FEDERAL COURT OF AUSTRALIA

CPSU v Telstra Corporation Ltd [2000] FCA 1610

INDUSTRIAL LAW - certified agreements - employer arranging to conduct ballot before submitting agreements for certification - whether action taken with intent to coerce one union to become party to agreements which other rival unions had endorsed - meaning of “intent to coerce” in s 170NC of Workplace Relations Act 1996.

INJUNCTIONS - interlocutory orders sought to restrain employer from conducting ballot of employees and seeking certification by Commission of enterprise agreements - relevant discretionary considerations - powers of Commission to refuse certification or rectify agreement submitted for certification - effect on other unions and employees potentially affected by delayed wage increases - inadequacy of applicant’s undertaking as to damages.

Workplace Relations Act 1996 (Cth) Part VIB Divisions 2, 3and 9, ss 170, 170LI, 170LT, 170LU, 170NB, 170NC, 170WG

National Tertiary Education Industry Union v University of Technology, Sydney [2000] FCA 874 (unreported, 7 June 2000)

Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 unreported, 17 October 2000)

Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 (unreported, 24 August 2000)

Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189 (unreported, 24 August 2000)

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION

v TELSTRA CORPORATION LIMITED (ACN 051 775 556)

V 865 of 2000

RYAN J

MELBOURNE

13 NOVEMBER 2000

THE COURT ORDERS THAT:

1. The application for an interlocutory injunction be refused.

2. The directions hearing herein be adjourned to a date to be fixed.

3. Liberty be reserved to either party and the interveners to apply on not less than 48 hours notice to the other parties and, if necessary, the interveners.

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

REASONS FOR JUDGMENT

1                     The applicant (“the CPSU”) is an organisation of employees registered under the Workplace Relations Act 1996 (“the Act”). It has more than 10,000 members among about 49,000 employees of the respondent, Telstra Corporation Limited (“Telstra”), mainly in call centres, administration and support areas and the performance of technological functions. It does not have exclusive coverage of any of the categories of Telstra employees in which it has members. Other unions with members employed by Telstra include the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”), The Association of Professional Engineers, Scientists, Managers of Australia (“APESMA”), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”) and the Professional Officers Association of Victoria (“the POAV”). The CEPU, with approximately 20,000 members represents the largest number of Telstra employees. Wages and working conditions of Telstra employees are presently governed by the Telstra Corporation 1998/2000 Enterprise Agreement (“the 1998 Agreement”) and other awards and agreements. The union parties to the 1998 Agreement are the CEPU, the CPSU, APESMA and the AMWU. That agreement is expressed to remain in force until 21 December 2000. It prescribes salary entitlements for approximately 139 different classifications.

2                     In his first affidavit, affirmed on behalf of the CPSU on 6 November 2000, Mr Jones, the Assistant Secretary of its Communications Division, has deposed that, since 1996, Telstra has taken an increasingly hostile attitude to the CPSU and its members. That attitude is said to have manifested itself in various ways, including a refusal to allow CPSU delegates to use telephone and facsimile facilities to communicate with its members, refusing leave for delegates to attend trade union training courses, restriction or refusal of rights of entry for CPSU officers, a refusal to allow CPSU delegates to represent members on disciplinary charges, and a transfer of increasing numbers of employees to Australian Workplace Agreements (“AWAs”).

3                     At the end of July 2000, Telstra commenced negotiations with the CPSU and other unions with a view to concluding an agreement to replace the 1998 Agreement and another certified agreement expiring at the end of this year, the Telstra Corporation Customer Field Workforce Agreement 1998/2000 (“the CFW Agreement”). In the course of those negotiations, Telstra has proposed four “workstreams” across which employees would be assigned to a classification structure according to “core job descriptions”. Mr Jones further asserts that Telstra has used the “Hay” method of job evaluation to score each of those job descriptions on the basis of skill levels and assign to it a point on a 12 point or band salary structure.

