FEDERAL COURT OF AUSTRALIA

National Tertiary Education Industry Union v University of Technology, Sydney [2000] FCA 874

INDUSTRIAL LAW – NTEU excluded from negotiations between CPSU and University regarding the certification of a new enterprise agreement – claim of discrimination

INJUNCTIONS – interlocutory orders sought restraining the University from entering into agreement – balance of convenience against intervention – serious question to be tried but not a strong case – Act seeks to prevent discrimination against employees, but not against industrial organisations themselves – Commission prohibited from certifying a discriminatory agreement – Commission able to determine factual questions – delay of pay rise

Workplace Relations Act 1996 (Cth), ss 170NB(1), 298M

In the matter of CSL Enterprise Agreement 1999; CSL Limited v CPSU (Full Bench of Industrial Relations Commission, 5 June 2000), considered

NATIONAL TERTIARY EDUCATION INDUSTRY UNION v UNIVERSITY OF TECHNOLOGY, SYDNEY

N 581 of 2000

MADGWICK J

7 JUNE 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for interlocutory relief is dismissed.

2.                  The applicant is to pay the costs of the respondent and intervenor.

3.                  The applicant is granted liberty to apply to the Court on short notice in relation to express entitlements of its members, as explained in the reasons for decision.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     The applicant, the National Tertiary Education Industry Union (“the NTEU”) is an organisation of employees registered under the Workplace Relations Act 1996 (Cw) (“the Act”).  It has a small number of members who are employed as general staff by the respondent, the University of Technology, Sydney (“the University”).  The great majority of general staff employed by the University, who are members of any organisation, are members of the intervener, the Community and Public Sector Union (“the CPSU”), also registered under the Act.  There are also some general staff who are members of trade based unions, but I infer that they are not large in number. 

2                     The NTEU has been excluded from negotiations between the CPSU and the University regarding the certification of a new enterprise agreement.  The NTEU claims that its members have thereby suffered discrimination and it seeks, by way of interlocutory injunction, an order restraining the University from, amongst other things, entering into an agreement with the CPSU under the Act.

Factual background

3                     The NTEU, in late 1999, obtained the right to enrol as members persons employed by universities, such as the respondent, who did not fall within the applicant's traditional membership base of academic staff.  An appeal against the decision of Senior Deputy President Williams, who granted the NTEU that right, has been heard but not determined, by the Full Bench of the Australian Industrial Relations Commission (“the Commission”).  I should assume, therefore, that the NTEU has the unimpeded right to represent the employees concerned, though it is possible that the applicant will not long continue to have that right, at least without some impairment. 

4                     Having obtained the right to represent such employees, the NTEU enrolled a small number of members of the general staff of the University and sought to be included in negotiations, which had already begun, with the aim of having a certified agreement registered under the Act.  Those negotiations have been carried out between the University and the CPSU.  The University, for a time, accepted the presence of NTEU representatives in the negotiations (there was some dispute about the basis upon which this was done, and there remains, a serious factual question as to whether the NTEU was for that time fully a party to the negotiations). 

5                     However, as the negotiations progressed, on the substantive matters of the wages and conditions to be included in the agreement, the Vice Chancellor of the University, Professor Blake, refined his thinking as to whether he wished, on behalf of the University, to make an agreement with the two unions.  Ultimately he came to the view that he did not and he explained his attitude in the following way, in a "broadcast e-mail", intended to come to the notice of all relevant staff of the University:

“Industrial relations in our sector are going through a watershed period.  Earlier this year it seemed that accommodation between the unions would facilitate both unions being party to the support staff Agreement.  In this context the University at that time indicated that the NTEU was a potential party to the agreement.  The University subsequently notified the NTEU of negotiation meetings with the CPSU.  NTEU representatives have attended these meetings, as well as providing the University with matters for consideration, many of which have been incorporated into the proposed Agreement.

Subsequently it became apparent that the concerns of the particular unions were not conducive to a joint approach.  The CPSU acknowledged that it was a matter for UTS as to which eligible unions would be party to the Agreement but also indicated their objection to the NTEU being party. In discussion with representatives from both unions it became clear to me that there was not a solution which would satisfy all parties.  In the current circumstances I have decided that UTS will on this occasion make an Agreement with the CPSU, as the union with overwhelmingly the largest membership and as the traditional and incumbent party to support staff Agreements at UTS.

