FEDERAL COURT OF AUSTRALIA

Professional Officers' Association (Victoria) v CSL Ltd [2001] FCA 628

INDUSTRIAL LAW – one union excluded from negotiations with employer regarding a new enterprise agreement – claim of discrimination – whether discrimination against employees – whether injuring employee in employment– whether prejudicial alteration of employee’s position – whether inducement to stop membership

INTERLOCUTORY INJUNCTION – interlocutory orders sought restraining employer from denying representation to employees by excluding their union from negotiations for agreement – balance of convenience – serious question to be tried – whether irreparable harm – whether Commission the more appropriate forum – nature of the relief sought – history and attendant circumstances of the case

Workplace Relations Act 1996, ss 170NB, 298K, 298L, 298V, 298M

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 applied

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 referred

Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Pty Ltd [1979] VR 107 referred

Magna Alloys and Research Pty Ltd v Coffey [1981] VR 23 referred

In the matter of CSL Enterprise Agreement 1999; CSL Limited v CPSU, delivered on 5 June 2000 (Print S6754) referred

Professional Officers’ Association (Victoria) v The Honourable Justice Guidice [2001] FCA 296 referred

Waters v Public Transport Commission (1991) 173 CLR 349 referred

Street v Queensland Bar Association (1989) 168 CLR 461 referred

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

Construction, Forestry, Mining and Energy Union v CSR Limited [2000] FCA 1203 discussed

BHP Iron-Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 followed

Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 102 IR 410 referred

PROFESSIONAL OFFICERS’ ASSOCIATION (VICTORIA) v CSL LIMITED (ACN 051 588 348) 

V 345 of 2001

KENNY J

MELBOURNE

31 MAY 2001

Upon the applicant by its counsel, undertaking:

(a)     to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or any continuation (with or without variation) thereof; and

(b)     to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.        Until the hearing and determination of the application, or further order, the respondent be enjoined, by itself, its servants or agents, from denying to those of its employees who are members of the applicant representation by the applicant in negotiating an agreement under Division 2 of Part VIB of the Workplace Relations Act 1996 to replace the CSL Enterprise Agreement 1999, by excluding the applicant from the negotiations for such an agreement had between the respondent and the other parties to the negotiations.

2.        Reserve liberty to each party to apply in relation to the foregoing order upon 24 hours written notice to the other party.

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

REASONS FOR JUDGMENT

1                     The Professional Officers’ Association (Victoria) (“POAV”) applied for interlocutory injunctions against CSL Limited (“CSL”).  I made orders on 29 May 2001 acceding in part to that application.  What follows are my reasons for so doing.

2                     The application arises out of CSL’s rejection of the POAV’s request to participate in the negotiations for a new enterprise agreement (“the 2001 agreement”).  By an amended statement of claim, the POAV pleads contraventions of ss 170NB, 298K and 298M of the Workplace Relations Act 1996 (“the Act”). 

3                     The application is supported by three affidavits of Mr Phil Ilton, an industrial officer for the POAV, sworn on 14 May, 24 May and 28 May 2001.  There is an affidavit in opposition sworn by Mr Kelvin Milroy, General Manager-Human Resources, CSL, on 22 May 2001.

4                     In an application of this kind, the court must inquire, first, whether there is a serious question to be tried and, if so satisfied, whether the balance of convenience lies in favour of granting or refusing interlocutory injunctive relief.  The purpose of such relief is to maintain the status quo, or to establish or maintain a state of affairs which is, on the balance of convenience, appropriate to be maintained until trial:  see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 77 FCR 478 at 490, citing Slater Walker Superannuation Pty Ltd v Great Boulder Gold Mines Pty Ltd [1979] VR 107 at 110.  In Slater Walker, Lush J said, at [1979] VR 107 at 110:

The authorities refer to the use of the injunction for the purpose of maintaining the status quo, or establishing or maintaining a state of affairs which is on the balance of convenience appropriate to be maintained until the trial.  They refer to avoiding irreparable harm to the plaintiff.  There will be situations in which the plaintiff cannot expect to be granted an injunction unless he can show that he can prove positively the existence of his rights and the infringement of them.  There will be other situations in which, though the plaintiff’s proof of his rights or the infringement of them is not strong, an injunction may be granted because to withhold it would do the plaintiff irreparable harm, while to grant it would not greatly injure the defendant.  The possible variety of situations is unlimited.

