FEDERAL COURT OF AUSTRALIA

Anglo Coal (Capcoal Management) Pty Limited v The Construction, Forestry, Mining & Energy Union

[2003] FCA 1073

INDUSTRIAL LAW - application for interlocutory injunctions - whether a serious issue to be tried - notices under s 170MO Workplace Relations Act 1996 (Cth) - whether threats of industrial action by respondents intended to coerce the applicant into an enterprise agreement

Workplace Relations Act 1996 (Cth) ss 170MI, 170ML, 170MO, 170MT, 170NC, 170NE, 170NF, 170NG

Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378

National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463

Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318

National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386

Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 (FC)

Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 IR 158

Wentworth Securities Ltd v Jones [1980] AC 74

Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292

ANGLO COAL (CAPCOAL MANAGEMENT) PTY LIMITED (ACN 010 037 564) v THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION AND THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Q140 OF 2003

COOPER J

BRISBANE

8 OCTOBER 2003

THE COURT ORDERS THAT:

1.         The application for interlocutory relief is dismissed.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     The applicant is the operator of coal mines at German Creek in Queensland.  The first and second respondents are trade unions registered under the provisions of the Workplace Relations Act 1996 (Cth) (‘the Act’).  The applicant employs members of the first and second respondent unions to work in its mines.

2                     On 30 May 2003, the first respondent gave notice to the Australian Industrial Relations Commission (‘the Commission’) of the initiation of a bargaining period to negotiate an agreement under Pt VIB Div 3 of the Act relating to employees working in the central colliery of its mines, pursuant to s 170MI of the Act.

3                     On 3 June 2003, the first respondent gave a further notice of the initiation of a bargaining period under s 170MI.  This further notice was in respect of an agreement which concerns persons to be employed at the said central colliery and provides for preference of employment.

4                     On 18 June 2003, the second respondent gave notice to the Commission pursuant to s 170MI of the Act of the initiation of a bargaining period to negotiate an agreement under Pt VIB Div 3 of the Act in respect of persons employed at the central colliery.

5                     The bargaining period in respect of each of the notices given by the first and second respondents began at the end of seven days after service of the notice: s 170MK.

6                     On 17 July 2003, the first respondent gave written notice to the applicant, pursuant to s 170MO of the Act, of industrial action to be taken against it.  Between 17 July 2003 and 16 September 2003, the first respondent served on the applicant 132 notices of intention to take industrial action in purported reliance on s 170MO of the Act.  In respect of forty-nine per cent of the notices given, the foreshadowed industrial action did not take place.

7                     On 18 July 2003, the second respondent gave written notice to the applicant, pursuant to s 170MO of the Act, of industrial action to be taken against it.  Between 18 July 2003 and 16 September 2003, the second respondent served upon the applicant 114 notices purporting to be given under s 170MO of the Act.  In respect of fifty-eight per cent of these notices, the foreshadowed industrial action did not occur.

8                     On 19 September 2003, the applicant filed an application in this Court pursuant to s 170NF and s 170NG of the Act seeking injunctive relief and penalties for alleged contraventions of s 170NC of the Act arising from the giving of notices of intention to take industrial action, when the foreshadowed industrial action did not occur.  By its application, the applicant also sought interlocutory injunctive relief that until further order the Court make the following orders:

‘1.        An order under section 170NG of the WR ACT 1996, that the First Respondent by its officers, members, employees or agents be restrained from issuing notices to the Applicant under section 170MO of the WR Act 1996 except in circumstances where the First Respondent has reasonable grounds to believe that the action referred to in such a notice will, unless the notice is formally withdrawn, take place.

2.         An order under section 170NG of the WR Act 1996, that the Second Respondent by its officers, members, employees or agents be restrained from issuing notices to the Applicant under section 17MO [sic] of the WR Act except in circumstances where the Second Respondent has reasonable grounds to believe that the action referred to in such a notice will, unless the notice is formally withdrawn, take place.’

the statutory framework

9                     Part VIB Div 8 of the Act provides a framework for bargaining periods to negotiate an agreement under Div 2 or Div 3 of the Part.  Division 8 permits a negotiating party to engage in direct industrial action in order to support or advance the claims made by that party.  Parties engaging in such industrial action are immune from any legal liability for the consequences of loss or damage sustained as a result of the industrial action taken, by virtue of Div 8.

