FEDERAL COURT OF AUSTRALIA
Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470
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| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The proceedings be adjourned for further hearing at 10.00 am on 26 May 2011.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
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| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 1204 of 2009 |
| BETWEEN: | FAIR WORK OMBUDSMAN Applicant |
| AND: | TRANSPORT WORKERS' UNION OF AUSTRALIA First Respondent TRANSPORT WORKERS' UNION OF AUSTRALIA QUEENSLAND BRANCH Second Respondent ANTHONY SHELDON Third Respondent SCOTT CONNOLLY Fourth Respondent JOHN LOADER Fifth Respondent RICK BURTON Sixth Respondent |
| JUDGE: | MOORE J |
| DATE OF ORDER: | 13 May 2011 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The proceedings be adjourned for further hearing at 10.00 am on 26 May 2011.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 340 of 2009 |
| BETWEEN: | QANTAS AIRWAYS LTD Applicant |
| AND: | TRANSPORT WORKERS' UNION OF AUSTRALIA First Respondent TONY SHELDON Second Respondent MICK PIERI Third Respondent SCOTT CONNOLLY Fourth Respondent JOHN LOADER Fifth Respondent ALEX GALLACHER Sixth Respondent MICHAEL MAGREE Seventh Respondent MATTHEW SPRING Eighth Respondent RICK BURTON Ninth Respondent |
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| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 1204 of 2009 |
| BETWEEN: | FAIR WORK OMBUDSMAN Applicant |
| AND: | TRANSPORT WORKERS' UNION OF AUSTRALIA First Respondent TRANSPORT WORKERS' UNION OF AUSTRALIA QUEENSLAND BRANCH Second Respondent ANTHONY SHELDON Third Respondent SCOTT CONNOLLY Fourth Respondent JOHN LOADER Fifth Respondent RICK BURTON Sixth Respondent |
| JUDGE: | MOORE J |
| DATE: | 13 May 2011 |
| PLACE: | SYDNEY |
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| 2.1.3 The onus and burden of proof and other evidentiary matters | [19] |
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| 3.2.3 The interaction between s 507 and the contract of employment | [333] |
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REASONS FOR JUDGMENT
1 Qantas Airways Ltd's (Qantas) labour costs in providing bag handling and other ramp services at Australian airports have been viewed as uncompetitive and unsustainable. Qantas believes it needs to reduce those costs and has attempted to do so. The Transport Workers Union of Australia (TWU) and its members employed by Qantas in bag handling and other ramp services want to retain their jobs and preserve their existing incomes and conditions of employment for both present and future employees. They have attempted to achieve this. These competing objectives are potentially irreconcilable.
2 Qantas has commenced these civil proceedings suing the TWU and some of its officials alleging steps the TWU has taken in pursuing its objective are unlawful. It has sought injunctions against the TWU and the officials and the payment of compensation for losses Qantas claims the TWU's conduct has caused. It seeks the imposition of penalties. In response, the TWU has sued Qantas alleging steps Qantas has taken to achieve its objective are unlawful. The TWU seeks the imposition of penalties. This judgment deals with these issues.
3 Monday 30 March 2009 is a critical day in these proceedings. That day Qantas employees and others held meetings at a series of Australian airports organised by the TWU. Qantas argues in these proceedings the meetings, in conjunction with other conduct, were unlawful. In particular, it is said to have been unlawful industrial action organised by the TWU. It had the effect of disrupting its operations and causing it loss and damage.
4 Qantas is an international airline headquartered in Sydney. It employs ramp services employees who provide services involved with the ramp, baggage handling, fleet presentation, water/waste, pushback and freight operations at Australia's major airports. Those services are provided for Qantas' own aircraft and for those of a number of other client airlines. A significant number of the Qantas employees in this area of its operations are members of the TWU. Several Qantas subsidiaries are relevant in these proceedings, including Jetstar Airways Ltd (Jetstar), Qantas Catering Group Ltd and Qantas Ground Services Pty Ltd.
5 The Fair Work Ombudsman (Ombudsman) has brought separate but similar proceedings against the TWU though only seeks the imposition of penalties. The Ombudsman is a statutory office authorised to bring proceedings for remedies for contraventions of the Workplace Relations Act 1996 (Cth) ("WR Act"): see 13(1) of Part 3 of Schedule 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The TWU is an organisation of employees registered under the WR Act.
6 The second to ninth respondents inclusive in the Qantas proceedings were officers or employees of the TWU at the time. The second respondent, Anthony Sheldon, was the federal secretary of the TWU. Sheldon attended Sydney International Airport Terminal 1 (SIT) on 30 March 2009. The third respondent, Mick Pieri, was an employed organiser of the TWU in its NSW branch. Pieri attended SIT on 30 March 2009. The fourth respondent, Scott Connolly, was a member of the Federal Council of the TWU and an employed organiser undertaking the roles of executive officer of the TWU in its Queensland branch and national airline coordinator. Connolly attended Brisbane airport on 30 March 2009. The fifth respondent, John Loader, was an employed organiser of the TWU in its South Australian/Northern Territory branch. Loader attended Adelaide airport on 30 March 2009. The sixth respondent, Alex Gallacher, was the federal president of the TWU and the secretary of the South Australian/Northern Territory branch. Gallacher attended Adelaide airport on 30 March 2009. The seventh respondent, Michael Magree, was an employed organiser of the TWU in its South Australian/Northern Territory branch. Magree attended Adelaide airport on 30 March 2009. During the hearing the proceedings were discontinued against the eighth respondent, Matthew Spring, an employed organiser of the TWU in its South Australian/Northern Territory branch. The ninth respondent, Rick Burton, was a member of the Federal Council of the TWU and an employed organiser of its Western Australian branch. Burton attended Perth airport on 30 March 2009.
7 The TWU, Sheldon, Connolly, Loader and Burton are respondents to the Ombudsman proceedings. At a relatively early stage of proceedings the Ombudsman discontinued its claim against the Queensland branch of the TWU.
8 On 21 May 2010 I made orders by consent in the Ombudsman proceedings providing that the trial be held jointly with the trial in the Qantas proceedings. Those orders provided that evidence filed in either matter stands for evidence filed in both, and the defences of the respondents in the Qantas proceedings stand as defences in the Ombudsman proceedings. The orders were made having regard to a number of undertakings given by the Ombudsman limiting his involvement in the proceedings. Shortly afterwards, on 17 June 2010, I made orders by consent in the Ombudsman proceedings providing that all parties in both matters be served with any document filed and served in either matter and that they be permitted to inspect any document filed in either proceeding. The effect of these two sets of orders was to make the Qantas proceedings the vehicle for resolving both proceedings.
9 The parties initially agreed to conduct the trial in two parts. Counsel for the respondents referred to A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2007) 165 IR 94 at [87]-[89]. In the result, the evidence as to both liability and damages would be heard together. I would then publish reasons for judgment addressing the liability of the respondents for the tortious and statutory claims. I would also assess what damages or other compensation should be paid to Qantas. If a further hearing was necessary to determine penalties, that would occur. Final orders would then be made. During final submissions in the first stage the parties agreed to a proposal advanced by me that any judgment dealing with the quantification of damages would follow a judgment on liability which also dealt with damages but only at a level of principle.
10 From this point in these reasons, I mainly discuss Qantas' case though, when doing so, it can generally be taken to be a commentary on the Ombudsman's case as well but on the basis that the latter is more narrowly focused in the sense that the respondents are fewer in number. However the Ombudsman's pleaded case is, in some respects, cast more widely. Ultimately this did not matter as counsel for the respondents accepted that, in substance, the case they had to meet was really an amalgam of the two cases which was cast widely though obviously confined to the facts raised against them. In these reasons I provide at various points a summary of Qantas' pleaded case. It should be understood that in doing so, I am conscious that the Ombudsman's case is pleaded differently. Ultimately I will be considering the case against all respondents having regard to the amalgam to which I just referred.
11 In its application dated 23 April 2009, Qantas sought relief, in terms:
Application is made:
(a) under sections 494(5) and 728 of the Workplace Relations Act 1996 (Cth) ("the Act") for injunctive and other relief in relation to contraventions of section 494(1), or alternatively, section 719 and 728 of the Act.
(b) Sections 45D, 45DB, 76, 80, 82, 87 of the Trade Practices Act 1974 (Cth);
(c) Common law damages; and
(d) Injunctions pursuant to the accrued and associated jurisdiction of the Court including pursuant to section 32 of the Federal Court of Australia Act 1976 (Cth).
12 Common law damages were claimed by Qantas on the footing that the respondents or some of them committed the torts of inducing breach of contract, interference with trade or business by unlawful means and nuisance. Qantas contended it suffered loss and damage and is entitled to compensation for the costs of dealing with mishandled baggage, passenger accommodation, passenger transport, passenger meals, labour, including overtime and the allocation of additional resources, flight interruption manifests, the waived ground handling fees payable otherwise by client airlines who were affected by the industrial action, fuel and loss of goodwill and business reputation.
2. evidence and findings of fact (other than damages)
13 In this section of the judgment I make findings of facts concerning events on which Qantas' case and Ombudsman's case on liability are based. I also do so in relation to Qantas' liability on the TWU's cross-claim. I also mention, later in these reasons, some of the evidence which is specific to the individual respondents. The focus of this consideration of the evidence is on liability only. I may not have resolved all factual issues (arising from the evidence I review) which ultimately might need to be resolved to quantify the compensation payable to Qantas and to determine the penalty each of those respondents who have contravened s 494 should be ordered to pay. If so, then the parties can address those issues and the relevant evidence during the next phase of this litigation.
14 Before descending into detail, it is appropriate to make some general observations about the evidence. A large number of witnesses gave evidence. Some gave evidence about the conduct and attitude of Qantas and the TWU over the use of labour hire and outsourcing in the decade or so preceding the events of 30 March 2009. Many more gave evidence about the events of 30 March 2009 or events immediately preceding or following that day. There were often some differences in the accounts of very many of these witnesses. Some of the differences were minor and insignificant and others were not.
15 Occasionally a judge will hear a witness give evidence and it is obvious the witness is lying, that is deliberately giving false evidence. That may be apparent from the witness' demeanour or the gross inconsistency between the witness' evidence and known or proven objective facts or both. More often, however, it is neither possible nor appropriate to conclude a witness is lying even though, ultimately, the evidence given might not be accepted either in whole or part. Human memory is generally imperfect and often witnesses strive to give an honest account of their recollection of events but their recollection is wrong, perhaps in significant respects or perhaps only in minor respects. It is not unusual for witnesses with an interest in the proceedings (which can be either a direct or indirect interest) to give a partisan account of events favouring the party with which they are aligned. Sometimes this is intentional, other times it is not. Ultimately the Court must do its best to determine where the truth lies notwithstanding that it is likely the evidence is imperfect in the ways just discussed. In this case I mostly gained the impression that the witnesses were endeavouring to give an honest account of their recollection of events though sometimes with a partisan bias.
16 Often the surest guide of what occurred is evidentiary material which records, contemporaneously, the events as they are unfolding. It may take the form of letters, e-mails, phone records, CCTV footage and other material not likely to depend on the recollection of individuals. Also important is what is inherently likely to have occurred having regard to known or uncontested facts. While human behaviour can, at times, be entirely irrational, unpredictable and unstructured often it is not.
17 The following narrative reflects findings of fact I have made having regard to the evidence as a whole. Generally I only deal with conflicting evidence and explain why I have resolved the conflict in a particular way if it concerns a factual issue of some significance. Also, I do not recount what were, to me by the time the hearing concluded, obviously irrelevant or unimportant matters of detail even if there was conflicting evidence about them. At various points in the proceedings the parties have prepared documents which set out the facts as they see them. In many ways, though by no means always, these accounts painted a very similar or even identical picture. I have, for convenience, incorporated in these reasons extracts from these accounts though without identifying when I am doing so or the source. I have done this either because the incorporated account is uncontroversial or, if it is, I am satisfied it is an account made out on the evidence.
18 However before recounting the facts and discussing the evidence it is necessary to say something about both the burden of proof, the standard of proof and other evidentiary matters.
2.1.3 The onus and burden of proof and other evidentiary matters
19 In a civil case the onus of proof will normally lie with the party making the claim and will involve adducing sufficient evidence to satisfy the civil standard of proof on the "balance of probabilities". In these proceedings it is necessary for Qantas to prove the facts upon which its case, in its various manifestations, is based and to do so to the civil standard. Similarly it is necessary for the TWU to prove the facts upon which its cross-claim is based to the civil standard. Much has been written about what that standard entails. Without, I hope, dwelling unduly on decided cases, some should be mentioned. Lord Denning explained in Miller v Minister of Pensions [1947] 2 All ER 372 at 374:
That degree [the civil standard] is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "We think it more probably than not", the burden is discharged, but if the probabilities are equal, it is not.
20 However the civil standard is not entirely rigid. The quality of the evidence necessary to prove facts to the civil standard can be influenced by the nature of the case advanced. A classic statement of this concept is found in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362 when Dixon J said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
21 The common law is reflected in s 140 of the Evidence Act 1995 (Cth) which provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matter that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The standard of proof under s 140(1) is the satisfaction of the court on the "balance of probabilities". Section 140(2) requires three matters to be taken into account when assessing whether the requisite state of satisfaction has been reached.
22 More recently, the majority of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 said at 171 that "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove".
23 The Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 discussed at [30] the standard of proof required in proceedings for the recovery of pecuniary penalties, commenting at [30] that, "The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before coming to a conclusion." It was held at [38] that "the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degrees of probability" that a contract or arrangement had been made or an understanding arrived at. Reference was made to the judgment of the High Court in Rejfek v McElroy (1965) 112 CLR 517 where it was noted at 521 that "the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused."
24 The Briginshaw principles have been applied and discussed recently by the majority of the in High Court British American Tobacco Australia Services Limited v Laurie (2011) 273 ALR 429 at [117], by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at [110] and by a single judge of the Federal Court in Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 at pars [24] – [28].
25 Another legal principle concerning the evidence should be mentioned. Jones v Dunkel (1959) 101 CLR 298 is authority for the proposition that if a party did not call a witness with knowledge of the relevant facts, that the party might be expected to call, the inference could be drawn that that witness' evidence would not assist that party's case. As Menzies J said at 312:
(i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstances that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.
26 In Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 Wilcox J observed at 124:
Jones v Dunkel…is often cited for its statements about the effect of a party failing to call a person with knowledge of the relevant facts; the matters discussed in Menzies J's second and third propositions. People sometimes overlook that these statements were made against the background of findings by all three majority judges that there was material entitling the jury to infer negligence. In that situation the defendant's failure to call Hegedus could be taken into account in determining whether the inference should in fact be drawn. The statements in Jones v Dunkel give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence. As Menzies J said, the absence of a particular witness "cannot be used to make up any deficiency of evidence".
27 More recently Barker J in Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (2010) 187 FCR 293 at [44] – [48], referred to the difficulty in drawing inferences and considered at [45]:
In circumstances where some of the facts essential to an applicant's case are peculiarly within the knowledge of the respondent party, and the respondent party fails to give evidence about them, courts have been more willing to draw available inferences.
28 His Honour referred to the observations of Jordan CJ in De Gioia v Darling Island Stevedoring and Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 4 where his Honour considered that when there is very slight evidence pointing to the existence of facts which are peculiarly within the knowledge of the defendant, it may be sufficient to justify finding they do exist but only if there is no explanation of that evidence by the defendant.
29 In in Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union Barker J discussed the principles in Jones v Dunkel as explained by J D Heydon in Cross on Evidence (8th Australian ed, 2010) at 40 - 42:
The unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case.
…
While the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness being drawn: other evidence may justify the drawing of the inference.
…
The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings or by the course of evidence in the case. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties on a matter, there is nothing to answer. If there is an issue between them but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer.
30 In considering whether to draw inferences from the material before the Court, regard can be given to the failure to offer any explanation or give evidence concerning the matter, despite the existence of a privilege against exposure to penalties, where this was within the persons' knowledge: Council of the NSW Bar Association v Power (2008) 71 NSWLR 451 at [29], Coe v NSW Bar Association [2000] NSWCA 13 at [21] and New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70] - [78].
31 Of some significance, several individuals who were involved, possibly in a material way, in the events leading up to 30 March 2009 and the events of that day were not called by the respondents to give evidence. They were Pieri, Danny Dooley (at 30 March 2009 Qantas baggage handler at SIT and TWU delegate), Jim McGiveron (branch secretary of the Western Australian branch of the TWU), Grant Mitchell (Qantas baggage handler at Brisbane international and TWU delegate), James Brennan (Qantas baggage handler at SIT and TWU delegate), Wayne Forno (secretary and treasurer of NSW branch of TWU), Gallacher and Craig Moir (at 30 March 2009 Qantas baggage handler at Adelaide airport and TWU delegate). This failure attracts the principle in Jones v Dunkel other than probably for Dooley for whom an explanation has been given for not calling him. It also has a result that evidence given by other witnesses about their interaction with these individuals (mainly conversations) should be accepted unless, having regard to their cross examination or other facts proved or agreed, the evidence of the other witnesses should be rejected. Also, as pointed out by Qantas, in cases involving circumstantial evidence all facts in combination can sustain an inference about an ultimate fact in issue citing Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125.
32 An issue arose in the proceedings about whether statements made by delegates could be treated as admissions made by or on behalf of the TWU. This is an evidentiary question. Some of the submissions canvassed a broader question, namely whether the conduct of delegates was conduct for which the TWU could be vicariously liable. It is convenient to deal with these two issues at this point in the judgment.
33 I deal first with the evidentiary question. The combined operation of ss 81 and 87 the Evidence Act is to render admissible a previous representation of a person (the delegate) as an admission by a party (the TWU) if it is reasonably open to find that when the representation was made the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made. Alternatively the previous representation is admissible if the person otherwise had authority to act for the party and the representation related to a matter within the scope of the person's authority.
34 This is not a case where the evidence only reveals that the delegates were elected or appointed by the workers and, as such, were to be viewed as speaking on their behalf only and not on behalf of the union. That was the situation in Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299, an authority relied upon by the TWU. Rather the evidence in this case is that, overwhelmingly, the delegates, while acting for and representing the members at the workplace also acted on behalf of the TWU and were, from day to day, its voice at the workplace. It is unnecessary to rehearse the details of this evidence. Much of it is referred to in [23] to [28] of the submissions of the Ombudsman on this topic in schedule A to submissions dated 18 March 2011. In any event all that s 87 demands it is that it is reasonably open to me to find that the delegate had authority to make statements on behalf of the TWU in relation to the matter with respect to which the representation was made. Without, at this point, descending into detail, I am satisfied that this precondition has been satisfied in relation to such representations as are material to Qantas' case and the case of the Ombudsman.
35 As to the broader question of whether the conduct of delegates can be taken to be conduct of the TWU, I am satisfied, at a level of generality, it can. The statutory touchstone for determining this question is s 826 of the WR Act which is set out later in these reasons. That section provides that conduct engaged in by an agent of a body corporate within the scope of his or her apparent (or actual) authority shall be taken to have been engaged in also by the body corporate. The matters mentioned in the preceding paragraph identified in the submissions of the Ombudsman point to the existence of that apparent authority. It is not sufficient to point to the rules of the TWU and say the role of a delegate is narrowly cast and constrained and certainly do not confer authority to engage in unlawful action. This approach was rejected by a Full Court in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at [83] and following. I will discuss the details concerning particular conduct later in those reasons. However it seems to me that such of the conduct (involving contravention of s 494) of the delegates potentially attributable to the TWU gives rise to liability in the TWU.
36 Apart from s 826, the common law provides that an employer can be vicariously liable for the torts of the employee if they are committed within the course of employment. There must be a close nexus between the work the employee is employed to do and the conduct. If, however, the employee is on a "frolic of his own" it has been held that the connection between the employer and the tortious act is too tenuous to render the employer liable.
37 The scope of vicarious liability was discussed in New South Wales v Lepore (2003) 212 CLR 511 at [40] - [74]. Reference was made by Gleeson CJ at [42] to the formulation of the test in Salmond, Law of Torts, first edition, 1907:
An employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper – modes of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.
38 The required connection was found by Gyles J to exist in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union. His Honour considered the conduct of union officials in inducing a breach of contract for services made between a contractor and a subcontractor and held at [85]:
Each of the individual respondents was a full time official of either the CFMEU or CFMEU NSW. Each was engaged in what may broadly be called union business on the days in question. No one was on a frolic of his own. For relevant purposes, officers of each organisation were cooperating or acting in concert to achieve a result. The conduct of each was in the course of employment. Each organisation is liable on ordinary principles of vicarious liability in tort New South Wales v Lepore (2003) 212 CLR 511 per Gleeson CJ at [40][41]).
2.2 The past decade – labour hire and outsourcing
39 In this section I discuss the conduct and attitude of Qantas together with the TWU's response in relation to the use of labour hire in ramp services and the outsourcing of that function in the last decade or so. Evidence was given on behalf of Qantas by Peter Smith (Qantas manager of industrial relations), Sue Bussell (Qantas executive general manager of industrial relations), Ian Oldmeadow (director of Oldmeadow Consulting), Dean Durban (Qantas head of airport services), Mark Dal Pra (Jetstar chief operating officer), Glen Rutherford (Aero-Care chief executive officer) and Nicholas Ogilvie (solicitor acting for Qantas). On behalf of the TWU, evidence was given by Connolly, Sheldon and Wayne Mader (at 30 March 2009 assistant secretary of Victorian and Tasmanian branch of TWU).
40 Qantas began to engage in enterprise bargaining in the early 1990s. Each enterprise agreement it has negotiated which has applied to TWU members since the very first agreement has colloquially been known by its number. Thus the second agreement entered into was known as EBA 2 and so on. The currently applicable agreement is Transport Workers Union (Qantas Airways Ltd) Enterprise Agreement 7 (2008 – 2011) (EBA 7).
41 The initial enterprise agreements were multi-union agreements in which the Australian Council of Trade Unions (“ACTU”) took a leading role. In connection with those early agreements, the ACTU negotiated a protocol concerning outsourcing by Qantas or its subsidiary companies (“the ACTU Protocol”). This occurred in 1996. The terms of the protocol were as follows:
PROTOCOL FOR CONTRACTING OUT AND OUTSOURCING QANTAS AIRWAYS LTD AND SUBSIDIARIES AND ACTU
1. Where Qantas management wishes to make arrangements to "contract out" services in particular business and financial circumstances it should only do so:
after weighing up all alternative options;
with a comprehensive consultation process and a reasonable time frame for consideration with all Qantas’ employees affected by such an option;
ensuring the provision of offset work of quality where possible /practical /viable in any contracting out option.
2. The unions will have access to all necessary company information about any contracting out proposal, which impacts or may impact on staffing. This includes the provision of copies of all contracting-out proposals under serious consideration to unions and union representatives affected by a contracting-out proposal.
3. Qantas shall resource training necessary for union representatives to deal with contracting out. This shall include paid time off for union representatives under the auspices of trade union training leave provisions and payment where required for travelling, accommodation and incidental expenses.
4. Qantas will provide reasonable paid time for union nominees to attend joint reviews and address union members at meetings to respond to the business case of a contracting-out proposal and prepare specific in-house bids.