The Full Court of the Supreme Court of Victoria had earlier adopted these observations as correct in Magna Alloys and Research Pty Ltd v Coffey [1981] VR 23 at 28. 

5                     More recently, the High Court said in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 (“Patrick Stevedores”) at 33:

The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked.  (Citations omitted.)

the facts outlined

6                     The POAV was registered as an organisation under s 253ZQ of the Act on 1 June 1999 after withdrawing from amalgamation with the Community and Public Sector Union (“CPSU”).  There were until recently between six and eight POAV members employed by CSL.  Currently, however, POAV has five members who are employed by CSL.  In his affidavit of 24 May 2001, Mr Ilton deposed that the POAV:

covers employees in professional positions with the Respondent.  All of the other unions with which the Respondent proposes to negotiate, apart from CPSU, are unions covering trades employees and therefore would have little or no understanding of the concerns of the Applicant’s members. 

7                     According to Mr Milroy, 65 to 75% of CSL’s staff are not union members.  The balance of its staff are members of the CPSU, the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Worker Union of Australia (“CEPU”), the Automotive Food Metals Engineering Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers’ Union (“AMWU”), the National Union of Workers (“NUW”), the Construction, Forestry, Mining and Energy Union (“CFMEU”), and the POAV.  He deposed that there may be members at CSL sites in Victoria of the Association of Professional Engineers, Scientists and Managers, Australia (“APESMA”), the Commonwealth Medical Officers Association (“CMOA”), and the Australian Liquor, Hospitality and Miscellaneous Workers Union (“ALHMWU”).  Counsel for the applicant stated, however, that these latter three organisations had been deprived of representational rights at the respondent’s workplace by virtue of an order made pursuant to s 118A of the Act. 

8                     As at 1 June 1999, there was in force an enterprise agreement certified under the Act between CSL and the CPSU, CEPU, AMWU, NUW and CFMEU (“the other unions”).  This was referred to as the 1997 agreement.  When the POAV was registered on 1 June 1999, it became a party to the 1997 agreement by operation of s 253ZS of the Act.  By a letter dated 3 June 1999, the secretary of the POAV informed CSL that:

[W]e intend representing our members on all aspects of their employment with CSL including Award matters, Certified Agreements, conditions of employment, occupational health and safety, workplace changes and individual grievances.

The secretary asked to be notified of relevant proposals for change. 

9                     Negotiations for the 1999 agreement apparently commenced in March 1999.  Mr Ilton deposed that he had several discussions with Mr Milroy on behalf of CSL prior to a hearing in June 1999 before the Australian Industrial Relations Commission (“the Commission”), in which the POAV asked the Commission to exercise powers to try by conciliation to facilitate the making of an agreement under Division 2 of Part VIB of the Act.  Mr Ilton deposed that Mr Milroy advised him that “whilst CSL would inform [him] of progress with the negotiations it would not permit POAV to participate in the negotiations”.  The Commission subsequently recommended that CSL invite the POAV to take part in the negotiations for an agreement under Division 2 of the Act.  Mr Milroy deposed that he considered the recommendation and decided not to invite the applicant because the negotiations were near completion and the applicant was proposing an extensive new log of claims, which would have unravelled the negotiations to date.  On 29 September 1999, a valid majority of employees endorsed the 1999 agreement. 

10                  On 27 October 1999, an application for certification of the 1999 agreement was heard by the Commission.  The POAV and some members of the POAV sought leave to intervene.  Leave was refused.  The 1999 agreement was certified by the Commission on 28 January 2000.  The POAV appealed to a Full Bench of the Commission.  Its appeal was substantially unsuccessful.  On 29 September 2000, the POAV made application for prerogative writs in the High Court of Australia against members of the Commission and others.  The application was remitted to this Court and, on 28 March 2001, a Full Court of this Court dismissed the application. 