4                     In para 32 of his affidavit of 6 November 2000, Mr Jones has deposed:

“Despite constant requests by me throughout the negotiations for a proposed agreement, Telstra has not as [sic] the date of affirming this affidavit provided the CPSU with the information that is necessary for the CPSU to analyse the effect of the proposed classification structures on employees. Telstra has never provided the CPSU with the Core Job Descriptions for all classifications, nor has it provided the Hay scores for the Job Descriptions. Additionally, it has never provided the CPSU with the market and other data which Telstra has based the proposed salary rates on. Finally and most critically, as deposed to later in this affidavit, Telstra did not even provide the CPSU with its proposed wage rates for each classification until 31 October, 2000.”

5                     Mr Jones has also referred to a number of other matters which had been the subject of negotiations with Telstra including variations to hours of work of part-time employees, shift penalties and changes to “committed scheduling”. In a “proposed communications calendar” circulated by Telstra to its employees, it has been indicated that “EA 2000 Brochures” would be sent out to staff between 6 and 12 November, allowing a pre-ballot period from 13 to 27 November, a ballot open between 27 November and 7 December, a vote count by the Australian Electoral Commission between 8 and 11 December, an “announcement % increase Yes vote” on 12 December, and certification of agreements on 21 December. According to Mr Jones, that timetable was never the subject of agreement between Telstra and the CPSU, or any of the other relevant unions.

6                     Mr Jones has further deposed that intensive negotiations were conducted between Telstra and the unions in August, September and October 2000, the last meeting having been held on 31 October. His affidavit continues with these paragraphs:

“37. At every single negotiation I stated to Telstra representatives that the CPSU saw the wage rates and associated reclassification exercise proposed by Telstra as critical to determine the union's position and asked Telstra to provide their proposed wage rates. These wage rates were never provided to me. The CPSU was very concerned that the translation of members into the new classification structure and the wage rates attached to each band in each stream had the potential to dramatically alter members' entitlements.

38. Throughout the negotiations, I also informed Telstra's representatives that the internal structures and processes of the CPSU required union negotiators to seek Section Council and membership endorsement of any proposed agreement before reaching in principle agreement with Telstra.

39. However, it was not until late September that Telstra's management for the first time produced draft documents containing Telstra's suggestions for terms of any agreement. These draft documents still did not contain any of the information necessary to enable the CPSU to consider the proposed classification structure. No wage rates, Job Descriptions nor market data were provided.”

7                     At the last meeting on 31 October, according to Mr Jones, Telstra, for the first time, tabled a copy of the agreement which it proposed should cover employees in its Infrastructure Services and Wholesale (“ISW”) Business Unit, together with schedules of wage rates proposed for each of the bands in the four proposed business units. Further, according to Mr Jones in para 45 of his affidavit:

“Telstra, even at this last meeting, had still not provided the translation details for thenew structure. It did not provide the Core Job Descriptions or the market relativity data. As at the date of affirming this affidavit Telstra has still not provided the CPSU with the details on how employees would be translated into the new classification structure so that the CPSU could properly assess and consider the impact of the proposed agreements.”

8                     Then, Mr Jones deposed, Mr O’Keeffe, Telstra’s General Manager, Workplace Reform, demanded at about 5.00 pm on 31 October that each union, including the CPSU, decide then and there whether to be a party to the proposed agreements. In the context of restrictions on its ability to communicate with its members during working hours, the CPSU’s perception is that what it calls “Telstra’s ultimatum”, has given it insufficient time to evaluate the proposed agreements or consult with its members about their terms. However, it appears that the CEPU and APESMA, for which, intervening by leave, Mr Reitano of Counsel appears, have agreed to become parties to the agreement which Telstra has submitted for the consideration of its employees.

9                     Telstra is in the process of distributing to each employee in one or other of the four workstreams a copy of the agreement, relevant to that employee’s workstream, of which it proposes to seek certification. An example of one such copy agreement, that related to the Retail Business Unit, is in evidence. Clause 12 of that document, so far as is relevant, is in the following terms:

“12 WORKSTREAM PRINCIPLES

The following principles apply to the implementation of the Workstreams and operation of this Agreement. The work in each Workstream will be evaluated in accordance with the Telstra Job Evaluation and Classification System and these principles.