The members and nominees shall not lose pay as a result of this involvement.
If requested by the unions, Qantas will give union nominees access to internal departmental expertise where such a request may assist in the process. If it is mutually agreed to be necessary, Qantas will provide external expertise and meet associated costs.
5. The Company in contracting out will be conscious of promoting Australian products/services as this may be in the interest of employees affected by outsourcing under this clause.
42 In or about 1998, it was agreed that Qantas would negotiate separate enterprise agreements with the various unions covering its workforce. Thus, EBA 4, EBA 5 and EBA 6 were negotiated directly with the TWU.
43 EBA 3, EBA 4, EBA 5 and EBA 6 enterprise agreements included the ACTU Protocol as an operative provision, with it forming an annexure to each agreement.
44 In probably early 1997, Qantas advanced a proposal to introduce a system of competitive tendering for all airport services work that was performed by its own employees at airports in Australia. Competitive tendering meant that the work could go to the market and may be done by an external contractor, and not by Qantas and its employees. This was of concern to the TWU, since it made it likely, from its perspective, that many of its members would lose their jobs and that the work would be performed by other employees on inferior rates of pay and conditions.
45 The TWU engaged in negotiations with Qantas about the proposal. It was unsuccessful in persuading Qantas to abandon the competitive tender process at least in relation to Melbourne. Mader gave evidence, which I accept, that in those negotiations Qantas agreed that tenderers would be required to pay their employees the same rates and conditions as applied to Qantas employees. He also gave evidence which I accept that, in relation to Melbourne, Qantas employees prepared an in-house bid which, while not initially successful, ultimately did succeed which involved some concessions about part-time employment and also some voluntary redundancies. What happened elsewhere is unclear though Qantas continued to be engaged in baggage handling and ramp services functions at Australian airports and to use its own employees for that purpose. However at about this time Qantas began to use labour hire companies for the first time to provide labour to perform work in baggage handling, ramp services and fleet services. This was initially done to provide supplementary casual labour.
46 There was an issue about whether, by 2002 or thereabouts, the use of labour hire companies had become widespread and significant in scope and about whether there was an agreement, arrangement or practice whereby Qantas required labour hire companies providing employees to work alongside Qantas employees to pay the same rates as those paid to the Qantas employees doing the same work. This appears to have come to be known in the industry as the payment of "site rates" and this was certainly an expression embraced without dissent in these proceedings.
47 There is no doubt there was a dispute in Melbourne in 2003 about the use of labour hire. It resulted in industrial action and proceedings in the Australian Industrial Relations Commission ("AIRC"). Qantas sought to characterise this dispute as a dispute restricted to Melbourne and the terms upon which it was settled as likewise restricted to Melbourne. This, in a sense, is true and is borne out by the evidence. However statements made by Qantas' representative recorded in the transcript of proceedings before the Commission make it tolerably clear and I find, that labour hire was being used in other ports (Perth, Cairns and Adelaide were specifically mentioned) and the employees provided by labour hire firms were paid rates payable to Qantas employees under the then prevailing enterprise bargaining agreement (EBA 3). Remarks made by the Commissioner suggest he held the view this was a "national policy". Even though the settlement in Melbourne was, in terms, restricted to Melbourne it was approved by senior management in Sydney, which is consistent with the issues which had arisen in Melbourne as having wider significance.
48 Some of the Qantas' witnesses (significantly Smith, Bussell and Oldmeadow) resisted the suggestion there was an agreement to pay site rates, though Oldmeadow volunteered, in his evidence in chief, the description of "practice" to describe the process of labour hire firms paying site rates. The same expression had been used by Smith in proceedings before the Commission in 2010. I am satisfied that Qantas adopted a practice in 2002 or 2003 of requiring labour hire companies providing labour hire employees to work in baggage services and related areas alongside Qantas employees to pay those employees the same rates and conditions as Qantas paid to its own employees for the same work (I will, for my purposes, describe this as the “the Site Rates Arrangement”). I am also satisfied that the practice flowed from an undertaking offered by Qantas during negotiations to settle the 2003 dispute in Melbourne. I am also satisfied that, on the evidence, there have been no instances since 2002 or 2003 where the Site Rates Arrangement has not been given effect to when labour hire employees have been provided by labour hire companies to work alongside Qantas employees in baggage services and related areas. It appears to have been accepted by the TWU that the Site Rates Arrangement did not of itself place any restriction upon Qantas’ use of labour hire companies.
49 In late 2006 or early 2007, it became apparent to the TWU that Qantas intended to re-visit the issue of competitive tendering of ramp services work. The TWU remained concerned about the effect such competitive tendering would have on the job security and wages and conditions of TWU members. Connolly raised the TWU's concerns about the impact on job security with various Qantas managers including Brad Moore (then Qantas executive manager airport services), Bussell, Smith, Oldmeadow and Durban, and sought an assurance that the Site Rates Arrangement would continue to apply. The Qantas representatives did not give any such assurance. Accordingly, the TWU determined to re-agitate this issue in the next enterprise bargaining round.
50 In mid-2007, Qantas advised the TWU that it intended to cease flying to Hobart and Launceston airports leaving Jetstar as the sole carrier in the Qantas group flying to those airports. This would involve the contract out of work currently performed by Qantas employees to the other market providers. As a result, some work currently performed by Qantas employees would be lost. Mader negotiated a number of voluntary redundancies with Qantas at these airports in order to minimise job losses.
51 At about the same time, Qantas announced that it would cease flying to Coolangatta airport. Simultaneously, Jetstar announced that it intended to put out to competitive tender its baggage room services at Coolangatta airport, which were at that time performed by Qantas employees. As a result, 30 to 40 Qantas employees were made redundant. There was an issue about whether the ACTU Protocol should have been and was applied to the tendering process. The import of Connolly's evidence was that the ACTU Protocol was applied at least in the sense that he facilitated discussions with local management, delegates were provided with time off and they were involved in the preparation of a bid though it was ultimately unsuccessful. In his affidavit he described this as a process involving "TWU members put[ting] in an in-house bid". No documents were furnished to support this characterisation of the bid. This characterisation was put in issue by Qantas which relied on the evidence of Dal Pra to the effect that such bids as had been made by Qantas employees, were made by local Qantas management. Having regard to his evidence which was corroborated by contemporaneous documents together with the vagueness of Connolly's evidence, I accept that an unsuccessful bid was made by local Qantas management only. Whether this can be characterised as an "in-house" bid for the purposes of paragraph 4 the ACTU Protocol is another question though the paragraph appears, in context, to contemplate a bid by employees representing a union (in this case the TWU) membership. This did not occur in Coolangatta. It was, in contrast, the process adopted in the tendering process concerning Perth discussed in the following paragraphs which did result in a bid prepared by the TWU membership.
52 In December 2007, Qantas announced an intention to put out to competitive tender (involving a request for proposal ("RFP")) the work of the baggage section at Adelaide and Perth airports. On 11 December 2007, a meeting occurred at Adelaide Airport between Qantas managerial personnel and TWU local representatives (including Loader and a number of TWU delegates). At this meeting, the Qantas representatives advised that it intended to undertake a formal review into the operation and efficiency of the belt room section in the ramp services operation at Adelaide Airport, which was to involve a competitive tender process involving external suppliers being asked to quote on the supply of belt room functions. This raised the prospect of the belt room work being outsourced to an external supplier, with a consequential loss of jobs of TWU members and with inferior rates of pay and conditions to apply to the performance of the work. The TWU representatives strongly objected to this review process proceeding.
53 On 12 December 2007, commencing at about 12.00 pm, employees of Qantas in ramp services at Adelaide Airport engaged in industrial action in relation to the review proposal. This industrial action was supported by employees of Qantas at Melbourne Airport, who refused to handle baggage for flights arriving from or departing to Adelaide Airport. The industrial action ended at about 9.00 pm on the same day following negotiations between Qantas and the TWU.
54 Following further negotiations between Qantas and the TWU (which involved Gallacher and Mader), Qantas ultimately agreed not to proceed with the review process on the basis that belt room employees at Adelaide Airport would adjust various work practices in order to produce savings for Qantas. At the national level, Qantas committed itself to a moratorium on any further competitive tenders across Australia for a period of twelve months. This arrangement also brought to an end the competitive tendering process for Perth. However it is clear from the evidence that during the period in which the possibility existed that the baggage room operations might be taken over by a tenderer who had succeeded in the tender process using its own workforce, Qantas was making clear to the TWU that tenderers were not obliged to agree to pay their employees, the rates of pay which had, till then, been paid to Qantas employees doing that work. In other words, Qantas made clear that the tenderers would not be obliged to pay site rates.
55 Indeed, this issue of whether the tender proposal had to be based on "Qantas Collective Agreement" employment terms and conditions was the subject of a written inquiry from Gallacher to Qantas in a letter dated 2 January 2008. Jeffries replied in writing the same day saying in his letter:
Proposed pay and conditions are a matter for each of the prospective suppliers and their workforce. Qantas does not require any particular industrial instrument to be applied.
56 In early 2008, the TWU reached agreement with Qantas in relation to the introduction of fixed term labour hire employees to work in fleet presentation at the SIT. On or about 20 March 2008, Brendan Fitzgerald, the then general manager of airports NSW/ACT for Qantas sent a letter to Pieri. Relevantly the letter stated:
Any fixed term employee including those sourced through an external labour hire company will be paid in accordance with EBA 6. This includes all shift penalties and leaves [sic] entitlements being paid for employees as Part Time employees.
57 There were no further attempts by Qantas to outsource work performed by TWU members prior to the commencement of negotiations for EBA 7 in about July 2008.
58 Connolly and Mader took the lead role in the negotiations for EBA 7. Mader's role was largely confined to face-to-face meetingswith Qantas and the TWU's EBA negotiating committee and face-to-face meetings with the TWU's members. Connolly was involved in the face-to-face meetings with members, but also took the lead role in the behind-the-scenes work connected with the negotiations.
59 In March 2008, Connolly organised for a questionnaire to be sent to all the TWU's Qantas members, which was intended to survey members to identify their primary concerns for the upcoming round of negotiations. The questionnaire identified a number of potential issues in the negotiations, and asked members to rank them in their order of perceived importance. The returns to that survey identified protection of job security by limiting outsourcing and the payment of "site rates" (that is, the rates of pay and conditions provided by Qantas to its own employees) to labour hire employees.
60 Once the results of the survey were in, a national delegates' meeting was convened by Connolly and Mader in Melbourne on or about 1 May 2008. At this meeting, the results of the questionnaire were discussed, and a log of claims for EBA 7 was formulated. It was also determined at the meeting that a negotiating committee would be formed which included representatives of the TWU membership from each airport. After the national delegates' meeting, Connolly organised for a flyer to be sent out to the TWU's Qantas membership setting out the results of the national delegates' meeting.
61 The TWU's log of claims for EBA 7 was sent to Qantas on 3 June 2007 in the form of a letter. The log of claims included a claim for a provision requiring Qantas to ensure that "site rates" were paid to labour hire employees, namely, the inclusion of provisions that:
(e) Require the company to ensure any labour hire employees engaged to work for its benefit are paid the wages and allowances provided in this agreement.
62 The subsequent EBA 7 negotiations with Qantas took place at three levels. Firstly, there were formal meetings between Qantas and the negotiating committee. Secondly, there were side meetings between a smaller group representing the TWU generally consisting of Connolly, Mader and Johnston, and Qantas, at which discussions occurred on a less formal and more frank basis. The authority to conduct such side meetings was obtained from the negotiating committee, and the outcome of the side meetings was reported to the negotiating committee. Thirdly, Connolly from time to time engaged in private discussions with various Qantas managers to resolve particular issues.
63 The principal representatives of Qantas at meetings to negotiate EBA 7 were Bussell, Oldmeadow and Smith. Bussell and Oldmeadow took the leading role at all of the meetings. At the smaller side meetings, Bussell and Oldmeadow, and sometimes Justine Oldmeadow, represented Qantas.
64 At the meetings involving the negotiating committee and Qantas, the procedure was generally to work through the TWU log of claims. During the course of the negotiations, Qantas refused to entertain the proposition that EBA 7 contain a provision requiring it to ensure that labour hire companies pay "site rates" to their employees when performing Qantas work.
65 According to Connolly, he sought a side agreement whereby Qantas would agree in writing that it would continue to ensure that labour hire companies would pay "site rates". Qantas, on his account, refused to do this. According to Connolly and Mader in or about August 2008 at a side meeting they attended with Bussell and Oldmeadow, Bussell said words to the following effect in response to the TWU’s claim for a side agreement:
You are never going to get a document confirming site rates. However, I can assure you that there’ll be no change to the existing labour hire site rates arrangements.
66 Mader but not Connolly, gave evidence that Bussell made the same or similar statements at later meetings though, Connolly but not Mader, gave evidence that Oldmeadow made similar statements at later meetings. Bussell denied making the statement and Oldmeadow's evidence was that he did not hear her make such a statement. I have no reason to doubt that the four witnesses were giving an honest account of their recollection of what occurred at these meetings. The issue that arises is whether, in the face of this diametrically opposed evidence, I should find that, as a matter of fact, Bussell made this statement.
67 While the evidence of Bussell and Oldmeadow was in accord about whether the contentious statement was made, it was in other respects at odds about discussions concerning site rates. Bussell did not accept (or at least could not recall) that the TWU sought a side letter in respect of site rates and her recollection was there had been very little discussion about site rates at all. Oldmeadow's evidence was that the issue of site rates was one which was seriously advanced by the TWU. His evidence was also that once Qantas made it clear it viewed labour hire and site rates as something which was prohibited content and could not be included in the EBA, the TWU sought a side letter in which Qantas would commit itself to what it sought in the claim concerning labour hire and site rates. However probably what this reveals is that Bussell's recollection was less complete than that of Oldmeadow. It does not point to a conclusion that Oldmeadow's recollection was flawed bearing in mind his evidence was that Bussell did not say the contentious words.
68 There can be no doubt that site rates were raised in discussions. This is reflected in several notes Bussell made and also a note Smith made at various times during the negotiations. One of Bussell's notes read "Labour Hire existing arrangements" and another was "+ Understanding L.H. site rates". As to the second notation, Bussell thought, when cross-examined about it, it was a note of a topic being foreshadowed for discussion at the next meeting. As far as I can ascertain and recall, no questions were asked of her about what happened at the next meeting either in cross-examination or re-examination.
69 Of some importance, in my opinion, is that both Mader and Connolly gave evidence that they reported back to the TWU negotiating committee that Qantas had indicated it would not walk away from paying site rates. Of perhaps slightly greater importance is that Seage, who was a member of the negotiating committee gave evidence that Mader and Connolly reported to the meeting that Qantas had indicated it would not agree to formalise the site rates agreement but did not intend to walk away from it. This evidence was not challenged by Qantas in the cross examination of Seage.
70 I am satisfied, on the balance of probabilities, that Bussell did say something along the lines of the contentious statement set out earlier which was understood by Connolly and Mader to be an indication that Qantas would not seek to change existing labour hire arrangements. Whether, however, this misrepresented Qantas' position is another question discussed later in these reasons.
71 I should note, at this point, that the TWU negotiating committee included Burton and Mark Bebich (a Qantas baggage handler at Perth and a TWU delegate). It was clear from their cross examination that they each had become aware during the RFP process for Perth in late 2007 and early 2008, that Qantas did not require tenderers to base their tenders on Qantas rates of pay. Each knew that tenderers could base their tenders on their own rates which may have been different to and lower than the Qantas rates. Each would have been aware that a commitment of Qantas not to walk away from existing site rate arrangements did not involve a commitment to require tenderers in an outsourcing plan or proposal, to tender on the basis of agreeing to pay Qantas rates of pay. They would have known the commitment was more narrowly focussed.
72 Qantas also refused in the negotiations to agree to any provisions restricting its capacity to engage in outsourcing. However, in a side meeting that occurred in August or September 2008, Bussell or Oldmeadow (or both) said that Qantas would agree to continue to adhere to the ACTU Protocol and, because it regarded the inclusion of the terms of the ACTU Protocol in EBA 7 would constitute "prohibited content", agreed to confirm its continued adherence to the ACTU Protocol in a separate letter to be issued after EBA 7 was approved.
73 In a letter dated 11 December 2008 and signed by Bussell, the following was said:
We refer to discussions between the parties regarding Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7.
Further to those discussions, we confirm that Qantas will continue to observe the provisions of the Appendix B: Protocol for Contracting Out and Outsourcing Qantas Airways Ltd and Subsidiaries and ACTU of the Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 6. The clause is attached.
We trust this clarifies the position.
74 Substantive negotiations on EBA 7 were completed in late September or early October 2008, although some matters of detail remained to be concluded. Agreement between Qantas and the TWU concerning the final form of EBA 7 was reached on or about 30 September 2008.
75 In or about late September 2008, Geoff Dixon (chief executive officer and managing director of Qantas until 28 November 2008) attended a national meeting of Qantas delegates in Sydney and congratulated them on their achievement in negotiating a new agreement and advised them that it would lead to job security and industrial harmony. Dixon represented to the delegates that the terms of EBA 7 would give members job security. In November 2008, the proposed EBA 7 was put to a vote of employees to whom it was to apply. The TWU recommended to its members that they approve the proposed EBA 7, upon the advice of the TWU Negotiating Committee.
76 EBA 7 took effect on 12 December 2008, it having been lodged with the Workplace Authority and having met the relevant statutory requirements. It bound the TWU, Qantas, and the Qantas subsidiary Qantas Catering Limited. It had a nominal expiry date of 1 July 2011.
2.3 General events leading to 30 March 2009
77 Against the background discussed in the preceding section, I discuss in this section events concerning Qantas' ramp operations and the activities of the TWU in the months leading to 30 March 2009. Evidence was given by Mader, Connolly, Sheldon, Bussell, Oldmeadow, Smith, Dal Pra, Ogilvie and Durban.
78 In or around Christmas 2008 or early January 2009, Connolly was informed by Smith that Qantas was going to put the operating of the Perth baggage room out to competitive tender. When Sheldon was made aware of this he was not particularly concerned as, in his experience, Qantas had made such announcements before to create opportunities to negotiate productivity and efficiency savings with the TWU and keep the work in-house.
79 On or around 29 January 2009, an announcement was made in the Qantas employee newsletter "Horizons" that Jetstar had decided to put baggage and ramp work out to tender at SIT, Hobart and Adelaide. That work was being done by Qantas employees covered by EBA 7. The announcement was made without prior notice to or consultation with the TWU.
80 Officers of the TWU made various representations to Qantas in relation to the decisions to outsource baggage operations at Perth and the decisions to outsource Jetstar baggage and ramp work at SIT, Hobart and Adelaide.
81 Throughout February 2009, Connolly held a series of discussions with Qantas managers, including Durban, Smith and Tony Dumbrill (Qantas general manager of commercial ground handling and ramp business services) and sought assurances that Qantas did not intend to return to competitive tendering generally or in relation to Perth. Qantas refused to give such a commitment.
82 On 19 February 2009, Sheldon wrote to Alan Joyce (Qantas CEO and managing director) about the proposed outsourcing of work by Jetstar at SIT, Hobart and Adelaide. From the TWU's perspective, no substantive response was received to this letter. Pieri, Connolly and Gallacher were aware that Sheldon had written to Joyce on 19 February 2009 in respect of the RFP made by Jetstar regarding the provision of ramp services. In fact, the letter to Joyce was forwarded to Bruce Buchanan (Jetstar CEO) who did respond on 2 March 2009.
83 In about February 2009, Qantas encouraged officials of the WA Branch of the TWU to prepare an "in-house bid" for the work in the baggage room at Perth airport. The WA Branch officials together with employees in the baggage room agreed to do this in order to preserve the jobs of TWU members, but were unable to gather the necessary information and other material in order to do this. The TWU requested, and Durban and Dumbrill on behalf of Qantas agreed, to provide assistance in preparing the in-house bid including the provision of an accountant at Qantas' expense. The employees in the Perth baggage room were closely involved in the preparation of the in-house bid. In or around early March 2009, the WA Branch of the TWU submitted the bid.
84 The in-house bid was based on the rates and conditions contained in EBA 7. However, shortly after the in-house bid was submitted, Burton was informed by a manager of WFI, which supplied a large proportion of the labour in the Perth baggage room and paid EBA 7 rates and conditions, that Aero-Care had been permitted by Qantas to submit a bid based on the inferior minimum rates and conditions contained in the industry award, and as a result had won the competitive tender.
85 Connolly and Burton immediately engaged in discussion with Qantas about this matter. Although Qantas agreed to defer the formal announcement of the successful tenderer for the Perth baggage room until April, Qantas' position was that it was entitled to allow competitive tendering upon the minimum award rates and conditions.
86 The TWU viewed the decision by Qantas to outsource the work in the baggage room at Perth airport and the work in relation to Jetstar at the SIT, Hobart airport and Adelaide airport as constituting a direct threat to the job security of members of the TWU, the wages and conditions of employment of members of the TWU, and a risk to security and safety of those employees.
87 Connolly continued to hold discussions with Qantas managers, including Smith, Durban and Dumbrill, in an attempt to have Qantas reconsider the outsourcing exercises that were being undertaken, but without success. Qantas' advice with respect to the Jetstar outsourcing was that this had nothing to do with Qantas.
88 On 11 and 12 March 2009 the TWU's Federal Committee of Management met. Those present included Gallacher, Sheldon, McGiveron, Hugh Williams (TWU Queensland branch state secretary), Connolly and Forno. There was an extensive discussion about the outsourcing of the Jetstar work at SIT, Hobart and Launceston as well as the Perth baggage room. A view was expressed that these outsourcing proposals were inconsistent with representations Qantas had made during the negotiations of EBA 7. It was viewed, as Sheldon described it, as a declaration of war by Qantas. Gallacher said "We as a union must draw a line in the sand and fight for our members". Those present thought the fundamental interests of the TWU in the aviation industry were at stake.
89 On 12 March 2009 a telephone conference of all TWU Qantas delegates was arranged for Monday, 16 March 2009 at 12.30 pm AEDT. It was in fact held on 17 March 2009. The agenda for the meeting was "an update on the company's contract out plans in Perth, SIT and Tasmania and the TWU response". Connolly was involved in setting up the telephone conference. The meeting passed the following resolution (drafted by Connolly):
That the National TWU delegates resolve to take all necessary steps to oppose the current attack on the workplace safety, job security and employment conditions by Qantas' attempts to further contract out work currently performed by TWU members under EBA [7] to the lowest possible bidder at Perth Airport.
Delegates (members) resolve to undertake to seek the support of all members for this resolution at information meetings across the country over the next 7 days and to reconvene next Tuesday March 24th.
In addition, delegates request the TWU national office to seek urgent meetings with the company to arrange a postponement of the current RFP processes to allow for proper discussions to take place as a matter of urgency.
90 By email dated 17 March 2009, Connolly distributed a copy of a memorandum from Sheldon to Pieri and Loader (amongst others) and requested that Sheldon’s memorandum be distributed to branches as soon as possible.