11                  By a facsimile letter dated 8 March 2001, CSL advised the other unions that it was its intention to start the negotiations for the 2001 agreement and proposed that discussions commence on 9 May 2001 at CSL’s site in Parkville.  About mid April 2001, via e-mail, noticeboard and direct communications, line managers invited staff to participate in focus groups.  During the week beginning 23 April 2001, focus group sessions for staff were held at CSL’s sites at Parkville and Broadmeadows.  The first negotiation session for the 2001 agreement took place on 9 May 2001.  That session was attended by representatives of the CPSU, CEPU, AMWU and NWU.  It seems that the CFMEU decided to have its interests in the negotiations represented by the AMWU.  CSL has since published and distributed a number of weekly newsletters concerning negotiations for the 2001 agreement. 

12                  Meanwhile, by a letter dated 11 April 2001, the POAV advised CSL that it “would like to be a party to the negotiations for an Agreement to replace the current CSL Enterprise Agreement (1999) which expires on 30 June 2001”.  The POAV’s position was confirmed by a letter dated 30 April 2001.  By a letter dated 26 April 2001, Mr Milroy responded to the POAV’s request in the following terms:

I write in regard to your fax and follow up letter dated 11^th April 2001.  In that letter you advised that the POAV would like to be part of the negotiations for the 2001 CSL Enterprise Agreement.

I write to inform you that CSL will not be inviting the POAV to participate in those negotiations.  Your request to participate in the Enterprise Agreement may have been more favourably viewed if it wasn’t for the fact that for the past 2 years CSL has found itself in the position of defending itself against the POAV for not inviting it to the 1999 Enterprise Agreement.  It would seem more appropriate if the request to participate in the 2001 Enterprise Agreement had occurred before the POAV made the decision to appeal the Full Bench of the Australian Industrial Relations Commission decision and take it to the High Court.

CSL takes the view that having had the right to choose which unions we negotiate with in the Enterprise Agreement concurred with through the above processes at considerable and seemingly unnecessary expense, we will exercise that right by making the decision to proceed with the 2001 CSL Enterprise Agreement without the participation of the POAV.

13                  By letter dated 2 May 2001, the POAV asked CSL to reconsider its position.  The next day CSL stated that its position remained the same.  The POAV has not been invited by CSL to participate in the negotiations for the 2001 agreement. 

14                  CSL does not dispute that the POAV has been excluded from the negotiations for the 1999 and 2001 enterprise agreements; that it was excluded as a party from the 1999 agreement; and that its exclusion as a party from the 2001 agreement is threatened.  Mr Milroy deposed that, by referring to the recent history of litigation between the parties in his letter of 26 April 2001, he meant:

I had no objection to the Applicant raising legitimate grievances or pursuing legitimate avenues, however, I did object to their adversarial style of negotiating which I believe was not in good faith.  I believe that CSL has the right to choose with which unions to negotiate.  My reasons for not wishing to negotiate with the Applicant for the 2001 Agreement are as follows:

(a)    I do not want to increase the size of the Single Bargaining Unit and make the negotiating process more cumbersome;

(b)    I believe the Applicant can be adequately represented on the Single Bargaining Unit by another union, as is the case with the CFMEU; and

(c)     I believe all employees have an opportunity to be involved in the negotiating process.

In the last ten years, the unions with which CSL has negotiated over awards and agreements has reduced from 16 to 5.  In my experience, it is very difficult to negotiate efficiently with such large numbers of organisations.  In particular, having so many bodies can lead to concerns about demarcation.  At one instance, CSL sought the assistance of the Australian Industrial Relations Commission in relation to union coverage after the company was privatised in or about May 1994.  The Australian Industrial Relations Commission made an order restricting representation rights at the company to five unions (the CPSU, CEPU, AMWU, NUW and CFMEU). 

15                  For the purposes of interlocutory relief, the POAV relied upon alleged breaches of ss 170NB(1), 298K and 298M of the Act.  Mr Milroy deposed that if the relief sought were granted:

CSL has 1400 staff who have an expectation in relation to the timing and scheduling of the negotiations for the 2001 Agreement and whose employment conditions will be affected by delays in the process.  To date, one negotiation meeting scheduled for 23 May 2001 has been cancelled and other than exchanging logs of claim, all other negotiations have ceased. 

