FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees’ Union v

G & K O’Connor Pty Ltd [2000] FCA 1760

 

INDUSTRIAL LAW - Australian Workplace Agreements – AWA industrial action – lockout by employer – after cessation of lockout employer paid employees lower wages calculated on basis of minimum rates award – claim by union and employees that this conduct constituted duress in connection with making an AWA – whether s170WC(1) of the Workplace Relations Act confers immunity against claim of duress – Application for interlocutory injunction to restrain employer from failing to pay to employees wages, penalties and allowances not less beneficial than the remuneration provided by a 1992 certified agreement – whether this constituted an application to enforce an industrial instrument – relevance of imminent hearing or a claim for penalties and compensation because of employer’s failure to remunerate in accordance with the certified agreement – power of Court to make an interlocutory injunction restraining a breach of Part VID of the Act.

Workplace Relations Act 1996 – ss170VZ, 170WB, 17WC, 170WG

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION AND BARRY DONALD DAVIDSON V G & K O’CONNOR PTY LTD

V671 of 2000

 

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION, COLLIN ROSS AND ORS V G & K O’CONNOR PTY LTD

V833 of 2000

 

WILCOX, MERKEL and FINKELSTEIN JJ

MELBOURNE

5 DECEMBER 2000

 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V671 of 2000

 

 

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION First Appellant   BARRY DONALD DAVIDSON Second Appellant
AND:	G & K O'CONNOR PTY LTD Respondent
JUDGES:	WILCOX, MERKEL and FINKELSTEIN JJ
DATE OF ORDER:	5 DECEMBER 2000
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

 

1.                  The appeal be allowed.

2.                  The answer to preliminary question (b) given by Marshall J on 16 June 2000 be set aside.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V833 of 2000

 

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, COLLIN ROSS and OTHERS Applicants
AND:	G & K O'CONNOR PTY LTD Respondent
JUDGES:	WILCOX, MERKEL and FINKELSTEIN JJ
DATE OF ORDER:	5 DECEMBER 2000
WHERE MADE:	MELBOURNE

 

THE COURT ORDERS THAT:

1.      Leave be granted to appeal against the decision of Marshall J of 14 November 2000 refusing the applicants’ claim for interlocutory relief.

2.      The appeal be allowed and the decision set aside.

3.      The application for interlocutory relief be remitted to Marshall J for determination according to law.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V671 of 2000

 

 

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION First Appellant   BARRY DONALD DAVIDSON Second Appellant
AND:	G & K O'CONNOR PTY LTD Respondent

 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V833 of 2000

 

 

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, COLLIN ROSS and OTHERS Applicants
AND:	G & K O'CONNOR PTY LTD Respondent
JUDGES:	WILCOX, MERKEL and FINKELSTEIN JJ
DATE OF ORDER:	5 DECEMBER 2000
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

THE COURT:

1                     There are before the Court two proceedings, both arising out of a protracted industrial dispute between Australasian Meat Industry Employees’ Union (“AMIEU”) and some of its members, on the one hand, and G & K O’Connor Pty Ltd (“O’Connor”) on the other.  One proceeding (V671 of 2000) is an appeal against orders made by Marshall J in answering two preliminary questions argued in a consolidated proceeding (V489 of 1999 and V650 of 1999).  The other proceeding is an application, in matter V833 of 2000, for leave to appeal against a refusal of Marshall J to grant interlocutory relief to the applicants in that proceeding.

2                     O’Connor conducts an abattoir at Pakenham, Victoria (“the abattoir”).  AMIEU is a registered organisation of employees within the meaning of the Workplace Relations Act 1996 (“the WR Act”). 

3                     As will appear, numerous proceedings have been instituted by AMIEU against O’Connor, in conjunction with various of its members employed at the abattoir.  Most of those proceedings have yet to reach a final hearing.  Accordingly, there are few final factual findings.  However, we believe the facts presented below are not in serious contest.

4                     We will use the collective term “the applicants” to refer distributively to AMIEU and the particular members who are, or were, its co-applicants in any particular proceeding.

The history of the dispute

(i)         The various agreements

5                     Since at least 1989, AMIEU has had members employed at the abattoir.  Until the commencement of a lockout on 19 March 1999, the members were paid as piece workers under a tally system.

6                     From late 1990 until late 1992, there were negotiations between AMIEU, and some of its members employed at the abattoir, and O’Connor.  These negotiations were successful.  An agreement was made on 8 December 1992.  Shortly after that date, it was certified by the Australian Industrial Relations Commission (“the AIRC”) under s134E of the Industrial Relations Act 1988.  We will refer to this agreement as “the 1992 agreement”.  Upon certification, the 1992 agreement displaced all inconsistent industrial awards and became the instrument governing the terms and conditions of employment of those employees at the abattoir to whom it related.

7                     Clause 1.3 of the 1992 agreement provided for a nominal expiry date in 1995. The clause went on to require the parties, two months prior to the expiration of the agreement, to commence negotiations in respect of a renewal.  The clause also provided:  “Should negotiations not achieve agreement, the wages and conditions of employment shall continue as at the date of expiration”.

8                     Negotiations for a new agreement commenced in late 1995.  Some new terms were agreed, with effect from the middle of 1996.  Apparently those terms were promptly implemented.  Other terms were agreed in late 1996 and implemented.  In January 1997 a new agreement was signed and certified by the AIRC.  We will call this “the 1995 agreement”.

9                     For reasons which need not be detailed, in 1999 the AIRC set aside the certification order relating to the 1995 agreement.  The parties agree this means that the 1995 agreement now has no status as an industrial instrument within the meaning of the WR Act.  However, the applicants contend that the terms and conditions set out in the 1995 agreement bind O’Connor as a matter of contract law.  The applicants also claim – and we think this is not disputed by O’Connor – that O’Connor observed the terms and conditions contained in the 1995 agreement from various times in 1996 until the commencement of a lockout on 19 March 1999.

(ii)        The move for a collective agreement

10                  In mid-1998 AMIEU and O’Connor commenced negotiations for a new collective agreement.  Claims were made by both AMIEU and O’Connor.  Discussions ensued but no agreement was reached. 

11                  On 5 March 1999 O’Connor delivered to AMIEU a document purporting to be a Notice of Protected Action for the purposes of s170MO of the WR Act. 

12                  AMIEU challenged the validity of the notice in this Court (proceeding V102 of 1999).  As a result of this challenge, O’Connor issued a fresh notice on 15 March 1999.  Pursuant to the fresh notice, on 19 March 1999, O’Connor commenced to lockout its abattoir employees. 

13                  After the second notice was issued, the applicants sought leave to amend the Application filed in matter V102 of 1999, so as to obtain relief in relation to the lockout notice dated 15 March 1999.  This application was unsuccessful:  see Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [1999] FCA 310.

14                  The notice given by O’Connor on 15 March 1999 was also intended to be a notice under s170MO of the WR Act.  That means it was a notice intended to institute a “bargaining period” under Division 8 of Part VIB of the WR Act.  The purpose of such a bargaining period is to facilitate the making of a collective agreement that is capable of certification by the AIRC under Division 3 of Part VIB as a “certified agreement”.

(iii)       The Part VID lockout

15                  The lockout instituted pursuant to the Part VIB notice was still continuing on 14 August 1999.  On that day, O’Connor changed tack.  It sent letters to each of its locked out employees enclosing a copy of a 24-page document entitled “the G & K O’Connor Pty Ltd Australian Workplace Agreement ‘the AWA’”.  The letters told the employees that the AWA “contains the terms and conditions of employment upon which (O’Connor) wishes to recommence processing”.  The letter also stated that, “[d]ue to legal requirements, the offering of new terms and conditions in an AWA means that a new Lockout Notice needs to be given to you”.  The letter also enclosed a notice pursuant to Division 8 of Part VID of the WR Act advising the recipient employee of a lockout that “will commence on Thursday, 19 August 1999 and will continue until you make an AWA with O’Connor in accordance with the terms and conditions of the AWA accompanying this notice”.  The notice stated the recipient “will not be required to attend for or perform any work at O’Connor’s from the commencement date set out in this notice” and “will not be paid any wages for the period of the lockout”.

16                  On 17 August 1999 O’Connor notified AMIEU that it no longer wished to reach a certified agreement with it.

