ cited by counsel contains no statement of principle; it is simply a reference to issues for determination.

Form of the orders

115 It follows from the above observations that it was open to North J to make interlocutory injunctions and other orders. However, counsel for Davids complain about the form of the orders his Honour made, contending they “went well beyond any order that could possibly be granted on final relief”:

“The orders took from the respondent the right to terminate in employment any employees initially, and subsequently any of the 53 employees who had been terminated and were reinstated. This is an order which has endured for six months. Whilst leave was reserved to approach the Court in relation to any particular employees the respondent wished to terminate, the approach of the Court in relation to Mr Pucar made it clear that there was little utility in any such approach.”

116 We do not agree that the orders went beyond any possible final relief. Section 298U(e) would empower the Court to make a final order enjoining Davids from dismissing any particular employee or employees. Section 298U(b) would enable the Court to order reinstatement of any employee or employees. As to the complaint that the order deprived Davids of the right to terminate any of the 53 employees without the leave of the Court, that is true; but it is also true that North J reserved liberty to apply on 24 hours’ notice. As we understand his Honour’s approach, one of the reasons for providing such short notice was to enable Davids quickly to approach the Court for leave, if it wished to terminate any of the 53 employees for a reason or reasons that did not include a proscribed reason. In relation to Mr Pucar, we note North J heard evidence about an incident that was said to have actuated Davids’ dismissal decision. He also heard submissions on the matter. After discussing this evidence and these submissions at some length, he indicated a “preliminary view” which, he emphasised, might not survive a final hearing. His preliminary view was that there was a serious question to be tried “that the involvement of Mr Pucar in the alleged incident was not the sole reason for Davids’ decision to dismiss Mr Pucar”. It has not been suggested to us that this view was not open to his Honour.

Disposition of case

117 The issues raised in the application for leave to appeal are substantial. Under those circumstances, it is appropriate to grant leave to appeal. However, although we think NUW is entitled to interim relief on only one of the two bases urged by it, it is entitled to that relief. The limitation of NUW’s case to s298K does not affect the continuing appropriateness of the orders made by North J. The appeal should be dismissed.

118 Before departing from the matter we commend to the parties the desirability of them discussing the future of this long-running and, no doubt, expensive litigation. Even a final hearing of this case will not resolve any issue that may remain between the parties regarding the appropriate terms of a new certified agreement; it will only resolve Davids’ entitlement to terminate the employees named in North J’s order. To the extent Davids establishes at a final hearing that it did not terminate the employment of any of these employees because of a reason prohibited by s298L(l), there would thereafter be no injunction restraining it from making a new termination of employment. Davids would then need to consider whether to do so, making a separate decision in relation to each employee. No doubt Davids would wish to act fairly and avoid any complaint that the termination was harsh, unjust or unreasonable. In order to achieve those objectives, Davids would need to take into account, not only that employee’s participation in the picket, despite the warning of 18 July 1998, but also both the circumstances of industrial disputation and confrontation applying at that time and the employee’s length of service and work record. If it is correct, as Davids’ executives have claimed, that the only people dismissed were people identified at the picket by at least two Davids’ officers, it is likely long-serving employees will predominate amongst the dismissed employees. It might be difficult for Davids to refute the suggestion it was harsh, unjust and unreasonable to dismiss a long-serving employee, whose work record is otherwise satisfactory, simply because of that person’s non-violent participation in a picket organised by his or her union in support of an industrial demand. We appreciate Davids’ allegation that some dismissed employees resorted to violence; also some dismissed employees may not have provided satisfactory service. These employees may be in a different category, but they seem to be a small minority. If it be accepted that blanket dismissals of all picketers cannot be justified, the stakes in this litigation seem small. Even now, it would seem sensible for the parties to discuss whether they can negotiate an agreement that will obviate a final hearing by North J.

I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Cooper.

Associate:

Dated: 13 August 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 900 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

DAVIDS DISTRIBUTION PTY LIMITED

Appellant

AND:

NATIONAL UNION OF WORKERS

Respondent

JUDGES:	WILCOX, BURCHETT AND COOPER JJ
DATE:	13 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BURCHETT J

119 On all issues save one, I am in agreement with the reasons for judgment of Wilcox and Cooper JJ. But, since that issue is crucial to the result, my view on it requires me to dissent from the orders their Honours support. The question is one of the effect, in the circumstances of this appeal, of s 298V of the Workplace Relations Act 1996, which provides:

“Proof not required of the reason for, or the intention of, conduct

If:

(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

This section is relevant to that part of the respondent’s application for interlocutory reinstatement which the majority judgment upholds, that is, so much of it as is based on the allegation that the appellant employer dismissed employees for the prohibited reason stated in s 298L(1)(l).