To date, I have not been served with any notice by the Applicant initiating a bargaining period.

section 170NB

16                  Section 170NB is part of Division 8, “Negotiations for certified agreements etc.”, in Part VIB, “Certified agreements”.  Section 170NB(1) relevantly provides:

An employer must not, in negotiating an agreement under Division 2 or 3, discriminate between employees of the employer:

(a)    …

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

Both parties accepted that s 170LJ (and hence Division 2) would be applicable in connection with any application to certify an agreement between CSL and its employees or an organisation of its employees:  see s 170LH.  Section 170LJ(1) provides that “[t]he employer may make the agreement with one or more organisations of employees” provided that certain conditions are met.

17                  In June last year, a Full Bench of the Commission rejected the POAV’s submission that its exclusion from negotiations for the 1999 agreement constituted a contravention of s 170NB.  The Commission did so largely because of s 170LJ.  The Commission stated:

Section 170LJ(1) permits an employer to make an agreement with one or more organisations of employees provided each organisation has at least one member employed in the business to be covered by the agreement and is entitled to represent the member’s industrial interests therein.  The section does not require that every such organisation should be entitled to be a party to the agreement.  This much is conceded by the appellants.  They submit, however, that the choice of organisations cannot be made and carried through in the negotiations if s.170NB is therefore breached.  Whilst it is possible to agree with that submission as a matter of law, we think that the possibility of a breach of s.170NB occurring because one organisation which could have been a party to the negotiation of the agreement is excluded is fairly remote.  We reject any suggestion that simply because an organisation with at least one member whose industrial interests it has the ability to represent is excluded from the agreement, s.170NB(1) or Part XA are thereby breached.  There was no suggestion in the proceedings before Commissioner Holmes that there was any discrimination between CSL’s employees in the manner in which the agreement was negotiated.  An examination of the transcript of the proceedings before the Commissioner indicates that the case was put … solely on the ground that POAV members had been discriminated against because the POAV was not included in the negotiations for and did not become a party to the 1999 agreement.  The Commissioner quite properly rejected that submission, as we do. 

(See In the matter of CSL Enterprise Agreement 1999; CSL Limited v CPSU, delivered on 5 June 2000 (Print S6754) at [17].)

18                  The decision of the Commission was considered by the Full Court of this Court in Professional Officers’ Association (Victoria) v The Honourable Justice Giudice [2001] FCA 296.  The Full Court held, however, that it was unnecessary to deal with questions concerning the scope of ss 170NB, 298K or 298L.  Wilcox J observed at [2]:

There was discussion … as to whether a decision by an employer to negotiate an agreement with one or more particular unions, to the exclusion of one or more other unions having members on site, might constitute conduct contravening s 170NB or Pt XA of the Workplace Relations Act 1996.  However, this is not an issue raised by the application for prerogative relief.  That being so, and as the issue is one of general importance potentially affecting other parties, it is preferable not to address it in this case. 

19                  Counsel for the POAV submitted that the Commission’s approach was incorrect.  He submitted that, in making an agreement as permitted by s 170LJ, the employer was subject to such constraints as the law, including s 170NB, imposed.  In this connection, counsel referred to the observations of the High Court in Patrick Stevedores at 41, citing Waters v Public Transport Commission (1991) 173 CLR 349 at 413, and to the observations of Gaudron J in Street v Queensland Bar Association (1989) 168 CLR 461 at 477.  Her Honour there said:

Where protection is given by anti-discrimination legislation, the legislation usually proceeds by reference to an unexpressed declaration that certain characteristics are irrelevant within the areas in which discrimination is proscribed.  Even so, the legislation frequently allows for an exception in cases where the characteristic has a relevant bearing on the matter in issue. 

As already noted, both parties accepted that the POAV had been excluded from the negotiations for the 2001 agreement while the other unions had been included.  This, so counsel submitted, resulted in less favourable, and hence discriminatory, treatment of the POAV’s members within the meaning of s 170NB. 