Foot Note: A copy of the current Telstra Job Evaluation and Classification System will be tendered as an exhibit in the Australian Industrial Relations Commission proceedings for the certification of this Agreement.

12.1 The Telstra Job Evaluation and Classification System

12.1.1 12.1.1 Each Band, within a Workstream, will have agreed representative Core Job Descriptions. There may be more than one Core Job Description for each Band. Core Job Descriptions will form part of this Agreement.

12.1.2 As part of the job evaluation and classification process, managers will design any new jobs that will go into the Workstream. Should the parties to this Agreement be unable to reach Agreement on the appropriate grading of new jobs, the matter will be referred for review to a review team consisting of:

(a) an external consultant expert Telstra Job Evaluation and Classification System;

(b) a Telstra representative; and

(c) a nominee of the union.

A majority of the three‑person team will determine the outcome and this outcome will be binding on the parties to this Agreement without recourse to any further review or appeal.

12.1.3 Core jobs will not be changed, reviewed or altered except by agreement between the parties, and without the involvement of any third party, during the period of operation of this Agreement.

12.2 Movements within and between Workstreams

12.2.1 At the commencement of this Agreement the previous classification/designation system as provided in the awards in Schedule D will no longer apply in Telstra, for the purpose of recruitment, or for movements from one job to another, including promotion, transfer (other than in clause 1 B. 1 in Schedule B) or redeployment.

12.2.2 A staff member who commences employment with Telstra after the certification of this Agreement will be paid at the applicable Company Rate contained in Schedule A.

12.2.3 The rules governing movements within and between Workstreams covered by this Agreement are contained in Schedule B.”

10                  Clause 26 of the same documents provides:

“OPERATION OF THE AGREEMENT

26.1 This Agreement operates as follows. Subject to relevant legislation, it overrides the operation of any Award or Certified Agreement binding on Telstra to the extent of any inconsistency. It supersedes and replaces the:

(a) Telstra. Corporation Enterprise Agreement 1998/2000;

(b) Telstra Corporation Customer Field Workforce Agreement 1998/2000;

(c) Telstra Mobile Communications Services/CEPU Paging Centre Management and Supervisors Review Agreement 1994;

(d) Telstra MCS Mobilenet Memo Agreement 1996;

(e) PSU/Telstra Agreement for Conditions of Employment at the National Telemarketing Centre 1994;

(f) Telstra/CEPU Operator/Consultant Job Work Design Review Agreement 1997;

(g) Australian Telecommunications Commission Telephone and Phonogram Staff Member (Provision of Operator Assisted Service) Agreement 1984; and

(h) Any award or agreement which may bind Telstra by virtue of a transmission of business.

26.2 The parties agree that Telstra will apply to terminate any of the agreements with effect from the date of certification of this Agreement and the unions will consent to any such application.”

11                  The effect of the CPSU’s not being a party to each agreement, if certified, will be, it is contended on its behalf, that it will be precluded from representing its members in the processes envisaged for “dispute avoidance/resolution” and consultation before the introduction of “significant business initiatives or major changes” and will be unable to participate in negotiations for changes in “core job descriptions”. That matter is dealt with, for example, in clause 12.1.3 of the draft agreement for the Retail Services Business Unit quoted at para 9 of these reasons. It is also said that the certification of the agreement for the Retail Business Services Unit will supersede the operation of an existing agreement under s 170 of the Act, under which the CPSU has certain rights of exclusive representation. By paras 65 and 66 of Mr Jones’ affidavit of 6 November, it is deposed:

“Telstra's strategy of distributing the proposed agreement to employees at this point in the negotiations is having a coercive effect on the union and its members in the negotiations for a replacement certified agreement. If Telstra proceed to conduct a ballot the capacity for the CPSU and its members to press their claims will be severely prejudiced. This detriment is exacerbated by the terms and conditions in the proposed agreement, whereby some groups of employees will be advantaged by the agreement proposed by Telstra whilst other employees will be significantly disadvantaged by the agreement proposed by Telstra. The distribution of the draft agreement and conduct of a ballot has a serious potential to cause division amongst employees and union members.

As a result of the above effects I am extremely concerned that the Union may be forced to abandon its claims in negotiations and agree to making the certified agreements on the terms demanded by Telstra.”