120 In my opinion, s 298L(1)(l) has no application to the events out of which this matter arose. It is necessary to recall the general character of those events, which is succinctly stated by North J in the opening paragraph of the judgment under appeal:

“The question before the Court is whether existing orders should be continued pending the trial of the action, which is presently fixed to start on 7 December 1998. The effect of the orders is to restrain the respondent from carrying out its threat to terminate the employment of about 270 employees who were on strike from 8 July 1998 until about 28 August 1998 (in these reasons, these employees will be referred to as ‘the strikers’) and to require the respondent to reinstate 52 employees who the respondent says were dismissed for the reason that they were present on a picket and impeded the movements of trucks into and out of the respondent’s premises in the course of the strike (in these reasons, these employees will be referred to as ‘the picketers’).”

The evidence of those circumstances seems to me to repel convincingly any case in reliance on s 298L(1)(l) which might otherwise arise, not from evidence (as to that there is no argument), but from the presumption created by s 298V. Of course, I appreciate that the respondent had only to make a case to the extent of showing a serious question to be tried, but not even such a case can survive circumstances that are completely inconsistent with the respondent’s allegation. It is said there are gaps in the appellant’s direct evidence which leave the presumption under s 298V unanswered; but the answer need not be by direct evidence - if the circumstances rebut the presumption so strongly that no serious question remains, that must suffice.

121 To see whether s 298L(1)(l) can have any application to the facts put before the Court in this case, the provision must first be construed. It appears in Part XA of the Act, which is headed: “Freedom of Association”. The objects of the Part are set out in s 298A, by way of a reference to the general objects of the whole Act, together with the addition of the following:

“(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.”

A key provision is s 298K, expressed relevantly in terms forbidding an employer to dismiss an employee, or to threaten to do so, “for a prohibited reason, or for reasons that include a prohibited reason”. Section 298L(1) then makes clear what is meant by a prohibited reason:

“Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association ; or

(b) is not, or does not propose to become, a member of an industrial association; or

(i) has one or more employees who are not, or do not propose to become, members of an industrial association; or

(ii) has not paid, or does not propose to pay, a fee (however described) to an industrial association; or

(d) has refused or failed to join in industrial action; or

(e) in the case of an employee - has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or

(f) has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or

(g) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or

(h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or

(i) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

(i) compliance with that law; or

(ii) the observance of a person's rights under an industrial instrument ; or

(j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(k) has given or proposes to give evidence in a proceeding under an industrial law; or

(m) in the case of an employee or an independent contractor - has absented himself or herself from work without leave if:

(i) the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and

(ii) the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or

(i) lawful; and

(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.”

122 An examination of the listed reasons shows that they are precisely what one would expect in a key section of a Part concerned, not with the regulation of strikes or picketing or like activity, but with protecting the right of freedom of association, including the right to serve as an officer of an association. None of them relates to strikes or pickets. Paragraphs (a) to (c) relate to ordinary membership, or membership as an officer or delegate. Paragraphs (d) to (g) relate, in one way or another, to involvement in the decisions of industrial bodies. Paragraphs (h) to (k) relate to involvement in proceedings in a court or other tribunal. Paragraphs (m) and (n) relate to the performance of the duties of an officer-holder. It is in this context that para (l) has to be construed. The reason it specifies refers to a person’s state of mind – “is dissatisfied with his or her conditions”. That would not often be a reason for dismissal. Accordingly, I was at first inclined to think that although the opening part of the paragraph literally does no more than identify a person who may be the subject of dismissal for the prohibited reason that he or she “is dissatisfied with his or her conditions”, the paragraph should be construed as a whole to refer to a prohibited reason that the employee or other person is displaying dissatisfaction by membership of an industrial association that is seeking better industrial conditions. But the difficulty with this construction is not only that it would read into the paragraph something that is not there; it would also leave the paragraph virtually without any useful role. For membership of an industrial association is (by para (a)) the very first prohibited reason, whether or not the industrial association is seeking better industrial conditions, and whether or not the member’s membership expresses the same attitude. It is also proper to observe, as a factor operating against an expansive construction of the paragraph, that it expresses an ingredient of a contravention for which the penalty may be $10,000 (s 298U).