10                  Section 170ML of the Act provides:

‘170ML Protected action

(1)       This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply.

(2)       During the bargaining period:

(a)       an organisation of employees that is a negotiating party; or

(b)       a member of such an organisation who is employed by the employer; or

(c)        an officer or employee of such an organisation acting in that capacity; or

(d)       an employee who is a negotiating party;

is entitled, for the purpose of:

(e)        supporting or advancing claims made in respect of the proposed agreement; or

(f)        responding to a lockout by the employer of employees whose employment will be subject to the agreement;

to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.

(3)       Subject to subsection (6), during the bargaining period, the employer is entitled, for the purpose of:

(a)        supporting or advancing claims made by the employer in respect of the proposed agreement; or

(b)        responding to industrial action by any of the employees whose employment will be subject to the agreement;

to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action.

Note 1:            The existence of this entitlement does not affect any right of the employer to refuse to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed.

Note 2:            The existence of this entitlement also does not affect any authorisation of the employer to stand-down the employee as a result of a variation of an award under section 126, nor does it affect the Commission's powers under that section to vary an award to give such an authorisation.

(4)       The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.

(5)       If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.

(6)       The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees' employment for such purposes as are prescribed by the regulations is not affected by the lockout.

(7)       This section has effect subject to the following provisions of this Division.’

(Original emphasis)

11                  Section 170MO of the Act provides:

‘170MO  Notice of action to be given

(1)       Any action taken as mentioned in subsection 170ML(2) by:

(a)       an organisation of employees; or

(b)       a member of such an organisation; or

(c)        an officer or employee of such an organisation acting in that capacity; or

(d)       an employee who is a negotiating party;

is not protected action unless the requirements set out in subsection (2) are met.

(2)       The requirements are that:

(a)       if the action is in response to, and is taken after the start of, a lockout of employees by the employer in respect of the proposed agreement - the organisation, or the employee who is a negotiating party, has given the employer written notice of the intention to take the action; or

(b)       in any other case - the organisation, or the employee who is a negotiating party, has given the employer at least 3 working days' written notice of the intention to take the action.

(3)       If one or more of the negotiating parties is an organisation of employees, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment:

(a)        is not protected action unless the employer has given the other negotiating party or each of the other negotiating parties:

(i)         if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by an organisation that is a negotiating party in respect of the proposed agreement - written notice of the intended lockout; or

(ii)        in any other case - at least 3 working days' written notice of the intended lockout; and

(b)        is not protected action in so far as it relates to a particular employee unless:

(i)         if subparagraph (a)(i) applies - before the lockout begins; or

(ii)        in any other case - at least 3 working days before the lockout begins;

            the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.

(4)       If one or more of the negotiating parties is an employee whose employment will be subject to the proposed agreement, any action taken as mentioned in subsection 170ML(3) by the employer to lock out employees from their employment is not protected action in so far as it relates to a particular employee unless:

(a)        if the lockout is in response to, and takes place after the start of, industrial action organised or engaged in by any of the employees who are negotiating parties in respect of the proposed agreement - before the lockout begins; or

(b)        in any other case - at least 3 working days before the lockout begins;

the employer has given written notice to the particular employee, or has taken other reasonable steps to notify the particular employee, of the intended lockout.

(5)       A written notice or other notification under this section must state the nature of the intended action and the day when it will begin.

(6)       A written notice or other notification under this section may be given before the start of the bargaining period.’

(Original emphasis)

12                  Section 170MT of the Act, so far as presently relevant, provides:

‘170MT(2)       Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial 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.’

13                  Part VIB Div 9 of the Act contains s 170NC which prohibits coercion in relation to agreements.  The section provides:

‘170NC  Coercion of persons to make, vary or terminate certified agreements etc.

(1)       A person must not:

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

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

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

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

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

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

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

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

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

(b)       to withdraw such a request.’