20                  Counsel for the respondent submitted that the focus of s 170NB was on the employer’s conduct “in negotiating an agreement”.  That is, she submitted that the provision constrained the employer’s conduct after the employer had selected the parties with whom it wished to negotiate.  The provision did not, so the respondent’s counsel submitted, apply to the anterior decision, namely, the selection of the negotiating parties.  This position was, so she said, confirmed by s 170LJ to the extent that it permitted the employer to choose not to make an agreement with all organisations of employees at its workplace.

21                  In submitting that there was a serious question to be tried on the s 170NB issue, counsel for the POAV relied on the decision of Madgwick J in National Tertiary Education Industry Union v University of Technology, Sydney [2000] FCA 874 (“the NTEU case”).  In that case, the applicant was a registered organisation that had a small number of members employed by the respondent.  It had been included in initial negotiations for an enterprise agreement, but was subsequently excluded from them.  At the time the matter came before his Honour, an agreement had been concluded with another union and was to be submitted to the respondent’s employees pursuant to s 170LJ(2) of the Act.  In connection with the applicant’s claim that, by excluding it, the respondent had breached s 170NB and s 298M, Madgwick J stated at [12]:

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

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

22                  Subsequently, Branson J considered the scope of s 170NB in Construction, Forestry, Mining and Energy Union v CSR Limited [2000] FCA 1203 (“CFMEU v CSR Limited”).  In that case, the applicant contended that the proposed agreement gave greater benefits to members of another union than it did to it, primarily because it gave the other union, rather than it, a role to play in the resolution of disputes and grievances.  In relation to this submission, her Honour said at [49]:

I doubt that s 170NB is concerned with the terms of an agreement as opposed to the process by which the terms of an agreement are negotiated.  I note that this is the construction of s 170NB apparently adopted by the Full Bench of the Industrial Relations Commission in Re CSL Enterprise Agreement 1999 (5 June 2000 – Print S 6754).  See also Re Telstra Retails Shops Agreement 1998 (Duncan DP – 9 September 1998, Print Q 6111).  I therefore doubt that there is a serious question to be tried as to whether CSR has acted in contravention of s 170NB by reason of its being a party to negotiations which had as their outcome the Proposed Agreement.

23                  The applicant in CFMEU v CSR Limited also contended that, in negotiating the new agreement, the employer had acted in contravention of s 170NB by meeting with representatives of another union and not with its representatives.  As to this, her Honour said at [52]:

I am inclined to doubt that the mere failure by an employer to negotiate with one organisation capable of representing the industrial interests of its employees when it is negotiating with another such organisation will amount to a contravention of s 170NB, or indeed of s 298M, of the Act.

After referring to s 170LJ, her Honour continued at [53]:

Plainly s 170LJ(1) of the Act permits an employer to make an agreement with one or more organisations of employees in the circumstances identified in paragraphs (a) and (b) of the subsection.  An employer is not required by the Act to enter into agreement with every organisation with which it could make an agreement.  I do not consider that the evidence before me is sufficient to establish that there is a serious question to be tried that CSR discriminated against any of the Employees qua employees by deciding to make, and negotiating, an agreement with AWU and not with, or not also with, CFMEU. 

The respondent in this case relied on these observations. 

24                  Her Honour was not, of course, speaking of the situation that the POAV claims as the basis for its present application.  Whether or not there has been a contravention of s 170NB will depend very much on the facts of the case.  One might accept her Honour’s observations as correct and still find that there had been a contravention shown on the facts of this particular case.  In setting about the negotiation of a new agreement, CSL has, it seems, allowed all of its employees save for those who are members of the POAV to have and enjoy the representation of their choice in the negotiations (whether through the union to which they belong or otherwise).  In negotiating the 2001 agreement, CSL employees who are members of the POAV have, arguably at least, been treated less favourably than CSL’s other employees because of their membership of the POAV, since CSL has denied them (and only them) opportunity to have the representation of their choice.  On the material presently before the Court, there is, so it seems to me, a serious question to be tried as to whether this constitutes a breach of s 170NB. 

section 298K

25                  Section 298K(1) provides:

An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)    …

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

(c)     alter the position of an employee to the employee’s prejudice … .