17                  On 25 August 1999 AMIEU and one of its members instituted in this Court a proceeding (V489 of 1999) against O’Connor in which it challenged the validity of the 14 August 1999 lockout notices.  The applicants contended the notices did not comply with the requirements of reg 30ZL of the  Workplace Relations Regulations.  They sought an interlocutory injunction restraining AMIEU from locking out persons employed at the abattoir.  They also made claims for final relief including:

(i)                  a declaration as to the invalidity of the lockout notices given on 14 August 1999;

(ii)                an order restraining O’Connor from locking out employees pursuant to the notices;

(iii)               an order pursuant to s170VZ of the WR Act restraining O’Connor from contravening s170WG of the WR Act “by applying duress to its employees in connection with an Australian Workplace Agreement”;

(iv)              an interim order that O’Connor pay its employees in accordance with the 1995 agreement;

(v)                an order imposing a penalty, under s170WG and/or s298U of the WR Act; and

(vi)              an order under s298U of the WR Act that O’Connor remedy the effects of its breach of s298U by paying compensation to its employees or former employees who had resigned.

18                  An application for interlocutory relief was made to Marshall J.  There was an issue as to the validity of the notices issued on 14 August 1999.  Marshall J held the notices were valid.  On 3 September 1999 he dismissed the claim for interlocutory relief:  see Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [1999] FCA 1217.  An application for leave to appeal against this decision was heard by a Full Court consisting of Spender, Ryan and Moore JJ and dismissed on 8 December 1999:  see Australasian Meat Employees’ Union v G & K O’Connor Pty Ltd [1999] FCA 1705.

19                  On 26 September 1999, AMIEU applied to the AIRC for an order, under s127 of the WR Act, that the industrial action by O’Connor stop or not occur.  The application was heard by Justice Boulton.  It was successful.  On 17 November 1999 Justice Boulton made an order that “industrial action”, a term he defined in such a manner as to include a lockout, by O’Connor, or any successor, transmittee or assignee of its business, “against the AMIEU and/or its members shall not occur, or where such industrial action is now occurring, shall stop”.  Justice Boulton directed the order should come into effect from 21 November 1999.

20                  O’Connor sought leave to appeal against Justice Boulton’s order, but its application was refused by a Full Bench of the AIRC.

(iv)       The return to work

21                  On or about 18 November 1999, AMIEU became aware that O’Connor intended that, if the locked out employees returned to work, they would be remunerated on a different basis than that applying immediately before the first lockout commenced on 14 March 1999; the employees were to be paid in accordance with an AIRC award known as the Federal Meat Industry (Processing) Award 1996 (“the 1996 award”).  This award was referred to, in evidence and submissions, as a “stripped back” award providing bare “safety net” conditions.  The evidence indicates that the amount able to be earned under that award by AMIEU members employed at the abattoir is some 40% to 60%  lower than their actual earnings immediately prior to the first lockout.  Also, as we understand the position, it is common ground between the parties that the earnings received by the members, pursuant to the 1996 award, are appreciably lower than their earnings under the 1992 agreement.  Apparently one reason for these differences is that employees’ earnings under the 1992 agreement, and their actual  earnings prior to 14 March 1999, were both calculated on a tally basis; but the 1996 award gave the employer the option of assessing remuneration on a time basis and O’Connor adopted that option.

22                  When AMIEU became aware of O’Connor’s intention to calculate wages in accordance with the time rates provided by the 1996 award, it took up the issue with O’Connor; but without success.  Accordingly, on 21 November 1999, the applicants applied to Marshall J for leave to amend proceeding V489 of 1999 in such a manner as to obtain relief relating to the terms of remuneration of employees returning to work after the lockout.  O’Connor objected to the proposed amendment on the basis that the cause of action upon which the applicants needed to rely for this relief arose only after the institution of the proceeding.  Marshall J acceded to a submission that, under those circumstances, the amendment was precluded by the Federal Court Rules.

23                  As a result of this refusal, on the following day, AMIEU instituted a third proceeding (V650 of 1999).  As there was apparently thought to be some doubt whether O’Connor would comply with the s127 order made by Justice Boulton, the Application in V650 of 1999 sought an order restraining O’Connor from non-compliance.  It also sought the imposition of a penalty under s178 of the WR Act for breach of the 1992 agreement and an order that O’Connor pay to those of its employees who are not parties to an Australian Workplace Agreement “wages in accordance with their contracts of employment, which contracts, at least in respect of wages, are identical to” the 1995 agreement.

24                  On 23 November 1999 the locked out employees returned to work.  Some of those employees have since signed O’Connor’s AWA.  The employees who have not signed the AWA have continued, and still continue, to be paid in accordance with the time based rates prescribed by the 1996 award. 

(v)        The post-lockout litigation

25                  On 2 December 1999 AMIEU and two of its members filed a motion in the High Court of Australia seeking prerogative relief against Jonathan Hamberger, the Employment Advocate appointed under the WR Act, and O’Connor.  They sought to restrain Mr Hamberger from approving O’Connor’s AWAs.  The motion was remitted by Hayne J to this Court and was numbered V28 of 2000.

26                  On 17 December 1999, on the motion of O’Connor, Marshall J made orders for the consolidation of proceedings V489 and V650 and for determination in the consolidated proceedings of four preliminary questions:

“(a)     Whether the respondent by its notices of AWA industrial action of 14 August 1999, validly gave notice of a lockout to each of its employees pursuant to Division 8 of Part VID of the Workplace Relations Act 1996 (Cth) (“WRA”).

(b)               If the answer to (a) is in the affirmative, whether action lies in respect of a lockout effected pursuant to those notices under sections 127(6), 170VV, 170VZ, 178(1)(in so far as it relates to an order under s.127), or 298U of the WRA.

(c)               Whether the G & K O’Connor Pty Ltd and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1992 (‘the 1992 agreement’) was in force at any, and if so what, times between 19 August 1999 and 22 November 1999.

(d)               If the answer to (c) is in the affirmative, whether the 1992 agreement was, at the time when it was in force, an award for the purpose of s.178(1) WRA.”

27                  On 6 March 2000 Marshall J acceded to an application that questions (c) and (d) be referred to a Full Court.  On 29 March 2000 Black CJ fixed the referred questions for hearing on 12 May 2000.  Also on 29 March, the Chief Justice ordered that the Court’s jurisdiction in the remitted matter (V28 of 2000) be exercised by a Full Court.  As events transpired, the Full Court was not able to commence hearing the two matters until 26 June. 

28                  Shortly before the Full Court hearing, Marshall J heard argument in relation to questions (a) and (b) in the consolidated actions.  No doubt because of the Full Court decision of 8 December 1999 refusing leave to appeal against Marshall J’s earlier decision on the point (see para 18 above), the parties agreed question (a) should be answered “yes”; that is, the 14 August 1999 notices were valid.  For reasons which he gave, and to which we will return, his Honour answered question (b) in the negative.

29                  The matters referred to a Full Court by the Chief Justice came on for hearing before Beaumont, Lee and Gyles JJ on 26 and 27 June 2000.  On 25 August 2000 their Honours delivered a judgment in which they dismissed proceeding V28 of 2000.  They answered questions (c) and (d), raised in the consolidated proceeding V489 of 1999 and V650 of 1999, as follows:

“Question:  ‘(c)          Whether the G & K O’Connor Pty Ltd and Australasian Meat Industry Employees Union Victorian Meant Processing Agreement 1992 (‘the 1992 agreement’) was binding at any, and if so what, times between 19 August 1999 and 22 November 1999?’

Answer:                      Yes, at all such times.

Question:  (d)             If the answer to (c) is in the affirmative, whether the 1992 agreement was, at the time when it was in force, an award for the purpose of s178(1) WRA?’

Answer:                      No.”

30                  Notwithstanding the answer given by the Full Court to question (c), O’Connor continued to remunerate its non-AWA employees by reference to the 1996 award.  The explanation for this behaviour offered to us by Dr C Jessup QC, who appeared with Mr N Harrington of counsel for O’Connor, is that the question asked of the Full Court was confined to the period 19 August 1999 to 22 November 1999, that is the day before the return to work after the lockout, and that O’Connor made changes to work practices at the abattoir at the time of the return to work; so the Full Court’s answer to question (c) had no application to the situation that existed on or after that day.  We express no opinion as to the validity of this explanation or the correctness of the factual assertions it contains.  Those matters have not been debated before us.