123 The core of the matter is that s 298L is an essential part of the Act’s response to any attack on the freedom of association, that is, the right to belong to a functioning union. Paragraph (l) protects an employee, who belongs to an industrial association that is seeking better industrial conditions, against dismissal grounded on the state of mind of dissatisfaction with his or her conditions, or perhaps against dismissal grounded on that state of mind expressed by membership of the industrial association. Those are special reasons for dismissal, and the paragraph is plainly part of an attempt to cover comprehensively all reasons for dismissal which might be part of an attack, not on some particular operation (such as a strike) undertaken by a union, but on its very existence and functioning as a union. Other provisions, in a separate part of the Act, deal with strikes and related actions.

124 I now return to the facts of the present case. For the sake of the argument, I can accept that the appellant’s failure to fill the gaps in its evidence may allow a sufficient case to emerge that the 52 dismissals were for reasons other than the alleged reason that the men had engaged in unlawful picketing. But, in the circumstances described by North J, those other reasons would almost certainly have been related to the strike, which was, in the judge’s words, “a hot dispute”. That, indeed, during the argument at first instance, is the inference to which reference was repeatedly made. His Honour, for example, is recorded (at 79 of his judgment) as having suggested the inference “that Davids was motivated by an attempt to get rid of people who were on strike rather than for the stated reason.” There was, on the evidence, no other bone of contention. It is not a matter, like Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643, where the case sought to be made was that an employer was pursuing, through a conspiracy, an attack on the existence and role of the union. Given, then, that the detailed evidence of the events in question either allows the conclusion (for which the appellant contends) that the dismissals were for the reason given at the time, or, whether or not for that reason, for reasons related to the major strike which had been launched against the employer, can it be said there is a serious question to be tried in respect of an alleged reason of a different kind altogether, of the kind to which para (l) refers? The only basis on which the respondent suggests an affirmative answer could be made to this question is to be found in s 298V. But, in my opinion, that would be to put on the section a weight it cannot bear. Its function is not to transform a case, to change the complexion of the facts; its function is to raise (via a presumption) an evidentiary onus. (Of course, at the interlocutory stage, the burden on an applicant would anyway be only to show a serious question to be tried.) But the s 298V onus was discharged when the circumstances were revealed. Because of the gaps in the evidence, it was (I am prepared to assume) not discharged to the full extent of proof that the sole reason for the dismissals was that given. But it was discharged to the extent that the circumstances showed clearly the nature of the dispute to which only any hidden reason must, as a matter of common sense, have related. The circumstances being known, there was simply no room for a separate reason connected, not with the strike, but with the state of mind to which para (l) refers.

125 In some cases, there might be a difficulty in reconciling the requirements of the statutory presumption under s 298V with the requirements of the principle upon which interlocutory relief may be granted, not upon proof as at a trial, but upon the showing of a serious question to be tried. However, it cannot be the law that such a presumption will always entitle an applicant to interlocutory relief, whatever the facts, because it shows a question to be tried, and full answer is not possible at an interlocutory hearing. At all events where, as in the present case, the applicant relies on nothing but the presumption, and the circumstances are the subject of detailed evidence pointing strongly to reasons other than the one alleged, I do not accept that it is appropriate to ground a decision on the presumption. Although written in the context of a final hearing, the words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 express a principle which is relevant here:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.”

The Court must be actually persuaded that there is a serious question to be tried, and since the undisputed circumstances make reliance on the presumption unreal, it cannot simply be applied as a mantra.

126 Accordingly, I would allow the appeal.

127 There is one further issue in the appeal which I should consider. The appellant alleged that the learned Judge at first instance should have disqualified himself on the ground of bias, or at least of apprehended bias. An application was made to him during the hearing that he should so disqualify himself, but this application was rejected.

128 Not many cases have dealt with the proof of actual bias, since generally “it is not necessary that actual bias should be proved”: R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers’ Association [1960] 2 QB 167 at 187, per Devlin LJ. That is because it is easier to establish apprehended bias, whereas, if this cannot be established, a fortiori actual bias cannot be shown. However, since the Migration Act 1958 specified “actual bias” as a relevant ground of appeal in s 476(1)(f), several decisions have explored the nature of what this ground involves. In Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123, Wilcox J referred to the decision of Lockhart J in Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996) as establishing three points:

“First, the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Second, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Third, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm.”

In Sun at 127, I expressed the view that the question was “whether the Tribunal has … prejudged the case, so as to be unable or unwilling to decide it impartially” (italics original). I accepted that “actual bias need not be confined to an intentional state of mind”, and added:

“Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional.”

The third member of the Court was North J. His Honour said (at 134):

“Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant … .”