91 On probably 18 March 2009, Sheldon sent the memorandum to all state secretaries. The memorandum stated, among other things:
Further to discussion at last weeks FCOM meeting a national telephone hook up of Qantas delegates was held earlier yesterday to discuss the situation in Perth and TWU member’s [sic] response. At the conclusion of the discussion, TWU delegates passed the following resolution:
Resolution
(Here set out was the resolution quoted earlier in these reasons)
92 On 24 March 2009, Qantas held meetings with delegates and employees at the SIT baggage room and announced that Jetstar work for the baggage room had been awarded to Aero-Care. There had been no prior consultation with the TWU about this work being awarded to Aero-Care. Aero-Care employees were to perform the Jetstar baggage room work at SIT at rates of pay and conditions of employment which, from the TWU's perspective, were significantly below those provided for in EBA 7. The Jetstar decision was conveyed to relevant union delegates, including delegates from the TWU by Patricia Kop (Qantas airport manager at SIT) as well as to staff rostered to work on that day. On the same day the TWU issued a media release outlining that TWU delegates at Sydney airport would be meeting over the next 48 hours to consider a response to outsourcing of work and security concerns at airports across the country.
93 On 25 March 2009, there was a telephone hook-up involving the federal officers and state secretaries of the TWU. Participating in the meeting were at least Gallacher, McGiveron, Sheldon, Williams and Connolly. It was determined that a series of meetings with members would be held at each major airport on 30 March 2009. In evidence Connolly said that day was chosen because they were moving towards Easter and did not want to have any disruption during the Easter period. However, it was agreed that there would be no meeting at Melbourne airport, because of the risk that such a meeting might contravene an order which had previously been made by the AIRC under s 496 of the WR Act in relation to employees at Melbourne airport and which remained in force. It was to be left to the relevant officials in each state to organise how the meetings were to occur. However the meeting did decide that the first of the meetings would take place in Sydney and thereafter in other states.
94 I do not think the decision to hold meetings in Sydney first is as significant as Qantas and the Ombudsman have suggested. It was logical and understandable to have Sydney meet first given the time differences then prevailing between Sydney, on the one hand, and Brisbane, Adelaide and Perth on the other. I certainly would not infer that it was part of a deliberate plan to unleash Sydney first so as to provide an additional incentive for TWU members at other airports to engage in industrial action because they wished to support actions taken at Sydney and thereby manifest solidarity with their Sydney counterparts.
95 My approach is reinforced by the decision not to hold a meeting at Melbourne, which is significant. Those participating in the hookup knew that feelings were running high amongst TWU members at all airports about Qantas' attitude to outsourcing and the corresponding threat to their job security. The decision announced the day before about Jetstar at SIT would have elevated tensions and concerns considerably. The participants knew that in organising the meetings there was a real possibility that the level of dissatisfaction amongst the membership would lead to some form of stoppage and that, in turn, could well lead to a response by Qantas referrable to its obligations under s 507. They also knew that were this to happen there was a real prospect that the membership would stop work for a period of four hours in total. They wanted to avoid the risk of this occurring in Melbourne because of the unambiguous legal consequences of doing so in the face of the s 496 order then in place.
96 By email dated 26 March 2009 addressed to Gallacher, among others, Sheldon raised the TWU's concerns about Qantas' proposed decision to outsource jobs of employees covered by EBA 7.
97 On 26 March 2009 the TWU issued a "News Alert" headed "Qantas Wages and Conditions Under Attack!". The News Alert stated among other things:
"Mr Sheldon also re-affirmed his commitment to call meetings of Transport Workers' Union airport delegates this week to consider a response to this latest outsourcing of work at the airport."
98 On 26 March 2009 a Media Conference Alert was issued by the TWU informing the press that Sheldon and TWU members would hold a press conference at SIT on that day regarding outsourcing of work at the airport.
99 In relation to this document, the Ombudsman made a submission (though Qantas did not) that it was deliberately framed (by referring to proposed meetings of delegates and not members) to avoid disclosing to Qantas that members would be meeting with the associated likelihood of industrial action. Qantas, it was submitted, would thereby be deprived of the opportunity of taking defensive measures. The springboard for this submission was the contention that "the article suggests that airport delegates would be meeting not just in Sydney but across the country". If there is such a suggestion it is to be found in the use of the plural "meetings" in the final paragraph. If so, it is but the faintest suggestion and far from sufficient to found the serious accusation of deliberate deception, if not duplicity.
100 On 26 March 2009 Sheldon issued a press release headed "TWU members concern over airport security". The press release stated, among other things:
Mr Sheldon re-affirmed his commitment to call meetings of Transport Workers Union airport delegates this week to consider a response to this latest outsourcing of work at the airport.
101 On 27 March 2009 Sheldon wrote to Joyce. The letter stated among other things:
…the TWU again reached a new agreement for TWU main line members delivering a responsible wage outcome of a 10.5% increase over 3 years…
....
Despite these discussions however, is clear from your decision to outsource Qantas jobs in Sydney, Hobart and Launceston this week that in a fundamental shift from the previous 9 years of relationship between our respective organisations, the preferred approach in Qantas Group at present is one of unilaterally seeking and implementing RFP's from the market as a mechanism to do nothing more than erode and threatened the jobs security [sic], wages, safety and conditions of all TWU members at Qantas.
As previously indicated the TWU and its members will be doing everything within their power to defeat this objective.
102 Some of the events discussed already bear upon what occurred at Sydney on 30 March 2009 and I do not discount their significance. But in this section I deal with the circumstances at Sydney Domestic and International Terminals and events specific to Sydney which led to the meetings on 30 March 2009, the meetings themselves and what followed. Evidence on the events at SIT was given on behalf of Qantas by Mick Lee (Qantas duty manager in ramp services at SIT), Ingo Weidmann (at 30 March 2009, Qantas ramp services manager at SIT), Mark Dantu (at 30 March 2009 Qantas ramp services manager at SIT), Matthew Morris (at 30 March 2009 acting Qantas business manager at SIT), Charles Marcellienus (at 30 March 2009 Qantas business manager of fleet presentation at SIT), Paul Daly (Qantas ramp services duty manager at SIT), Craig Anderson (at 30 March 2009 acting Qantas ramp duty manager at SIT), Kop and Isabel Filipetto (at 30 March 2009 Qantas advisor people relations at SIT). On behalf of the TWU, evidence was given by Stephen Holloway (Qantas baggage handler at SIT and TWU delegate), George Oei (Qantas baggage handler at SIT and TWU delegate), Jim Mitropoulos (Qantas baggage handler at SIT and TWU delegate), Peter Lewis (Qantas baggage handler at SIT and TWU delegate, Seth Tenkate (TWU media officer), Nitin (Daniel) Mookhey (at 30 March 2009 assistant to Pieri at TWU), Jeremy McGowan (Qantas baggage handler at SIT and TWU delegate) and Sheldon.
103 Evidence relating to the events at Sydney Domestic Terminal (SDT) was given on behalf of Qantas and the Ombudsman by Timothy Young (at 30 March 2009 Qantas airport manager at SDT) and Marcel Smithers (Ombudsman workplace inspector). On behalf of the TWU, evidence was given by Gary Mournehis (Qantas baggage handler at SDT and TWU member).
2.4.2 Sydney generally and the week before
104 Having regard to decisions taken within the TWU and actions of certain of its officials discussed already, the scene was set for a meeting or meetings at Sydney to be held on 30 March 2009. Within the TWU preparation was underway for those meetings. Of some significance in the chronology of events were the preparation of draft media releases and other documents. All times in this section of the judgment are in Australian Eastern Daylight Time (AEDT).
105 On 27 March 2009 three media releases were prepared by Tenkate. It is of some significance, in my opinion, that he had occupied the position of media officer with the TWU for only eight weeks and had no prior experience as a media officer working for a trade union. His understanding of industrial issues was, in significant part, dependent on what he was told by others. One of the media releases ("the first draft media release") was headed "Qantas" and stated, among other things:
Qantas employees at Sydney's international and domestic terminals have walked off the job this morning over safety and security concerns throughout Qantas group of companies' operations.
Transport Workers Union Federal Secretary, Tony Sheldon has apologized on behalf of Qantas to travellers whose plans were disrupted by this morning's action but explained employees needed action by the company.
'We have been asking for increased security including the upgrading of security cameras at the airport for a number of years now,' Mr Sheldon said. 'This was widely commented on at the time of Schapelle Corby's trial, and the camera issue has raised its head again following last Sunday's brawl at the airport'.
...
The continued outsourcing of works by Qantas has given opportunities in the areas of security, baggage handling and other areas of the workplace where there is no guarantee the contractor working beside you has been cleared by any security organisation whatsoever. Nobody knows who is doing this work.
...
We need more security training for people working at, what is in all reality, the frontline for possible terrorist action in this country. We had to resort to industrial action four years ago to get this implemented, however, as soon as it is out of the papers, Qantas management does nothing about it.
'This is our busiest airport and if Qantas management will not take the security of travellers, employees and the general public seriously - then we have to act to ensure they do,' Mr Sheldon said.
106 The second draft media release ("the second draft media release") was headed "Qantas Workers" and stated among other things:
"Qantas workers have returned to work after this morning's stop work meeting over ongoing security concerns at Sydney’s international and domestic terminals.
Transport Workers Union Federal Secretary, Tony Sheldon said the matter was in the hands of the Federal Industrial Relations Commission and that the TWU would wait to hear from the Commission before informing members of the response from Qantas management:
'I want people to understand that we did not take the decision to stop work today lightly,' Mr Sheldon said.
However, if Qantas management are not going to take the safety of its staff and its customers seriously, then we have to."
107 The third draft media release ("the third draft media release") was headed "Qantas workers discuss action over security and outsourcing concerns". The draft media release stated, among other things:
Qantas TWU delegates, representing more than 3000 employees across Sydney's international and domestic terminals, will hold a mass delegates meeting this morning to vote on a response to the increased outsourcing of work at Sydney airport.
108 These documents are obviously significant because they foreshadowed events on Monday, 30 March 2009. They are a manifestation of someone's understanding of what could, or even what would be likely to, happen. I will discuss in more detail how they were created and their significant shortly but two other documents of a similar character should be mentioned. First was a document prepared by Tenkate on 27 March 2009 headed a "Run Sheet for Monday" 30 March 2009 (the "Run Sheet for Monday"). The Run Sheet for Monday stated that Sheldon and Pieri would be at the SIT and made provision for the presence of flags and speakers. The Run Sheet for Monday also stated, among other things:
8am - talk to delegates with plan
MP to chair
Richard Priest to give presentation
8.30am- Distribute flags
9am - Outside International Terminal at Santos as a meeting point - one delegate left inside to get everyone out.
9am Outside of the domestic terminal on the road.
9.10am Need speakers and flags at both sites.
Will be 4-hour lockout
10am - press conference at international
109 A similar document was prepared by Mookhey headed "Airport Action Run Sheet" (the "Airport Action Run Sheet"). The Airport Action Run Sheet stated, among other things:
8.00 am Delegates Meeting Commences
Airport Media/Set Up squads moved to airport. All media
8.30 am Press Arrives at international. ST
9.00 AM Delegates & Officials head to airport
Vote decision relayed to ST/DM
Press Release announcing action issued. All DM/ST
9:10 AM Action commences
Rallies held
Media managed
Prepare for Legal Response All
10.00 AM Press Conference ST
1.00 pm Action ends All
110 Evidence about how the three draft media releases and the two run sheets came into existence was given primarily by Tenkate and Mookhey though some evidence was also given by Sheldon related to this issue.
111 I am satisfied that the evidence establishes the following. On 23 March 2009 Sheldon told Tenkate the TWU members were upset by moves by Qantas to outsource their work and that the delegates were planning to meet with their members in the next few days about that issue and the brawl on 22 March 2009 which had resulted in the death of an individual. They had a further conversation to the same effect the following day though Sheldon then told Tenkate that Aero-Care had won the Jetstar contract at SIT.
112 On either Wednesday, 25 March 2009 or the following day (precisely when probably does not matter though, importantly, it was before Friday when the three draft media releases and the Run Sheet for Monday were prepared), Tenkate spoke to Mookhey and was told there was a strong possibility there would be meetings of delegates on Monday, 30 March 2009 and this may well ultimately result in employees walking off the job. Mookhey said there were a number of possible scenarios which could eventuate from such meetings which depended on how Qantas reacted. One possibility identified by Mookhey was that the meetings could last for a relatively short time and another was that Qantas could lock out the members for four hours. This concept of a lockout for four hours featured in this and other conversations and also in documents. The period identified is important and must be considered in the context of other evidence (referred to later) establishing a fairly constant repetition in a variety of contexts by representatives of the TWU of a possible Qantas reaction to industrial action namely the company giving effect to the statutory obligation not to pay employees for four hours if industrial action of limited duration has taken place, employees not working for that period and, possibly additionally, management employees undertaking the work themselves. I am satisfied this reference to a lockout was a reference to this contingency even if, in other contexts, what a lockout is might be viewed somewhat differently.
113 Tenkate spoke to Pieri on Thursday, 26 March 2009 to find out what was going on and was told by Pieri that in his experience if the workers attended a meeting, Qantas might lock them out for four hours.
114 Sheldon directed Mookhey to ask Tenkate to prepare the draft media releases. The sources of information relied upon by Tenkate to prepare them were Mookhey and Pieri. The same sources provided the information relied on by Tenkate to create the Run Sheet for Monday which he created on instructions from Mookhey which were given on 27 March 2009. The three draft media releases reflected the scenarios Tenkate had discussed with Mookhey.
115 The first draft media release is written from the perspective of someone describing events which had already occurred. It contemplated a scenario in which Qantas employees (both at the international and domestic terminal in Sydney) had walked off the job. It contemplated disruption having occurred affecting travellers to whom, in the draft, Sheldon apologised. In fact this draft press release became a press release released on Monday, 30 March 2009 though without the apology.
116 The second draft press release is again written from the perspective of someone describing events which had already occurred. It contemplated a scenario in which a stop work meeting of Qantas workers had taken place, after which they returned to work.
117 Third draft press release is, in contrast, written from the perspective of someone describing events yet to take place. It contemplated a mass meeting of delegates taking place to vote on response to the increased outsourcing of work at Sydney airport.
118 At 12.26 pm on 27 March 2009 Tenkate sent the Run Sheet for Monday by email to Mookhey. While the three draft press releases contemplated events unfolding on Monday, 30 March 2009 in a variety of ways, the Run Sheet for Monday was much more focused. While the entire document is important, two aspects are particularly important. The first is that it contemplated some type of meeting at 9.00 am outside SIT (at the cafe called Santos which, in fact, is where the meeting addressed by Sheldon took place) and, importantly, that there would be "one delegate left inside to get everyone out". The second aspect was that there "Will be 4 - hour lockout". On Tenake's evidence, the reference to a delegate being left inside to get everyone out was a proposal discussed in a conversation with either Pieri or Mookhey. Mookhey said it was something he had not discussed. I consider that an inference can and should be drawn that this aspect of what Tenkate understood was most likely to happen, reflected in the Run Sheet for Monday, came from Pieri. It is to be recalled that Pieri has elected not to give evidence. Indeed an inference can and should be drawn that Pieri believed (and communicated this belief to Mookhey) that by far the most likely scenario to unfold on Monday was what in fact occurred.
119 What Pieri believed and communicated to Tenkate was as follows. By Friday, 27 March 2009 Pieri believed that the meeting on the Monday to be addressed by Sheldon would most likely be a meeting of members (and not just delegates) and that, if so, members would be marshalled to attend the meeting by a delegate designated to undertake that role within the baggage handling and ramp services area of SIT. It is probable, and I find, that Pieri then had some inkling that the way it was proposed the resolution of the delegates would be put at the Rowers Club on Monday (discussed shortly) and most likely adopted by the meeting was that the meeting to be held in front of SIT and to be addressed by Sheldon was to be a meeting of members (rather than just delegates). It is also probable, and I find, that Pieri expected that if events unfolded in this way, once the meeting of members took place, Qantas would most likely react by saying it was obliged to withhold four hours pay from members who attended the meeting. It is also probable, and I find, that Pieri expected that if Qantas did react in this way, the TWU members would most likely stop work for a total of four hours including the time they had stopped work to attend the meeting.
120 The purpose of the Run Sheet for Monday was, from both Tenkate's and Mookhey's perspective, to establish for Mookhey's benefit what Tenkate understood would, or at least in all probability might, happen on the Monday. When it was sent to Mookhey, he was not happy with it. As noted earlier, he drafted his own, namely The Airport Action Run Sheet. While expressed differently, the substance is the same as the Run Sheet for Monday.
121 On Saturday 28 March 2009 Connolly participated in an interview with Simon Marnie from ABC 702 Sydney. In response to a question as to the possibility of disruption to planes on the morning of Monday 30 March 2009 Connolly said, among other things:
Look, we'll have to look at all the options... The members have a long history of acting responsibly but these are very serious concerns. And unfortunately previously, some four years ago, members were forced to take industrial action to improve their security arrangements. And, as a result of the action they took at that time, there was steps taken to ensure that ground handlers were provided with security training to assist them in identifying suspicious items.
Now, that was an unfortunate step that had to be taken at that time to make improvements. We’re certainly hopeful that that is not a step that needs to be taken this week or any time in the future...
122 In response to a question as to whether the eight o'clock meeting with delegates would affect flights, Connolly said, among other things "No, it certainly will not. There will be no impact at that time of the morning, and the meeting is a regular meeting of delegates just to discuss obviously a pressing situation and how we should be best responding to it."
123 I find it difficult to know whether Connolly was being disingenuous. By that I mean that he was saying one thing publicly while believing another. If he was, it was a large step for him to take and was one which potentially could have significantly damaged his reputation in the public eye. One possible explanation consistent with his interview being comparatively straightforward is that the reference to "impact at that time of the morning" was intended by him to be taken literally and was not intended by him to be viewed as foreclosing the possibility of an impact later in the morning after the delegates meeting.
124 The same day Dooley had a conversation with Dantu at approximately 9.40 am. The conversation included words to the following effect:
Dooley: "There could be some excitement on Monday".
Dantu: "Well what do you mean by that?".
Dooley: "Oh, nothing really". (When saying this Dooley had a grin on his face).
Dooley: "There could be a delegates’ meeting".
Dantu: "Okay well what does that mean?".
Dooley: "Oh, just could be some excitement".
Dantu: "I hope you guys aren't planning on doing something silly because that would truly be silly".
125 Dooley then smiled and walked out of Dantu’s office.
126 On 29 March 2009 at around 10.30 am Lee had a conversation with Dooley. The conversation included words to the following effect:
Lee: "I am hearing rumours and there is a lot of talk of stop work or a meeting tomorrow. Do you know what is happening?".
Dooley: "No meeting is planned as we haven't given the company 48 hours notice for industrial action".
127 On the Sunday, the TWU released a Media Release titled "Qantas fails to act over security concerns". The 29 March Media Release stated that a meeting of Qantas TWU delegates would be held at the Sydney airport the following day. The 29 March 2009 Media Release included a number of comments from Sheldon and nominated Tenkate as the media contact.
128 That day the TWU posted a news article on the TWU website titled "Qantas fails to act over security concerns" which in substance reproduced the content of the 29 March 2009 Media Release. In the article, Sheldon stated that previous attempts had been made to resolve concerns over security, and that 4 years ago, industrial action was taken to ensure the safety of Qantas customers, its employees and the general public.
2.4.3 Sydney Domestic Terminal on the day
129 At approximately 8.30 am to 9.00 am on 30 March 2010, employees of Qantas in the baggage Room and ramp at SDT stopped work and attended a meeting in the TV room at the request of Mark Carney (Qantas employee in ramp services at SDT and TWU delegate) or Adam Brown (Qantas employee in ramp services at SDT and TWU delegate) or both.
130 Approximately 60 to 70 employees assembled in the TV room. Carney addressed employees and advised that it was a safety meeting to discuss safety and security breaches arising out of the use of casual labour hire staff being permitted to work airside on temporary ASIC passes.
131 In the course of the meeting, a resolution was proposed from the floor that employees go outside and engage in a meeting with TWU officials. The employees voted on two occasions to go outside and meet with the union. Carney urged the employees to be cautious. At one point during the meeting, an employee yelled out from the floor words the following effect.
Employee: "We are already out now, if we go back will we get paid?"
132 Carney then left the meeting for about 15 minutes and met with Young and Don Cameron (Qantas manager at SDT). Carney requested that Qantas agree that the employees would be paid for the duration of the meeting if they returned to work. Young agreed, on behalf of Qantas, that the employees would be paid for the period of the meeting.
133 Carney returned to the TV room and advised employees that Qantas had given assurances that they would pay the employees if they returned to work immediately. A number of employees stated that they did not trust Qantas and demanded Carney obtain an assurance in writing.
134 Carney left the meeting again for a further 10 minutes. Cameron provided Carney with a letter. The text of the letter was as follows:
30/3/09
In light of recent industrial action at other ports and consequent confusions, there has been some disruption to service at SDT whilst meetings have been held, by the TWU.
We request that normal services be resumed to minimise further passenger disrupts and to avoid the requirements to implement 4 hour dockage of payment.
Please resume work by 10.50 if the TWU membership will comply.
Thanks
Don Cameron/Tim Young
135 Carney returned to the meeting and showed the letter to the employees present in the TV room. A further vote was taken and a majority was in favour of returning to work. The Qantas employees returned to work at approximately 10.50 am, and were subsequently paid by Qantas for the whole of their shifts.
136 In addition to these events, Qantas and the Ombudsman pointed to evidence, which I accept, that Carney made it tolerably plain that he was being asked by organisers to, at the very least, encourage the TWU members to engage in more sustained industrial action in support of the membership at SIT, a course of action Carney did not agree with and was resisting. That emerged from a conversation he had with Young at some time about 10.00 am and also Carney's expressed desire that a particular organiser (Casey) not be allowed to enter the domestic terminal. It was not clear from the evidence the extent to which work was disrupted. Young accepted that the meeting of the members had caused disruption though it was limited. So much is apparent, in any event, from the letter he co-wrote on the day. Young believed at the time that a skeleton crew had been put in place though other evidence casts some doubt on whether this was so. I am not sure it really matters. It seems tolerably clear there was some industrial action (in the sense that work was not being performed as customarily performed) creating some disruption which, in due course, Qantas approved in the sense that, as discussed earlier, it was prepared to overlook it if work resumed which it did. On the view I take of s 420(1)(e), it was open to Qantas to take this course.
2.4.4 Sydney International Terminal on the day
137 On 30 March 2009 the rosters record that approximately 310 employees were rostered in ramp services on that day and 8 to 10 Blue Collar employees were rostered to work in baggage. Joe Mazza (Qantas employee in fleet presentation at SIT and TWU delegate) was rostered to work from 3.30 pm to 11.30 pm, Dooley was rostered to work from 6.00 am to 2.00 pm, McGowan was rostered to work from 3.00 pm to 11.00 pm, Jim Kotsikos (Qantas employee in pushback at SIT and TWU delegate) was rostered to work from 10.30 am until 6.30 pm, Brennan was rostered to work from 7.15 am until 12.15 pm, Holloway was rostered to work from 7.30 am to 3.30 pm, Mitropoulos and Oei were rostered to work from 2.30 pm to 10.30 pm and Lewis was also rostered to work.