(Original emphasis)

14                  Part VIB Div 10 of the Act provides for enforcement and remedies.

15                  Along with other sections, s 170NC is defined as a ‘penalty provision’:  s 170ND.  A contravention of a penalty provision exposes the contravener to the imposition of a civil penalty:  s 170NF(1).  Pursuant to s 170NE, this Court may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision of the Act.

16                  Section 170NC of the Act is a statutory prohibition which is based on an intent to coerce another person to agree or not agree to do one of the things specified in s 170NC(1)(c) and s 170NC(1)(d).  The requirements to be made out to establish a contravention of s 170NC were considered by Merkel J in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [33] - [44], where his Honour said:

‘[33]   Section 170NC is a statutory offence based on an intent to “coerce”, that is, to do an act of the character prescribed by the section.  Thus, the requisite intent is established by knowledge of the circumstances which give the act in question its coercive character, rather than knowledge of the probability of the result.

[34]    In Giorgianni v The Queen (1984) 156 CLR 473 Wilson, Deane and Dawson JJ, in discussing the element of intent in the offences of aiding and abetting and counselling and procuring, stated (504 - 507):

            “Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent.  It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent.  Secondly, although it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it and, perhaps, that he refrained from inquiry so that he could deny knowledge, it is nevertheless actual knowledge which must be proved and not knowledge which is imputed or presumed. 

            …

            ... [certain] offences require intentional participation in a crime by lending assistance or encouragement.  They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law.  The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence.  He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it.  It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime.  If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design.  Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.” 

[35]    Similarly, the intent required for the purposes of s 170NC relates to actual knowledge of the circumstances that made the conduct in question coercive conduct.  For the reasons stated in Giorgianni, if the person in question had such knowledge, that person will not escape liability by establishing that he or she believed that the conduct was lawful.  I would add that my view of s 170NC is consistent with its purpose of proscribing conduct, other than protected action, which is intended to prevent “free bargaining”: see Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [44].

[36]    Further, while actual knowledge is necessary, where a person deliberately refrains from making inquiries because that person knew the probable consequences of the inquiries, then constructive knowledge of those consequences may be regarded as equivalent to actual knowledge of the consequences: see R v Crabbe (1985) 156 CLR 464 at 471 and P Gillies, Criminal Law (4th ed, 1997) , pp 70-72. 

[37]    Accordingly, subject to the qualification in respect of wilful blindness, intent for the purposes of s 170NC(1) requires that the person have actual knowledge of the circumstances that make that person’s conduct coercive.

[38]    The meaning of coercion in the context of s 170NC(1) has been considered in a number of recent cases.  In Cadbury Schweppes Pty Ltd v Australian Liquor Hospitality & Miscellaneous Workers’ Union (2000) 106 FCR 148 at 153 [19] Finkelstein J suggested that coercion in an industrial context usually involves the exertion of illegitimate economic pressure that induces the other party to act.

[39]    In Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16, Gyles J at 23 - 28 [18]-[38] concluded that for the purposes of s 170NC(1) coercion requires conduct that is:

·        compulsive in the sense that the pressure brought to bear, in a practical sense, negates choice; and is

·        unlawful, illegitimate or unconscionable.

[40]    More recently, in National Union of Workers v Qenos (2001) 108 FCR 90 at 119 [128] Weinberg J stated that the analysis of the term “coerce” by Gyles J in Finance Sector Union was compelling and correctly stated the reach of s 170NC(1).

[41]    The above cases establish that there must be two elements to prove “intent to coerce” under s 170NC(1).  First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice.  Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.  The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.

[42]    The requirement of unlawfulness etc might, in a sense, be said to have been superimposed upon the ordinary meaning of “coercion”: cf Hanley at 534 [11].  However, without such a requirement s 170NC(1) could have an anomalous operation in so far as it might prevent the legitimate exercise of rights by employees or employers.  In Hanley the Full Court did not really consider this issue.  In all the circumstances I consider that it is appropriate to apply the approach taken to s 170NC(1) in Cadbury Schweppes, Finance Sector Union and Qenos unless I am satisfied that that approach is clearly wrong, which I am not.