The most recent Full Court decision on actual bias is Jia Le Geng v Minister for Immigration and Multicultural Affairs (1999) FCA 951. There, Spender J said (at para 40):

“In my opinion, the test is plain. A decision-maker is biased if the decision-maker has made up his or her mind on the matter to be decided.”

He added:

“Actual bias is not made out if the decision-maker holds a view that is provisional or qualified.”

Cooper J, who dissented as to the result, took the same view of the law. He said (at para 80):

“For there to be actual bias on the part of a decision maker sufficient to justify disqualification, there must exist as a fact a mind so prejudged in favour of a conclusion already formed that the decision maker will not alter the conclusion irrespective of the evidence or arguments presented to him or her in respect of the very issue involved in the determination: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 91, 101; Sun v Minister for Immigration and Ethnic Affairs at 123, 127; Singh v Minister for Immigration and Ethnic Affairs (1996) FCA 902 at 9.”

R D Nicholson J said (at para 158) that “for actual bias to be established there must be evidence of ‘a closed mind to the issues raised’, ‘preliminary views incapable of alteration’, prejudgment of the case at least in some respect, real although not necessarily intentional.” His Honour also said (at para 161):

“I accept that … the correct test of actual bias is whether pre-judgment has occurred – that is, beyond a firmly or even strongly held view to the point where the view is not open to change by the relevant facts falling for consideration.”

129 However, since it is clear that, if the appellant does not succeed on the ground of apprehended bias, it cannot succeed on the ground of actual bias, the real question is whether apprehended bias was shown. In this regard, as is well known, the law of Australia has diverged from that of England. The position in this country was succinctly stated by Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41 at 47:

“When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. … The principle behind the reasonable apprehension or suspicion test is that it is of ‘fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.” (I have omitted footnotes.)

Their Honours distilled this test from a considerable body of authority, and cases continue to accumulate. Recent decisions include Re Ebner; Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557 in the Full Court of this Court; Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd [1999] VSCA 35, a decision of the Court of Appeal of Victoria; and Dovade Pty Ltd v Westpac Banking Group [1999] NSWCA 113, a decision of the Court of Appeal of New South Wales in which an earlier decision of the Full Court of the Federal Court of Australia was endorsed: Jury v Westpac Banking Corporation (Burchett, Foster and O’Connor JJ, unreported, 18 March 1998).

130 With particular reference to an attack of the nature of that made by the appellant on the consideration of this matter by the Judge at first instance, Giles JA said (with the agreement of Stein JA and Fitzgerald AJA) in Lynch v Zurich Australian Insurance Limited (Court of Appeal of New South Wales, unreported, 10 November 1998):

“Where the ground for disqualification is perceived prejudgment of an issue, ‘what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her’: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.”

Giles JA also pointed out that “the apprehension must be that the Judge will not decide the case impartially or without prejudice, not that the Judge will decide the case in a particular way”. The views of the Court of Appeal of New South Wales in the last case are fully supported by what Mason J said in Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’.”

131 There are two further points which should be particularly noted in the context of the present appeal. In the first place, the High Court has repeatedly warned that a judge should not accede to an application for disqualification, as it were, on demand. That would involve a failure to shoulder a burden of the judicial office. Mason J made the point strongly in Re J.R.L. at 352:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

See also Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 294. Whether a fair minded observer (who must, on the authorities, be assumed also to be informed - see Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd at para 30, per Charles JA) might entertain a reasonable apprehension of bias is a test which a challenged judicial officer should apply realistically, and not so that it may be lightly satisfied. In Dovade Pty Ltd v Westpac Banking Group, the judgment of the Court (Mason P, Sheller and Stein JJA) contains the following (at paras 92 and 93):

“In Gascor [Gascor v Ellicott [1997] 1 VR 332] Tadgell JA observed (at 342) that:

Although the criterion of apprehension of partiality or prejudice is possibility, not likelihood, a reasonable apprehension is to be established to the court’s satisfaction: it is a reasonable and not a fanciful or fantastic apprehension that is to be established; and the apprehension is to be attributed to an observer who is ‘fair-minded’ – which means ‘reasonable’. As Mason CJ and McHugh J pointed out in Webb v R at 52 ‘… it is the court’s view of the public’s view, not the court’s own view, which is determinative’. Even so, the court is to be satisfied that the criterion is met not that it might be. In Builders’ Registration Board of Queensland v Rauber(1983) 57 ALJR 376 at 384, Brennan J observed that:

Each of the indicia which a party proves and relies upon to show a reasonable suspicion [which is to be substantially equated with a reasonable apprehension] of bias must be examined, and the Court is called on to determine whether, upon such indicia, a reasonable suspicion of bias arises.