12                  Finally, it is asserted in Mr Jones’ affidavit of 6 November that Telstra’s conduct, in unilaterally submitting to a ballot of its employees a form of agreement for each of the proposed workstreams, is in breach of cl 8.1.4 of the 1998 Agreement, which provides:

“Where the parties agree to move a group of staff who are not covered by an existing workstream into an existing workstream, the proposal will be subject to a valid majority vote of the staff to be moved in a ballot conducted by the Company.”

13                  As well, Mr Jones has alleged that information which Telstra has distributed by email to its employees has misrepresented the attitude of the union parties, and especially the CPSU, to the proposed agreements, and has been in breach of Telstra’s own internal guidelines for the dissemination of industrial information by email.

14                  On 2 November, Mr Jones wrote to Mr O’Keeffe a letter which referred to the history of negotiations during 2000 and concluded:

“Notwithstanding all that I have described above, it was not until about 11.00 am on 31 October 2000, during the last of our negotiation meetings, that Telstra finally produced its offer of rates of pay for its employees. Within minutes of doing so you advised me and other Union representatives present that the company was taking the offer "to the printers" that evening and needed an immediate response as to whether the offer was acceptable to the Unions including the CPSU. I also note in passing that the document intended to reflect Telstra's final position of an Enterprise Agreement and requiring immediate approval from the CPSU is incomplete.

You also advised that whether the Union agreed to the offer or not, it would be sent out to employees by post on 6 November 2000.

As you are aware, Telstra's wages offer consists of a series of pay rates over a large number of classifications said to be based on surveys of 3 market research companies. You have denied the CPSU access to these market surveys.

Further, the wages offer is part of a complex restructuring of classification structures which means that it is difficult to assess the position of particular employees working under current industrial arrangements in the proposed new structure. This is further complicated because the translation process involves agreement on job descriptions and work value analysis.

Despite this Telstra intends to post the proposed agreement to our members and conduct a ballot despite of [sic] Union's request for time to consider the document.

In the circumstances, the CPSU requires an appropriate period of time to examine the work through the company's offer before responding to it. Accordingly, the Union demands that you provide immediate advice to it confirming that Telsrta will not be mailing out the purported agreements to its employees.”

15                  Mr O’Keeffe replied by letter, also dated 2 November, which included these paragraphs:

“It is not correct to say that Telstra produced its offer at 11 am on 31 October 2000. Telstra, in confidence, had indicated to the Single Bargaining Unit the rates of pay some days before. It is true that Telstra put all the rates on the table in written form on the 31st. The general increase, that is as proposed in the Agreement of 4% x 4%, was provided to the Unions at least one week earlier.

Telstra did advise that the document was “going to the printers” as it was the final position that after lengthy negotiations Telstra believed was acceptable to the parties. Telstra asked the SBU for advice as to whether the Union’s negotiating team would recommend to their Executive’s, acceptance of the Agreements.

It is not correct to state that the Agreement was incomplete, except for the normal editing adjustments, the document was complete.

Telstra advised that the documents would be provided to the staff, along with individual statements where appropriate, on the 13th November, the start of the pre ballot period. The ballot would then commence on the 27th of November and conclude 3 days later. This was well known to the Unions.

Telstra has advised that the data from the 3 market survey companies would be made available to its staff and the Unions, this will be done for the staff via the Business Unit briefings where the particular details impacting their staff will be available.

Please be advised that given that the majority of the Unions represented by the Single Bargaining Unit have indicated their preparedness to recommend acceptance by their respective Executives, Telstra will be proceeding with the timetable previously advised to you.”