31                  AMIEU was dissatisfied with O’Connor’s failure to apply the Full Court’s answer to question (c) to the calculation of employees’ earnings for work performed on or after 23 November 1999.  Accordingly, the applicants sought to amend the consolidated proceeding (V489 of 1999 and V650 of 1999) to deal with that issue.  In the absence of Marshall J on leave, the application came before Finkelstein J on 9 September 2000.  Once again, counsel for O’Connor raised a question about the compatibility of the application with the Federal Court Rules.  Finkelstein J refused the application to amend but gave directions for an early return of any new proceeding AMIEU might commence.

32                  In accordance with the indication given at the hearing before Finkelstein J, AMIEU commenced a further proceeding (V723 of 2000).  The Application filed in that proceeding (as subsequently amended) seeks the imposition on O’Connor of a penalty for breach of the 1992 agreement, an order that O’Connor “make an account of the amounts [it] was required by the 1992 Agreement to pay, but has not paid, to its employees and its former employees in respect of the period from 22 November 1999”, an order that these amounts be paid to the respective employees and former employees and orders about ancillary matters.

33                  Proceeding V723 of 2000 came before Marshall J on his return from leave.  The applicants sought an early final hearing.  As Marshall J was unable to offer a hearing date this year, he arranged for Conti J to hear the matter.   Conti J has allocated three days (13, 14 and 15 December 2000) for that hearing.

34                  On 25 October 2000 AMIEU and thirty named members (employees of O’Connor) instituted yet another proceeding (V833 of 2000).  The Application (as amended on 2 November 2000) alleges that O’Connor has breached s170WG(1) and (2) of the WR Act.  Injunctive relief is sought, in relation to each of the thirty members, restraining the respondent from refusing, or failing to observe, the terms and conditions applicable to that member’s employment with O’Connor that applied immediately prior to 15 March 1999 and/or that applied pursuant to the 1995 agreement; or, alternatively, the 1992 agreement.  Penalties and compensation are also sought.  In respect of some of the thirty members, the amended Application also seeks orders referrable to that member’s particular employment.

35                  The amended Application seeks interlocutory relief, in these terms:

“1.      An order that the Respondent be restrained from failing and refusing to pay to each of the Second to Thirty-First Applicants wages, penalties and allowances that are no less beneficial than those provided in the terms of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992, including but not limited to:

(a)               the allowance payable pursuant to clause 3.3.1(iv) of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992 in respect of work performed by the Twenty-Fourth Applicant William Kirkham in the collection of slinker blood;

(b)          make-up pay in accordance with clause 4.4 of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992, to any person who has qualified for workers’ compensation payments pursuant to the Accident Compensation Act 1985 (Vic) (as amended), including to the Fifth Applicant (Mr Adam Brockman), the Fourteen the Applicant (Mr Kelvin Peterson), the Seventeenth Applicant (Mr . Chris Symons) and the Eighteenth Applicant (Mr David Zivolic).

(c)          wages, allowances and penalties calculated on the basis of maximum tally within the meaning of clause 11.1.1 of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992.

2.                  An order that the Respondent be restrained from directing or requiring any of the Second to Thirty-First Applicants herein to work hours of work (other than overtime) outside the span of hours from 6.00am to 5.30pm, Monday to Friday inclusive.

3.                  An order that the Respondent refrain from directing the Twenty Fourth Applicant, Mr William Kirkham, to perform duties different to those customarily performed by him during the period from 25 November 1999 to 16 October 2000, being work in the Slinks’ Room at its premises at Pakenham, which duties included the collection of slinkers’ blood.

4.                  An order that the Respondent offer to the Second to Thirty-First Applicants herein overtime work on the same basis as such overtime work is offered to its employees who are party to Australian Workplace Agreements.

5.                  An order that the Respondent offer to the Twenty-Third Applicant, Mr Brendan Evans, a position as a learner Slicer.”

36                  The application for interlocutory relief in proceeding V833 of 2000 came before Marshall J on 2 November 2000.  The applicants offered the usual undertaking as to damages.  Affidavits were read and the application was argued.

37                  On 14 November 2000 his Honour made an order dismissing the application for interlocutory relief.  He gave reasons which we will later discuss.

38                  The applicants sought leave to appeal against Marshall J’s order refusing interlocutory relief.  The application included a draft Notice of Appeal in which the applicants sought an injunction in the following terms:

“The Respondent be restrained from failing and refusing to pay each of the Second to Thirty-First Applicants wages, penalties and allowances that are no less beneficial than those provided in the terms of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992 including but not limited to:

(a)               make up pay in accordance with clause 4.4 of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992, to any person who has qualified for Workers’ Compensation payments pursuant to the Accident Compensation Act 1995 (Vic)(as amended), including to the Fifth Applicant (Mr Adam Brockman), the Fourteenth Applicant (Mr Kelvin Peterson), the Seventeenth Applicant (Mr Chris Symons) and the Eighteenth Applicant (Mr David Zivolic).

(b)               Wages, allowances and penalties calculated on the basis of maximum tally within the meaning of clause 11.1.1 of the G&K O’Connor Pty Ltd Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 1992.”

39                  On 29 August 2000 Black CJ gave leave to the applicants to appeal against the order of Marshall J answering questions (a) and (b) in the consolidated action V489 of 1999 and V650 of 1999: see para 28 above.  The appeal was fixed for hearing on 20 November 2000.  Subsequently, the Chief Justice directed that the application for leave to appeal against Marshall J’s refusal of interlocutory relief in matter V833 of 2000 be listed before the same Bench of the Full Court on the same day.

40                  On 20 November 2000 we heard argument in respect of both matters.  In each case we reserved our decision.  These reasons deal with both matters.

The relevant statutory provisions

(i)         The general scheme of Part VID

41                  Part VID of the WR Act is entitled “Australian Workplace Agreements (AWAs)”.  This Part was inserted into the Act by the  Workplace Relations and Other Legislation Act 1996.  The Part introduced into the legislation the novel concept of an agreement between an individual employer and an individual employee that is capable of overriding an award made by the AIRC or an agreement certified by the AIRC.  The new type of agreement, an “Australian Workplace Agreement” or “AWA”, is one “that deals with matters pertaining to the relationship between an employer and employee”: see s170VF(1) of the Act.  The concept apparently reflects one of the objects of the Act set out in s3:

 “3.     The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

            …

(c)       enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act …”

See also the reference, in para (d)(i) of s3, to the Act “providing the means … for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards …”

42                  Division 1 of Part VID contains some definitions (see ss170VA and 170VB) and indicates the constitutional nexus necessary for an AWA (see s170VC).  Ordinarily, the nexus will be that the employer is a “constitutional corporation”, as defined in s4 of the Act.  In relation to the present case, it is relevant to note that s170VB(1) provides that a reference in Part VID to an AWA includes a reference to a proposed AWA. 

43                  Division 2 of Part VID makes some general rules about the effect of an AWA.

44                  Division 3 of Part VID deals with making, varying or terminating an AWA and Division 4 with the Employment Advocate.  The detail of those Divisions is unimportant, but they clearly indicate that Parliament expected it would be the employer, rather than the employee, who would take the initiative in making an AWA.

45                  Division 5 of Part VID is important.  It deals with approval of both AWAs and variation agreements.  One of the approval requirements for an AWA is provided by s170VPA(1)(d):

“the employee genuinely consented to making the AWA.”

Section 170VPB(1)(b) requires the Employment Advocate to be satisfied of this fact before approving an AWA.

46                  The Employment Advocate must also be sure that the AWA passes the no-disadvantage test: see s170VPB(1)(a).  The nature of this test is explained in Part VIE of the Act.  An agreement passes the no-disadvantage test “if it does not disadvantage employees in relation to their terms and conditions of employment”:  s170XA(1).  Disadvantage is to be assessed by comparing the employees’ terms and conditions of employment under the AWA with those provided under “relevant awards or designated awards” or relevant Commonwealth, State or Territory laws: see s170XA(2).  There is no provision for the Employment Advocate to take into account the benefits available to employees under any certified agreement that may be displaced by an AWA.  In the present case, this meant that, in considering the matter of approval of O’Connor’s AWAs, the Employment Advocate had to leave out of account the benefits taken by the company’s employees under the 1992 agreement.  The Full Court confirmed this was correct:  see [2000] FCA 1197 at paras 40 to 44.