(The parenthetical clause in the passage cited from Brennan J is added by Tadgell JA.)

A claim of apprehended bias should be considered in the context of the judicial function and the public perception of it. There is a presumption that public officers have acted with honesty and discretion (Broom’s Legal Maxims 10^th ed p642). In the case of a judicial officer, this is no empty form. It is reinforced by the accountability necessarily inherent in the public processes of litigation and the disappointed litigant’s right of appeal. Every judge swears to ‘do right to all manner of people according to law without fear or favour, affection or ill-will’. This public oath is not a talisman against error, but it forms the constant back-drop to the way in which each judge functions on and off the bench. The history and reach of the oath were discussed by Sir Gerard Brennan on his swearing in as Chief Justice of the High Court of Australia (see 183 CLR at px.). The level of public confidence in the judiciary is based upon experience and a general perception of the rule of law.”

132 The second matter is that prejudgment is not to be shown merely by demonstrating that a judge has made, during the course of a hearing, comments adverse to the interests of one party. Comments of that kind may quite often be made in the process of exploration of the issues of a case, and to obtain counsel’s response to apparent problems which may affect the argument: see Re Keely; Ex parte Ansett Transport Industries (Operations) Pty Ltd (1990) 94 ALR 1. This point was emphasised in Vakauta v Kelly (1989) 167 CLR 568 at 571:

“In the course of an eloquent passage in his judgment in R v Watson; Ex parte Armstrong [(1976) 136 CLR 248 at 294], Jacobs J expressed the view that judicial ‘silence’ is a ‘counsel of perfection’. We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”

In R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14, Gibbs ACJ referred to R v Watson and commented:

“In that case it was pointed out, at p. 264, that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that ‘as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory’. However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be ‘firmly established’ that such a suspicion may reasonably be engendered in the minds of the parties or the public … .”

On this point, Wilcox J commented in Sun at 122:

“Parties are advantaged by learning what is going through the mind of the person hearing their case; this enables them better to target their evidence or submissions. The proviso, of course, is that the person must be, and remain, willing to be persuaded out of any express or implied tentative view.”

That is the key to the question. As Cooper J said in Jia Le Geng at para 82:

“The fact that a decision maker has formed a conclusion about an issue involved in the enquiry does not constitute bias on the part of the decision maker … . It must be shown that the decision maker is unwilling or unable to be persuaded out of any express or implied view before actual bias will be found.”

133 It is in the light of these principles that the disqualification argument must be approached in the present appeal. What the appellant complains of is that a series of propositions, adverse to its case, were advanced by the judge during the course of a lengthy and frequently interrupted hearing. It is not suggested that he advanced no propositions adverse to the interest of the other side. Nor is it denied that, on numerous occasions, he expressly qualified his remarks as expressions of tentative or preliminary views. It is relevant, too, that his Honour was addressing himself to experienced counsel, to whom strongly worded comments might be made in the full expectation that an appropriate answer would thereby be elicited. Robust exchanges are not so uncommon in the courts that, when they occur, any inference of prejudgment is likely to arise.

134 Of course, while judicial silence is not an ideal, judicial restraint is. It is an important advantage of the common law system that a judge does not generally have to descend into the arena of conflict, where he or she might risk becoming too closely identified with the contentions of one side. Even in the special case of the unrepresented litigant, where justice may demand special interventions by the judge, the courts have been careful to avoid the danger of too close an involvement in the very dispute the merits of which they must determine: see the comments made, and the authorities collected, in Gidaro v Secretary, Department of Society Security (1998) 83 FCR 139 at 147.

135 It would be tedious, and unnecessary, to go through the lengthy exchanges which took place in the present case between the judge and counsel. None of them, in my opinion, could have caused an informed and fair minded observer the relevant apprehension. None of them evinced, or suggested, such a prejudgment, irrespective of the evidence or argument, as should have led, according to the authorities, to the disqualification of the judge. It follows that this ground of appeal fails, although, on the ground earlier discussed, I would, as I have said, allow the appeal.

I certify that the preceding one hundred and nineteen to one hundred and thirty-five (119-135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.

Associate:

Dated: 13 August 1999

Counsel for the Applicant:	G J Hatcher and B Cross

Solicitor for the Applicant:	Middletons Moore & Bevins

Counsel for the Respondent:	S Rothman SC and J Pearce

Solicitor for the Respondent:	Ryan Carlisle Thomas

Date of Hearing:	8, 9 and 10 March 1999

Date of Judgment:	13 August 1999

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