16                  Mr Jones disputes Mr O’Keeffe’s assertion in the letter just quoted that the “general increase” of 4% x 4% had been provided to the union by about 24 October 2000, and says that, as late as 30 October, Mr O’Keeffe had provided to the union representatives about eight “indicative” wage rates which required authorisation by Telstra senior management. As well, in his second affidavit sworn 8 November 2000, Mr Jones contends that a period of three weeks is necessary for the CPSU to consult with, and obtain the views of, its members, before it can decide whether to become a party to the proposed agreements. Exhibited to Mr Jones’ third affidavit is a copy of a document entitled “Telstra Retail Enterprise Agreement 2001/2002 Briefing Pack November 2000” which is apparently intended for use by Telstra line managers in briefing their staff on the effect of the agreements. The last sentence in a covering email accompanying that document recites “at this stage the CPSU are not party to this agreement as they [are] consulting their membership before coming to decision.” In the body of the briefing pack it is recited, amongst other things:

·          “4 out of 5 Unions have indicated their support and have endorsed all clauses in the Agreement

·          CPSU have indicated they will be finalising their position after further consultation with their members.

·          EA 2000 intranet site - now accessible to all staff

·          Vote will take place between 28th and 30th November (postal votes up to the 7th December)

.....

3. For the majority of people the existing classification structure (eg A03) and pay rate will remain the same

4. Each BU will have its own EA - eg. Telstra Retail, IS&W, On Air etc

5. Agreement has been reached on two 4% increases over the 2 year life of the agreement

6. We have worked with the Unions to agree some fine tuning to specific agreement provisions eg: casual clause”

17                  The briefing pack also contains illustrations of the effect of the implementation of the new workstreams and the consequences for particular categories of employees in relation to the two proposed 4% salary increases.

18                  In an answering affidavit sworn 8 November 2000, Mr O’Keeffe has deposed that Telstra’s negotiations for a new enterprise agreement have been with a single bargaining unit (“SBU”) representative of all unions with members among Telstra’s workforce. As members of the SBU, the CEPU has pursued the negotiations on behalf of itself and the AMWU, and APESMA has represented itself and the POAV. Mr O’Keeffe has also referred to a document furnished by the Australian Electoral Commission entitled “Guidelines for the Conduct of the Enterprise Agreement Ballot for Telstra” which set out a timetable stipulating that the enterprise agreement should be made available to voters on 13 November, that “attendance voting” should occur on 28 to 30 November, and that postal voting should close at 9.00 am on 8 December. A copy of that document was provided to Mr Jones on 25 September.

19                  Also exhibited to Mr O’Keeffe’s affidavit is a bulletin dated 6 November from the CEPU to its members, which, according to Mr O’Keeffe, more or less accurately sets out the effect of the four enterprise bargaining agreements which have been negotiated to come into force upon certification. In particular, Mr O’Keeffe implies that the CEPU has been able fully to assess the impact of the Customer Sales/Service workforce (“CSSW”) agreement which pertains to the workstream in which the CPSU has most of its members. He also asserts that core job descriptions for most classifications in the new workstream have been provided to the CPSU after a continuing process of negotiation contemplated by cl 8 of the 1998 Agreement, to which reference is made in para 12 of these reasons. Mr O’Keeffe’s affidavit concludes with these paragraphs:

“16. The CEPU and APESMA have both indicated a willingness to be parties to a s.170LJ agreement. The CEPU and APESMA have both been party to exactly the same negotiation process as the CPSU. None of these three unions have been treated any differently in terms of the information which has been provided to them regarding the new work streams. Telstra’s overriding concern has, since the outset of negotiations with the unions on 7 August 2000 been to have an agreement certified in time for employees to receive a salary increase immediately upon the expiry of the existing agreement. Telstra has no objection to the CPSU being a party to the agreement. However, Telstra is not prepared to delay the certification process of the agreement. At no stage has Telstra sought to coerce the CPSU to be a party to the agreement. Telstra’s position is that at the end of the day it is a matter for the CPSU as to whether or not it wishes to be a party to the agreement.

17. I have been advised by Ray Livingstone, the returning officer of the Australian Electoral Commission that if the date for the ballot is changed from 27 November 2000 the AEC would not be in a position to conduct a further site ballot until February or March next year. He has informed me that the AEC has committed substantial resources to manning approximately 126 polling booths in all Australian States and Territories which will be utilised for the purposes of the ballot. The costs to Telstra of conduct the ballot via the AEC is approximately $300,000.