47                  Division 6 of Part VID specifies the effect of an approved AWA.  During the period of its operation, the AWA “operates to the exclusion of any award that would otherwise apply to the employee’s employment” (s170VQ(1)).  If a certified agreement is in force when an AWA comes into operation, it takes precedence, to the extent of any inconsistency, but only if the nominal expiry date of the certified agreement has not yet arrived.  Where the nominal expiry date of the certified agreement has occurred prior to an AWA being made, the AWA takes precedence:  see s170VQ(6).  An AWA prevails over most conditions of employment specified in a State law, to the extent of any inconsistency (s170VR(1), (2) and (3)) and over prescribed conditions of employment specified in a Commonwealth law (s170VR(4)).  An AWA binds a successor employer (s170VS).  Section 170VT(1) provides that “[a] party to an AWA must not breach the AWA”.  Section 170VU restricts industrial action during the currency of an AWA.

(ii)          The enforcement of Part VID

48                  Division 7 of Part VID deals with enforcement of the Part.  Section 170VV(1) provides:

“An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision.”

The Federal Court is an “eligible court”:  See the definition of that term in s170VA.

49                  The term “penalty provision” is defined in s170VV(4) so as to include s170WG(1) and (2).

50                  Section 170VW permits recovery of damages flowing from a breach of an AWA.

51                  Section 170VZ provides: 

“An eligible court may grant an injunction requiring a person not to contravene, or to cease contravening, this Part”.

52                  Division 8 of Part VID is headed “Limited immunity for industrial action”.  It commences with s170WB(1), which contains the following definitions:

 “AWA industrial action means:

(a)               any industrial action taken by an employee directly against an employer for the purpose of compelling or inducing the employer:

(i)                 to make an AWA, on particular terms and conditions, with the employee; or

(ii)               to make AWAs, on particular terms and conditions, with the employee and other employees; or

(b)               an employer locking out an employee for the purpose of compelling or inducing the employee to make an AWA, on particular terms and conditions, with the employer.

general industrial action means 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.

industrial action 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; or

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

(c)               a failure or refusal to attend for work or a failure or refusal to perform any work at all.

lock out in relation to an employee, means prevent the employee from performing work under a contract of employment without terminating the contract.”

53                  Section 170WC(1) provides:

“Subject to subsection (2), no action lies under any law (whether written on 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

(c)               the unlawful taking, keeping or use of property.”

Subsection (2) is irrelevant; it concerns defamation actions.

54                  Subsection (3) of s170WC provides:

“If an employer locks out an employee under subsection (1), the employer is entitled to refuse to pay any remuneration to the employee in respect of the period of the lockout.”

55                  Section 170WD provides that the immunity conferred by s170WC applies only where three working days’ notice of the intention to take action was given to the other party, or the other party is already taking industrial action.

56                  Section 170WE proscribes dismissal, or threatened dismissal, of an employee because of the employee’s participation in AWA industrial action. 

57                  There is a tension between the statutory requirement for “genuine consent” to the making of an AWA by an employee, and the statutory right of an employer to use a lockout “for the purpose of compelling or inducing the employee to make an AWA, on particular terms and conditions”, with the employer (emphasis added).  On the latter aspect the Act expressly provides that the employer is entitled to refuse to pay any remuneration to the employee in respect of the period of the lockout: see s170WC(3) obtain their “genuine consent.

58                  Whatever the difficulties of these provisions it is necessary to bear them in mind in considering s 170WG, which is in Division 9 of Part VID.  Section 170WG reads:

“170WG(1)  A person must not apply duress to an employer or employee in connection with an AWA or ancillary document.

170WG(2)  A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA or ancillary document.”

 

(iii)       Part XA

59                  The applicants also make claims under Part XA of the WR Act.  This Part deals with freedom of association.  Questions were debated before us about the relationship between Part XA and the immunity conferred by s170WC in respect of AWA industrial action.  These questions have an importance extending beyond the parties to this case.  It is possible for us to deal with the present issues without reference to the applicants’ Part XA claims.  Under the circumstances, it is preferable for us to take that course.  Accordingly, we will not set out the provisions on which the Part XA claims are based.

Section 170WC:  proceedings V489 of 1999 and V650 of 1999

(i)                 The reasoning of Marshall J

60                  As previously mentioned, in the consolidated proceedings V489 of 1999 and V650 of 1999, Marshall J answered two preliminary questions.   Question (a) asked whether the notices of lockout given to O’Connor on 14 August 1999 were valid.  It was agreed between the parties that the question should be answered in the affirmative.  Having regard to that answer, question (b) arose.  That question asked “whether action lies in respect of a lockout effected pursuant to those notices under sections 127(6), 170VV, 170VZ, 178(1) (in so far as it relates to an order under section 127), or section 298U of the WRA”.

61                  In dealing with that question, Marshall J referred to a submission put to him by Mr Rothman SC, on behalf of the applicants, that its answer “is governed by the interrelationship between ss170WC and 170WG” of the Act.  Apparently Mr Rothman had submitted to his Honour that ss170WC and 170WG are “conflicting provisions which required the Court to determine which is the leading provision and which the subordinate provision, and which must give way to the other”.  Mr Rothman also put arguments that depended upon a comparison between some of the provisions in Part VIB of the Act with provisions of Part VID.

62                  Marshall J rejected these approaches.  He thought the first argument incorrectly assumed that ss170WC and 170WG are in irreconcilable conflict and that the comparison made in the second argument between Part VID and Part VIB was not useful.  His Honour thought it preferable to concentrate on the words of s170WC itself, that being the provision that was said to create the immunity to which the question was directed.  In relation to s170WC, Marshall J said at para 10:

“Section 170WC of the Act, subject to certain immaterial exceptions, starkly provides that ‘no action lies … in respect of AWA industrial action’.  As the heading to the section suggests, limited immunity from suit is conferred by the section, that is, limited by the section and not by implication from consideration of Part VIB of the Act.  The taking of AWA industrial action may be seen as applying duress but to the extent that it is legitimately so seen, no suit will lie for breach of s170WG as a consequence of the taking of AWA industrial action.  This is because when Part VID of the Act is read as a whole, s170WG of the Act does not operate to permit legal action against a person who takes AWA industrial action.  It rather applies to situations such as that which obtained in ASU v Electrix Pty Ltd [1999] FCA 211; (1999) 93 IR 43.”

Marshall J also referred to an argument by Mr Rothman that the words “in force in a State or Territory” in s170WC “refer to laws that are not generally applicable but only apply in a particular State or Territory”.  At para 12, he rejected that submission, holding that the W R Act was in force in Victoria when the subject industrial action took place.

(ii)               The submissions of counsel

63                  At the hearing of the appeal against Marshall J’s answer to question (b), Mr Rothman SC appeared, with Mr E White of counsel, on behalf of the appellants.  Mr Rothman repeated the submission he had put to Marshall J about the supposed inconsistency between s170WC and s170WG and referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382.  Mr Rothman contended the “limited immunity conferred by section 170WC … extends no further than giving the employer a limited immunity in respect of conduct by it … undertaken for the purpose of ‘compelling or inducing an employee to make an AWA’.  To the extent that the action of the employer constitutes ‘duress’ the limited immunity does not apply”.

64                  Mr Rothman went on:

“This analysis of the two sections clearly flows from the precise definitions of ‘AWA industrial action’ and ‘lockout’ in section 170WB and the objects of the Act set out above.  The WR Act clearly contemplates a scheme where employees are able to choose the form of agreement which applies to them.  To read the scheme of the Act in any other manner would permit that choice to be nullified by the application of conduct amounting to duress.  This interpretation of the scheme of the Act is confirmed by the requirements for approval of AWAs.”   [Original emphasis]

65                  Mr Rothman also repeated the comparison, which he had put to Marshall J, between the provisions of s170WC and those relating to “protected action” in Part VIB of the Act.