[43]    It follows from the foregoing discussion that Seven Network must establish that:

(a)       the respondents’ threats of industrial action were made with intent to negate Seven Network’s choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable; and

(b)       the respondents had actual knowledge of the circumstances that made their conduct coercive in the sense discussed in (a) above.

[44]    Where it is contended that the action threatened or taken is protected action the operation of s 170N(2) must be considered.  Section 170NC(2) does not provide that sub-section (1) does not apply to action that is intended to be protected action.  Rather, it provides that the sub-section does not apply to action that is protected action.  Thus, if the action relied upon to establish a breach of s 170NC(1) is protected action then the taking of that action cannot amount to a breach of s 170NC(1).  If the conduct relied upon is a threat to take action that is protected action the reason why the threat may not breach the section will be because the making of the threat to take protected action, for example by the giving of notice under s 170MO, does not have the element of unlawfulness, illegitimacy or unconscionability required to establish a breach of s 170NC(1).  In that regard it may be relevant that the only threat of protected industrial action that is provided for under the Act is the giving of notice under s 170MO.  Accordingly, it does not follow that threats of such action made outside of the statutory scheme (eg a “softening up” process) can be made with impunity.  In determining whether the requisite elements of s 170NC(1) are established all of the circumstances of the case must be considered.’

17                  The authorities were again considered by Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114 at [103] - [105].  After a review of the relevant cases, his Honour said:

‘[103]The approach to the expression “intent to coerce” taken in each of the authorities set out above makes it clear that what is required is an intent to negatechoice, and not merely an intent to influence or to persuade or induce.  Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply. 

[104]  I am fortified to some degree in my view that this is the correct meaning to ascribe to the expression “intent to coerce” by the observations of Lord Romilly MR in Ellis v Barker (1871) 40 LJ Ch 603.  His Lordship accepted that coercion may take an infinite number of forms.  However, he noted that the moment that a person who influences another does so by threatening to take away something he then possesses, or by preventing him from obtaining an advantage he would otherwise have obtained, it then becomes coercion and ceases to be persuasion. 

[105]  I also note the observations of Peterson J in Hodges v Webb [1920] 2 Ch 70 to which Gyles J referred in Finance Sector Union.  Peterson J said (at 86-87):

            “‘Coercion’ is a word of ambiguous import.  In one sense anyone is coerced who under pressure does that which he would prefer not to do;  but a reluctant debtor who pays under stress of proceedings is not coerced within the legal meaning of the word.  … ‘Coercion’ involves something in the nature of the negationof choice.  … an employer cannot properly be said to be coerced if, having two alternative courses presented to him, he follows that course which he considers conducive to his own interests.”

            (Emphasis added)’

18                  Most recently Merkel J, after referring to his earlier decision in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, described the test for contravention of s 170NC(1) as:

‘[9]     ... an applicant must establish that the action was taken with intent to negate a party’s choice by the exertion of pressure that was, in the circumstances, unlawful, illegitimate or unconscionable, and that the respondents had actual knowledge of the circumstances that made their conduct coercive in that sense.’:  Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 at [9].

19                  I agree with the conclusions reached by Merkel and Weinberg JJ as to the relevant requirements to make out a contravention of s 170NC, having regard to the present state of the authorities.

the application for interlocutory relief

20                  The applicant submits that there is a serious question to be tried that:

(a)        the respondents are issuing notices to the applicant under s 170MO of the Act, of intention to take the industrial action specified therein, in circumstances where the respondents have no reasonable grounds to believe that the specified action will take place;

(b)        the respondents are and were aware, or should have been aware, of the general actions which would be taken by the applicant in response to the notices;

(c)        the giving of such notices is not ‘protected action’ within the meaning of Pt VIB Div 8 of the Act;  and

(d)        the giving of a ‘false’ notice is a breach of s 170NC.

21                  The applicant further submits that the balance of convenience lies in favour of granting the injunctive relief sought because the receipt of the notices requires the applicant to take steps, in discharge of its obligations under the Coal Mining Safety and Health Act 1999 (Qld), to secure the plant and site in the interests of safety.  This action, together with commercial decisions it must take, is disruptive to the efficient and economical conduct of its business.  Further it submits that its relations with, and the interests of third party contract labour suppliers are being damaged.  The interests of the respondents, the applicant submits, are sufficiently protected by having protection in respect of industrial action properly notified and engaged in conformably within the provisions of the Act.