18. The employees who are scheduled to vote on 27 November last received a pay increase in December 1999. If the ballot does not proceed on 27 November, then in light of the advice which I have received from the AEC, it is unlikely that the agreement could be certified before the end of March 2001. Telstra considers that such an outcome would be most unfair to its employees.”

20                  By its amended application, the CPSU seeks, as its substantive relief, a declaration that Telstra has contravened s 170NC of the Act by taking or threatening to take action with intent to coerce the CPSU to make an agreement under Divisions 2 or 3 of Part VIB of the Act. It also seeks injunctions restraining Telstra from taking any step to hold a ballot of its employees in respect of the proposed agreements for each of the four workstreams and from taking any step to have those proposed agreements certified by the Australian Industrial Relations Commission (“the Commission”). As well, the CPSU seeks the imposition of penalties for contravention of s 170NC of the Act and further or other relief. It is further sought that, pending the hearing and determination of the application, Telstra be restrained from taking any step to hold a ballot of its employees in respect of the proposed agreements and from taking any step to have those agreements certified by the Commission.

21                  Section  170NC constitutes the whole of Div 9 of Pt VIB of the Act and provides:

“(1) A person must not:

(a) take or threaten to take any industrial action or other action; or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

(d) approving any of the things mentioned in paragraph (c).

Note: The Court has certain remedial powers in relation to a contravention of this section: see Division 10.

(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).

(3) An employer must not coerce, or attempt to coerce, an employee of the employer:

(a) not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or

(b) to withdraw such a request.”

22                  The action which Telstra is imputed to have taken with intent to coerce the CPSU to enter into each of the four proposed agreements is the submission of the those agreements to ballots of the relevant employees and seeking to have them, if approved in the ballots, certified by the Commission. If those steps were to occur without the CPSU having become a party to each agreement, the CPSU, it is said, would effectively be stripped of its capacity to represent the industrial interests of Telstra employees. In that respect, the consequences for the CPSU were said to be equivalent to those for the applicant in National Tertiary Education Industry Union (“NTEU”) v University of Technology, Sydney [2000] FCA 874 (unreported, 7 June 2000), as to which Madgwick J observed, at para 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.”

23                  However, that was a case in which the NTEU had been excluded from negotiations for a new enterprise agreement and had based its claim for relief on s 170NB of the Act, which proscribes discrimination against employees on the basis of membership of any organisation or of a particular organisation. The present case is founded on s 170NC of the Act, which requires the CPSU to establish that Telstra has acted in a particular way with intent to “coerce” the CPSU to agree to making one or more of the proposed four enterprise agreements.

24                  There has been considerable recent discussion, mostly in cases decided on an interlocutory basis, of what is required to constitute an “intent to coerce” within the meaning of s 170NC. I agree with Gyles J in Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 (unreported, 17 October 2000), that it has a similar connotation to the application of duress with which s 170WG of the Act is concerned, as to which see Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42. That connotation requires, I consider, an intention to overbear by illegitimate or unconscionable pressure, the will of the person to whom the action is directed. I accept that an intent of that kind need not be the sole intent actuating the action said to offend against s 170NC (c.p. Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188 (unreported, 24 August 2000)). However, on the present state of the authorities, I am unable to impute to Telstra any intent to force the CPSU to become a party to one or more of the proposed enterprise agreements.

25                  In my view, the preferable inference is that it is a matter of indifference to Telstra whether or not the CPSU becomes a party to the enterprise agreements. That is consistent with Mr O’Keeffe’s evidence that “Telstra’s position is that at the end of the day it is a matter for the CPSU as to whether or not it wishes to be a party to the agreement.” As I understand it, Telstra is prepared to acquiesce in the CPSU’s becoming a party to the new enterprise agreements as late even as their certification. If that understanding is not borne out in the event, the CPSU can renew its application for interlocutory relief pursuant to the liberty to apply which I propose to reserve. I also infer that Telstra’s sole concern is to have the four agreements it has proposed submitted to and approved by a ballot of employees and certified by the Commission in time to take effect immediately on the expiration of the 1998 Agreement.