66                  In relation to the words “in force in a State or Territory”, Mr Rothman said:

“… the limited immunity is only in respect of particular laws ‘in force in a State or Territory’ and not in relation to Commonwealth laws of general application, such as section 170WG.  These words are significantly different to other expressions used in the WR Act (see sections 170XA(2)(b) and section 166A).  In contrast, in section 170NC and section 170WC the words ‘in force in a State or Territory’ are used, being words which deny the use of the plural.  Commonwealth laws of general application, such as section 170WG, do not fall within the immunity.  Otherwise, the words ‘in force in a State or Territory’ would be otiose.  The Act could be just as well written as stating ‘no action lies under any law whether written or unwritten.’

For it to be otherwise, an employer, for example, could give notice to all of its employees of its desire to enter into AWAs but lock out only certain employees in a discriminatory manner, for example, only women, only its Asian employees, only Union members, and nonetheless, be immune from action under section 298K or section 170NB of the Act or Commonwealth anti-discrimination legislation.  Employees could engage in AWA industrial action  in concert and in breach of the Trade Practices Act and be immune from action.  The wording of sections 170MT and 170WC, which provide for immunity from an action ‘under a law in force in a State or Territory’ do not contemplate such a result.  The express exemption of protected action from the operation of section 170NC supports the contention that Parliament intends such Commonwealth legislation of general application to continue to apply.”

67                  Dr Jessup and Mr Harrington, counsel for O’Connor, supported the answer to question (b) provided by Marshall J, although they submitted it ought to be read as referring only to ss170VV and 170VZ.  They said only those provisions were relevant to proceedings to enforce the terms of s170WG of the Act.  They said:

“The submission that there is an inconsistency between s170WC and s170WG is misconceived.  Section 170WG provides the norm of conduct with which every person must comply.  There is a procedure to enforce that norm (s170VV and s170VZ) but, where the requirements of a valid lockout have been met (as here) no action lies under those sections.  Section 170WC assumes that, absent the bar thereby set up, an action would lie.  It is no answer to the operation of s170WC to point to the substantive norm to which the barred proceedings would relate.

Neither does the ‘purpose’ for which the AWA lockout exists (under the definition of ‘AWA industrial action’) need to be co-extensive with, or to have anything at all to do with, the content of the substantive norm of conduct which would otherwise apply (here, the non-application of duress).  It is beside the point to contend, as the appellants do, that duress may be something greater than compulsion.  The purpose is necessary before the employer’s conduct may be treated as ‘AWA industrial action’ but, once this requirement is met (as it must be assumed to have been in the present context), s170WC operates according to its terms, regardless of whether the substance of a cause of action which would otherwise lie is on all fours with, or is within the boundaries of, the employer’s purpose in taking the industrial action .

Employees (and, should it matter, employers) have no absolute right to ‘choose’ the form of agreement which will apply to them under the Act.  The point of Division 8 of Part VID of the Act is that either employer or employee may take action, assumed to be unwelcome in the circumstances, to compel the other to enter into an agreement which he or she would otherwise be disinclined to contemplate ”

68                  Counsel for O’Connor sought to counter Mr Rothman’s interpretation of the words “in force in a State or Territory” by citing the Explanatory Memorandum provided to the House of Representatives in relation to the  Workplace Relations and Other Legislation Bill 1996.  They referred, in particular, to the explanation in the memorandum of the proposed s170MT in Part VIB.  Subsection (2) of that section is almost identical to subs (1) of s170WC.  The only differences are that s170MT  refers to subs (3), rather than subs (2), and to “industrial action that is protected action” instead of “AWA industrial action”.  In relation to the proposed s170MT, the Explanatory Memorandum said:

“Immunity will exist from civil liability under that section and any law (whether written or unwritten) in force in a State or Territory.  This applies to Commonwealth and State statutes or the common law.  It does not apply to action involving harm to persons or property, unlawful dealing with property, defamation, or any breach of the criminal law.”

The Explanatory Memorandum for the Senate makes the same statement

(iii)             Discussion

69                  We understand the reasons why counsel for O’Connor urged Marshall J to pose and answer preliminary questions (a) and (b), and why Marshall J acceded to that urging.  Answers to those questions favourable to O’Connor would bring to an end all claims by the applicants for injunctions (under s170VZ) or penalties (under s170VV) in respect of any duress arising out of the lockout effected by O’Connor.  However, we respectfully think the chosen course was wrong in the absence of facts found or agreed, or pleaded allegations, to which the questions could be related.  Question (b) leaves unclear what conduct is embraced by the words “in respect of” in relation to AWA industrial action referred to in s170WC(1). This is a serious deficiency; it became apparent before us that the parties had different understandings of the ambit of these words.  It seems the applicants thought they referred only to the lockout itself, divorced from all surrounding circumstances such as the earlier Part VIB lockout and the conduct of O’Connor after resumption of work on 23 November 1999.  On the other hand, O’Connor seems to have understood the question as embracing those matters.

70                  It is sometimes useful to determine, by way of a preliminary question, an issue between parties that, if resolved in a particular way, may terminate the litigation.  However, if this is to be done, it is essential the question be firmly grounded on specified facts; whether found by the court, agreed between the parties or alleged in a pleading.  Without that, the answer to the question may not only be academic but can have the effect of confusing or misleading the parties, rather than enlightening them.  In the present case, no facts were specified.  Accordingly, we think Marshall J ought not to have stated question (b) for determination or determined it.   It would be equally inappropriate for us to do so.  It follows that we propose to set aside the answer to question (b) and will not ourselves provide any formal answer to it. 

71                  Notwithstanding that position, as the effect of s170WC is an issue that will arise in action V833 of 2000, and as the question has been extensively argued before us, it seems desirable to say something about the matter.

72                  We preface our comments with the following observation.  Whatever be the precise scope of operation of s 170WC, the object of the provision is clear: save for limited exceptions it is to nullify causes of action of one type or another without recompense.  That suggests that there may be real doubt about the constitutional validity of the provision and its counterpart in relation to certified agreements (s 170MT): see s 51(xxxi) of the Constitution; see also Smith v ANL Ltd [2000] HCA 58.  This said, we can now turn to the construction of s 170WC.

73                  First, the meaning of the word “action” is far from clear.  We do not doubt that Parliament intended to bar causes of action at law, such as claims in contract and tort.  It appears that Parliament also intended to bar claims under statute.  It may also be that equitable claims are within the section.  But what of criminal “actions”?  Is it to be assumed that s 170WC can provide a defence to a criminal prosecution, whether for a misdemeanour in a court of summary jurisdiction or an indictable offence?  We would be surprised if Parliament had intended to go so far.  That is not an end to the difficulties.  What of claims on the civil side that do not rely on or seek to prosecute a “cause of action”.  Take for example an application under s 127 of the WR Act to have the Commission give directions concerning industrial action and the Court’s role in relation to such directions: see ss 127(1) and s 127(6).  Is it to be supposed that in the midst of an industrial dispute the power of the Commission or the Court under the WR Act is to be thwarted by s 170WC?

74                  Second, there is an issue as regards the identity of the person who is subjected to the prohibition.  Must that person be an employer or employee?  Or does the section strike at proceedings commenced by a third party who may be adversely affected by AWA industrial action?  It is readily apparent that the answer to this question is not free from difficulty.

75                  Third, to what “law” does the expression “any law (whether written or unwritten) in force in a State or Territory” refer?  Ordinarily we would conclude, with little hesitation, that the law to which reference is made is the common law of Australia and any statute, State or Federal, that is in force in the particular jurisdiction where AWA industrial action is taking place.  But the parties have referred us to the Explanatory Memorandum which accompanied the Workplace Relations Bill.

76                  In arguing that the formula used in s170WC(1) includes Commonwealth law, Dr Jessup drew comfort from the Explanatory Memorandum reference to s170MT.  His comfort was misplaced.  Surprisingly, the same document (both the House of Representatives version and the Senate version) gives a conflicting explanation of the meaning of the words when used in s170WC(1):

“Subsection 170WC(1) provides that no action lies under State or Territory law (either statute law or common law) in respect of AWA industrial action, unless that industrial action  has involved, or is likely to involve:

.           personal injury; or

.           wilful or reckless destruction of, or damage to, property; or

.           the unlawful taking, keeping or use of property.”