138 As at 30 March 2009, the relevant Qantas managers at SIT in ramp services were Morris; Dantu; Craig Lord (Qantas duty manager at SIT); Lee; Anderson and Daly. As 30 March 2009, the relevant Qantas manager at SIT in fleet presentation was Marcellienus.
139 As at March 2009, the normal roster for ramp services for a Monday morning at SIT provided for approximately 500 employees rostered to work in ramp services, consisting of approximately 200 employees rostered in ramp, approximately 200 employees rostered in fleet at SIT and approximately 80 to 100 baggage staff and 8 to 10 Blue Collar Contractors rostered to work in the baggage area. As at 30 March 2009 fleet presentation was the only area in ramp services at SIT where women were employed.
140 The TWU organiser for SIT in March 2009 was Pieri. The TWU commission delegates for SIT in ramp were Dooley, Holloway and Mitropoulos. In baggage they were Oei, McGowan and Lewis. In fleet presentation they were Mazza, Bernie Mallary (Qantas employee in fleet and TWU delegate) and Brennan. In pushback the delegate was Kotsikos.
141 At approximately 5.11 am, Dooley swiped on to enter the work area.
142 Between approximately 5.30 am to 5.45 am, Lee had a conversation with Dooley. The conversation included words to the following effect:
Lee: "Has anything changed since our conversation yesterday in regards to any meeting or anything planned today by union?";
Dooley: "There was a socialised media frenzy to be held out front with the TWU officials including Tony Sheldon";
Lee: "Are you going to be involved? Are any staff going to be involved?";
Dooley: "I do not want to be involved, I don't want staff involved, I don't want any disruption to operation, I think it's best that they have their meeting and we stay in here";
Dooley: "The last thing we need is for you to bring the troops in";
Lee: "Well Danny, if there's no meeting, there will be no need for the contingency team".
143 At around 7.00 am, Lee had a conversation with Dooley. The conversation included words to the following effect:
Lee: "What are you doing in relation to the proposed meeting?";
Dooley: "Can Mitropoulos, Holloway and Lewis go out the front with the TWU?. I’d like about 90 minutes for the three delegates to attend and then report back to staff. It would all be done within that time";
Lee: "Danny there's going to be no disruptions?";
Dooley: "No Mick, it’s only the 3 of us attending, no other staff, there'll be no disruption. It would be better if the delegates attended the meeting rather than all staff. I give you my word that there will be no disruption to operation".
144 Lee subsequently told Dooley words to the effect that Weidmann would give permission but wanted an assurance that there would be no disruption.
145 Between approximately 7.00 am and 7:30 am Holloway had a conversation with Weidmann. The conversation included words to the following effect:
Holloway: "There will be no disruption. It will just be the delegates and then a report back to staff".
Weidmann: said to make sure there would be no disruptions.
146 At or about 7.00 am to 7.30 am, Sheldon, Forno, and Pieri attended a meeting at the St George Rowers Club. They had organised the meeting the preceding Friday, 27 March 2009. The meeting was attended by approximately 5 or 6 delegates employed by Qantas at SIT as well as some other TWU employed officials, including Sherwood. No delegates employed by Qantas at SDT attended the meeting. A number of SIT delegates were also not present because they were required to be at work at that time.
147 Before the meeting began, Pieri rang Carney and inquired why no SDT delegates were present. Carney replied that he did not want them to attend, but he would arrange things himself at SDT.
148 Sheldon spoke to the delegates about the recent events concerning outsourcing and his concern that such outsourcing would adversely affect job security, wages and conditions, and safety and security. Sheldon informed the delegates that he wanted to address TWU members about these issues at a meeting to be held at the Santos Cafe in front of SIT at about 9.00 am. Sheldon told the delegates that he believed the workers had a right to walk off the job and he was supporting any worker who came to the meeting. He said in evidence that the delegates certainly agreed to communicate to the members. However, he also said in evidence, and I accept, that his attitude was that though members might decide to attend the meeting, they may decide not to attend. That is not to suggest that his expectation was anything other than that very many of the members would attend the meeting. It was his expectation. A resolution that the delegates ask that Qantas employees attend this meeting was moved and carried by the delegates unanimously. I do not accept that the evidence supports a finding, even by inference having regard to the evidence as a whole, that the meeting resolved to call a four hour stoppage. The meeting at the Rowers Club concluded at about 7.45 am or perhaps a little later.
149 At around 7.45 am, Lee had a conversation with Dooley. The conversation included words to the following effect:
Lee: "Ingo's granted you permission, but we are now short staffed. I want you to tell staff that we need to keep the operation running";
Dooley: "I'll put the word out, I'll do my best".
150 At around 7:30 am, Morris had a conversation with Lewis. The conversation included words to the following effect:
Lewis: "I don't have a lot of information, but at approximately 8:30 am I am meeting with other TWU delegates at the front of the building";
Morris: "Is this to be a stop work meeting?";
Lewis: "At this stage, its only a meeting between delegates. I will come back and do a report back meeting to all baggage staff";
Lewis: "Danny Dooley called and asked me to go to the meeting because he was the only delegate on duty. I will be out for roughly 30 minutes".
151 Morris gave Lewis permission to attend a meeting of the delegates. Morris told Lewis to advise him if any stop work meeting took place. Morris asked Lewis to put in place arrangements so that Lewis' work would be performed by another individual during his absence.
152 At approximately 7.30 am on 30 March 2009, Marcellienus had a conversation with Brennan. Wayne Laws (Qantas supervisor at SIT) was present during the conversation. The conversation included words to the following effect:
Brennan: "There's going to be a meeting in front of SIT";
Brennan: "Ingo Weidmann has authorised the delegates to meet";
Brennan: "All staff are going to walk out at 8.45 am and would be meeting in the meal room and then after that would head to the front of SIT";
Brennan: "All of the leading hands know about it";
Laws: "What's the issue?";
Brennan: "They’ve got concerns about security, contractors working onsite, outsourcing and overtime".
153 At approximately 7.35 am, Marcellienus had a telephone conversation with Weidmann. The conversation included words to the following effect:
Marcellienus: "Brennan told me that you have authorised delegates to meet in front of SIT. Did you authorise anyone to go to the meeting? Did you tell everyone to walk out?";
Weidmann: "I authorised the delegates to go for a meeting, but not everyone else";
Weidmann: "The delegates agreed that following the meeting, they would return to work to report to staff in a non-disruptive manner".
154 At 8.09 am Marcellienus had a telephone conversation with Mazza. The conversation included words to the following effect:
Marcellienus: "What's happening, Brennan’s told me that there's going to be a meeting in front of SIT. Weidmann told me that he only authorised the delegates to go for a meeting, and even if they came back, they would be leaving skeleton staff and they were required to report back in a non-disruptive way".
Marcellienus: "Why is it that you guys are making a call and telling everyone to go out?";
Mazza: "I can't tell you a thing, I need to get back to you on that".
155 At 8.21 am Lee had a telephone conversation with Mitropoulos. There was a divergence in the evidence about what was said. On Lee's version the conversation was as follows:
Lee: "Marcello just told me that staff were being told by delegates to attend the stop work meeting out the front";
Mitropoulos: "I had a call one minute ago from an organiser Mick Pieri and we have been told to remove all ramp, baggage, cleaning, water and waste, fleet and pushbacks staff, and they are to go out the front at 9.00 am";
Lee: "Why didn't you call me?";
Mitropoulos: "I just got the call a minute ago and was about to call you";
Lee: "Jim, just be careful what your intentions are and what you're doing with the staff";
Mitropoulos: "I'm only doing what I've been told to do".
156 Mitropoulos accepted there was a conversation but denied saying that, in the terms just set out, he had received a call from Pieri. The evidence of phone calls does not reveal a phone call between them at this time though they do record one at 7.44 am. However Mitropoulos' own evidence was that he had had a conversation with Pieri at about 7.50 am in which he was told the delegates had voted to encourage members to come outside to Sheldon's meeting. I accept that it is likely a conversation along the lines described by Lee did occur at about this time though Mitropoulos may have been referring to his earlier conversation.
157 At 8.29 am Marcellienus had a telephone conversation with Brennan. The conversation included words to the following effect:
Marcellienus: "I have spoken to Weidmann, and he told me that he had only given permission for the union delegates to go the 8.45 am meeting. Only the delegates were authorised to go to the meeting and then to report back to staff in a non-disruptive way. No other areas have told their staff to walk out at 8.45 am and if they did it will be an unauthorised walkout. Do you understand that if they did walk out that it would be an unlawful walk out?";
Brennan: "That's something I need to speak to Mick Pieri about";
Marcellienus: "You should exercise caution before asking the staff to walk off the job";
Brennan: "Thanks for the advice".
158 At around 8.47 am Marcellienus had a telephone conversation with Brennan. The conversation included words to the following effect:
Brennan: "It is going to happen, at 5 to 9 staff are definitely going out. They are going to meet in front of Bay 24 and everyone will be walking out and none are going to stay back";
Marcellienus: "Are any part/time temporary staff involved?";
Brennan: "They are covered by the EBA, so they are not able to work. Even if they don't want to come out they will still be sitting in the meal room, they won't be working".
159 Prior to 9.00 am Mallary sent a text message to Qantas employees employed in Fleet Presentation at SIT to the following effect of "Sisters and brothers join us in protesting outsourcing Jetstar to non-union company. Stand and defend our jobs 9 am Airport from Santos CafÉ". Some time before 9.00 am a person used the ramp communication radio maintained at SIT and said words to the effect of "off the tarmac". There was some evidence, though not entirely satisfactory, that the person who used the ramp communication radio and said words to this effect was Dooley. While I am satisfied this was said, I am not satisfied it was Dooley.
160 At around 8.30 am, Lee attended the tarmac. No Qantas or client airline aircraft was being serviced at this time by Qantas staff. At this time of the day, in normal operation, there would have been around 10 teams of 5 employees servicing the ramp. In addition Qantas employees should have been performing work in baggage, fleet and pushback.
161 Shortly before 8.50 am on 30 March 2009, Morris attended the baggage room. No employees were performing any duties. As a result, the laterals (conveyor belts) were filling up with bags which were not being loaded into ULDs. Normally there would be 10 to 15 Qantas employees working in the baggage room at that time of day.
162 At around 9.00 am Kop called Dooley on his mobile phone and had a conversation. The conversation included words to the following effect:
| Kop: | "What's going on, where are you?"; |
| Dooley: | "I am out the front and we won't be long. We are having a union meeting. Scott Connolly's here and I won't be long"; |
| Kop: | "Danny don't you know what’s happening, how long are you gonna be"; |
| Dooley: | "Not long"; |
| Kop: | "How long is not long?"; |
| Dooley: | "Not long, it'll only be a little while"; |
| Kop: | "What's this about?" |
| Dooley: | "It's the JQ RFP. It’s about the JQ RFP, the Perth bag room being outsourced, and the sacking of Brendan Fitzgerald." |
Dooley then hung up. The reference to Connolly was probably a reference to Sheldon.
163 At approximately 9.15 am, Weidmann attended the baggage room. The only people working were the supervisors. No other Qantas employees or Blue Collar Contractors were working there. Morris attended both Pier B and Pier C on a number of occasions during the stoppage. On these occasions none of the Blue Collar workers were at their designated work area or performing work.
164 Shortly after approximately 9.15 am, Weidmann attended the ramp area. There were then only five Qantas employees still working. At approximately 10.00 am to 10.30 am, Daly attended the ramp office at SIT. He saw around 10 to 20 people walking around but could not see anybody working. At that time on a Monday morning there would usually be around 80-100 Qantas employees working in ramp services. Daly attended Bay 24 which is where the ramp operations centre is located. He saw a few people walking around but no one was working. At approximately 10.35 am, Fillipetto attended the ramp area. She saw approximately 5 Qantas employees working outside Bay 24 on the tarmac. These were the only Qantas employees working in the ramp area. At approximately 10.20 am, Kop went into the fleet and ramp lunchroom. There were approximately 30 to 40 Qantas employees in the lunch room.
165 While she was in the lunchroom Kop had a conversation with the Qantas employees in the room at the time. The conversation included words to the following effect:
Kop: "Are you on a meal break?";
5 or 6 unidentified employees responded: "No, we are not on a break";
Kop: "I want you to return to work";
a number of unidentified employees responded: "We are waiting to be told to go back to work by the union";
Kop: "Who told you to stop work?". None of the staff responded;
an unidentified employee made a comment along the lines that they were not participating in industrial action and that they weren’t on strike because they were in the lunch room and not out the front;
Kop: "I'm your manager and I’m instructing you to go back to work because you are passively participating in this stop work action by sitting here, even if you are not out there actively. We will protect you";
a number of the unidentified employees said "No, we are waiting for the union to tell us to go back to work";
a number of unidentified employees said it was a safety issue;
Kop: "Tell me what it is and we will see about addressing it";
an unidentified employee said "We don’t know – the union told us it's a safety issue";
Kop: "Dooley has told me that the stop work meeting was taking place because of the unsuccessful Qantas tenders for the Jetstar RFP, the Perth bag room work, and the firing of Brendan Fitzgerald". In response somebody said "no, it is a safety issue";
Kop: "Did you have a vote?";
a number of unidentified employees said "No".
166 The statement in this conversation and other statements which I have not detailed about what the employees were expecting to be told by the union were admitted for the limited purpose of establishing the belief of the employees only. However, I accept that this sort of evidence when taken with the evidence as a whole enables an inference to be drawn that employees had been asked by the delegates to attend the meeting which would have meant they stopped work. However I do not accept that the evidence demonstrates that employees were directed to stop work. Indeed I accept the evidence of Sheldon that his approach to the participation of employees in the industrial action was that they had a right to participate, were to be encouraged to participate but ultimately it was a matter for them and this was the approach given effect to on the day. Equally, however, I accept that in a highly unionised workforce and in the context of the workforce having strong feelings about Qantas' approach to outsourcing and particularly as it related to its subsidiaries (as very recently reflected in the decision concerning Jetstar announced on 24 March 2009) the likelihood was that the overwhelming majority of the workforce would stop work to attend the meeting in those circumstances.
167 Kop attended the lunchrooms for baggage, located adjacent to the baggage hall. There was no-one there. Kop then attended the lunchroom for fleet and ramp, located outside the front of Bay 24. There were 30 to 40 people in the lunchroom.
168 Throughout the morning of 30 March 2009, Kop was on the ramp and toured the ramp facility on a tug. In the course of that time, other than one gang (Paul White, Sheldon Tate, Neville Goldsmith, Steve Pollock and Dylan Halliwell), who continued to work, the Qantas employees were not performing work.
169 Between 9.00 am and 1.00 pm none of the fleet presentation staff were working. There were around 70 to 80 staff fleet presentation staff rostered on the morning of 30 March 2009. Only two supervisors worked through the stoppage in Bay 10. On a normal weekday morning between 9.00 am and 1.00 pm, there is somewhere between 30 to 40 fleet staff moving between bays and working in Bay 30.
170 At around 8.09 am, Sheldon attended the front of arrivals at SIT. Also present were other people with TWU tops on and TWU banners.
171 By about 8.55 am there were a large number of people congregated outside the SIT. There was an issue about how many. The capacity of individuals to estimate crowd numbers (short of doing some sort of headcount at the time) with any sort of certainty is mostly limited. It was probably at least 100 people and more likely significantly more. Many of the people congregated outside the front of the SIT were wearing Qantas uniforms. Employees and officials were holding banners. The banners were of two types some had a TWU logo, while the other was a red and white banner that had "Jobs with Justice" written on it. At around 9.00 am, there was another large group of people who joined the meeting. Most of the group who joined the meeting were also wearing Qantas uniforms. The majority of the group who joined the meeting were female. Dooley, Holloway, Mitropoulos, Oei, McGowan, Lewis, Kotsikos and Brennan were present at the meeting.
172 The respondents raised a more general issue about numbers. They pointed to what might be characterized as anomalies or inconsistencies in Qantas' evidence about the number of Qantas employees working at SIT that day. This was viewed as significant because, at best for Qantas, the only industrial action undertaken by any of the respondents (thought only admitted in relation to the TWU) was organizing the meeting. If only a modest percentage of the TWU membership attended the meeting, so the argument ran, then the TWU and probably the other respondents cannot be liable for the consequences of what otherwise happened that day. For my part, as I discuss later in these reasons, I am disinclined to accept that the liability of the respondents can be confined in this way. Accordingly, I do not undertake the task of endeavouring to determine, with any greater precision, the numbers at the meeting and the number of TWU members who may otherwise have been in or about SIT that morning.
173 Sheldon addressed the meeting. There was an issue about how long he spoke. I am satisfied it was probably about 20 minutes. There was a break when Sheldon requested Connolly to speak to Bussell.
174 At around 9.45 am Sheldon stopped speaking and gestured towards the pedestrian crossing. After this gesture a number in the group walked towards the pedestrian crossing. Almost all of the group who walked towards the pedestrian crossing were wearing Qantas uniforms. When the group arrived at the pedestrian crossing approximately 30 to 40 people sat down on the crossing. A large number of people stood behind the crossing and to the side of the crossing. Many of those people were on the road. Sheldon stood as part of the crowd on the pedestrian crossing. As the group moved to the pedestrian crossing, they were waving banners with the TWU logo and the words "Jobs with Justice". The group blocked public traffic attempting to drive through the crossing for probably only about 10 minutes (though at least one car was allowed through). The people blocking the crossing were wearing Qantas uniforms and were many of the same people from the meeting.
175 I accept the evidence that some employees were saying at this time that they did not want to return to work as they believed they would be docked four hours pay. Indeed Dooley approached Kop shortly after the meeting proposing that employees would return to work if they were paid. Another more focused approach to assume work was made by one of the leading hands, John Barnhill (Qantas employee at SIT and TWU member). The responses to both were in the negative.
176 At approximately 11.00 am, Lee had a telephone conversation with Mitropoulos. There was evidence that Mitropoulos advised Lee that the meeting was over and that the Qantas employees would return to work at 1.00 pm. There was also evidence that Mitropoulos said words to the effect of: "it was a four hour stoppage". Mitropoulos did not accept this evidence. For my part, even if it was said it is not evidence that demonstrates there was a predetermined plan to stop work for four hours come what may. I think what most likely happened was that by the end of the initial stoppage which led to the mass participation in the meeting addressed by Sheldon, most of the employees involved knew that there was a high likelihood that Qantas would take the approach that it was obliged to dock them four hours pay and that unless they were disabused of this they would not resume work until four hours had elapsed. Dooley's approach to Kop was testing the waters but unsuccessfully.
177 At around 12.00 pm to 12.30 pm, Daly spoke with Holloway. The conversation included words to the following effect:
Holloway: "This is bigger than us", and "it was out of our hands";
Daly: "What have you achieved out of this?";
Holloway: "It was not our call", and "it was out of my hands".
178 The Qantas employees working in the bag room returned to work at around 1.00 pm. Morris waited until there was a group of 25 to 30, and asked them to resume work and clear the backlog. During the stoppage, baggage had built up in the arrivals and departure areas in Piers B and C.
179 At around 1.10 pm, Qantas employees working in fleet presentation started returning to work.
180 At approximately 6.00 pm, the departure area was still in gridlock and could not cope with any more bags. Until this was addressed, bags could not be processed. Until 9.30 pm, flights were being loaded without the bags that were supposed to accompany the passengers on the particular flight. Thereafter they were.
181 In the weeks following 30 March 2009, Morris and Fillipetto conducted interviews of Qantas employees who were rostered on shift on 30 March 2009. Fillipetto compiled a list of employees who participated in the industrial action. The list was compiled based on information from the relevant managers as to which employees continued to work, compared to the work rosters produced through the i-roster system. The list was provided to payroll. Employees who participated in the stoppage had their pay docked.
182 In this section I deal with the circumstances at Brisbane domestic and international airports and events specific to Brisbane which led to the meetings on 30 March 2009, the meetings themselves and what followed. Unless I indicate otherwise, the times referred to are Australian Eastern Standard Time (AEST) which was, in this period the local Brisbane time. Evidence on events at Brisbane domestic terminal was given on behalf of Qantas by Matthew Goebel (at 30 March 2009 ramp operations manager Brisbane airport), Paul D’Alessio (at 30 March 2009 acting head of Queensland airports), Iain Gibb (at 30 March 2009 compliance officer at Brisbane domestic terminal), John Martin (Qantas training coordinator at Brisbane domestic terminal) and Gary Slade (Qantas business support manager at Brisbane airport). Peter Fooks (Qantas business support manager at Brisbane airport), Jasmine Sharrock (Qantas senior people advisor Queensland airports) and Elizabeth Neale (Qantas manager of people for Queensland Airports) swore affidavits, but were not required for cross-examination. On behalf of the TWU, evidence was given by Connolly and Peter Seage (Qantas baggage handler at Brisbane domestic terminal and TWU delegate).
183 Evidence on events at Brisbane international terminal was given on behalf of Qantas by Larry Spence (Qantas compliance officer at Brisbane international terminal) and David Reid (Qantas compliance officer at Brisbane international terminal). Ronn Wells (Qantas business support manager), Sharrock and Neale swore all swore affidavits that were subsequently read, but were not required for cross-examination. On behalf of the TWU, evidence was given by Connolly.
2.5.2 Generally and the weeks before
184 The domestic and international terminals are located approximately 2 kilometres apart. Ramp operations work to a 21 hour/ 7 day a week roster. At any one point in time, approximately 80 to 90 of the ramp services staff are rostered for duty at the Brisbane domestic terminal, and approximately 60 of those staff are rostered to be on duty at the Brisbane international terminal. The staff on the ramp work a 7 hour shift.
185 There are approximately 25 to 30 baggage handlers in the Brisbane bag room at any one time. There are no specific teams in the bag room and the number of baggage handlers required for a particular shift varies in response to the volume of baggage expected. The majority of people who work in the bag room are employees engaged through WFI. They work under the supervision of leading hands who are Qantas employees.
186 The baggage handlers in the bag room work "staggered shifts". In other words, shifts with different start and finish times structured in a way that provides for overlap between shifts at times of peak demand.
187 In March 2009 the local TWU organiser was Connolly. The Queensland state secretary was Williams. There were 5 TWU commission delegates for Qantas’ Brisbane domestic and international ramps. The TWU delegates at the international ramp were Mitchell and B. Strong. The delegates at the domestic terminal were Seage, S. Strong and Paul Coco (Qantas baggage handler).
188 The TWU has a significant presence among ramp employees at Brisbane airport. It is a heavily unionised site. It is not uncommon for the delegates to raise issues with the ramp operations manager or other Qantas managers. Goebel was a key contact for TWU delegates on the ramp. Connolly would regularly meet with Qantas management and would attend ad hoc meetings convened in order to address specific issues. Connolly would regularly meet with delegates at the Brisbane in meetings convened approximately monthly. The delegates or some of them would regularly meet with Qantas management and attend ad hoc meetings convened to address specific issues.