Section 298L(1) provides:

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

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

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

…

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

(i)            compliance with that law; or

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

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

The parties accepted that s 298V of the Act applied.  The provision gives rise to a presumption that if CSL carried out conduct of the kind referred to in s 298K, then it did so for the particular reason or reasons alleged by the POAV.

26                  What is the injury or prejudicial alteration alleged by the POAV?  Counsel for the respondent submitted that CSL’s refusal to admit the POAV to the negotiations neither injured nor prejudicially altered the position of CSL employees who were members of the POAV.  This may turn out to be correct.  It seems to me, however, that the contrary proposition is at least arguable. 

27                  Counsel for the POAV submitted that “CSL’s conduct in refusing to negotiate with POAV while negotiating with all the other unions, constitutes an injury or alteration of their position to their prejudice in contravention of section 298K(1)”.  Prior to 1 June 1999, CSL employees who were members of the CPSU enjoyed the benefit of union representation in negotiating a new enterprise agreement.  There was evidence, sufficient for interlocutory purposes, to show that the 1997 agreement, which was extant prior to 1 June 1999, contained a specific undertaking that “the parties” to that agreement would open discussions for the 1999 agreement shortly before the 1997 agreement expired.  As already noted, upon its registration, the POAV became a party to the 1997 agreement by virtue of s 253ZS of the Act.  As already noted, Mr Milroy deposed that he decided not to invite the POAV to the negotiations for the 1999 agreement because the negotiations were near completion and the POAV was proposing an extensive new log of claims which would have unravelled the negotiations.  In the circumstances that then arose, the Commission declined to give it or its members leave to intervene on the certification application.  The Full Court of this Court subsequently held that there had been no denial of procedural fairness by the Commission. 

28                  Having regard to these circumstances, the respondent contends that its decision to exclude the POAV from the negotiations for the 2001 agreement cannot be said to have injured or prejudicially altered the position of CSL employees who belong to the POAV.  The respondent’s case is, presumably, that those employees have never enjoyed POAV representation at enterprise agreement negotiations.  It is at least arguable, however, that CSL employees who are POAV members had their position altered to their prejudice by CSL’s refusal to admit the POAV to the negotiations for the 2001 agreement.  Until that decision was communicated to them, CSL employees belonging to the POAV might reasonably have expected that, so far as the negotiations for the 2001 agreement were concerned, their choice of representation would be respected in the same way as the representational choices of other employees.  On the evidence as it stands at this interlocutory stage, there was nothing to warrant the view that, in these negotiations, they would necessarily be in a less advantageous position than CSL’s other employees who enjoyed the representation of their choice.  After all, according to Mr Milroy, they lost the opportunity to have the POAV represent them in the negotiations for the 1999 agreement because the POAV came too late upon the scene.  This was not a difficulty in relation to the 2001 negotiations. 

29                  In Patrick Stevedores, the High Court said that the injury referred to in s 298K(1)(b) covered “injury of any compensable kind”, and that s 298K(1)(c) was “a broad additional category which cover[ed] not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”:  195 CLR 1 at 18.  For the reasons stated, CSL’s decision to exclude the POAV from the negotiations for the 2001 agreement might be seen as conduct prejudicially altering the position of those of its employees who belonged to that organisation by denying them an advantage that they would reasonably have expected to enjoy.  This was the representation of their choice in the negotiations for a new enterprise agreement.  Alternatively, it is arguable that CSL prejudicially altered the position of employees who were POAV members by prejudicially singling them out from CSL’s other employees by refusing them the same opportunity to choose their representation as it gave other employees.

30                  Prima facie at least, the prohibited reasons referred to in ss 298L(1)(i) and (j) are to be found in the letter of 26 April 2001 from CSL to the POAV (set out above).  They were that the employees had themselves, or by their union, made a complaint or taken action under the Act in the Commission and the courts in relation to the 1999 agreement.  In any event, I am not persuaded that the evidence adduced by the respondent at this interlocutory stage has rebutted the presumption referred to in s 298V. 