It will be noted no reference is made to Commonwealth law.  Given that the words used in s170MT(2) and s170WC (1) are relevantly identical, it is curious that Parliament was informed in the one case that they were intended to include a reference to Commonwealth law but that, in the other, they were said to relate to State and Territory law.  Moreover, the sidenote to s170MT(2) reads:  “Protected action does not lie under any law of a State or Territory”.  If s170MT(2) is to be construed as including a reference to Commonwealth law, the sidenote is misleading.  The sidenote to s170WC(1) is: “No action lies under law of State or Territory”.  That sidenote conforms with the statement made in the Explanatory Memorandum concerning s170WC(1).

77                  This raises the possibility that the relevant law was not intended to include Commonwealth statutes.

78                  Fourth, we would not hold that s 170WC bars an action brought for a contravention of s 170WG.  Section 170WC must be construed in its context.  We doubt that Parliament intended the immunity to extend to AWA action taken in contravention of other provisions of the WR Act.  To hold that the section excludes any application for relief in respect of a breach of a provision such as s 170WG(1) and (2) is to attribute to Parliament the unreasonable intention of enacting specific provisions concerning AWA industrial action, for example, s 170WC(4) and s 170WE(1) as well as s 170WG, that are unenforceable in the context of AWA industrial action.  It is no novel approach to construe legislation so as to avoid irrational results on the basis that Parliament would not intend to produce the irrational.

79                  Fifth, and this is the important point for present purposes, we do not regard s 170WC as conferring an immunity in respect of all conduct which is ancillary to an AWA lockout.  The bar relates to action “in respect of” AWA industrial action.  Sometimes the expression “in respect of” is given a wide interpretation.  Sometimes it is not.  In a case where a right to apply to the courts to protect a person’s legal rights is being undermined there is much to be said for limiting the applicability of the section.  The subsection says “no action lies … in respect of AWA industrial action”.  The expression “AWA industrial action” is defined in s 170WB, in relation to employer action, as “an employer locking out an employee …”.  Thus, the immunity that is relevantly conferred is in respect of the lockout.  The claim made by the applicants extends beyond the mere lockout that was initiated pursuant to the notices of 14 August 1999.  It is quite possible that not all of the conduct about which complaint is made has a sufficient nexus with “AWA industrial action” to fall within the prohibition. 

80                  Another point of construction arises.  O’Connor says that because it is permitted to take AWA industrial action, that is because it can lock out an employee “for the purpose of compelling or inducing the employee to make an AWA … with the employer” (see the definition of AWA industrial action), it can never contravene s 170WG.  This argument proceeds on the assumption that permitted AWA industrial action, whose object is to compel or induce the making of an AWA, is the same as the conduct which is proscribed by s 170WG.  The assumption is false.  There are degrees of pressure that can be brought to bear on an employee for the purposes of “persuading” the employee to make an AWA.  While it appears to be permitted to lockout an employee so as to “compel” or “induce” an employee to make an AWA, that does not necessarily amount to the application of “duress”.  That is to say, we do not doubt that there can be circumstances under which the taking of industrial action will “compel” or “induce” an employee to make an AWA but the employer has not applied “duress”.  Conversely, there may be circumstances under which the taking of industrial action will constitute “duress” within the meaning of s 170WG.  A mere lockout may not produce that result.  But a lockout coupled with other factors may well do so.  If it does, we doubt that s 170WC would confer an immunity.  However, for the reasons we have given for not answering question (b), we consider that any final determination of this issue should take place in an appropriate factual context.

The application for interlocutory relief:  VG833 of 2000

(i)                 The reasoning of Marshall J

81                  As previously recounted, Marshall J rejected the applicants’ application for interlocutory relief.  His primary reason was that he believed he had no jurisdiction to grant the relief sought by the applicants.  This was because of the nature of the relief sought, especially in proposed order 1.  That proposed order is set out in para 35 above.  It  would restrain O’Connor “from failing and refusing to pay to each of (the 30 employee applicants) wages, penalties and allowances that are no less beneficial than those provided” by the 1992 agreement.  Of course, for O’Connor to comply with that order, it would be necessary for it to pay to each of the 30 employee applicants amounts not less than the wages, penalties and allowances to which that employee would be entitled under the terms of the 1992 agreement; but only in respect of the period after the making of the order.

82                  Marshall J rejected the application for interlocutory orders because he felt it amounted to an application for the Court to enforce the terms of an industrial instrument.  He said:

“Apart from a few claims which do not, in terms, seek to enforce an industrial instrument which binds or has bound the first applicant and the respondent, most of the interlocutory claims effectively seek to compel compliance with that instrument, ie. a certified agreement made in 1992 (‘the certified agreement’).

There is a line of authority in this Court and the Industrial Relations Court of Australia (‘IRCA’) which demonstrates that the Court has no jurisdiction to grant interim relief which seeks to enforce an award made, or an agreement certified, by the Australian Industrial Relations Commission:  see Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 149 ALR 296, where the authorities are discussed by Burchett J.  The certified agreement which is effectively sought to be enforced by injunctive relief was made under the Industrial Relations Act 1988 (Cth) (‘the IR Act’).  The argument that it is permissible to seek to enforce the certified agreement by injunction is met squarely by the judgment of Madgwick J sitting in IRCA in Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203, to which Burchett J referred (at 298) in Gordonstone.  In Wattyl, it was held that an agreement certified under the IR Act could not be enforced by injunctive relief.”

83                  Marshall J said that, if he was wrong in determining that the Court had no jurisdiction to grant the relief sought, he would anyway refuse to grant interlocutory relief “given that in another proceeding between the same interests (V723 of 2000), which is due to be heard on 13 December 2000, those issues will be finally determined by another Judge of the Court”, that is, Conti J.

(ii)               Submissions

84                  Mr Rothman submits that both Marshall J’s reasons were erroneous.  As to the first reason, Mr Rothman told us that the proposed interlocutory order is framed in the way it is because the 1992 agreement provides a reasonable measure of what is necessary to relieve against the duress now being allegedly suffered by his clients.  He made it clear that the applicants contended the employees were entitled to receive more than the remuneration provided by the 1992 agreement.  He said they were entitled to receive wages calculated in the same way as immediately before the first lockout notice.  However, Mr Rothman said it was relatively easy to calculate the amount that would be payable under the terms of the 1992 agreement; if such payments were made, this would mitigate or remove the duress which (he claimed) his clients were suffering.  Mr Rothman said Marshall J misunderstood what he was being asked to do; he was not being asked to enforce the 1992 agreement, rather  he was being asked to grant interim relief against duress that could be measured by reference to the terms of the agreement.  Mr Rothman accepted the Court has no jurisdiction to enforce the agreement as such; this is because there is no provision in the WR Act that confers on the Court jurisdiction to enforce an industrial instrument.  But he argued there is a provision conferring on the Court jurisdiction to grant an injunction to relieve against a breach of s170WG(1) of the Act, namely s170VZ, and there is no impediment to the Court, in the exercise of that jurisdiction, making an order that grants relief as a matter of discretion that may or may not equate with the rights the parties claim under an industrial instrument.

85                  As to the second reason, Mr Rothman said it was wrong to categorise the issues raised by the application for interlocutory relief as the same as those arising in proceeding V723 of 2000.  The claim for interlocutory relief is a claim for orders designed to terminate, or mitigate the future effects of, conduct infringing s170WG(1) of the WR Act; the claim made in proceeding V723 of 2000 is for penalties for O’Connor’s past breaches of the 1992 agreement and for compensation for loss suffered as a result of those breaches.

86                  Dr Jessup and Mr Harrington supported both the reasons of Marshall J.  In relation to the first reason, they said:

“His Honour did not find that the Application sought the enforcement of a certified agreement.  He said that the ‘interlocutory claims effectively seek to compel compliance with’ the 1992 agreement.  Of that there could be no doubt.

…

It is true that this proceeding is for breach of ss170WG and 298K, not for an injunction to enforce an award as such or for a penalty for breach of an award under s178.  But the applicants seek mandatory interlocutory injunctions in terms to require the respondent to apply the 1992 agreement.  If the court has no jurisdiction to order compliance with an award or certified agreement, that jurisdictional deficiency cannot be supplied by characterising the alleged non-compliance as a contravention of some other provision of the Act.