I am extremely mindful of the stated concern of the NTEU that their members not be disadvantaged, particularly where they are involved in review processes set out in the Agreement such as discipline processes.  While I am confident such review processes would be conducted impartially I have requested that the proposed Agreement be amended to include provision that will allow NTEU nominees to participate in Agreement processes particular to their members.

As I noted, this is a transition period in industrial relations and with respect to union membership.  Union membership matters should be resolved between unions and staff.  It is not my intention to influence particular membership outcomes.  I am very concerned to ensure that all staff at UTS continue to work in a productive environment where their employment conditions are safeguarded by fair, reasonable and relevant industrial agreements. 

I believe the proposed Agreement will support that environment and I look forward to its endorsement by the CPSU and staff.”

6                     The NTEU was thereupon excluded from further participation in negotiations and the University currently plans to submit an agreement, which has been concluded with the CPSU, for the approval of the employees concerned pursuant to s 170LJ(2) of the Act.  That subsection provides that an “agreement must be approved by a valid majority of the persons employed at the time whose employment will be subject to the agreement”.  Section 170LE indicates that, before there can be said to be a valid majority, all of the employees concerned must be given a “reasonable opportunity” to decide whether they want to approve the agreement and must decide, by a majority of those voting, that they wish to give that approval.  The University has indicated to the Court that it is prepared to facilitate a full and fair opportunity for the NTEU to put such material as it would wish before the relevant employees in an effort to improve its position before the vote is taken. 

7                     The agreement provides for a relatively substantial pay increase by contemporary standards.  In particular clause 12.1 reads:

“This Agreement provides for the following salary increases:

(a)       4% payable from the date of signing of the agreement –

            …

These salary increases are only payable to staff members still employed by the University on, or subsequent to, the date of certification of this Agreement.

A lump sum payment of $500.00 ... will be paid to ... staff employed by the University at the date of signing and who remain employed as at the date of certification.  This payment shall be made to eligible staff on the first pay day after certification.”

No party wishes to delay the payment of either the salary increases or the "sign-on" payment of $500 for full-time staff. 

The applicant’s case

8                     The case of the NTEU is that its exclusion from negotiations is discriminatory against its members employed as general or support staff.  The NTEU relies upon s 170NB(1) of the Act which provides:

“An employer must not in negotiating an agreement under Division 2... , discriminate between employees of the employer ...

(b)       because some of those employees are members of a particular organisation of employees, while others are not members of that organisation or are members of a different organisation of employees.”

The applicant also mainly relies on s 298M of the Act which provides:

“An employer ... must not (whether by threats or promises or otherwise) induce an employee ... to stop being … [a] member of an industrial association.”

9                     The inference to be drawn from the evidence, as a matter of common sense, is that in the event that the NTEU is not a party to the proposed agreement and it was certified under the Act, then general and support staff who are members of the NTEU will over time be less attracted to being members of the NTEU. 

10                  The agreement seeks to address the perceived potential for discrimination against NTEU members by the inclusion of a clause which, despite some infelicity of expression, seems clearly enough designed to honour the principle that individual employees should be represented by their union of choice with respect to individual grievances that may arise under the agreement, for example in disciplinary cases.

11                  However, the experienced Senior Industrial Officer of the NTEU, in his short evidence, pointed to other areas where practically important matters for individuals might be dealt with in a discriminatory fashion under the proposed agreement.  In particular these concerned issues of managing change and possible redundancy.  I am satisfied from the University's attitude, as represented by Professor Blake's e-mail and its conduct in these proceedings, that the University will fairly consider any representations directed to issues of that kind.  In any case I will give the NTEU liberty to apply on short notice about such issues if, after attempting to negotiate with the University, any such possible discrimination cannot be ameliorated.

Balance of convenience

12                  The Act has many provisions dealing with and touching upon the question of freedom of association of employees.  There are indicators and contra indicators for the positions of those on both sides of the record in this litigation and to my mind, there is a serious question to be tried in relation to s 170NB.  It is also the case, in my opinion, that the NTEU's claim concerning s 298M is arguable, though, as presently advised, it seems to me that the case under s 170NB would appear to be the stronger one.  Such is the complexity of the matter that there is, I confess, an element of necessary superficiality, in the urgent circumstances prevailing, about my judgment in relation to the matter, but nevertheless, so far as the balance of convenience goes, I have not been persuaded by the applicant that it can be said that it has a strong case under s 170NB.