22                  The applicant submits that it is open on the evidence to infer the factual matters set out in par [20](a) and (b) above.  It submits that if the factual matters in (a) and (b) are made out, then the notices were not sent for the statutory purpose, being to allow the applicant (as the party to be affected by protected action) to take appropriate defensive action:  see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [87].  In written submissions the applicant has asserted that, as a result of the said conduct, ‘[t]he actions of both respondents have placed the applicant in the position where it is uncertain as to whether industrial action will follow a notice and so it must engage in behaviour to protect itself whether it eventually needs to or not.’:  par 9

23                  The respondents submit that it is common ground that a bargaining process has been initiated by service of a notice pursuant to s 170MI of the Act, and that within the existing bargaining period the respondents are entitled to take protected industrial action within the meaning of s 170ML(2), provided they comply with the provisions of s 170MO(2).  They submit that there are no statutory requirements that:

(a)        a notice under s 170MO may only be validly given if at the time of the giving of the notice there are reasonable circumstances to believe that, at the expiration of the notice, the specified industrial action will take place;

(b)        a valid notice under s 170MO, if the specified industrial action is not to take place, must be formally withdrawn by notice to the recipient of the s 170MO notice;  or

(c)        in order to be valid, a notice given under s 170MO requires that the industrial action specified in it must be carried into effect, regardless of the circumstances.

The respondents further submit that no such requirement should, as a matter of construction of the relevant sections of the Act, be implied into s 170MO.

24                  The respondents contend that there is no evidence upon which a serious question to be tried arises that the conduct of the respondent in giving notices under s 170MO, where the foreshadowed industrial action did not occur, was action ‘intended to coerce’ the applicant, as explained by the authorities, to make any agreement in contravention of s 170NC.

25                  The respondents further submit that the form in which the injunctions are sought is uncertain and too wide and that in the proper exercise of the Court’s discretion, such orders should not be made:  Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 at 336 - 337;  National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 556 - 559.

conclusion on the application

26                  To obtain interlocutory relief the applicant must make out that there is a serious question to be tried.  That is, that the respondents have:

(a)        taken or threatened to take industrial action or other action;

(b)        with intent to coerce the applicant to agree to make an agreement under Pt VIB Div 3 of the Act;

and that

(c)        the conduct in (a) with the intention in (b) is not ‘protected action’ within the meaning of Pt VIB Div 8 of the Act.

27                  If a serious question to be tried is made out, then the applicant must show that:

(a)        the balance of convenience favours the making of interlocutory injunctive relief in favour of the applicant;

(b)        the form of the relief sought is sufficiently precise and certain in its terms so that the respondents know precisely what may or may not be done pursuant to the injunction;  and

(c)        the operation of the injunction is no wider than is necessary to protect the legitimate interest of the applicant.

28                  The conduct relied upon by the applicant as the taking or threatening to take any industrial action or other action for the purposes of s 170NC(1)(a), is the giving of notices under s 170MO of the Act in circumstances where the respondents had, or have, no reasonable grounds to believe that the specified action will take place.  That conduct must ultimately be shown to be intended to exert pressure upon the applicant which in a practical sense will negate the choice of the applicant to freely agree, or refuse to make, an agreement under Pt VIB Div 3 of the Act in the form proposed by both the respondents or either of them.  Further, it must ultimately be shown that the pressure exerted by the giving of the notice involved conduct that is or would be unlawful, illegitimate or unconscionable.  Finally, the applicant must show that the respondents had actual knowledge of the circumstances that made their conduct coercive.

29                  There is no direct evidence that any person on behalf of either respondent intended or believed at the time of giving any notice under s 170MO that the giving of the notice would compel the applicant to do something that it did not wish to do, namely, to agree to an agreement in the terms proposed by the respondents. 