189 On occasions Qantas would receive correspondence from Williams requesting Qantas arrange a formal meeting to discuss a particular issue. Attendances at these meetings would depend on the matters being raised. Goebel would usually attend in his capacity as the ramp operations manager. Following the meetings the usual practice was that Goebel would speak with Connolly or the delegates to follow up on what was raised. If the meeting was more formal a representative of Qantas management would write to Williams noting the outcomes of the meeting.
190 On probably Thursday, 26 March 2009, Goebel received a telephone call from Connolly. There was an issue about what precisely was said. On Goebel's account Connolly told him words to the effect that he wanted to catch up with the Brisbane delegates prior to one of them going on leave and the other returning from leave. Connolly told Goebel words to the effect that he would be on site at approximately 11.00 am on Monday 30 March 2009. In the course of the conversation Connolly told Goebel words to the effect that "the visit would not be disruptive". Connolly's account was that he said to Goebel he wanted to "see the guys" and that Goebel said there was no problem with that. Connolly also said the reference to 11.00 am was too another matter he wished to talk to Goebel about. Having regard to the cross-examination of Goebel in which he substantially accepted Connolly's version (other than as to time) I accept Connolly's account. He had earlier rung the TWU delegates Seage and Mitchell to confirm their availability on 30 March 2009.
191 On 28 March 2009 Connolly gave a radio interview on the local Sydney ABC station. I have referred to it earlier in these reasons. The focus of the interview was events at Sydney airport. Connolly's position was, in summary, that there definitely would not be industrial action though he plainly did not discount the possibility that it might occur. In this context, he referred to past events when industrial action had been taken. Connolly referred to a meeting of delegates. This is pointed to by the Ombudsman, in the context of his submissions discussing events in Brisbane, as Connolly deliberately understating what was to occur given that he knew there was going to be a meeting of members. It appears also to be pointed to as supporting Goebel's version of what Connolly told him (that he wanted to meet with delegates). I do not accept this. The interview was about Sydney. In so far as Connolly was foreshadowing a meeting of delegates, he was correct as to what was to happen at Sydney and that is what happened. There was a meeting of delegates at the Rowers Club. It was the meeting of delegates that decided to call on members to attend the meeting outside SIT. It is entirely unreasonable, in my opinion, to point to this interview to suggest Connolly was giving a false account in the interview of what he understood was to occur in Brisbane and doing so deliberately.
192 As an aside I should observe that this submission was illustrative of the general tenor of a number of the submissions of the Ombudsman. The submissions were, in my opinion, a little too partisan at times for a statutory officeholder. By partisan I mean infused by a measure of zeal rather than detachment. I would have thought that the Ombudsman should aspire to be a model litigant rather than a partisan one. While aspects of the model litigant obligations are found in Appendix B to the Schedule to the Legal Directions 2005 (Cth) issued by the Commonwealth Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth) they are broader and more fundamental. They are as discussed in the following passage from Scott v Handley (1999) 53 ALD 373:
43. The second respondent is, as we have noted, an officer of the Commonwealth. As such he properly is to be expected to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect -- and where there has been a lapse therefrom, to exact -- from the Commonwealth and from its officers and agencies. The spirit of this "model litigant" responsibility, now long enshrined in a policy document of the Commonwealth, is perhaps best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342:
"I am sometimes inclined to think that in some parts -- not all -- of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken."
44. Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see eg Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166 ; 144 ALR 695; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196-7 ; 146 ALR 1; SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346 at 368 ; 139 ALR 595; Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263 at 267; Kenny v South Australia (1987) 46 SASR 268 at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-9; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-4 see also R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] AC 858 at 876-7.
45. As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise cost and delay": Kenny's case, above, at 273; and of assisting "the court to arrive at the proper and just result": P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong's case, above, at FCR 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at FCR 368.
2.5.3 Brisbane domestic terminal on the day
193 The roster for 30 March 2009 indicates that 13 Qantas employees were rostered to perform duties at domestic baggage, 6 WFI employees were rostered to perform duties at domestic terminal, 19 Qantas employees were rostered to perform duties at international baggage, 6 WFI employees were rostered to perform duties at international terminal and 21 Qantas employees were rostered to perform duties at international ramp. Mitchell and S. Strong were rostered to work from 5.00 am to 1.00 pm, B. Strong was rostered to work from 6.30 am to 2.30 pm, and Seage was rostered to work from 6.15 am to 2.15 pm. At some time after 7.00 am, Connolly arrived at the Brisbane domestic terminal. He was signed in by Seage. Connolly's evidence was that he arrived about 6.30 am or 7.00 am. However he rang Seage at 7.01 am so he must not have seen him at that point. Seage's evidence was that Connolly's arrival was 7.15 am while Goebel placed it at 7.10 am. The precise time probably does not matter.
194 At probably about 7.20 am, Connolly and Seage entered the meal room (domestic terminal). There were approximately 20 to 30 people in the meal room. Connolly's evidence was that he had a meeting with those in the room whereas Seage's described it as a conversation with him. The differing descriptions may only be a matter of emphasis. It seems to me unlikely that there simply would have been a private conversation between Connolly and Seage of any duration in the meal room and probably what Connolly was saying was to wider audience. He spoke of Sydney being up in arms about a number of issues including the bikie murder at the domestic terminal the week before, threats to outsource jobs in the international terminal baggage room to Aero-Care and potentially the same thing happening in Perth and Hobart and safety and security issues concerning the use of labour hire workers. Connolly probably also spoke of local issues concerning Brisbane airport.
195 At the end of this discussion or meeting, Connolly told Seage he wanted to talk to the members. Seage accepted in his evidence that he went to the baggage room and the tarmac and walked through the areas advising members that Connolly was in the meal room and wanted to have a meeting with them about safety and security issues and outsourcing. His evidence was that it was his expectation that the members would attend the meeting and the members in fact stopped working and followed him or went to the meal room. There was an issue about whether Seage made an arm movement which could or would have been understood as a signal for members to stop work. I am not satisfied he did but on his account he effectively marshalled the membership to attend the meeting.
196 Probably while Seage was marshalling the membership, Connolly received and made a number of phone calls. The first was at 7.36 am which was a call from Sheldon though it is conceivable he received this call while he was still conversing with Seage and the membership in the lunch room. They spoke for one minute and 31 seconds. It is more likely that calls Connolly made, were made after the meeting or conversation with Seage and the membership had finished. Connolly rang Pieri at 7.52 am (53 seconds), Burton at 7.52 am (50 seconds), McGiveron at 7.56 am (12 seconds), Williams at 7.58 am (two minutes 57 seconds) and Sheldon at 8.05 am (22 seconds). He had taken a call from Sheldon at 8.04 am (24 seconds). At 7.45 am, he received a SMS from Mookhey.
197 At around 8.05 am, all of the staff (including both Qantas employees and WFI employees) went into the meal room. At this time, the i-roster computer screens indicated that while jobs were being allocated, no one was unloading or loading. There are normally eight teams working on the ramp at this time of the day, with each team having five members (leading hand plus four team members).
198 Connolly addressed the meeting and advised them that the Sydney delegates had voted to hold a stop work meetings at both the domestic and international terminals in Sydney. He said the meeting was to inform members about safety issues (the bikie brawl and the high turnover of labour hire workers who worked on temporary ASICs), the proposal to outsource work in Perth and the awarding of the Jetstar baggage room work in Sydney to Aero-Care. He referred to the concerns of the TWU about contracting out. The discussion from the floor was heated. Members were expressing their concern about their security, their jobs and their safety. Job security was discussed. The employees were extremely agitated at what was being proposed in Sydney in bringing in external companies to do baggage handling and ramp work. Connolly gave evidence, which I accept, that the mood of the meeting was that the workforce did not want to return to work. A view was expressed that they had had enough and they should "stick it to them". Connolly told the meeting that if they stayed out they might be exposed to a loss of pay because of the "four hour rule". Connolly also told the meeting Qantas might seek return to work orders which the TWU would have to comply with if made. He also said Qantas would reserve the right to seek penalties though the union would try to protect individual employees from penalties. Having regard to what Connolly was saying and what the membership was saying, Connolly understood the meeting might result in a further stoppage of work.
199 After the meeting being conducted by Connolly had commenced and probably around 8.10 am, Goebel went down to the domestic meal room and entered the meeting. He did so because he had been told Seage had "pulled" the guys off the ramp. Goebel said he saw Connolly reading from a prepared script though I am very much inclined to doubt this and Goebel may have misunderstood what he saw. When Goebel attended the domestic meal room there were between 40 to 60 Qantas employees and WFI employees in the room. Goebel heard Connolly refer to industrial action around the nation.
200 Goebel and Seage had a conversation at the back of the room. Goebel's and Seage's recollections of the conversation were slightly different. However the substance of what was said appeared not to be in issue. Goebel asked Seage who asked the workforce to come to the meeting and stop work and Seage said it was him and he had done so at Connolly's request though Seage resisted the suggestion it was a stop work, and all he did was request members to attend the meeting. I accept Seage's account of what he said to the members. Connolly then had a discussion with Goebel. Again there was a divergence in the evidence of what was said. However there is agreement about two important matters of detail. The first is that Connolly asked for a further 30 minutes to conclude the meeting and the second was the Goebel said he needed to get permission from senior management, Moore, for this to occur. Goebel then left.
201 Goebel returned to the meal room or near it. At that time Mitchell and B. Strong were coming to the meal room. Before entering the meal room, Mitchell had a conversation with Goebel. The conversation included words to the following effect:
| Mitchell: | Told Goebel that they had come over to see what the issues were but that his staff at the international terminal were still continuing to serve its aircraft at that point in time. |
| Goebel: | Told Mitchell that was able brief his staff as long as that was done in a non-disruptive way. |
| Mitchell: | Told Goebel that he would be guided by the TWU on the issue. |
202 Goebel re-entered the meal room. Perhaps at this time or it may have been later Phil Scott (a Qantas employee and ex union delegate) put forward a motion for a four hour work stoppage. Precisely when it was put does not appear to me to be particularly important. This or a similar motion was voted on later.
203 Connolly, Seage, Mitchell and B. Strong had a conversation with Goebel outside the meal room. Goebel's evidence was that the conversation included words to the following effect:
| Goebel: | "Brad [Moore] has approved your request for 30 minutes. You have roughly 10 minutes remaining. Our sources have confirmed that the Melbourne domestic, Melbourne international and Sydney domestic ramps have not participated in the action. And it is Brisbane ramp management’s point of view that the Sydney international terminal issue is solely about outsourcing, or loss of contractor work due to Jetstar and this is solely a Sydney issue. I expect you to return to work in 10 minutes"; |
| Mitchell: | "My staff have continued to service aircrafts on the international apron. They have not yet participated in any meeting or report back regarding the day’s events"; |
| Goebel: | "Thankyou for your cooperation. I am more than willing to drive you to the international apron and allow you to hold a meeting once the domestic staff have returned to work"; |
| Mitchell: | "I endorse this motion. Thankyou for allowing me to spend time with my staff but I will be guided by the vote in the Domestic meal room"; |
| Connolly: | "I need 5 minutes to make phone calls to confirm whether the other terminals have not participated in the action." |
204 Connolly accepted that Goebel returned to the meeting and they had a conversation at which Mitchell was also present. On Connolly's account Goebel informed him that Moore had approved a 30 minute meeting and also said that provided they (the men) returned to work within half an hour "they will be paid and we can get on with our day". During the conversation Goebel gave permission for Mitchell to conduct a meeting of unspecified duration at the international terminal.
205 It is unlikely that Goebel's account of what he said is correct and I do not accept it. That is because Goebel's request to Moore was made through an intermediary, Slade. His evidence was that Moore had said to him if the staff went back within 20 minutes their pay would not be docked. Slade's evidence was that he relayed this to Goebel. It is, of course, conceivable that Goebel misunderstood what Slade told him. However Slade's evidence raises doubts about Goebel's account of the conversation with Connolly and tends to confirm Connolly's account and I find, that at the least, a period longer than 10 minutes was referred to by Goebel and that an intimation was given that if the workers returned to work relatively promptly their pay would not be docked. What the precise period was does not matter because the meeting shortly thereafter decided to have a stoppage of much longer duration.
206 Of some significance is what I take to be concession made by Goebel in cross examination (having regard to notes Goebel made of the day) that about this time Connolly said to him that he, Connolly, would support a return to work.
207 Seage, Mitchell and B. Strong returned to the meal room. Connolly remained outside and made several telephone calls. Connolly then returned to the meeting. He told the meeting of the offer of not docking pay if the workers returned to work. The meeting went for a further 20 minutes or perhaps a little longer. A decision was taken by the meeting to stop work for four hours. The decision was taken by motion and voting. While Connolly formally advised the members of the implications of a decision like that, he did not seek to persuade them not to stop work.
208 At about 8.45 am, Connolly had a conversation with Goebel. Goebel's evidence about the conversation was that words to the following effect were said:
| Connolly: | "The staff have voted to stop work in support of Sydney for four hours"; |
| Goebel: | "Can you release the Contract Staff from the room as I believe this is a secondary boycott in support of the current illegal action being taken by Qantas staff"; |
| Connolly: | "You haven’t got a shit show in hell!"; |
| Goebel: | "Ok, the ground rules are set. I expect all staff participating in the action to stay in the meal room for the entirety of the four hour period. If anyone exits the room, they will be escorted offsite by ISS Security"; |
| Connolly: | "Ok"; |
| Goebel: | "I require all Qantas radio and communications systems to be returned to Qantas compliance officers and for all LIRs (Loading Instruction Reports) to be returned"; |
| Connolly: | "Ok"; |
| Goebel: | "I will now be bringing in a second workforce of contingency staff within the next half hour as part of the BCP (business continuity plan)." |
209 Connolly's version was of a shorter conversation. Some of the language Goebel attributed to Connolly did not accord with my impression of him. However it was probably a tense and perhaps slightly confronting exchange given the decision taken at the meeting to stop work. Connolly certainly told Goebel that the meeting had decided to stop work.
210 At about 9.00 am Goebel dispersed the contingency staff onto the ramp, including approximately 26 Qantas management staff, 6 Qantas administration staff, and 7 support staff from WFI.
211 At about 9.20 am, Fooks (a person called back to work to constitute part of the contingency team) attended the domestic baggage room and remained in or around the bag room for approximately the next two hours. The baggage room was full of luggage. Other than contingency staff there were no other people working in the baggage room at this time. Normally at that time of day on a Monday morning 10 to 12 Qantas employees and WFI employees would be undertaking work in the baggage room.
212 After approximately 9.30 am, other than the members of the management contingency team, there were no other Qantas employees undertaking their normal work or servicing aircraft. No WFI contractors were undertaking work in the baggage room. Normally there would be about eight teams doing ramp services at around that time of the morning. The contingency team was about half the size. The morning is a busy time. All interconnecting flights, being flights from Townsville and Cairns meet up with Sydney, Melbourne and Adelaide bound flights. Mondays are busy days at the airport.
213 At approximately 11.10 am B. Strong and Seage approached Goebel and had a conversation. According to Goebel the conversation included words to the following effect:
| Seage: | "We’re going back, get the scabs off"; |
| Goebel: | "You’ll return when we’ve cleared the area and when we are ready to accept you back"; |
| Seage: | "That’s fine we’ll sit around the room all fucking day." |
214 Seage does not dispute that he and other employees at the domestic terminal presented for work at approximately 11.00 am and a conversation occurred between Seage and Goebel in which, according to Seage, Goebel said words to the effect of: "You will work when I fucking tell you to work." Goebel does not accept this. While it is conceivable strong language was used by Goebel and, for that matter, Seage, it really does not matter whether it was. Seage and B. Strong then returned to the meal room.
215 Between 8.00 am and 11.30 am, no Qantas employees were servicing aircraft on the Brisbane domestic ramp. At approximately 11.45 am Qantas employees at the international and domestic terminals returned to work.
2.5.4 Brisbane International Terminal on the day
216 After the domestic terminal staff had decided in favour of a four hour stop work, Mitchell attended the international terminal with Connolly. Between 8.30 am and 9.00 am, employees commenced walking off the tarmac and entering the terminal. Reid then attended a location near the lunch room. At that time the lunch room was full of 40 to 50 men.
217 Connolly conducted a meeting. He raised essentially the same issues as he had at the meeting at the domestic terminal. He told the meeting of the four hour deduction and the TWU's support if the company reserved its position on penalties. There was a motion from the floor to stop work which was put to a vote. It was passed unanimously.
218 At approximately 9.00 am or a little later Mitchell advised Goebel by telephone that there had been two votes on the international ramp in support of the Sydney international ramp and the Brisbane domestic ramp and the Brisbane international ramp would be participating in the four hour work stoppage.
219 Between approximately 9.00 am and 10.30 am, Reid was separately approached by approximately 14 employees who requested to go back to work. The employees included Lachlan Pavey (ramp leading hand) and Scott Mears (leading hand in baggage). The employees expressed concerns that the industrial action would cause damage to client airlines other than Qantas, and that those airlines did not deserve to suffer when the dispute had nothing to do with them.
220 At around 11.00 am Spence and Reid accompanied the group of employees into the lunch room to put to the meeting that they be allowed to return to work to service client airlines. Mitchell was in the lunch room at that time.
221 The proposal that those staff who wanted to be allowed to return to work to service client airlines was put to the meeting. Whilst around 13 to 15 voted in favour of the proposal this did not constitute a majority so no one went back to work.
222 In April and May 2009, Sharrock assisted Neale to conduct interviews to determine which Qantas employees and WFI employees were involved in the industrial action. Based on the interviews, Qantas payroll deducted four hours pay from the relevant employees.
223 In this section I deal with the circumstances at Adelaide airport and events specific to Adelaide which led to the meetings on 30 March 2009, the meetings themselves and what followed. Evidence was given on behalf of Qantas by Alex Howieson (at 30 March 2009 ramp services manager at Adelaide airport) and David Maycock (at 30 March 2009 Qantas customer service manager at Adelaide airport). Con Katsambis (Qantas people manager for South Australia and Northern Territory) swore two affidavits that were both read, but was not required for cross-examination. On behalf of the TWU, evidence was given by Loader and Magree. In this section, unless I indicate otherwise, the times are Australian Central Daylight Time (ACDT).
2.6.2 Generally and the weeks before
224 In March 2009 there were approximately 240 employees engaged in ramp services at Adelaide airport. The 240 comprised approximately 125 ramp and baggage employees and approximately 115 customer service staff. Of the approximately 125 employees employed within the ramp services area as at March 2009, approximately 15 were employees employed by Ready WorkForce. There are between 2 to 7 labour hire employees working in the bag room at any one time, depending on the time of day or night. Labour hire employees work alongside Qantas employees working in the bag room. The leading hand in the bag room was a Qantas employee. In March 2009 the majority of employees in the ramp services area were TWU members. There were 3 TWU commission delegates for the ramp namely Richard Hubarenko, Greg Moroney and Andrew Matisons.
225 Loader was an organiser with the South Australian/Northern Territory branch of the TWU. From time to time, Loader came on site to conduct rolling briefings with employees in the lunch room as they were on breaks. On each of these occasions the briefings were non-disruptive in that the employees continued to perform their normal tasks as and when required. Delegates raised issues with Qantas management in an ad hoc, informal way.
226 On 6 March 2009, a meeting was held in the Qantas downstairs training room at Adelaide Airport. The meeting was attended by Howieson, Moir, Moroney and Wade. The issues raised for discussion by Moir, Moroney and Wade at the meeting were rosters, task allocation, contractors, part-time employment, and the Adelaide bag room outsource.
227 Loader participated in the meeting of delegates on 17 March 2009 which resolved that meetings of members be held. The resolution is set out earlier. His evidence was to the effect that he understood that the meetings were to occur in the normal course, that is, rolling meetings with members in between servicing planes. In view of a conversation Howieson accepts she had with Loader (discussed shortly) I accept this evidence.
228 Following the meeting, Loader contacted Howieson to request a further meeting for 24 March 2009 to be attended by Moir, Moroney, Wade and Hubarenko. Loader told Howieson words to the effect that the reason for the meeting was to further discuss the matters raised at the 6 March meeting.
229 On 24 March 2009 the further meeting was held and attended by Howieson, Loader, Hubarenko, Moir and Moroney. The meeting was conducted in Howieson’s office at Adelaide airport. Loader raised the same issues raised at the 6 March 2009 meeting and requested further information from Howieson regarding those issues.
2.6.3 The Adelaide Airport on the day
230 On 30 March 2009, there were 63 Qantas employees rostered on the ramp and the baggage room. The rosters record that on 30 March 2009 Hubarenko was rostered to work from 12.00 pm until 9.30 pm, but this was changed to commence at 1.35 pm until 9.30 pm and Moir was rostered to work from 9.30 am until 7.00 pm, but this was changed to 6.30 am until 4.00 pm. At 8.14 am Gallacher rang Loader (a 38 second call). Gallacher told Loader that members in Sydney were holding mass meetings at the domestic and international airports to discuss the effect of Qantas' move to outsourcing. While Loader accepted that a reference to mass meetings might involve a reference to stoppages he also said it would also be used in reference to a large body of the people attending a meeting. Gallacher told Loader to go to Adelaide airport and speak to the members. He was told by Gallacher to advise the members that the members in Sydney were meeting and to advise them that "we recommend" that all Qantas members at the Adelaide airport voice their disapproval of Qantas' move to outsourcing and call upon Qantas management to reverse the decision.
231 At approximately 9.10 am, Loader telephoned Howieson. They had a conversation in which Loader advised he was coming to the airport for a meeting and, when asked by Howieson what the meeting was about, Loader told her it was about contractors and outsourcing. He was given permission to hold a meeting.
232 At 9.21 am Gallacher rang Moir, the TWU delegate at Adelaide airport. The call was fairly lengthy, two minutes and 47 seconds. There is no direct evidence about what was said. Neither gave evidence. However a clear inference can be drawn that Gallacher discussed with Moir what might occur that morning.
233 At approximately 9.45 am Loader arrived at Adelaide Airport accompanied by Magree. Loader and Magree were wearing TWU shirts. They went to the lunch room.
234 Howieson approached Loader in the lunchroom. Howieson asked Loader whether he was ready to get started with the meeting. During this conversation Loader said that he was waiting for some people to come off planes and he would then start the meeting. Loader said words that indicated Howieson understood he was conducting rolling briefings. In this sense, at least at the outset, Loader was proposing a meeting in accordance with usual practice. Howieson agreed in evidence that the meeting was occurring with her express permission. Loader shortly thereafter commenced the meeting. It probably started at about 10.00 am though it could have been a little earlier.
235 Initially the meeting in the lunch room was conducted on the basis employees entered and left the lunch room to service aircraft. Howieson observed this, that is, employees leaving to service aircraft. At some time after the meeting commenced, Howieson interrupted the meeting and had a conversation with Loader. She asked him how long he was going to be because she had an aircraft on the ground. A little later Howieson interrupted the meeting again. At this time Loader was leading the meeting and approximately 39 employees were in the lunchroom as was Magree. Loader accepted in cross examination that would be a very large percentage of the employees rostered on that day. Howieson said an Air New Zealand aircraft was awaiting servicing and employees needed to state their intentions. Loader asked Howieson if he could have two more minutes with the employees. Howieson approved Loader having a little more time. She was content for them to complete the meeting and get back to servicing the aircraft. By this time operations were being disrupted in the sense that this aircraft was not being serviced when it should have been. Loader accepted in cross examination that he knew that, in this sense, the meeting had become disruptive but continued with the meeting.