13                  Counsel for the CPSU referred to the judgment of the Full Bench of the Commission, In the matter of CSL Enterprise Agreement 1999; CSL Limited v CPSU delivered on 5 June 2000 (Print S6754).  At least at first blush the propositions for which it is cited do not seem to me to be self evidently correct, notwithstanding the terms of that decision, although ultimately it may well prove that the decision is correct.  Nevertheless, it would be right to

acknowledge the expertise of the Commission by regarding the decision as tending, to some extent, against the strength of the case of the applicant. 

14                  When an agreement is considered for certification by the Commission, the process is governed by Division 4 of Part VIB (ss 170LE to 170LW) of the Act.  The Commission must, pursuant to s 170LU(3), refuse to certify an agreement if it is satisfied that the employer has, in connection with negotiating the agreement, contravened s 170NB or Part XA (which includes s 298M, 298K and 298L, which were relied on by the applicant).  However, subs (4) of s 170LU provides that:  “Subsection (3) does not apply if the Commission is satisfied that any such contravention or conduct and its effects have been fully remedied.”  Section 170LV provides other steps that may be taken by the Commission with a view to remedying any such contraventions of the Act and allowing certification. 

15                  Mr Reitano, who appears for the NTEU, rightly points out that the question of alternative possible remedies for the NTEU, and perhaps more importantly its members, whom this application seeks to protect against discrimination or inducement, is not of itself decisive.  In particular, he says that the applicant has standing as a party principal here, and in relation to being heard in the certification process before the Commission, the NTEU could at best appear, either itself or by one of its officers or employees, as agent for one or more of its relevant members.  This Court has jurisdiction to guard by way of injunction against the harm involved in infractions of the Act and should not readily decline to do so where a seriously arguable case has been made out. 

16                  It was said on behalf of the NTEU, in relation to the question of delay as to the employees concerned receiving pay rises that their employer concedes are appropriate, that the University should simply pay the increases and secondly, that at worst all that would be involved would be some delay in the receipt of payments, the amount of which would not be diminished by any delay.  Counsel for the NTEU also undertakes, on behalf of his client, to prosecute the proceedings in this Court with all due dispatch. 

17                  It is the rights of employees rather than unions themselves that the Act principally sets out in the relevant provisions to protect.  The Act does allow for the employees, as was done in CSL, to be heard by the Commission in relation to discrimination and freedom of association issues.  That can be done within a fairly short space of time (the evidence suggests within about eight weeks from now, as an outer estimate).  Nobody disputed the view, which I think to be beyond argument, that if the Commission proceeds on a mistaken view of the meaning of ss 170NB, 298M, 298K or 298L, this would be a matter involving "jurisdictional error" of a kind apt to attract judicial review.  The matter is not likely to be able to be dealt with more expeditiously in this Court than in the Commission. 

18                  Moreover, the Commission’s general armoury of formal and informal conciliatory powers and its experience, and the particular rectificatory provisions to which I have referred, mean that, to the extent to which further agreement may be possible, and I think there is room for that, it will probably be achieved more efficiently and more surely there than here.  While the exclusive jurisdiction of this Court in relation to aspects of the Act might be taken to indicate a view that this Court should be regarded to some extent as a specialist Court, it would be churlish not to acknowledge that the current experience of the Commission is much deeper.    So far as questions of fact finding as to tendencies and effects in the industrial environment of particular conduct and situations are concerned, I think the Commission in general is better placed reliably to determine them than a judge of this Court. 

19                  As to the question of delay, most of the employees concerned are bound to be modestly paid, and to be kept out of $500 with a four per cent increase for longer than is strictly necessary would be not only an important matter verging on hardship but also very unfortunate in the sense of the promotion of harmony in the workplace.  In my opinion, the University is doing no more than any reasonable employer would do in tying its actual payment of the negotiated wage increases to acceptance of the agreement as a whole by a valid majority of the staff and to the agreement reaching fruition as a legally binding instrument under the Act.  I do not regard the suggestion that the University could mitigate any ill effects of an interlocutory injunction by simply paying the increases as a valid one in the circumstances. 

Disposition

20                  For these reasons I am of the view that interlocutory relief ought not be ordered.  I grant the applicant liberty to apply further on short notice in relation to the issues of what I might call the “internal”, express entitlements of employees under the proposed agreement, as discussed in para 10 of these reasons.

Associate:

Dated:             7 June 2000