This is particularly so when, as the applicants’ own affidavit filed in support of an expedited hearing of this application shows, compliance with the 1992 agreement is the substantial complaint which they have against the respondent.

Further, although not exposed in the proceedings before Marshall J, the source of the Court’s jurisdiction to make an interlocutory injunction which is protective of proceedings under s170WG of the WR Act cannot be in s170VZ thereof.  Unlike s298U(e), s170VZ does not extend to the making of interlocutory injunctions:  see R v Forbes; Ex parte Bevan (1972) 127 CLR 1.”

87                  In dealing with Marshall J’s second reason, counsel for O’Connor pointed to similarities between matters V833 of 2000 and V723 of 2000: the parties are the same, both include claims for penalties and both complain of failure to comply with the terms of the 1992 agreement.

88                  Finally, counsel for O’Connor sought to undermine the basis of any interlocutory injunction by offering an undertaking on behalf of their client.  They undertook that, except with the leave of the Court, O’Connor would not enter into an AWA with any of the 30 employee applicants in matter V833 of 2000.  They said the effect of this undertaking was that O’Connor was no longer (if it ever had) applying duress to these employees “in connection with an AWA”; accordingly, there could no longer be any justification for an interlocutory injunction to restrain a breach of s170WG(1) of the WR Act.

(iii)             Discussion

(a)        Jurisdiction

89                  The line of authority cited by Marshall J goes back at least as far as the decision of Pincus J in Australasian Meat Industry Employees’ Union v Frugalis Pty Ltd (1987) 14 FCR 535.  That was an application for interlocutory orders requiring the first respondent to take all necessary steps to permit members of the applicant union to resume work in accordance with an order of the Conciliation and Arbitration Commission.  Counsel for the applicant argued the Court had jurisdiction to make such an order, but reference was made to legislative amendments in 1970 that had the effect of removing from the relevant statute, the Conciliation and Arbitration Act 1904,  a provision (s109(1)(b)) specifically empowering the Commonwealth Industrial Court to order compliance with an award.  Hansard references demonstrated this was done with the intention of excluding Court enforcement of awards and orders of the Commission.  As Pincus J recorded at 539-540, in his Second Reading Speech the Minister had said:

“The Government does not believe that sections 109 and 111 are consistent with its aim of trying to have disputes solved without recourse to sanctions wherever this is possible.  This means that when the Bill becomes law, the injunction-making powers of the court under section 109 and its powers to punish for contempt will not be capable of being exercised as sanctions against unions or employers for award breaches.  Section 109 has been used principally in the past to secure observance of so-called bans clauses of awards and, where it could be shown to the court that orders made in this way under section 109 were being breached, the court could punish such breaches as contempt of the court and impose a fine of up to $1,000.  This is being swept away.  In future, there will be 1 sanctions proceeding and not 2.”

 

Pincus J held he had no jurisdiction to make the order sought.

90                  The application in Wattyl was for an order requiring a union to take steps to ensure its members worked in accordance with certain certified agreements.  Madgwick J considered whether the Industrial Relations Court of Australia had jurisdiction to make such an order.  He concluded it did not.  His Honour adverted to Frugalis and two subsequent decisions:  The Queen v Australian Teachers Union (No.2) (1993) 48 IR 109 and Dunham v Randwick Imaging Pty Ltd (1994) 122 ALR 323.  The latter case related to the powers of IRCA, as distinct from those of the Federal Court, but the relevant statutory provisions were almost identical.  In Wattyl, Madgwick J said (at 215):

“There is, in my opinion, no warrant as a matter of statutory construction, even without consideration of the legislative history, or the availability of other remedies, for regarding the terms of s431 standing alone as empowering the court to restrain contraventions of awards made under the Act, ie for regarding awards as falling within the expression ‘this Act’.  As noted above, s4 does not extend that expression to include awards.  Awards are simply instruments made pursuant to the Act and made binding by the Act (s149) under pain of a penalty:  s178.  They are not a part of the Act itself:  see Byrne v Australian Airlines Ltd (1995) 131 ALR 422 and Ex parte McLean (1930) 43 CLR 472 at 484.  Thus, the former s109(1)(b) of the C & A Act took the pre-1970 form which it did.”

91                  The application made to Burchett J in Gordonstone was for an interlocutory order restraining an employer from contravening a particular clause in a certified enterprise agreement.  His Honour adverted to the cases we have mentioned and to an argument based on s178 of the WR Act (the penalty provision).  Burchett J thought s178 did not assist.  He followed the line of authority in the earlier cases and refused the application.

92                  All these cases involved applications for a court to make an order directly enforcing an award or other industrial instrument.  In each case the applicant encountered the problem that, since the repeal in 1970 of the old s109(1)(b) of the Conciliation and Arbitration Act, there was no statutory basis for such an order to be made.  The same problem would arise in proceeding V833 of 2000, if the applicants sought orders directly enforcing the 1992 agreement.  But this is not what they are doing.  They are seeking interlocutory injunctive relief to restrain the continuance of conduct that is said to constitute a breach of s170WG(1) of the WR Act.  If it is appropriate to grant that relief, the Court is not precluded to the extent it regards as appropriate, from framing its order by reference to the 1992 agreement.  If it should take that course, the Court would do so, not to enforce the 1992 agreement itself, but as an interim measure in a proceeding to enforce s170WG(1) of the WR Act.  The employer’s obligations under the 1992 agreement would thereby be a yardstick of what may be an appropriate measure of interim relief from the duress allegedly being inflicted on the employees by O’Connor.  Accordingly, his Honour was in error in concluding that he did not have jurisdiction to make the orders sought in relation to the agreement or, if he did have jurisdiction in the matter, he ought not to exercise  it as he would be indirectly enforcing the certified agreement.

93                  It remains for us to consider two other points raised by counsel for O’Connor in connection with jurisdiction.  First, they say the Court has no power under s170VZ of the WR Act to make an interlocutory injunction, as distinct from a final injunction.  Section 170VZ empowers an eligible court to “grant an injunction requiring a person not to contravene, or to cease contravening”, Part VID.  Counsel contrast these words with those of s298U(e) of the WR Act, whereby this Court is empowered to make “injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects”.

94                  Counsel cited the  High Court decision in Forbes in support of this submission.  But that case is of no assistance. Forbes concerned s141(1) of the Conciliation and Arbitration Act.  That subsection said the Commonwealth Industrial Court “may, upon complaint by any member of an organization and after giving any person  against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules”.  Kerr J granted an order nisi calling on respondents to show cause why orders should not be made requiring them to observe the rules of an organization in certain respects.  Before the date upon which the order nisi was returnable, Dunphy J made an ex parte order restraining the respondents to the order nisi from doing certain things.  The High Court granted prohibition in relation to the ex parte order.  Menzies J (with whom Barwick CJ, Walsh J and Stephen J all agreed) held the ex parte order fell outside s141(1) for two reasons:  first, it made no reference to the rules of the organization, but simply restrained particular actions; second, it was made without granting the respondents any opportunity to be heard.  McTiernan J restricted himself to the second ground.

95                  A more relevant authority, as it seems to us, is Patrick Stevedores Operations No.2 Proprietary Limited v Maritime Union of Australia [1998] HCA 30; 195 CLR 1.  In that case, at para 25, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ referred to the fact that s412(1)(a) of the WR Act confers on this Court:

“jurisdiction with respect to matters arising under this Act in relation to which –

(a)    applications may be made to it under this Act …”

Their Honours explained the significance of the terms “matter” and “arising under”.  They referred to Fencott v Muller (1983) 150 CLR 570 at 608-610 and LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.  At para 27 they 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 not such a case.” [footnote omitted]

96                  There is nothing in s412(1)(a) of the WR Act, as relating to applications under Part VID of the WR Act, that limits the range of the Court’s powers.  It is true that s170VZ does not make express reference to interim injunctions, as does s298U(e).  However, that omission does not imply an exclusion of the Court’s normal power, under s23 of the Federal Court of Australia Act, to make interlocutory orders. See Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 480-481.  Note that s170NG of the WR Act, there discussed, is couched in similar language to s170VZ.

97                  The other matter is Dr Jessup’s undertaking that, except with the leave of the Court, O’Connor will not make an AWA with any of the 30 employee applicants.  His argument is that this undertaking necessarily means his client is no longer (if it ever was) applying duress “in connection with an AWA”; any continuing duress has no connection with making an AWA.