236 During the meeting Loader spoke of Qantas doublecrossing employees, referred to the Perth tender and the SIT tender by Jetstar and his belief that the work had gone to Aero-Care. Comments were being shouted from the floor and the workers in the room were angry.
237 Loader and Magree approached Howieson outside of the meeting. This was probably at about 10.25 am though it could have been earlier. There was a difference between Loader’s and Howieson’s evidence about what was said. Loader's account was that he attended Howieson’s office and advised her that the employees had voted to stop servicing planes for the time being. Howieson's account was that she was told by Loader that they were going to stop work for four hours in support of the issues in other ports. Howieson indicated she wanted to address the employees to which Loader responded they were not going back to work because that was the decision they had made and the issue was much bigger than her and him and that is how it panned out.
238 Loader's account is broadly supported by the evidence of Magree. Howieson's account is supported by the evidence of Maycock which was to the effect that she spoke to him at approximately 10.20 am and told him that Loader had told her the TWU members would hold a four hour stop work meeting and would not be operating on the tarmac or doing any of the work. However Howieson's record of interview with representatives of the Ombudsman taken about a week after the events does not contain an account of Loader saying the membership had decided to stop work for four hours. Had Loader said this, it is highly likely it would have been recounted by Howieson in the interview. I am not satisfied that Loader said there was to be a four hour stoppage. It is more likely that the stoppage crystallised into a four hour stoppage after the next event involving Howieson speaking to the membership.
239 At this point, three phone calls should be noted. At 10.06 am Forno rang Gallacher (a 38 second call). At 10.08 am Gallacher rang Forno (a 23 second call). At 10.16 am Gallacher rang Loader (a one minute 3 second call).
240 Howieson went to the lunch room after her conversation with Loader. She said she understood that the employees were stopping work and, on this basis, Qantas would be docking four hours pay at a minimum as this was a legal requirement. She said the course of action was illegal and asked the employees to reconsider their decision to stop work. The employees did not respond to this request. She directed them to return to work. There was probably also a discussion about whether the workers should service the Air New Zealand plane and what was going on in Sydney. In cross examination she accepted that she was asked by one or more employees whether, if they returned to work if they would be paid. Her response was that the stoppage was illegal and they would be docked four hours pay.
241 Howieson also told the meeting that if there was a work stoppage, the management contingency plan would be rolled out. As a part of the contingency, employees could remain in the lunch room or leave the workplace. However the employees were expected to behave towards the contingency team in a respectful manner and free of harassment, as they would expect to enter their own workplace. Howieson would be managing the contingency team. If the OHS representatives had concerns with any of the contingency team members and their level of training they should see Howieson immediately. Contractors would remain on site working, and it was expected that they would also be free of any harassment or intimidation.
242 Howieson then left the lunch room. Loader and Magree remained on site. Howieson then went to the belt room. At that time two Qantas employees were working in the belt room. Howieson asked the two Qantas employees whether they knew there had been an employees’ meeting in the lunchroom and the Qantas employees responded that they did not. One asked what the stoppage was about and Howieson responded with words to the effect that he should ask the TWU representatives. Both Qantas employees then walked off the job.
243 Howieson advised the contractor employees in the belt room that they would be engaging in illegal action if they chose to join in the stoppage. The contractor employees in the belt room agreed to continue working. Howieson then requested the contractor employees report any incidents of poor behaviour towards them.
244 Approximately four aircraft were dispatched by the contingency team without bags. The contingency team were the only group performing work at this time. No Qantas employees were performing ramp services, servicing aircraft or performing pushback. On a typical Monday in March 2009 Qantas would have four to six teams of six Qantas employees to service aircraft between 9.00 am and 2.00 pm. Normally at this time on a Monday morning, there would be a group of Qantas employees working in the baggage room who would be loading baggage into ULDs and onto trolleys to be transported to aircraft. There would also be a number of teams performing ramp services, being one team servicing international and at least another three to four teams servicing domestic. The pushback function is usually performed by ramp employees.
245 During the time the contingency work was being performed a number of staff and leading hands were in the lunch room and surrounding area. While the contingency plan was in operation no Qantas employees performed work, with the exception of three members of the OHS committee Wade, Moir and Tony Heaven (a senior airline services operator) who sought and obtained permission to check aircraft holds for animals which might be being transported.
246 Maycock and Howieson gave evidence about conversations they had with Loader about a return to work order. Maycock's account was that he had a conversation with Loader and Moir in the lunch room at approximately 12.17 pm who were told an order had been issued and they needed to return to work. On this account, Loader said he was not doing anything until he had heard from the "powers that be". Howieson places this conversation later (at around 12.50 pm) and in the valet parking area. Loader denied Howieson's version and said he was advised of the order later and by Katsambis. The evidence on this topic is confused. I am not satisfied that a conversation about the order took place in the lunch room. A conversation about the order did take place later in the valet parking area.
247 Sometime before 1.00 pm, Spring drove Gallacher to the Adelaide airport. There was evidence about Gallacher having difficulties in getting access to the air side to address members. Nothing turns, in my opinion, about these difficulties and him declining an offer to use a room to address workers which did not involve entering a secure area. In the result Gallacher addressed workers who had left the lunch room in the valet parking area. Approximately 25 employees were present including Bender, Moir and Paul Newdick. Gallacher, Loader and Magree were also present. A woman and a cameraman were standing with Gallacher. They were filming while he was talking.
248 At approximately 1.25 pm, Loader approached Howieson. Loader said, or at the very least clearly implied, that the employees would not go back to work until they had seen the order.
249 There was a potential divergence in the evidence about how the employees became aware of the order. Howieson's version was that she attended the lunch room with a copy of the order, addressed the employees, told them everybody else had returned to work and if the employees continued with the work stoppage it would be in contravention of the order. Loader's version was that he was given a copy of the order by Katsambis and read it three times to the employees who were in the lunchroom and explained they would have to return to work even though they were not getting paid. Katsambis’ evidence is corroborative of Loader's account. I accept Loader's account. However there is no particular reason to reject Howieson's version. Both addressed the employees about the order.
250 Following the meeting, the employees followed the order and returned to work.
251 The roster for 30 March 2009 indicates that 41 employees in Adelaide were docked four hours’ pay on 30 March 2009.
252 During the time the employees had stopped work, there were significant delays to flights due to the limited capacity to load and unload the aircraft. It was a number of hours until aircraft recommenced running to schedule.
253 Many of the delayed aircraft left Adelaide airport without baggage. It took at least three days to distribute the baggage that had accumulated as a result of the stoppage. The problem was made worse by aircraft landing at Adelaide airport without baggage from other ports.
254 Passengers’ bags were missing and there were announcements made that baggage had not followed its passengers on certain flights. A large number of passengers were upset and angered by the delays and missing baggage. The AFP provided extra personnel to manage the disruptions at Adelaide airport.
255 In this section I deal with the circumstances at Perth airport and events specific to Perth which led to the meetings on 30 March 2009, the meetings themselves and what followed. Evidence was given on behalf of Qantas by Milisav (Mick) Radovanovic (Qantas ramp services manager at Perth airport), Geoffrey Owen (Qantas ramp services business support manager at Perth airport), Murray Hawgood (Qantas manager of ramp operations at Perth airport), Mark Wade (at 30 March 2009 Airport operations manager at Perth airport), Agostina Rigoli (Qantas senior advisor people at Perth airport) and Alexander Jefferis (at 30 March 2009 manager of Western Australian airports). On behalf of the TWU, evidence was given by Bebich and Burton. Evidence on behalf of the Ombudsman was given by Alan Pennington (Ombudsman fair work inspector). In this section, unless I indicate otherwise, the times are Australian Western Daylight Time (AWDT).
2.7.2 Generally and the weeks before
256 By March 2009 there were approximately 150 Qantas employees working on the ramp, approximately 85 Qantas employees working in the baggage room and approximately 80 Qantas employees working in fleet presentation. Also there were approximately 100 labour hire employees (of labour hire companies). Four of these employees were from Nationwide Recruitment Services ("NRS") and the remaining 96 employees were from WFI. Approximately 60 of the labour hire employees worked in the baggage room and the other 40 worked in fleet presentation.
257 Around 60 people worked in the baggage room on a normal shift. At this time the ratio of labour hire staff to Qantas employees in the baggage room was around 3/1. WFI and NRS employees were supervised by Qantas leading hands during each shift.
258 Ramp, baggage and fleet staff could be rostered at either the domestic or international terminals. The lunch room for ramp, baggage and fleet staff is located at the domestic terminal. Staff are dispatched from the domestic terminal to service international aircraft as required. There is a small lunch room available at the international terminal for staff who are rostered to work there for an extended period.
259 There is no fixed number of TWU commission delegates for Qantas at Perth Airport and the number of delegates changes from time to time. In March 2009 Burton was the local TWU organiser and there were two TWU commission delegates on the ramp, Bebich and Alan Scroop. Bebich was the principal delegate and Scroop was the co-delegate. The usual practice during this period was that delegates were able to spend time speaking with individual members on the ramp during any down time during their shift.
260 On occasions a delegate would arrange for a meeting with the ramp employees. Employees were usually notified by a notice on the noticeboard which included the subject of the meeting and whether a vote would be taken. The meetings were generally held in the lunchroom. Also on occasions a meeting would be held between ramp employees and Burton. These meetings have involved topics including part time/full time conversions and the Qantas RFP. Notification of these meetings would occur by a notice being placed by the TWU on the noticeboard. The usual practice was that meetings between the TWU and ramp employees were held during down times or on a rolling basis as different groups of employees came off the ramp into the lunchroom. The effect of this practice was that the meetings would not disrupt Qantas' operations.
261 In March 2009 the usual practice was for delegates to communicate concerns or issues directly with Radovanovic verbally. This occurred on an ad hoc basis and there were no pre arranged regular scheduled meetings between ramp management and TWU delegates. Often, delegates went to Radovanovic’s office during a break.
262 Burton would also attend Radovanovic’s office to raise issues every now and then. Burton would also telephone Radovanovic to raise matters. The usual practice in March 2009 was that Burton would ring Radovanovic prior to arriving on site to advise Radovanovic he was coming in. If Radovanovic or Hawgood were not available Burton would ask a delegate to let them know.
263 During the week of 23 March 2009, Connolly spoke to Burton. He was told that they had had no success in having the RFP "pulled" at Perth but it could not be confirmed the work had been awarded to Aero-Care. Connolly told Burton that he had managed to get Qantas to defer announcement of the RFP until April. Qantas employees had submitted a tender.
264 Burton gave evidence, which I accept, that he spoke with Connolly on Friday, 27 March 2009. During the conversation, Connolly informed Burton that meetings would be held in Sydney and Brisbane on Monday, 30 March 2009 to discuss outsourcing and Connolly suggested that Burton should try to organise meetings with members on that day as well. Burton had earlier been involved in the telephone hook-up of delegates on 17 March 2009 when it was decided there should be a meeting of members to take place over the following week (after the meeting). Qantas submitted there was an air of unreality about this version of events. That was because the State secretaries, including McGiveron from Western Australia, had participated in the meeting on 25 March 2009 which had decided there would be a meeting on 30 March 2009. For my part, I do not accept this characterisation of Burton's evidence. Qantas' criticism appears to assume that McGiveron would have spoken to Burton. I would not make that assumption.
265 Burton also gave evidence that he called Radovanovic on that Friday to request permission for the meeting. Radovanovic could not recall this conversation but did not dispute that it had taken place. Such a conversation is both consistent with the usual practice and also with Burton having been encouraged by Connolly earlier that day to call a meeting on Monday. I accept Burton's evidence.
2.7.3 The Perth Airport on the day
266 On 30 March 2009, there were 17 WFI employees rostered on shift. Eight WFI employees were on duty at 7.00 am, and the other nine WFI employees commenced work after 7.00 am. There was one NRS employee rostered to work in fleet presentation. There were 137 Qantas employees rostered on the ramp or in the baggage room. Fifty-three Qantas employees were on duty at 7.00 am, 20 Qantas employees commenced work during the disruption and the remaining 64 Qantas employees commenced after the disruption (discussed later) had ended.
267 The roster indicates that on 30 March 2009 Bebich and Garry Byrne were rostered to work from 4.30 am to 2.00 pm.
268 At around 5.00 am, Bebich left a message on Radovanovic’s telephone. Radovanovic’s evidence was to the effect that the message said Burton was on his way to the domestic terminal as something was happening on the east coast and they would not do anything there unless told by the TWU state office. In his affidavit Bebich did not dispute this evidence. I accept it. The Ombudsman submitted Bebich's description was imprecise and/or evasive. He also pointed to the time of the call and Bebich's evidence that, in effect, he was concerned about how early it was as indicating that the meeting was being organised as a matter of urgency and early as part the plan for disruption which he failed to communicate. I think this is inviting too harsh a judgment. The submission assumes a level of knowledge on the part of Bebich which is not established on the evidence.
269 At 5.54 am Connolly rang Burton (a 50 second call) and two minutes later rang McGiveron (though the call was only 12 seconds). By this time, Connolly had spoken to Pieri a few minutes before (for 53 seconds). Qantas invited me to infer that Connolly was telling Burton about what was going on at SIT and Brisbane and that the reason for these calls was to coordinate these stoppages. Connolly, it was submitted, was ringing Burton to confirm the meetings were taking place as planned. Connolly agreed in his evidence that these phone calls did concern the meetings that were occurring across the country and he was getting an update as to what was going on in each of the ports for which the meetings had been planned. I doubt that Connolly was, in any real sense, co-ordinating what was occurring. It was not, in my opinion, possible to do so. That said, I accept that Connolly was probably ringing to ensure that Burton was taking steps to ensure that a meeting would take place.
270 At approximately 6.00 am, Radovanovic telephoned Bebich and asked if everything was alright. Bebich said words to the effect that everything was fine and that he did not know what was happening, but that Burton was just going to come and have a meeting. Again the Ombudsman criticises Bebich in a similar way as he did in relation to the earlier recorded message. For the same reasons I reject this criticism.
271 Owen gave evidence that at about or just before 6.00 am, Owen had a conversation with Bebich. The conversation included words to the effect of:
Owen: "What’s happening?";
Bebich: "There are some issues happening at Sydney at the moment";
Owen: "Oh, what’s that over?";
Bebich: "Oh, outsourcing, baggage, you know, the RFP";
Owen: "It sounds like our guys have done a really good job on the bid, sounds positive";
Bebich: "Oh they’ll never get it."
272 Bebich denied this conversation took place pointing to the fact that before 7.00 am WST all he knew was that there were meetings on the east coast. Qantas submitted this assertion was inconsistent with what Burton said he told Bebich when he phoned him. However the Burton-Bebich calls did not occur till 6.27 am, 6.34 am and 6.49 am. I am not satisfied this conversation took place as Owen said. There may have been such a conversation but later in the morning. Ultimately, whether it did not and when it took place is of no particular moment.
273 At approximately 6.50 am, an aircraft due to depart at 6.50 am had not had its loading completed. Owen spoke to the leading hand and asked him what was going on. The leading hand said words to the effect of, "oh, it’s just taking this long." At approximately 7.00 am, Radovanovic attended the ramp. At that time there were between 50 to 70 employees on duty at that time in the ramp, baggage and fleet areas, and they were working. At around 7.00 am, Owen attended the lunch room corridor area. At that time that there were ramp employees coming into the lunch room. The employees coming into the lunch room should have been out on the ramp servicing aircraft.
274 According to Burton and Bebich, Burton arrived at about 7.00 am and met with Bebich. It took 10 minutes or so for a pass to be issued. I have no reason to doubt this though some allowance should be made for the times being only approximate. Burton asked Bebich to get the members into the lunch room. Bebich and Burton walked through the belt room at which time Bebich told three or four Qantas leading hands that Burton was having an important meeting and they should attend. Bebich observed some WFI employees stop work and follow the Qantas leading hands towards the lunch room. When Burton and Bebich arrived at the lunch room there were some ramp workers there, perhaps 10 or 15. Bebich told them Burton was going to have a meeting and they began to use their phones. I infer (as Bebich assumed) they were calling others to come to the meeting.
275 Owen gave evidence that shortly after 7.00 am, he had a conversation with Bebich. The conversation included words to the effect of:
Owen: "What’s going on?";
Bebich: "Oh, they’ve stopped work";
Owen: "Can we load these bags?";
Bebich: "No";
Owen: "What’s the dispute over?";
Bebich: "Baggage area"
276 Bebich did not recall this conversation taking place though he did not deny that it did, unlike his evidence in relation to other conversations. I accept it did occur though precisely when is uncertain. At around this time, Owen had a conversation with Radovanovic in the ramp administration office. Owen said to Radovanovic words to the effect of "they’re all off".
277 Just after 7.00 am, Radovanovic attended the baggage belt area. At that time the baggage belt was stopped with bags on it and there were no workers on the baggage belt. At that time there should have been both Qantas employees and WFI employees removing bags from the belt and loading them to be taken out to departing aircraft. At approximately 7.00 am, Jefferis attended the baggage room. There was no activity in the baggage room at that time.
278 There was some evidence that Bebich could be observed on CCTV footage turning off the baggage belt and that this occurred at 6.53 am. Aspects of this evidence are unsatisfactory and I do not accept that it proves he did. But, I infer, someone involved in the impending stoppage did.
279 Radovanovic gave evidence that at about 7.15 am he approached Burton and Bebich in the corridor outside the front of the ramp administration area and had a conversation. The conversation included words to the following effect:
Radovanovic: "Is anyone going to come speak to me about what is going on here?";
Burton: "Are you going to pay us for four hours if we sit in the lunch room?";
Radovanovic: "No";
Burton: "Well we’re off for four hours".
280 Burton and Bebich rejected the suggestion such a conversation took place. The respondents pointed to evidence of Jefferis, the substance of which was that he and Radovanovic waited together while the meeting (to be discussed shortly) took place without knowing what the outcome was and whether there would be a stoppage of a longer duration or a return to work. Having regard to this evidence I am not satisfied this conversation between Radovanovic and Burton took place. Also, it would have involved Burton having an extremely high level of assurance almost to the point of certainty about the outcome of the meeting. Even if he might then have believed (assuming the conversation took place) what the outcome might be, it is difficult to accept he could then held such a high level of assurance.
281 At this time it was busy at the airport and a backlog of baggage was beginning to accumulate from incoming aircraft which had not been serviced.
282 At some time probably 7.15 am or perhaps a little later, a meeting commenced in the lunch room in the sense that Burton addressed the members. It went on for a quarter of an hour or so. One matter of significance did not occur in the meeting. Bebich gave evidence, the import of which was that usually when a meeting with Burton started there would be a request for volunteers to go out with the aircraft. This was the mechanism to create a skeleton crew to attend to aircraft while a meeting of members was taking place. Bebich said that on this occasion this did not occur. His explanation was that things were then getting out of hand. He said things were ballistic. I accept that tensions may have been running high given the uncertainty about job security that would be likely to attend a RFP process, then not yet formally complete in relation to Perth in so far as the members knew.
283 During cross examination, Burton was asked questions about his knowledge of whether, during the meeting, Qantas' operations were being disrupted. His evidence was that at that stage he had not realised everybody had stopped (working). Equally, however, he agreed that at no stage did he do anything to ensure that people continued to work. His explanation was that he was conducting a meeting. Even accepting that he did not know with certainty the operations were being disrupted, he would have known that the normal practice was not being followed. Also accepting that the meeting was far from calm and that he was personally the subject of criticism, it is difficult to accept that he was not aware that such a fundamental step of securing a skeleton crew had not taken place.
284 During the meeting Burton addressed the members about job security and outsourcing. He told them they were not in the running of the work in the bag room and that Aero-Care had won the work not using EBA 7 rates and conditions. He said that there was a risk that long-term Qantas may try to outsource their jobs the labour hire firms. He also told them that members in the eastern states had stopped work and were holding meetings over safety issues and the decision to outsource the Jetstar work at SIT to Aero-Care. He accepted that he knew that these comments would upset the employees and encourage them to take industrial action if industrial action was called for. He also accepted that once everyone was in the lunch room they would probably be docked four hours.
285 On the evidence of Radovanovic, at about 7.45 am, he had a conversation with Burton and Bebich. Hawgood was also present. The conversation included words to the following effect:
Radovanovic: "What is going on?";
Burton: "This is all over the outsourcing of the baggage room and we are supporting our brothers in Sydney";
Burton: "If you remove the RFP we’ll go back to work";
Radovanovic: "We can’t. The RFP’s in process, and there are other groups that are in the process of providing tenders. I have no authority to withdraw the RFP";
Burton: "Will the baggage handlers be docked for four hours pay?";
Radovanovic: "The baggage handlers will be docked for four hours pay";
Burton or Bebich: "Well, if you are not going to pay us for four hours, we’ll stay in the lunchroom for four hours"
286 Hawgood's account of the conversation was substantially the same. It was put in issue by Burton and Bebich though, on their account, the question was asked about the four-hour payment and the answer was the employees' pay would be docked. Whether Burton or Bebich asserted that the employees would remain in the lunch room or that they would go back to work if the RFP was lifted is probably of limited consequence in view of the fact that after this meeting Burton returned to the meeting of members and advised them that they would not be paid if they returned to work. At that point the meeting resolved not to return to work if they were not to be paid. The feelings of the membership were then running fairly high.
287 Wesley Frieir was the contact point for the WFI employees working out at the Perth Airport. Frieir convinced approximately five of the WFI employees to return to work. When those five employees went back in the lunch room to get their gear they were told by Qantas employees in the lunch room they would be called ‘scabs’ and would get a hard time if they returned to work. The five WFI employees told Frieir that they would not return to work. The WFI employees did not come back to work.
288 A contingency team organised by (and constituting) Qantas management started working at approximately 8.30 am to 8.45 am. There were about six people in the contingency team. Normally at this time of day there would have been four or five teams of five people operating in ramp services on the tarmac for both the domestic and international terminals. At 8.30 am, there was no ramp services activity occurring. When Hawgood was in the domestic terminal baggage room between 8.30 am and 8.45 am the belt was full of baggage, both on it and around it. There was no one taking luggage to and from the aircraft.
289 An aircraft due to depart at 6.50 am had about 15 bags that had not been loaded. The contingency team had to unload all of the bags on that aircraft in order for it to be able to depart. During the stoppage there were no Qantas employees or WFI employees undertaking their normal tasks.
290 According to Owen, at about 9.20 am, in a conversation overheard by him, Burton said to Bebich words to the effect of, "And by the way Mark, I’d like to know who in the TWU has continued to work, and we’ll do something about that." Bebich denied this conversation took place. There is always a risk that an "overheard" conversation is misheard. Equally that such a conversation occurred, in the present context, is not out of the question. However in the face of Bebich's denial I do not accept it took place.