30                  In seeking to persuade the Court that there is a serious question to be tried, the applicant submits that an inference should be drawn of such an intention due to the large number of notices provided which have not resulted in the threatened industrial action (for example, twenty-one notices were given by each of the respondents on 16 September 2003 relating to industrial action in the period 21 September 2003 up to and including 28 September 2003 and in all cases the foreshadowed action did not result).  The applicant did not provide any direct evidence of the respondents’ intention.  Absent any such direct evidence, the reality of the circumstances revealed on the material must be weighed for or against the drawing of an inference of the requisite intention to coerce.

31                  The applicant submits that the intention to coerce under s 170NC does not have to be the sole intention, and that it is sufficient that the proscribed intention is, or was, a substantial or operative reason for the giving of the notice:  Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 (FC) at [45]. 

32                  The obvious intention for giving a notice under s 170MO of intention to take ‘industrial action’, as defined, during the bargaining period, is to obtain protection under s 170ML(2) if industrial action is ultimately taken in accordance with the terms of the notice.  Further, the giving of a notice contemplated by the Act cannot be ‘unlawful’, ‘illegitimate’ or ‘unconscionable’ in the sense described in the authorities, because it is the necessary step provided for under the Act which is required by the statute to be taken to render any subsequent industrial action ‘protected action’ for the purposes of Pt VIB Div 8 of the Act.  To serve such a notice with such an intention, without more, does not contravene s 170NC of the Act.

33                  The first issue then, is whether the applicant makes out that there is a serious question to be tried that the respondents, in giving notices under s 170MO which were not carried into effect, had a further or different intention than to obtain protection for any industrial action which may have occurred.  Namely, did they intend by the service of the notice to negate the applicant’s choice to refuse to make the agreement proposed by the respondents if it did not wish to do so.

34                  Both the applicant and the respondents are sophisticated industrial negotiators and know that the giving of the requisite notice under s 170MO will put the applicant on notice to take such measures as it considers appropriate in its own interests in response to the notice.  The measures available to the applicant are, and were:

(a)        to secure the mine and plant;

(b)        to notify subcontract labour that notice of industrial action of a particular type for a particular period had been given;

(c)        to take such commercial action as the applicant considered appropriate to ameliorate the impact of the threatened industrial action on its business;

(d)        to take industrial action by way of ‘lockout’ in respect of all or some of the employees threatening to take the industrial action by giving written notice to the respondents under s 170MO(3)(a)(i) of the intended lockout (or any other action falling within the definition of ‘industrial action’ which was available to it to take);

(e)        to apply to the Commission to suspend or terminate the bargaining period under s 170MW with the consequences flowing from that section and ss 170MX, 170MY and 170MZ;  and

(f)         to ignore the notices in the hope or expectation that the foreshadowed industrial action would not be carried into effect.

35                  The giving of any notice under s 170MO of the Act presented the applicant with a range of choices as to how it would respond.  None of the choices involves a necessary negation of the choice not to agree to a form of agreement proposed by the respondent if the applicant does not want to agree.  The respondents may reasonably be expected to know the choices open to the applicant and that the applicant would respond in accordance with those choices.

36                  The affidavit material detailed the notices given and the action threatened, and, stated whether or not the industrial action in fact occurred.  Beyond this, the affidavit material is limited to detailing the impact that industrial action, when taken, is having on the applicant’s business operations and upon its third party labour contractors, and to describing the effect that the present uncertainty as to whether or not industrial action will occur is having on the conduct of its operations.  There is no evidence that the applicant has on any occasion complained to the respondents, or either of them, of notice of intention to take industrial action being given and not followed through;  nor of any response, if any, to any such complaint.

