FEDERAL COURT OF AUSTRALIA

AUSTRALIAN WORKERS’ UNION & ORS

BHP IRON ORE PTY LTD

(VG 24 of 2000)

Gray J

31 January 2000

SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 31 JANUARY 2000

In accordance with the practice of the Federal Court of Australia in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is intended to assist in understanding the principal conclusions reached by the Court, but it is necessarily incomplete.

My reasons for judgment and the orders made today deal with two disputes between the parties:

· Whether an interlocutory injunction should be granted, until the proceeding can be heard and determined, restraining conduct of the respondent alleged to be unlawful.

· Whether the proceeding should continue in the Victoria District Registry of the Court, or be transferred to the Western Australia District Registry.

Because the application has been made as a matter of urgency, and the evidence is necessarily incomplete and untested, the application for an interlocutory injunction is dealt with on the basis that the applicants are required only to establish that:

· there is a serious question to be tried that the respondent has engaged in unlawful conduct and, unless restrained, is likely to continue to engage in such conduct and

· the balance of convenience, as between the applicant and the respondent, favours the grant of an injunction,

in order to persuade the Court to exercise its discretion whether or not to grant an injunction. Findings of fact expressed in the reasons for judgment are provisional only and may differ from findings made after a trial, when the evidence is complete and has been tested by cross-examination.

The first five applicants are organisations of employees, registered pursuant to the Workplace Relations Act 1996 (an Act of the Commonwealth Parliament), some of whose members are employed by the respondent. Five of those employees are also applicants. The respondent, BHP Iron Ore Pty Ltd, carries on in the Pilbara region in Western Australia operations including mining, transporting, processing and shipping iron ore.

As at November 1999, the respondent employed more than 1,000 “award employees”, whose terms and conditions of employment were regulated by an award of the Western Australian Industrial Relations Commission and a series of collective agreements, negotiated between the respondent and five Western Australian state-registered trade unions, counterparts of the first five applicants. It also had many “staff employees”, in managerial and supervisory positions, whose terms and conditions of employment were regulated by individual contracts of employment. On 10 November, the respondent began:

· offering to each of its award employees an individual workplace agreement that, when registered pursuant to the Workplace Agreements Act 1993 (a Western Australian Act), would override the statutory effect of the award and the collective agreements in respect of each employee who was a party to such an agreement; and

· refusing to negotiate collectively with respect to the terms and conditions of employment of its award employees.

Up to date, more than 40% of the respondent’s award employees have accepted the respondent’s offers and entered into workplace agreements.

I have found that there is a serious question to be tried as to whether the respondent’s conduct in those respects contravenes sections 298K(1)(b) and (c) of the Workplace Relations Act, by injuring award employees in their employment, or altering the positions of award employees to the prejudice of those employees, for reasons prohibited by section 298L(1)(a), (h) and (l), namely:

· that they are members, and in some cases officers and delegates, of industrial associations;

· that they are entitled to the benefit of industrial instruments, in the form of the collective agreements, and an order of an industrial tribunal, in the form of the award; and

· that they are members of industrial associations that are seeking better industrial conditions and are dissatisfied with their conditions.

This question includes issues as to whether injury in employment, or alteration of position to the prejudice of the employee, can occur when there is no change to the terms and conditions of employment of an employee, other than a relative change, produced by improvement in the terms and conditions of employment of another employee. In relation to the establishment of the prohibited reasons, the applicants are assisted by the statutory presumption in section 298V. The respondent has not placed before the Court material to discharge the onus of proof cast on it.

I have found that there is a serious question to be tried as to whether the respondent’s conduct in other respects has contravened those sections of the Workplace Relations Act. There is some evidence of overt discrimination by the respondent against those who continue to be its award employees.

I have found that there is a serious question to be tried as to whether the respondent’s conduct in entering into workplace agreements with some of its award employees and having those agreements registered contravenes section 298M of the Workplace Relations Act by, otherwise than by threats or promises, inducing employees to stop being members of industrial associations. That question arises in two ways:

· There is an arguable case that it is enough that the respondent’s conduct has caused significant numbers of its employees who have become parties to workplace agreements to resign their union membership; this is sufficient to constitute inducement to resign that membership, even in the absence of any intention on the part of the respondent to bring about that result.

· There is evidence from which it might be inferred reasonably that a reduction in the number of union members employed by the respondent is what the respondent seeks to bring about by introducing individual workplace agreements.

I have found that there is a serious question to be tried as to whether, by entering into workplace agreements with some of its former award employees, the respondent is in breach of the contracts of employment of its remaining award employees. This question arises on the basis that it is arguable that the terms of the award were expressly incorporated by reference into the contract of employment of each award employee, and that one of the terms of the award so incorporated prohibits the respondent entering into a contract of employment that is inconsistent with the award with any award employee. The extent to which the Workplace Agreements Act overrides the award is limited and may not prevent the award term continuing to operate as a contractual term, so that the contract of employment of each award employee binds the respondent not to make an inconsistent contract with any other award employee.

I have found that the respondent will continue to enter into workplace agreements with its award employees, unless restrained by injunction.

I have found that the balance of convenience favours the granting of an interlocutory injunction. The applicants and the remaining award employees will suffer if the respondent continues to enter into workplace agreements with more of its employees, before the proceeding is determined. The respondent has not placed before the Court any evidence that it will suffer in economic terms from the grant of an injunction. If it should suffer economic loss, it would be able to recover its losses by means of the undertaking in damages offered to the Court on behalf of the applicants.

I have approached with caution the exercise of my discretion whether to grant an interlocutory injunction, bearing in mind the difficulties raised by the use of interlocutory injunctions in relation to industrial disputes. I have decided that I should grant an injunction, restraining the respondent until the hearing and determination of the proceeding from offering, entering into and registering further workplace agreements, or entering into contracts conditional on workplace agreements, with any more award employees.

I have decided to refuse the application to transfer the proceeding to the Western Australia District Registry of the Court. It is too early to make decisions about the place of the trial and the other circumstances of the proceeding do not make it inappropriate to continue interlocutory steps in the proceeding in Melbourne.

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