291 At around 10.00 am, Jefferis and Radovanovic had a conversation or conversations with Burton and Bebich. The accounts of the conversation or conversations differed. What is clear, and I find, is that there was a discussion about an order under s 496 that had been issued by the AIRC requiring the employees to return to work. Also discussed was the fact that the employees would have their pay docked. When the conversation or conversations concluded Burton and Bebich left the office. As they left the office, Burton said that he had advice from the national TWU office that if the employees are covered by worker’s compensation then they should be paid.
292 At about 10.35 am, Jefferis rang Burton to ask him what was happening. This conversation included words to the following effect, namely that Burton said he was waiting for some of the employees to return from the international terminal and that he was rounding them all up so that he could speak to them together.
293 Qantas led evidence from a number of witnesses about conversations and events that occurred thereafter designed to establish that Burton was hastening slowly in marshalling the employees and getting them to return to work. Some of the details of this evidence were disputed. However the fact that it took an hour after Burton was notified of the order supports the conclusion, and I find, that Burton was not moving with alacrity to persuade or direct the membership to return to work in the face of the order of the Commission.
294 At 11.00 am, the Qantas employees and the WFI employees commenced returning to work.
295 In the days following the stoppage, Qantas identified those employees who had their pay docked four hours by reference to the swipe records for Qantas employees for ramp and baggage.
296 During the stoppage, all of the delayed bags were stored, and passengers were sent on flights without their baggage.
297 Once the workers had returned to work at around 11.00 am, Qantas had to clear the bags in the baggage area so that the workers could get near the baggage belt. As a result, the first few flights after 11.00 am were sent with passengers only and without baggage. It also meant that there were delays up until about 12.00 pm or 1.00 pm.
298 Operations did not return to normal until about 5.00 pm or 6.00 pm that evening. At that time there was still quite a volume of the backlog bags that had to be moved. Some bags were in containers but many were stacked outside in the staging area.
299 Approximately 20 containers of additional baggage were loaded on the flights to the east coast that departed after midnight on the morning of 31 March 2009.
300 On the morning of Tuesday 31 March 2009, there were 23 baggage barrows loaded with bags from the day before. Each barrow hold between around 30-40 bags. There were approximately 700-900 bags from the day before. On about the afternoon of Tuesday 31 March 2009, Qantas was still clearing some of the bags. At this point Qantas was continuing to offload freight to facilitate clearing the backlog of outstanding bags.
301 At 7.30 am on Wednesday 1 April 2009, Qantas still had three containers of baggage that had been left on part of the tarmac that were to go out on the aircraft that day. These were backlog bags that had been checked in at Perth Airport by passengers flying from Perth and also bags from incoming flights belonging to passengers who had flown into Perth from other ports that had also been disrupted. Like Perth Airport, those ports had also sent out their backlog bags on flights which had arrived later in the evening of 30 March 2009.
302 As baggage did not arrive with flights from Adelaide, Brisbane and Sydney airports on 30 March 2009, excess baggage had been sent to Perth Airport to be reunited with the passengers.
303 The disruption caused by the action affected a lot of passengers on the day. It took some days for people who were flying to domestic ports to receive their bags. Additional delays were incurred by passengers who were transiting to international ports or travelling further. Bags headed to destinations such as Sydney and Melbourne were cleared relatively quickly because Qantas had a number of flights departing from Perth Airport to these destinations.
304 The disruption was more significant for destinations without daily flights scheduled, such as flights to country areas or connections to flights overseas. It took a number of days before those bags were reunited with the passengers.
305 A lot of work went into clearing baggage. There was a lot of paperwork to process and Qantas had to locate passengers. Baggage services handle lost baggage. A file is created for every lost bag so that Qantas can meet security requirements and so that it can keep track of the bag and follow it wherever it goes until it is reunited with the passenger. Baggage services had to re-tag all of the backlog bags and had to create individual files for each bag.
306 From around 15 April 2009 to around 12 June 2009, Rigoli, Radovanovic, Mark Wade, Hawgood, Steve Cloghan (business support manager), Des Freel (business support manager), and Deanne Saffioti (people advisor) conducted interviews with employees.
307 In this section I discuss the various causes of action maintained by Qantas and the Ombudsman against the various respondents and whether the respondents are liable. I also discuss whether Qantas is liable on the TWU's cross-claim. In relation to each cause of action I briefly describe Qantas' pleaded case. This is done not to identify and confine the issues but rather to provide a context for the subsequent discussion. As I indicated at the outset of these reasons, the parties appeared to accept that the case each applicant maintains and the respondents must resist is, in effect, an amalgam of the cases pleaded by Qantas and the Ombudsman. That is not to say the pleadings are irrelevant. They identify the parties and the essence of the case against each of them.
3.2.1 The statutory provisions
308 Qantas and the Ombudsman alleged each of the respondents to their respective claims have engaged in conduct constituting industrial action in contravention of s 494 of the WR Act. Apart from s 494, there are a number of other provisions which bear upon the operation of that section. The first is s 4(5) which addresses what is comprehended by "engaging in conduct". The section provides:
In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.
309 The next relevant section is s 420 which identifies what conduct constitutes industrial action. The section provides:
(1) For the purposes of this Act, industrial action means any action of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees;
but does not include the following:
(e) action by employees that is authorised or agreed to by the employer of the employees;
(f) action by an employer that is authorised or agreed to by or on behalf of employees of the employer;
(g) action by an employee if:
(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
…
(2) For the purposes of this Act:
(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that employees are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
Meaning of lockout
(3) For the purposes of this section, an employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts (except to the extent that this would be an expansion of the ordinary meaning of that expression).
Burden of proof
(4) Whenever a person seeks to rely on subparagraph (g)(i) of the definition of industrial action in subsection (1), that person has the burden of proving that subparagraph (g) (i) applies.
310 Section 494 itself provides:
(1) From the day when:
(a) a collective agreement; or
(b) a workplace determination;
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not organise or engage in industrial action (whether or not that action relates to a matter dealt with in the agreement or determination).
Note 1: This subsection is a civil remedy provision: see subsection (4).
Note 2: Action that contravenes this subsection is not protected action (see section 440).
(2) For the purposes of subsection (1), the following are covered by this subsection:
(a) an employee who is bound by the agreement or determination;
(b) an organisation of employees that is bound by the agreement or determination;
(c) an officer or employee of such an organisation acting in that capacity.
(3) From the time when:
(a) a collective agreement; or
(b) a workplace determination;
is made until its nominal expiry date has passed, the employer must not engage in industrial action against an employee whose employment is subject to the agreement or determination (whether or not that industrial action relates to a matter dealt with in the agreement or determination).
Note 1: This subsection is a civil remedy provision: see subsection (4).
Note 2: Action that contravenes this subsection is not protected action (see section 440).
Civil remedy provisions
(4) Subsections (1) and (3) are civil remedy provisions.
(5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1) or (3):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(6) The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(7) An application for an order under subsection (5), in relation to a contravention of subsection (1), may be made by:
(a) the employer concerned; or
(b) a workplace inspector; or
(c) any person affected by the industrial action; or
(d) any other person prescribed by the regulations.
(8) An application for an order under subsection (5), in relation to a contravention of subsection (3), may be made by:
(a) the employee concerned; or
(b) an organisation of employees if:
(i) a member of the organisation is employed by the employer concerned; and
(ii) the contravention relates to, or affects, the member of the organisation or work carried on by the member for that employer; or
(c) a workplace inspector; or
(d) any person affected by the industrial action; or
(e) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provisions, see Division 3 of Part 14.
311 Contravention of s 494 (and other provisions) can arise even though a person has not directly engaged in industrial action. This is addressed by s 728 which provides:
(1) A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.
(2) For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
312 If an individual has engaged in proscribed conduct, including industrial action, a body corporate (including a registered organization of employees) can be liable for that conduct in certain circumstances. This is addressed by s 826 which provides:
…
(2) Any conduct engaged in on behalf of a body corporate by:
(a) an officer, director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b) any other person at the direction or with the consent or agreement (whether express or implied) of an officer, director, employee or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the officer, director, employee or agent;
shall be taken, for the purposes of this Act or the BCII Act (as the case requires), to have been engaged in also by the body corporate.
…
313 The operation of the provisions set out in the preceding section (or their statutory antecedents) has been discussed in a number of authorities. If on point, I am bound to follow the judgment of a single judge unless I consider it is plainly wrong and I am bound to follow judgments of the Full Court. The first section addressed by the authorities is s 4(5).
314 The predecessor to s 4(5) was s 4(8) of the pre-Work Choices WR Act, which was identical in its terms. In Alfred v Wakelin (No. 2) (2008) 176 IR 430 at [80] Jagot J said:
… Section 4(8) is an aid to interpretation. This section operates so that where the words "engaging in conduct" (or their equivalent) appear elsewhere in the Act the meaning to be given to those words is extended to include being directly or indirectly a party to or concerned in the conduct.
315 The effect of s 4(8) was considered by Kenny J in Emwest Products Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588. Her Honour observed at [33] – [34]:
… The effect of s 4(8) is that the union engages in conduct, relevantly industrial action, if the union is "directly or indirectly, a party to or concerned in" the conduct. The union will be directly or indirectly concerned in the industrial action if it procures Emwest's employees to impose bans, limitations or restrictions on their work, or to stop work, as the union has indicated it intends to do by notices delivered under s170MO. In referring to a "party to or concerned in" conduct, s4(8) may on occasion expand the application of the Act. In the case of s170MN(1), if it does, it does not affect the underlining meaning of the expression "industrial action". Contrast Pioneer Concrete Services Ltd v Galli [1985] VR 675 at 707.
The expression "concerned in" is of general import, and it can cover a wide range of activities depending on the context in which it is used and the facts of the relevant case. In Ashbury v Reid [1961] WAR 49 at 51, the Full Court of the Western Australian Supreme Court held that a defendant to a charge under s54(1) of the State Forestry Act 1918 (WA) would be "directly or indirectly concerned in" the commission of the offence if "on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connexion between him and the offence". Other courts have attributed much the same meaning or operation to the expression "concerned in": see Australian Securities and Investments Commission v Doyle (2001) 38 ACSR 606 at [215]; Kilpatrick Green at 15; Lam v The Queen (1990) 46 A Crim R 402 at 405; R v Tannous (1987) 10 NSWLR 303 at 307-308; and R v Buckett (1995) 132 ALR 669 at 674. In Yorke v Lucas (1983) 49 ALR 672 at 682, the Full Court of this Court held that the words "a party to" a contravention in s75B(c) of the Trade Practices Act 1974 (Cth) referred to a person who is aware of the elements of the contravention, and who participates in, or assents to the contravention. If s170MN(2) left any room for doubt about the potential application of s170MN(1) to a union, this doubt is removed by s4(8) of the Act.
316 The Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Clarke also discussed the operation of s 4(8). The Court said at [26]:
Stripped to its essentials, the case for breach of s 170MN was that the organisers attended the meeting on 29 July 2004 arranged by the job representative at the request of the workers but counselled against strike action and urged compliance with the dispute resolution procedures and the Certified Agreement generally. Nonetheless, the employees decided to strike. After the meeting, the job representative and the Union organiser consulted with the employer’s representative and conveyed the reason for the stoppage. In our respectful opinion, those actions could not reasonably be held to make either the Union or the organisers a party to, or concerned in, the withdrawal of labour so as to conclude that they engaged in the particularised industrial action pursuant to s 4(8) of the Act. Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct — the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v R (1985) 156 CLR 473 at 479–480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words "party to, or concerned in" reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E–308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [34], must participate in, or assent to, the contravention.I now turn to authorities concerning the question of what is "industrial action", addressed in s 420.
317 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17, French J explained that in order for a ban or restriction on the performance of work to constitute "industrial action", it was necessary for that ban to be at the least hortatory, if not authoritative and binding upon the employees concerned. His Honour said at 30 - 31:
While par (a) of the definition relates to the "performance of work", par (b) is more broadly expressed. It refers to "a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work". The central meaning of the term "ban" in the industrial, as in its ordinary usage, is to "prohibit or interdict": the Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a "ban". And while the notion of "limitation" or "restriction" may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person to whom they are directed.
318 Organising a meeting of employees during work time, even without the employer’s permission, will not necessarily constitute the imposition of a "ban, limitation or restriction" upon the performance of work. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375, Le Miere J said at [30]:
In my opinion, convening and conducting a meeting of workers during working hours might, but will not necessarily, constitute a ban, limitation or restriction on the performance of building work and hence be building industrial action. Such conduct is capable of constituting a "ban, limitation or restriction on the performance of building work" if its purpose is to prevent or deter or discourage employees from performing building work and it purports to be at least hortatory, if not authoritative and binding, upon the person or persons to whom it is directed.
319 Furthermore, pursuant to s 420(1)(e) action by employees will not constitute "industrial action" for the purposes of the WR Act if the action is "authorised or agreed to by the employer of the employees". Organising or conducting a meeting of employees, even if the meeting causes disruption to the performance of work, will not constitute "industrial action" if it is agreed to or authorised by the employer. This is discussed later.
320 Where s 170MN required that the industrial action be "for the purpose of supporting or advancing claims against the employer in the respect of the employment of employees whose employment is subject to the agreement or award", there was no such requirement in s 494(1). Further, s 170MN only prohibited engaging in industrial action, whilst s 494 prohibited both organising and/or engaging in industrial action.
321 In Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union Kenny J said of s 170MN at [42]:
… Where there is on foot a certified agreement, the nominal expiry date of which has not yet passed, s 170MN(1)prohibits industrial action by an employee whose employment is subject to the agreement, or by a union bound by the agreement or officer of such union, "for the purposes of supporting or advancing claims against the employer in respect of the employment of employees whose employment is a subject to the agreement".
…
322 In Email Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2000) FCA 1932 Madgwick J said, in relation to s 170MN at [12]:
… In the case of organisations, if they organise, incite or otherwise encourage industrial action it seems to me that they would be caught by the notion of engaging in industrial action under the Act.
323 Section 728 of the WR Act addresses accessorial liability. It provides that a person who is "involved" in a contravention of a civil remedy provision is treated as having contravened that provision.
324 For the purposes of s 728 of the WR Act, a person must have engaged in some act or conduct which "implicates or involves him or her to the contravention" and that person has had a "practical connection" to the contravention. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228, Le Miere J at [29] said:
A person is not involved in a contravention unless he assents to or concurs in the conduct which constitutes the contravention. To be involved in a contravention requires that the person have a practical connection with the contravention. However, it is not necessary that the person physically do anything to further the contravention. It is sufficient if the person, by what he said and agreed to do, in fact became associated with and thus involved, in the relevant sense, in the conduct constituting the contravention: see R v Tannous (1987) 10 NSWLR 303 at 308.
325 It was also said in Leighton Contractors v Construction, Forestry, Mining and Energy Union that a person could become involved in industrial action by omission. Le Miere J observed at [36]:
… McDonald did more than merely attend a meeting and recommend to the Employees that they return to work. It is open to the tribunal of fact to infer that McDonald convened the meeting and presided over it. McDonald acted as the spokesman for the striking Employees in presenting its response to the Joint Venture representative and in speaking about the matter on the radio. It is open to infer that McDonald associated himself with the unlawful industrial action.
326 Another example of liability by omission was a decision of Middleton J in Amcor Packaging (Australia) Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (2006) 157 IR 32, which concerned ss 494 and 496 of the WR Act. His Honour said at [15]:
I am not in a position to conclude one way or the other whether the actions of the delegates are to be attributed to the respondent, both as a matter of law or fact. I have been referred to a number of authorities dealing with the issue of agency and authority, including Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530; 102 IR 359 and Yallourn Energy Pty Ltd v Construction, Forestry, Mining and Energy Union [2000] VSC 479. In addition I have been taken to the Rules of the union, which indicate some limited authority within which the delegates operate in the union. It seems to me, however, that there are a number of matters that need to be investigated as to the position of the delegates, their authority and their actual role in the industrial action, which in my view raise a serious question to be tried. There is sufficient evidence to find that the officers of the respondent, by the observing and the failing to stop the delegates, have implicitly, if not expressly, involved themselves in the conduct of the delegates, which can be attributed to the union.
327 Statutory vicarious liability arises by operation of s 826. Section 349 of the WR Act was the predecessor to s 826 before the Work Choices Amendments Act was passed in 2006. The operation of s 349 was discussed by the Full Court in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union. The Court said at [76] – [78]:
In light of the requirement to prove authority to establish either vicarious liability or liability under s 349, it is next necessary to consider what kind of authority must be proved in each case. If it is sought to be proved that an act was authorised, actual authority must be shown, although the authority might be a broad one, encompassing a class of acts into which the act complained of falls. Furthermore, it is well established that, once authority to engage in certain tasks is proved, vicarious liability extends to unauthorised modes of performing those tasks: see Macken, O'Grady and Sappideen The Law of Employment 4th ed, 1997 pp 356 and 360. If it is sought to be proved that the employer is liable because he or she failed to take proper to steps to prevent the acts complained of (in, for example, contempt proceedings involving breaches of an undertaking), it must be shown that there were circumstances which required the employer to take steps and that the steps, if any, taken by the employer were insufficient to avoid vicarious liability.
Section 349(2) operates where the relevant conduct is engaged in by an "officer, director, employee or agent" of the body corporate "on behalf of" the body corporate and "within the scope of his or her actual or apparent authority". It will be recalled that s 349 is in substantially the same terms as s 84 of the Trade Practices Act. In Walplan Pty Ltd v Wallace (1985) 8 FCR 27, Lockhart J (with whom Sweeney and Neaves JJ agreed) said of the latter provision (at 38):
"Section 84(2) is an enlarging provision of general application under the Act. It extends to proceedings, both civil and criminal, and is designed to eliminate the necessity to apply the various and at times divergent tests of the common law relating to a corporation's responsibility for the acts of its servants or agents. It extends those common law principles in order to facilitate proof of a corporation's responsibility."
As to the scope of the words "on behalf of", in Walplan Pty Ltd v Wallace Lockhart J said, (at 37), of the same phrase in s 84(2) of the Trade Practices Act that it:
"…is not one with a strict legal meaning and it is used in a wide range of relationships. [...] [it] casts a much wider net than conduct by servants in the course of their employment, although it includes it."
We are satisfied that Dowling was acting "on behalf of" the Union when he engaged in the conduct that contravened s 170NC. No submission to the contrary was put by Counsel for the Union.
328 One issue which arose at the hearing was whether the authorisation or agreement of the employer referred in s 420(1)(e) could be given or provided after conduct which would otherwise attract the definition of industrial action in s 420(1)(a) to (c) had, in fact, occurred. The Ombudsman submitted it could not. At least implicit in the submissions of the respondents was a contention that it could.
329 I do not view the provision as operating as narrowly as suggested by the Ombudsman. First s 420(1)(e) speaks in the present tense. The present tense ("is authorized or agreed") may simply have been used to describe the state of affairs existing at the time the conduct occurred. However a more certain way of expressing that would have been to use the pluperfect ("had been authorised or agreed"). The significance of using the pluperfect (as connoting a state of affairs which came to an end at some point in the past) was discussed by Heerey J in Migration Agents Registration Authority v Goldsmith (2001) 184 ALR 723 (at [4]):
The expression "has not met the requirements" is couched in the perfect tense. It is speaking of a state of affairs existing in the past and continuing up until the present, that is to say up until the time at which the application is being considered. The authority’s argument on the appeal necessarily involves a reading of s 290A in which the critical expression is used in the pluperfect tense, that is to say connoting a state of affairs which came to an end at some point in the past – "had not met the requirements".
330 Had the pluperfect being used then one would more readily view the paragraph as addressing authorisation or agreement given before the conduct took place. The use of the present allows for the possibility that the exception created by s 420(1)(e) might operate when the issue arises about whether conduct falls within s 420(1)(a) to (c). If the state of the conduct having been authorised or agreed exists at that time then the exception applies. Also the use of the present tense in s 420(1)(e) is to be contrasted with the use of the past tense ("was") in s 420(1)(g) which rather suggests that the exculpatory concern about an imminent (that is, the very near future) risk to health must exist prior to the action occurring. I acknowledge, however, that when the present tense is used in s 420(1)(a) when talking about the effect of the conduct, it is fairly clearly fixing on an historical fact. The use of the present tense in s 420(1)(e) accommodates the possibility that the legislature intended that the authorization or agreement could be given after the conduct took place and perhaps is a slight indication that it did. Other matters point in the same direction.
331 Some of the conduct referred to in s 420(1)(a) to (c) is unlikely to be capable of authorisation or agreement before it occurs. A person refusing to do something normally involves a situation where the person is being asked or requested (either expressly or impliedly) to do the thing and the person declines, often expressly, to do it. If this conduct was, before the event, approved or agreed to it would be odd to describe it as a refusal. It would be odd to think of an employer authorising an employee refusing to attend work or agreeing to an employee refusing to attend work before the employee did so, that is refused. Far more likely would be the sequence that the employee refused to attend work and the employer subsequently agreed to the employee not attending work. A similar analysis can be made in relation to a refusal to perform work. Likewise the conduct referred to in s 420(1)(a) has, as an element, the consequences of the conduct. That is the performance of work in a way which has the result of being a restriction or limitation or a delay in the performance of the work. One aspect of the conduct in s 420(1)(a) might not be known until after the conduct had taken place. It would be an odd circumstance for an employer to authorise or agree to conduct with a particular result before the result is known.
332 More generally these provisions operate in a legislative scheme intended to establish harmonious industrial relations. So much is apparent from many of the principal objects in s 3 and particularly object (h). At the heart of the scheme as envisaged by the legislature is an employer working cooperatively with its employees. It would be consistent with these objectives to treat the employer has having the capacity to sanction conduct by authorising or agreeing to it after it had taken place so as to remove the stigma, and the associated legal consequences, of it otherwise being industrial action.
3.2.3 The interaction between s 507 and the contract of employment
333 It is convenient, at this point when sections concerning industrial action are being discussed, to consider s 507. The section provides:
(1) This section applies if an employee engaged, or engages, in industrial action (whether or not protected action) in relation to an employer on a day.
(2) The employer must not make a payment to an employee in relation to:
(a) if the total duration of the industrial action on that day is less than 4 hours—4 hours of that day; or
(b) otherwise—the total duration of the industrial action on that day.
Note: This subsection is a civil remedy provision: see subsection (6).
(3) If:
(a) the industrial action is during a shift (or other period of work); and
(b) the shift (or other period of work) occurs partly on 1 day and partly on the next day;
then for the purposes of this section, the shift is taken to be a day and the remaining parts of the days are taken not to be part of that day.
Example: An employee, who is working a shift from 10 pm on Tuesday until 7 am on Wednesday, engages in industrial action from 11 pm on Tuesday until 1 am on Wednesday. That industrial action would prevent the employer making a payment to the employee in relation to 4 hours of the shift, but would not prevent the employer from making a payment in relation to the remaining 5 hours of the shift.
(4) For the purposes of subsection (3), overtime is taken not to be a separate shift.
(5) An employee must not accept a payment from an employer if the employer would contravene subsection (2) by making the payment.
Note: This subsection is a civil remedy provision: see subsection (6).
Civil remedy provisions
(6) Subsection (2) and (5) are civil remedy provisions.
(7) The court may make one or more of the following orders in relation to a person who has contravened subsection (2) or (5):
(a) an order imposing a pecuniary penalty on that person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(c) any other consequential orders.