37                  It is clear from the affidavit of Mr Reed, the mine manager for the central colliery, that:

(a)        subcontract labour will not cross picket lines when the employee members of the respondents are taking industrial action;

(b)        the level of industrial action in fact occurring is such that the reliability of available work has become a question for some subcontract labour suppliers;

(c)        the subcontract labour suppliers are being given insufficient notice of industrial action to make arrangements for other work, or travel substantial distances to the mine to find that industrial action is occurring and that no subcontract labour work is available;

(d)        the subcontract labour suppliers and their labourers do not know when the industrial action will end and subcontract labour work will become available;

(e)        the applicant, being uncertain as to whether the industrial action as notified would occur, has refrained from taking action required of it to secure and make safe the mine and plant, reschedule work and activate management procedures in a timely way, or at all, during the notice period.  This has had the consequence that when the industrial action did occur, the applicant has suffered severe dislocation in the ordinary conduct of its operations;  and

(f)         the applicant is presently conducting its operations on the basis that the action foreshadowed in s 170MO notices will not be acted upon by the applicant unless there is some reliable information to suggest that the foreshadowed industrial action will eventuate.

38                  The affidavit of Mr Rogers, the production manager at the central colliery, is to the same effect.  The incident which occurred on 4 September 2003, concerned industrial action which had been taken on that date.  The circumstances of which Mr Rogers complains appear, on a fair reading, to have arisen because no steps were taken in a timely way to remove production machines to a safe area because no risk assessment was done on machinery positions prior to the stoppage.  There is no suggestion that the respondents failed to give the requisite notice under s 170MO.  Further, the discussions which he deposes to with respect to third party contract labour on 5 September 2003, relate to the reaction of those persons to the industrial action then being taken, and generally occurring, by employees of the respondents and the lack of notification to those labour contractors as to when such industrial action would occur.

39                  The effect of industrial action being notified and not taken is summarised by Mr Rogers in par 15 of his affidavit:

‘15.      The effect of the uncertainty of never really knowing whether the industrial action notified in the notices will be taken has been to make the day by day planning of the Central Mine extremely difficult.  Statutory testing and inspections of machinery, roadways and the mine itself have been affected with staff members carrying out some of these tasks over and above their normal duties and hours.’

40                  There is no suggestion that the giving of notices under s 170MO per se has in the applicant’s circumstances, the capacity to apply such pressure as to practically take away its choice to refuse to accept an agreement on the terms sought by the respondents.  Rather, the effect of the failure to take industrial action in respect of a substantial percentage of the s 170MO notices served on the applicant, has been to cause the applicant to voluntarily refrain from taking steps which it ought, in its own self interests, take in relation to its mine, plant and labour subcontractors, and to refrain from itself taking defensive industrial action under the Act in defence of its bargaining positions in the negotiations being undertaken to negotiate a new agreement under Pt VIB Div 3 of the Act.  That is, it has exercised one of the choices available to it upon receipt of the notices.

41                  I can reasonably infer that the respondents are aware of the respective industrial strength and negotiating power of each of the parties to the present negotiations, the circumstances relating to the workplace, the applicant’s operational requirements and the impact upon the respondents and their members should the applicant take retaliatory industrial action against the respondents’ members on the basis of the s 170MO notices.  As I said earlier, I can reasonably infer that the respondents are aware of the choices open to the applicant upon receipt of a notice under s 170MO and that the applicant will act in accordance with those choices.  However, there is nothing in the material to indicate that there was, or is, such an imbalance in the industrial strengths and negotiating powers of the parties in favour of the respondents, or, such fragility of the operational circumstances of the applicant, so as to give to the respondents any basis to believe that to give the applicant all or any of the notices under s 170MO of the Act would coerce it to agree to the agreement propounded by the respondents.  The objective evidence is that between mid-July 2003 and the present, the service of such notices has not had such a coercive effect. 

42                  At its highest in favour of the applicant, in addition to including the purpose or intention of obtaining protection for any industrial action taken, there may be a serious question as to whether the giving of the notices was intended to influence, persuade, or induce the applicant to give some ground in the negotiations.  However, that is far short of coercion sufficient to negate choice, and is insufficient for the purposes of s 170NC:  Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 IR 158 at [39];  National Tertiary Education Industry Union v Commonwealth of Australia at [103].

43                  On the whole of the material, I am not satisfied that there is demonstrated a serious question to be tried that giving any, or all of the notices under s 170MO was intended by the respondents to negate the applicant’s choice to refuse to make any agreement proposed by the respondents or either of them if the applicant did not wish to make such an agreement.