98                  The argument has a superficial attraction but does not withstand analysis.  The applicants claim O’Connor has engaged in conduct amounting to duress by denying them, over a period of at least twelve months, their proper remuneration, all with the intent that they have no realistic alternative other than to make an AWA on O’Connor’s terms, regardless of their own wishes.  If those allegations are correct, the duress is not abated by O’Connor’s undertaking not to enter into an AWA except by leave of the Court.  If the applicants’ assertions are correct, they would each remain subject to the same economic pressure, each applicant’s only means of escape being to consent to the Court granting leave to O’Connor to make with him or her the AWA which the applicant has not hitherto wished to make and to which he or she does not give genuine consent.  In any event, it is difficult to say by what criteria the Court might grant, or refuse to grant, leave to the employer to make an AWA.

99                  In our opinion Marshall J had jurisdiction to grant the interlocutory relief sought in V833 of 2000.

(b)        The pending hearing of V723 of 2000

100               The second ground of refusal of interlocutory relief may be discussed more briefly.  We accept the submissions on this point put by counsel for the applicants.  While it is true that the application for interlocutory relief traversed some of the ground that will need to be trodden by Conti J, the issues in the two proceedings are not the same.  Proceeding V723 of 2000, to be considered by Conti J, is an application for penalties and compensation in respect of past alleged breaches of an industrial instrument.  It is an application for enforcement of an industrial instrument.  The application to Marshall J was for interlocutory orders to relieve against alleged continuing breaches of s170WG(1) of the Act.  In the one case, relief is sought in respect of past conduct; in the other, relief is directed to present and future conduct.  One case involves enforcement of an industrial instrument; the other involves enforcement of the WR Act itself.

101               The application for interlocutory relief having been made to him, it was the duty of Marshall J to consider that application on its merits.  If he reached the issue of balance of convenience, his Honour was obliged to have regard to the whole of the circumstances of the case.  In that connection it may have been relevant that Conti J was due to commence hearing proceeding  V723 on 13 December, perhaps in relation to the duration of any interlocutory order that might be made.  It is difficult to see, however, how the imminence of the trial could be an answer to the application.  At best, it may have been a reason for deferring the hearing for a time if it was not as urgent as the applicants allege.  If that course was taken, Marshall J would have needed to have borne in mind that there can be no guarantee that the hearing before Conti J will be completed within the period allocated to it, that Conti J may not deliver judgment immediately after the conclusion of the hearing and that his decision may be the subject of an appeal. As the matter will return to Marshall J, it is inappropriate for us to make any comment about the weight that might be given to any of these issues.  We simply say that the imminent hearing of V723 of 2000 was not a proper basis for declining to consider, on its merits, the application for interlocutory relief in V833 of 2000.

Disposition

102               A decision to refuse an interlocutory injunction is a decision made in the discretionary jurisdiction of the Court.  It is a decision that attracts the well-known principle enunciated in  House v The King (1936) 55 CLR 499 at 504-505:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

103               In the present case, we respectfully think Marshall J fell into two errors of law: first, in concluding he had no jurisdiction to grant the interlocutory relief sought by the applicants; and, second, in holding the issues that were raised by the application for interlocutory relief were the same as those expected to be determined in proceeding V723 of 2000 and that it was therefore appropriate to dismiss the application in any event.  That being so, it is appropriate, in proceeding V833 of 2000, to grant the applicants leave to appeal, and to allow the appeal.  In our view leave to appeal is appropriate because, as a result of the errors of law, the applicants were deprived of their entitlement to have their application for interlocutory relief heard on the merits.

104               Although we have before us the whole of the material that was before Marshall J, it is not desirable for us to determine the application for interlocutory relief.  Marshall J heard argument on all the issues germane to that application.  We have not had that advantage.  Furthermore, he has a greater knowledge of the facts of the case than we can readily obtain.  We think it preferable that the matter be remitted to his Honour for determination of the application for interlocutory relief in the light of the conclusions expressed in these reasons.  Having regard to the nature of the application, it is important that this be done as a matter of urgency.  His Honour may wish to allow the parties a brief time, perhaps a day or so, to make any submissions they wish concerning matters arising out of these reasons.  However, subject to that, we are of the opinion the application for interlocutory orders should be determined without further ado.

105               Marshall J has not yet expressed any view as to whether there is a serious question to be tried, concerning the allegation of duress, or as to the strength of that allegation.  Nor has he yet dealt with the balance of convenience, other than by referring to the planned hearing before Conti J.  But, of course, there are other matters relevant to the balance of convenience. Some of them are likely to have been raised, or will be raised, by O’Connor; including, presumably, the risk and inconvenience of the company being out of pocket during the period that must elapse between the date of commencement of any interlocutory injunction and the final hearing of V833 of 2000.  Other matters are likely to have been raised, or will be raised, by the applicants.  Without pretending to be exhaustive, they are likely to include the undertaking as to damages offered by AMIEU and the financial situations of the various employee applicants.  There may be significant differences between the situations of various applicants; if so, it may be necessary for Marshall J to consider the position of each individual applicant.  That may result in differences, perhaps significant differences, in the relief (if any) that is appropriate to be granted to particular applicants.  And, of course, there will not necessarily be a close correlation between the relief appropriate to be granted to a particular applicant and the benefits that would have been received by that applicant under the 1992 agreement.  If Marshall J considers it appropriate to do so, he may make an order in favour of any particular applicant that is framed in terms similar to that sought in the Application.  However, if he considers it inappropriate to take this course, he may formulate his orders in a different way.

106               While these reasons were in course of preparation we received a letter from the solicitors for O’Connor drawing the Court’s attention to the fact that, on 21 November 2000, after the hearings before us, the AIRC had made a new award, the Federal Meat Industry (Processing) Award 2000.  The solicitors provided us with copies of the award.  We note that it varies the 1996 award by deleting all clauses, schedules and appendices and inserting new provisions.  In effect, it is a new award.  However, it appears to be, like the 1996 award, a minimum rates award which has “safety net” conditions.  It is stated to commence to operate from 1 November 2000 and to bind AMIEU, its officers and workers, and the National Meat Association of Australia (“NMAA”) and its members in respect of relevant classifications.

107               Apparently O’Connor is now a member of the NMAA.  Accordingly, the solicitors argue this award regulates the terms and conditions of the employment of AMIEU members at the abattoir.  They say s148 of the WR Act applies.  The solicitors seek to distinguish the Full Court’s decision [2000] FCA 1197, in relation to the application of the 1996 award to the abattoir, on the basis that the Full Court held it was material that O’Connor was not a member of NMAA when the 1996 award was made.

108               The Full Court did so hold at para 48.  However, this was only one of three grounds advanced by AMIEU for the submission that the 1996 award had no application: see para 47.  Having regard to the view it took about the first ground, the Full Court did not need to deal with the other two grounds.  Those grounds may arise if O’Connor contends that the existence of the new award is a reason why Marshall J should conclude that there is not a serious question to be tried in support of the applicant’s claim for interlocutory relief in V833 of 2000.  We do not wish to make any comment as to whether such a contention would have merit.

109               The orders we propose to make in proceeding V671 of 2000 (the appeal in the consolidated first instance proceeding V489 of 1999 and V650 of 1999) are as follows:

(i)             the appeal be allowed;

(ii)           the answer to preliminary question (b) given by Marshall J on 16 June 2000 be set aside.

110               In proceeding V833 of 2000 we will order:

(i)             leave be granted to appeal against the decision of Marshall J made on 14 November 2000 refusing the applicants’ application for interlocutory relief;

(ii)           the appeal be allowed and the decision set aside;

(iii)          the application for interlocutory relief be remitted to Marshall J for determination according to law.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justices Wilcox, Merkel and Finkelstein.

Associate:

Dated:              5 December 2000

Counsel for the Appellants/Applicants:	S Rothman SC and E White
Solicitor for the Appellants/Applicants:	Gill, Kane & Brophy
Counsel for the Respondents:	Dr C Jessup QC and N Harrington
Solicitor for the Respondents:	Blake Dawson Waldron
Date of Hearing:	20 November 2000
Date of Judgment:	5 December 2000