31                  As the applicant’s counsel pointed out, there are some difficulties with Mr Milroy’s claims that he objected to the POAV’s “adversarial style of negotiating”.  On the evidence as it stands, the negotiations to which he is referring are apparently intimately connected with the Commission and court proceedings mentioned above.  None other are readily identifiable.  So too with Mr Milroy’s claim that he excluded the POAV out of concern not to increase the size of the bargaining unit.  As the applicant’s counsel pointed out, at the relevant time CSL was negotiating with five unions.  The same five unions were invited to negotiate the 2001 agreement.  As it turns out, the CFMEU decided to have its interests in the negotiations represented by the AMWU.  The inclusion of the POAV would not have caused an increase in the bargaining unit with which CSL was prepared to negotiate.  Further, as the applicant’s counsel pointed out, there was no basis put forward for the proposition that another union would agree to represent POAV members.  That there are differences between the interests of the members of the POAV and other unions is supported by affidavits sworn by Mr Ilton:  see, in particular, par 4 of his affidavit sworn 28 May 2001.

section 298M

32                  Section 298M provides that an employer must not (whether by threats or promises or otherwise) “induce an employee … to stop being … [a] member of an industrial association”.  The inference is, presumably, that in the event that the POAV is not a party to a new agreement which is certified under the Act, then employees who are now members of the POAV will over time be less attracted to continuing membership of that registered organisation. 

33                  As the Full Court said in BHP Iron-Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at 116 at [60] whether there is conduct in contravention of s 298M is essentially a question of fact.  This is not a case where an employer’s express threats or promises are said to constitute a relevant inducement.  In the absence of any express promise or threat, there must be something to connect the employer’s words or deeds with the outcome referred to in s 298M: Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 102 IR 410 at 431.  This is a case in which intention may prove to be critical.  I am not satisfied at this stage of the proceeding that there is sufficient evidence shown to justify the conclusion that there is a serious question to be tried in relation to the alleged breach of s 298M.  For this reason, I do not consider that this case is analogous to that considered by the Full Court:  compare 102 FCR 97 at 120 at  [78].

balance of convenience

34                  There being a serious question to be tried on two aspects of the applicant’s case, where does the balance of convenience lie?  The strength of the applicant’s case is difficult to assess.  Much will depend on the evidence led at trial.

35                  The parties’ respective contentions turned, in part, on the nature of the interlocutory relief sought by the applicant.  The POAV sought such relief in the following terms:

1.             An order that until the hearing and determination of this Application, or further order, the Respondent be enjoined, by itself, its servants or agents, from engaging in any negotiations for an agreement under Division 2 or 3 of Part VIB of the Act to replace the CSL Enterprise Agreement 1999.

1A.    Alternatively to Order 1, an order that until the hearing and determination of this Application, or further order, the Respondent be enjoined, by itself, its servants or agents, from excluding the Applicant from any negotiations for an agreement under Division 2 or 3 of Part VIB of the Act to replace the CSL Enterprise Agreement 1999.

2.       An order that until the hearing and determination of this Application, or further order, the Respondent be enjoined, by itself, its servants or agents, from entering into an agreement under Division 2 or 3 of Part VIB of the Act to replace the CSL Enterprise Agreement 1999.

2A.    Alternatively to Order 2, an order that until the hearing and determination of this Application, or further order, the Respondent be enjoined, by itself, its servants or agents, from entering into an agreement to which the Applicant is not a party, under Division 2 or 3 of Part VIB of the Act to replace the CSL Enterprise Agreement 1999.

3.       Such further or other orders as the Court considers appropriate.

36                  A principal consideration in favour of granting relief is that, in its absence, the alleged contraventions will continue and may be completed.  CSL will presumably continue its negotiations for a new agreement.  The result may be that, as in the case of the 1999 agreement, the time will come when it will be too late to include the POAV in the negotiations or in any certified agreement even though the organisation may ultimately make out its case.  There is thus a risk that any protection afforded by the Act to CSL employees belonging to the POAV will be compromised.  In such a case as this, the observations of Lush J in Slater Walker and of the High Court in Patrick Stevedores (both set out above) are pertinent.  Interlocutory injunctive relief, at least in limited terms, would serve the purpose of preventing any continuing infringement of the rights of the applicant and its members and prevent harm that cannot be undone.  (No issue was raised about the applicant’s standing to protect the rights of its members qua CSL’s employees, and see ss 170NF(6), 170NG, 298T(2), 298U and 298G of the Act.)