44                  The second issue is whether the giving of a notice provided for under s 170MO(2) of the Act can constitute an unlawful, illegitimate or unconscionable means by which to apply pressure with the intention of coercing the applicant to make an agreement it does not wish to make. 

45                  Providing a s 170MO notice is not ‘protected action’ for the purposes of Pt VIB Div 9 of the Act:  Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia at [44].  However, to give a notice under s 170MO as one of the procedural steps contemplated by the statutory structure, is not to do something unlawful, impermissible or unconscionable:  Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia at [44].  ‘Other action’, for the purposes of s 170NC(1)(a), is conduct of a kind taken by registered trade unions which is related to the performance of work, but is not included within the definition of ‘industrial action’:  National Tertiary Education Industry Union v Commonwealth at p 138 at [94] - [96];  Laing v Construction, Forestry, Mining and Energy Union at [12] - [13].

46                  The statutory purpose of a notice under s 170MO(2) is to provide notice of industrial action of the type specified in the notice to enable the recipient to take such action as it may deem appropriate to protect its interests prior to the commencement of the industrial action:  Davids Distribution Pty Ltd v National Union of Workers at [87].  The notice provision in s 170MO(2) is to protect the recipient from precipitous industrial action.  Such protection does not extend to protection from the consequences of the industrial action not being carried into effect, nor to protection from the consequences of failing to take adequate and timely steps to protect oneself against the effects of industrial action in fact taken in accordance with the notice, where the recipient formed an erroneous view that industrial action in accordance with the notice would not take place.  The purpose of the notice is also to allow the notifier, at the expiration of the notice, to take protected action, if in the view of that notifier, the taking of such action is then in its interests.  No final decision to take protected action can be taken or given effect to until after the expiration of the notice under s 170MO.

47                  The only way that the applicant can attempt to take the present notices outside the statutory scheme, is to contend that there is to be implied into s 170MO(2) a precondition to the ability to give a notice which falls within the scheme.  The precondition, contended for by the applicant, is that there exist circumstances which would reasonably entitle the party giving the notice to believe that the industrial action foreshadowed in the notice will take place on the expiration of the notice.  That is, that the only proper purpose of the giving of notice is to protect the notifier in respect of industrial action which is then intended to be taken and to put the recipient on notice of the intended industrial action.  Thus, the applicant submits that to use the giving of a notice for any other purpose is an improper use, and not one which is contemplated by s 170MO.  The submission involves the contention that, a notice under s 170MO cannot be given by the respondents for the sole purpose of enabling them to make a decision at the expiration of the notice period whether or not, in the circumstances which then exist, to take the foreshadowed industrial action.

48                  The applicant seeks to gain support for the implication of a precondition based on the existence of reasonable grounds to believe that some present facts exist, by reference to the use of such a condition in s 83BS(1) and s 170WHB(1) of the Act.  The express use of such a test in those sections, in my view, indicates that when the legislature intended such a test to apply, it provided expressly in terms for such a requirement.  The absence of such an express provision indicates, in my view, that s 170MO(2) was to be given effect to according to the ordinary meaning of the words in the context where they appear, having regard to the statutory purpose of the subsection. 

49                  The applicant did not, on this application, seek to make out a serious case to be tried that the necessary conditions, identified by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105 - 106, and McHugh J in Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302, of which a court is to be satisfied in order to imply words into a statute, could be satisfied on the trial of these proceedings.

50                  For these reasons, I am not persuaded that there is demonstrated a serious question to be tried that the giving of notices under s 170MO of the Act, where the foreshadowed industrial action was not carried into effect, was conduct which was unlawful, impermissible or unconscionable for the purposes of s 170NC of the Act, or that it is a case where the words contended for by the applicant can be read into s 170MO in order to base a contention that the giving of such notices is, and was unlawful, impermissible or unconscionable.

51                  It follows that on the present material, I am not satisfied that there is a serious question to be tried in relation to two of the three requirements to establish a contravention of s 170NC of the Act.

52                  There being, in my view, no serious question to be tried of a contravention of s 170NC of the Act, no question of balance of convenience or form of order arises.

53                  The application for interlocutory relief is dismissed.

Associate:

Dated:              8 October 2003