26                  Moreover, I am not persuaded that the pressure to which the CPSU perceives itself to be subject, is illegitimate or unconscionable. As I pointed out in Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189 (unreported, 24 August 2000), at para 66, in the context of s 170WG of the Act:

“There is discernible in many provisions of the WR Act, including s 170WG, a policy that wages and working conditions are to be determined by a process of bargaining at arms’ length using weapons, including protected industrial action, which the legislation impliedly regards as fair, but without resort to proscribed tactics or techniques which are to be characterised as unfair.”

27                  That is not to say that the Act mandates an equality of bargaining power. The respective strength of parties to industrial negotiations will vary according to a number of factors, including economic circumstances, the relative tightness of the relevant labour market, and the extent to which one or more unions command the loyalty of the workforce concerned. In the present case the CPSU may be impelled to subscribe to the proposed agreements because of the organisational advantages which will otherwise accrue to the other unions in the field with some, at least, of which it competes for members. However, that is simply one of the circumstances which attends the present bargaining process, and I am unpersuaded that Telstra is taking unconscionable advantage of it.

28                  Even if I am wrong in the conclusion just reached, that there is not an arguable question to be tried whether Telstra is acting as it is with intent to coerce the CPSU to make the agreements in issue, the balance of convenience tends strongly against the grant of interlocutory relief. In coming to that view, I have been influenced by considerations similar to those identified by Madgwick J in the NTEU Case (supra). The Commission is required by s 170LT before certifying an agreement, to be satisfied of a variety of matters, including the genuine approval of the agreement by a majority of persons whose employment would be subject to the agreement, after those persons have been given an appropriate explanation of the terms of the agreement. If, as the CPSU seemed to contend at various points in its case, significant provisions of the present agreement have not been expressed in binding terms, that may lead the Commission to question the appropriateness of the explanation of those terms and even, perhaps, the existence of what s 170LI describes as “an agreement in writing”.

29                  By s 170LU(3) the Commission is also required to refuse to certify an agreement if it is satisfied that:

“(a) the employer has, in connection with negotiating the agreement, contravened section 170NB or Part XA (which deals with freedom of association); or

(b) the employer has caused a person or body to engage, in connection with negotiations for an agreement, in conduct that, had the employer engaged in the conduct, would be a contravention by the employer of section 170NB or Part XA; or

(c) a person or body has, on behalf of the employer:

(i) so engaged in such conduct; or

(ii) caused another person or body so to engage in such conduct.”

30                  Sub-section 170LU(4) further provides:

“Subsection (3) does not apply if the Commission is satisfied that the contravention or misconduct, and its effects, have been fully remedied.”

31                  As well, sub-sections 170LV(1) and (2) provide:

“(1) If, under section 170LT or 170LU, the Commission has grounds to refuse to certify an agreement:

(a) the Commission may accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission's concerns, certify the agreement; and

(b) in any case, before refusing to certify the agreement, the Commission must give the persons who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable.

(2) If an undertaking is not complied with, the Commission, after giving the persons who made the agreement an opportunity to be heard, may:

(a) order the one or more persons who gave the undertaking to comply with it; or

(b) by order, terminate the agreement.”

32                  In the light of that machinery, which the Commission is required to apply if and when the proposed agreements are submitted to it for certification, the following observations of Madgwick J in the NTEU Case at para 18, can be paraphrased to apply with equal force to the circumstances of the present case:

“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.”

33                  Like Madgwick J, I would also have exercised my discretion adversely to the applicant for injunctive relief because of the detrimental impact which the consequential delay in the certification of the agreements (if they are to be certified) would have on Telstra, the other unions party to the agreements and the employees who stand to derive significant salary increases immediately upon certification. As well, an opportunity for protected industrial action would arise if there were any significant hiatus between the expiration of the 1998 Agreement and the certification of the new agreements. Whether viewed singly or in combination, these are not matters against which Telstra, or its employees or the other unions could adequately be protected by an undertaking as to damages extracted from the CPSU.

34                  For these reasons, I consider that the application for an interlocutory injunction should be refused. I shall adjourn the directions hearing herein to a date to be fixed and reserve liberty to either party and the interveners to apply on not less than 48 hours notice to the other parties and, if necessary, the interveners.

Associate:

Dated: 13 November 2000