37                  What about injury to CSL or third parties?  As already noted, Mr Milroy deposed that if CSL was enjoined from engaging in further negotiations for the 2001 agreement, then the position of other staff might be deleteriously affected.  In written submissions, the respondent’s counsel contended:

There is a potential for a detrimental impact on other parties on the consequential delay. 

(a)    pay rises may be delayed;

(b)    opportunity for industrial action if significant delay which could not be protected by an undertaking as to damages.  See CPSU v Telstra Corporation Limited (2000) 102 IR 394.

It was to overcome this objection that the applicant sought injunctive relief in an alternative form: see pars 1A and 2A set out above.  I accept, as the applicant submitted, that this relief, if granted, largely overcame the difficulty raised by Mr Milroy, although it might suffer from other defects. 

38                  One consideration militating against the grant of relief relates to the question of other remedies.  Division 4 of Part VIB of the Act will govern certification of any new agreement.  Section 170LU(3) (which is in that Division) provides that the Commission must refuse to certify an agreement if it is satisfied that an employer has, in connection with negotiating the agreement, contravened s 170NB or Part XA (which includes ss 298K, 298L and 298M).  Bearing in mind the terms of ss 170LU(4) and 170LV, which apply only to the Commission, I agree with Branson J’s observation in CFMEU v CSR Limited at [50]:

The framework established by the Act for the negotiation and certification of agreements discloses an intention, in my view, that the Commission, rather than the Court, should ordinarily be the forum in which the issue of whether certification of an agreement should be withheld because of an alleged contravention of s 170NB should be determined.

This consideration will often weigh against the grant of interlocutory injunctive relief in a case where the applicant asserts breaches of s 170NB or Part XA in connection with the negotiation of a new enterprise agreement. 

39                  Indeed, this consideration led Madgwick J to refuse relief in the NTEU case.  The case brought by the POAV is, however, distinguishable from both that case and CFMEU v CSR Limited.  In CFMEU v CSR Limited, the proposed agreement had been approved pursuant to s 170LJ(2) of the Act.  In the NTEU case, that approval was about to be sought.  The issues before the Court in both instances were capable of being brought before the Commission relatively expeditiously.  In this case, however, although negotiations for a new agreement have begun, they are not well advanced.  There is as yet no agreement capable of being the subject of a certification application to the Commission, and the making of such an agreement is not imminent.  On the other hand, this Court plainly has jurisdiction over the matter:  see ss 170NG and 298U of the Act.  There is, moreover, the history of the application and the circumstances surrounding it to be considered.  These militate in favour of granting the interlocutory relief sought. 

40                  The respondent objected to any grant of relief in the terms of pars 1A or 2A set out above upon the ground that any such orders would be mandatory in effect, and ought not to be made.  Such relief, if granted, would, so the respondent contended, lack precision and there was “a possibility here of repeated applications for rulings in compliance with orders requiring a party to carry on an activity over a more or less extended period of time [when] such an order should be discouraged”.  The respondent pointed out that, bearing in mind the law relating to contempt, it ought to know with precision what was required.  The respondent contended too that the orders sought were distinguishable from those granted in Patrick Stevedores, since “the orders … [in that case] left the factual position as it was prior to the dismissal of the employees”, and “[t]here was no supervision in a practical sense”.  To this, the applicant responded that the High Court made far reaching orders in Patrick Stevedores, and reserved liberty to the parties to apply should the need arise. 

41                  I am of the view that the difficulties that the respondent asserts if an order in terms of par 1A is made are exaggerated.  Accordingly, I made an order on 29 May 2001 which was substantially in the terms of that paragraph.  Bearing in mind the context in which the order is made, the parties should understand what the order entails.  Indeed, the respondent’s representative said as much when the order was made on 29 May.  Liberty to apply was reserved in any event. 

42                  I see no occasion to make an order in the terms of par 2A as set out above.  If the POAV is not excluded from the negotiations for the 2001 agreement, then it should be sufficiently informed to assess at the relevant time whether it should make any further application to the Commission or the Court.  Accordingly, I have not made any further orders.

Associate:

Dated:              31 May 2001