(8) The pecuniary penalty under paragraph (7)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(9) An application for an order under subsection (7) may be made by:
(a) a workplace inspector; or
(b) a person who has an interest in the matter; or
(c) any other person prescribed by the regulations.
Note: For other provisions about civil remedy provision, see Division 3 or Part 14.
(10) A regulation prescribing persons for the purposes of paragraph (9)(c) may limit its application to specified circumstances.
334 In this matter, as discussed earlier, Qantas’ managers at some airports made it clear to TWU members who had attended meetings that Qantas viewed their conduct as industrial action and accordingly they would not be paid for four hours that day even if they were to resume work. Plainly enough if the conclusion that the TWU members had engaged in industrial action was correct, Qantas was bound by s 507(2) not to pay each of the members for four hours of that day even if the industrial action that day had been for less than four hours at the time Qantas made its position clear to the workforce. The qualification needs to be made that, as I view s 420(1)(e), discussed earlier, had Qantas agreed to or authorized what had occurred then the obligation imposed by s 507(2) would not have been enlivened. In addition s 507(5) prevented an employee accepting such payment in any event.
335 What then is the legal effect of the statutory prohibition on making and receiving payment on an employee's contractual obligation to work as directed? Potentially relevant principles were recently discussed by a Full Court in Coal & Allied Mining Services Pty Ltd v MacPherson (2010) 270 ALR 414. The central issue in that case was whether the employer had contravened a statutory prohibition on standing down an employee. The direct legal issue has no present relevance. However observations of members of the Full Court do. In that matter Marshall and Cowdroy JJ cited (at [38]) with apparent approval the following passage from the judgment of Lord Templeton in Miles v Wakefield Metropolitan District Council [1987] AC 539:
It cannot be right that an employer should be compelled to pay something for nothing whether he dismisses or retains a worker. In a contract of employment wages and work go together. The employer pays for work and the worker works for his wages. If the employer declines to pay, the worker need not work. If the worker declines to work, the employer need not pay. In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work.
(Emphasis added)
336 To similar effects were the observations of Buchanan J (at [66]):
Normally, the exchange of work for pay represents the fundamental consideration provided by parties to a contract of employment.
337 It has long been recognised that, at least ordinarily, there is a dependency of obligation between the employer's contractual obligation to pay wages and the employee's contractual obligation to work: see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465, Graham v Baker (1961) 106 CLR 340 at 345 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 428. However it has also been recognised that circumstances can arise where, if one party to the employment contract cannot perform their part of the bargain, it can relieve the other party from performing their part without discharging the contract, for the period of non performance by the first party: Finch v Sayers [1976] 2 NSWLR 540. This approach has been approved by at least the Full Court of the Industrial Court of New South Wales: Cachia v State Authorities Superannuation Board (1993) 47 IR 254 at 273-274 and the Full Court of the Supreme Court of South Australia: Giancaspro v SHRM (Australia) Pty Ltd (2005) 93 SASR 32 at [38] - [40]. In such a circumstance the central obligations of the contract are, in effect, suspended even if the contract itself continues on foot. In the context of considering the effect of the exercise of an express power to suspend an employee, Pincus J said the following in Reid v Australian Institute of Marine Power Engineers (1990) 33 IR 463 at 464 – 465:
In Wallwork v Fielding [1922] 2 KB 66, the question was whether a police constable was properly suspended pursuant to a statute which gave express power to suspend. That point was decided against the plaintiff, but then Lord Sterndale MR went on:
"That disposes of the first point, but a second is taken — namely, that granted the power to suspend, that does not import the power to withhold pay during the suspension. I should have thought that power to suspend the operation of a contract necessarily suspended its whole operation, including, not only the performance of duty, but also the right to pay during the period of suspension." (at 71)
There was then reference to the decision of the Court of Appeal in Hanley v Pease and Partners Limited [1915] 1 KB 698, which Lord Sterndale treated as authority for the view that:
"…if there is a power of suspension which is exercised, the whole contract is suspended, the obligations on both sides are suspended. It seems to me that is the inevitable meaning of suspension…The contract is suspended with regard to its performance by both sides, not only by one…" (at 72)
Warrington LJ and Scrutton LF agreed, the former saying
"It would be a most extraordinary thing if suspension (assuming that there is power to effect suspension) were to be so one sided that the servant were to be excused from performing his part of the contract while the employer was to remain liable to perform his. It seems to me that suspension suspends for the time being the contractual relation between the parties on both sides…" (at 75)
The same view of the general effect of a power of suspension in a contract of employment was taken by the Court of Appeal in Bird v British Celanese Limited [1945] 1 KB 336.
338 While most of the authorities referred to in this section concern the suspension of the employer's obligation to pay in circumstances where the employee is unable or unwilling to discharge their obligation to work, the obverse would be true as a matter of analysis and a matter of principle. That is, if the employer is unable to satisfy its obligation to pay, the employee's obligation to work would be suspended.
339 The Ombudsman made a detailed submission about the operation of s 507. It included the proposition that the section does not purport to disturb a contract of employment. Quite what this means is unclear but plainly the section obliges an employer to refrain from doing what it would otherwise be obliged to do under a contract of employment, namely pay an employee who performed work in accordance with the contract of employment and, at least ordinarily, an employee who was ready, willing and able to do so.
340 The section is a law which operates, in relation to the contract, in much the same way as an award has historically been viewed as operating. It overlays the contract by imposing on or providing to the parties additional or different legal obligations or benefits and operates independently of the contract. So much is apparent from the discussion of the High Court in Byrne v Australian Airlines Ltd.
341 In Byrne v Australian Airlines Ltd, the High Court drew a clear distinction between rights and obligations arising under contract and those imposed by statute. This can be illustrated by the observations of Brennan CJ and Dawson and Toohey JJ at 420:
A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right.
342 The legal issue is what are the contractual obligations of the employee under a contract of employment in circumstances where the employer cannot, by operation of s 507, discharge its contractual obligation to pay the employee for work were the employee to work as he or she otherwise would.
343 The section operates in two circumstances. The first is when the industrial action is for four hours or more. In such cases s 507(2)(b) prevents an employer from paying the employee for that period. So the period is certain and fixed on the time during which the industrial action took place. In this context, the purposes of the provision are relatively clear. The legislature has determined that an employee who has engaged in industrial action should receive no reward by way of wages or salary for whatever the employee may have done in the period which otherwise may have entitled the employee to wages or salary (for example, if the employee had selectively banned doing some duties but not all). In addition, the legislature has determined that an employer should not later pay an employee for a period of industrial action where no entitlement to payment could have arisen such as a strike in which no work was done. Historically some strikes have been settled on the basis that such payments would be made.
344 The difficulty arises in relation to the second circumstance which is addressed by s 507(2)(a), namely where the industrial action is for less than four hours. The Ombudsman submitted that, in such circumstances, the obligation of the employer not to pay the employee does not operate for the period immediately following the industrial action. It is true the section does not, in terms, require that the non-payment of wages or salary be referrable to a precisely specified period. However, the section's operation is not unconfined in relation to time. The period for which no payment is to be made is for four hours "on that day". That is, on the day on which the industrial action occurred.
345 It is tolerably clear, in my opinion, that s 507(2)(a) is intended generally to operate in the same way as s 507(2)(b). That is, no payment is to be made for the period in which the industrial action took place and such further period as is necessary to make up a period of four hours. Logically that would be a period contiguous to the period of industrial action, ether before or after that period (or both) depending on when in the working day the industrial action took place.
346 Also how the section operates and in relation to what period of that day is, in part, determined by how the employer seeks to satisfy the obligation imposed by the section and the circumstances in which it does so. In the present case the TWU members knew their requests for Qantas to pay them had been refused. In the face of that refusal they could have reasonably understood they were being told by Qantas it would not pay them for the period following the meetings even if they did return to work. In any event, some employees had worked, and therefore were contractually entitled to payment for, a significant part of their shift. They could have reasonably understood that they were not contractually obliged to work the remainder of their shift in the face of intimation by Qantas they would not be paid for four hours of the period they were rostered to work.
347 A submission was made that were s 507 to operate to relieve an employee of their contractual obligation to work, it would make it impossible for an employer to obtain an order under s 496 directing the resumption of work. However, this is not so. Section 496 is capable of operating on the employment relationship quite apart from the contractual rights and obligations of the parties. If an order is made under s 496 which might operate at a time in respect of which the employer is meeting its statutory obligation not to pay an employee, the order will, by force of the statute, oblige employees to comply. Whether the fact that an employee might be obliged to work but not be paid may or may not be a relevant consideration to be considered by the person making the order. But even if it is (a matter about which I need not express a view) it does not deny the existence of the power to make the order and the obligation of employees to comply with it if made.
348 A further submission was made by the Ombudsman that the requirement an employer not pay an employee engaging in industrial action should be characterised as the imposition of a penalty. For reasons already discussed, I do not think that is the purpose of the section. In any event, and while this issue was not explored at the hearing, I have some reservations about whether it can be so characterised. If it is a penalty, then an issue may arise about the section's validity. As early as 1935 observations were being made about the legislative imposition of a penalty for identified conduct in the field of taxation law as potentially involving the usurpation of judicial power: Jolly v Federal Commissioner of Taxation (1935) 53 CLR 206 at 211. More recently the High Court has accepted that the Commonwealth Parliament cannot pass laws which inflict punishment on specified persons without judicial trial: see Polyukhovich v Commonwealth (1991) 172 CLR 501. Whether a law has this effect can depend on whether the sanction is, in truth, a penalty: see Al-Kateb v Godwin (2004) 219 CLR 562. Quite plainly it is unlawful for an employee to engage in industrial action and, in curial proceedings, penalties can be imposed if a court is satisfied the employee has engaged in the unlawful conduct. If the non-payment of an employee engaging in industrial action is a penalty, the employee is potentially being penalised twice. If s 507(2)(a) enables an employer to adjudge whether an employee has engaged in industrial action and, if so, is obliged to impose a penalty involving the forfeiture of four hours wages irrespective of how long the industrial action took and the circumstances in which it occurred, then, in my opinion, issues concerning the validity of the section arise.
349 It seems to me that in the circumstances of this case, in those instances where no decision had been taken by the TWU members to stop work for four hours, an intimation by Qantas that it would not pay the employees for four hours because of some earlier and limited industrial action relieved the employees of the contractual obligation to perform their part of the bargain, namely perform work for a period of four hours following and including the period of industrial action if they had four hours remaining to work.
350 I should add that I accept that the legislature, when enacting s 507, almost certainly did not contemplate the section operating with the consequences I have just discussed. However, no provisions were included at the time (or since) to address these consequences. It is well established that it is not for the courts to fill gaps (if they be gaps) created by legislation. That is a task for Parliament: See Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed) par 2.28 and following. While there has been a trend away from a simplistic approach to what is a "gap" and whether it can be "filled": see, for example, Parramore v Duggan (1995) 183 CLR 633 at 644, it is nonetheless the case, in my opinion, that is it impossible to suggest that s 507 or any other section deals with the consequences of the section's operation as I view it.
351 It is alleged, uncontroversially, that the TWU and Qantas were bound by EBA 7, a collective agreement for the purposes of the Act. This agreement was lodged with the Workplace Authority on 1 December 2008 and came into operation on 12 December 2008, seven days after the date of issue specified in the s 347 notice. The expiry date of the agreement is 1 July 2011. The conduct of Sheldon, Pieri, Connolly, Loader, Gallacher, Magree, Spring and Burton was in breach of s 494 of the Act.
352 Sheldon and Pieri were alleged to have conducted a meeting attended by Qantas employees outside the front of SIT. Qantas employees who were engaged to perform work at SIT instead engaged in industrial action between approximately 9.00 am and 1.00 pm (local time) on 30 March 2009, imposing bans, limitations or restrictions on the performance, acceptance or offering of work and failed or refused to attend for work or, having attended for work, refused to perform work and during that time attended a meeting of Qantas employees.
353 Connolly conducted a meeting on 30 March 2009 in the meal room of Brisbane airport (domestic terminal) attended by Qantas employees and/or WFI employees. The Qantas employees who were engaged to perform work at the Brisbane domestic and international air terminals instead engaged in industrial action between approximately 9.00 am and 1.00 pm (local time) on 30 March 2009, imposing bans, limitations or restrictions on the performance, acceptance or offering of work and failed or refused to attend for work or, having attended for work, refused to perform work and during that time attended a meeting of Qantas employees.
354 Loader conducted a meeting in the lunchroom at Adelaide airport on 30 March 2009. Magree and Spring "induced, asked, persuaded, advised or procured" Qantas employees to attend a meeting of TWU members in the lunchroom at Adelaide Airport. The Qantas employees who were engaged to perform work at the Adelaide airport instead engaged in industrial action between approximately 9.00 am and 1.00 pm (local time) on 30 March 2009, imposing bans, limitations or restrictions on the performance, acceptance or offering of work and failed or refused to attend for work or, having attended for work, refused to perform work and during that time attended a meeting of Qantas employees.
355 Burton conducted a meeting attended by Qantas employees and/or WFI employees at Perth airport on 30 March 2009 and these employees engaged in industrial action between approximately 7.00 am and 11.00 am (local time). During that time they imposed bans, limitations and restrictions on the performance of work or on the acceptance of or offering for work, failed or refused to attend for work or failed or refused to perform work having attended for work and, although they were rostered to perform work during that time the employees attended a meeting of Qantas employees and/or WFI employees.
356 Qantas' position in relation to the evidence was this. It submitted that what occurred throughout Australia on 30 March 2009 was a carefully orchestrated and planned series of events co-ordinated by senior officials of the TWU designed and intended to damage the business of Qantas. However, it advanced an alternative submission. It was to the effect that the respondents knew that the likely result of the conduct they organized and implemented would be stoppages of work or at least there was a fair prospect that would occur. They proceeded with that conduct in that knowledge. The substance of the approach of the Ombudsman mirrored Qantas' first submission. The industrial action was the product of a carefully orchestrated plan designed and intended to produce that result. The respondents' approach appeared to be that, other than at SIT where a limited contravention of s 494 was conceded, at the various ports affected by stoppages, meetings of members took place with the approval of local management. As a result of the intense antipathy of the membership to what was the apparent approach of Qantas to outsourcing together, in some instances, with Qantas' approach to its obligation under s 507, as explained to the membership, these meetings became what may have been spontaneous stoppages of work for four hours.
357 I view the evidence as a whole as establishing Qantas' alternative submission.
358 In Emwest Products Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union, Kenny J, at [33] - [34] observed in a passage quoted earlier:
The expression "concerned in" is of general import, and it can cover a wide range of activities depending on the context in which it is used and the facts of the relevant case. In Ashbury v Reid [1961] WAR 49 at 51, the Full Court of the Western Australian Supreme Court held that a defendant to a charge under s 54(1) of the State Forestry Act 1918 (WA) would be "directly or indirectly concerned in" the commission of the offence if "on the facts it can reasonably be said that the act or omission shown to have been done or neglected to be done by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connexion between him and the offence".
359 Section 420(1)(b) provides that "industrial action" is "a ban, limitation or restriction on the performance of work by an employee" and s 420(1)(c) provides that it is a "failure or refusal to perform any work at all by employees who attend for work". Section 4(5) provided that "engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct". Section 728 of the WR Act provided that "[a] person who is involved in contravention of a civil remedy provision is treated as having contravened that provision", if the person "has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention".
360 At each of Sydney, Brisbane, Adelaide and Perth there was, on the evidence, probably initially a restriction on the performance of work (as comprehended by s 420(1)(b)) in that employees stopped working for what might have been a comparatively brief period to attend a meeting. Depending on what a given individual was then doing, and when the employee's shift had started, this may have then constituted a failure or refusal to perform any work at all (as comprehended by s 420(1)(c)). At each of these airports this led to a general stoppage of work as discussed earlier. At each airport the TWU membership engaged in industrial action.
361 It seems to me that having regard to three aspects of his conduct, Sheldon contravened s 494. The first was his involvement in the meeting of 25 March 2009. I have already discussed what he and the other participants knew when taking the decision to call the meetings for 30 March 2009. The likely sequence of events to unfold were the events which in fact occurred. Sheldon knew this and was not troubled if it occurred. He viewed attendance at the Sydney meeting and, more likely than not, the meetings at the other airports as the exercise of a right of the membership. While this is in a sense true, it was the exercise of a right which in all probability, at least as to some of the membership, would involve a stoppage of work and, in all probability, lead to a more general stoppage. This, it appears to me, involved organizing industrial action at the least (s 494(1)) and probably, in addition, engaging in industrial action having regard to s 4(5) and as well, being involved in that action having regard to s 728(2).
362 The second aspect of his conduct was what he said and did at the Rowers Club meeting. Much the same can be said of that conduct as just said in relation to the 25 March 2009 meeting.
363 The third aspect of his conduct was attending and speaking at the meeting outside SIT. That was, and was intended to be, the focus of the conduct of members who stopped work. The rationale for stopping work was to attend the meeting. Sheldon provided the rationale. This conduct involves contravention of s 494.
364 The comments made about Sheldon concerning the meeting at the Rowers Club apply equally to Pieri. In addition, I infer from the evidence as a whole, that Pieri was the person who, in Sydney orchestrated the attendance of members at the meeting in front of SIT. This conduct involved contravention of s 494.
365 Connolly's involvement in the meeting of 25 March 2009, involves in the same way it did for Sheldon, contravening conduct. Connolly's involvement both before and after that meeting was a central one in managing the TWU's response to Qantas' increasingly hostile (from the TWU's perspective) attitude to outsourcing evident in the early months of 2009. However, until the meeting of 25 March 2009 it was not, in my opinion, conduct attracting s 494. For example, the resolution of delegates at their meeting of 17 March 2009 to "take all necessary steps to oppose the current attack…" (drafted by Connolly) might be viewed, as it was by Qantas in its primary submissions and also was by the Ombudsman, as part of a carefully crafted and evolving plan with Connolly as the principal architect. But it can also be viewed, and this is how I view it, as a response involving an element of drum beating leaving open the possibility of a range of responses which would be determined as time passed. It was the meeting of 25 March 2009 which transformed this comparatively benign response into something of much greater moment.
366 As to the events of 30 March 2009, I am not satisfied Connolly played a coordinating role, in the sense that he was orchestrating responses in each of Sydney, Brisbane, Adelaide and Perth that were intended to result in stoppages. His role was probably that of information gatherer and disseminator.
367 However, the way he organized and conducted the meetings in Brisbane was also conduct attracting s 494. He called for the meetings both at the Brisbane domestic and international terminals, knowing that in all likelihood there would be some stoppages and disruption to the performance of normal work and also the real prospect the stoppages would become four hour stoppages if Qantas acted as it did, namely decide it was bound to deduct four hours pay having regard to earlier limited industrial action. In particular, his statement at the domestic and international terminals that the TWU would attempt to protect members from any Qantas action to seek the imposition of penalties is conduct comprehended by s 728(2). It was encouragement, of sorts, for the membership to take industrial action.
368 Loader commenced the meeting in Adelaide the normal way. In its early stages employees entered and left the meeting to attend to aircraft. I do not think, at this time, he was intent upon conducting a meeting in a way which caused disruption. However it did and he became aware of it. Nonetheless he continued with the meeting and used language that was likely to induce the employees to engage in industrial action. That is conduct contravening s 494.
369 Gallacher's involvement in the 25 March 2009 meeting has the same consequences as discussed for Sheldon and Connolly. But what did Gallacher do on 30 March 2009 which might constitute contravening conduct? His direction or exhortation to Loader to invite the employees to express their disapproval does not, without more, constitute, in my opinion, contravening conduct. It is conceivable that his conversation with Moir at 9.21 am involved discussions about what Moir should do to get members to attend the meeting being held by Loader and to do so in a way which might cause disruption. The meeting did become disruptive. What Loader was saying was sufficiently inflammatory to result in employees not doing what they might otherwise be doing, leaving the meeting to attend to the Air New Zealand aircraft which was not being serviced. But in addition, it is possible that Moir spoke to them telling them to cease performing normal duties as may have been discussed with Gallacher in the earlier phone call. However, and notwithstanding the failure of Gallacher to give evidence, I am unable to infer this happened and to thus conclude his conduct, other than his involvement in the 25 March 2009 meeting, involved a contravention of s 494. Qantas suggested "making statements in support of employees" at the meeting Gallacher held at the airport during the middle of the day also was contravening conduct. On the scant evidence about what he said, I cannot be satisfied this is so.
370 Magree did nothing which, in my opinion, constituted contravention of s 494. Accompanying Loader and attending the Adelaide meeting as, in substance, a passive observer is a long way removed from the reach of s 494.
371 As noted earlier, Qantas discontinued the proceedings against Mr Spring.
372 The normal practice that Burton would follow when conducting employer approved meetings during work hours was to ask for volunteers to work as a skeleton crew whilst the meeting took place. This would ensure that the meetings were not disruptive and work was still being performed. At the meeting at Perth Airport of 30 Mach 2009, Burton did not call for volunteers and as such there was no skeleton crew continuing work whilst the meeting took place.
373 By organising and conducting the meeting without ensuring a skeleton crew was in place to service planes while the meeting took place, Burton was concerned in industrial action. Although the meeting had been authorised by Radovanovic, it was only done so on the basis that the normal practice would be followed, including providing a skeleton crew to service planes while the meeting took place. Burton conceded that he knew he had not made arrangements for a skeleton crew to service planes before he conducted the meeting. Burton, by knowingly omitting to organise for a skeleton crew to service planes, had a "practical connection with the contravention". Burton engaged in "industrial action" in contravention of s 494(1). He also did so having regard to what he told the meeting which he accepted would, in all likelihood, encourage people to take industrial action.
374 The TWU is, by operation of s 826, liable for the contravening conduct of the individual respondents just discussed. It is also liable for the conduct of the delegates who, at each airport, requested members to attend a meeting which, at that point or later, became stoppages of work.
375 An issue arose about the scope of the power to award compensation for economic damage caused by conduct contravening s 494(1). Qantas submitted that the Court had power to order the payment of compensation because such an order would remedy the effects of the contravention. Such an order, it was submitted, is authorised by s 494(5)(b). The starting point is, of course, the language of the statute itself and it is "well settled that provisions granting power to or conferring jurisdiction on the court should not be construed as subject to limitations not required by the terms": Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 (at [112]). What then might be comprehended by the expression "remedy its effects". Firstly the word "its" is plainly a reference to the contravention which, for present purposes, is the conduct which has been engaged in and proscribed by s 494(1). In contract law there is a settled line of authority dealing with contractual provisions which turn on whether a breach of the contract can be remedied. Some recent Australian authorities are: Waters Lane Pty Ltd v Sweeney (unreported) [2006] NSWSC 222, Ansett Australia Ltd (subject to a deed of company arrangement) (ACN 004 209 410) v Diners Club Pty Ltd (ACN 004 343 051) (unreported) [2007] VSC 102, Mangrove Mountain Quarries Pty Ltd v Barlow (unreported) [2007] NSWSC 492, Chint Australasia Pty Ltd v Cosmoluce Pty Ltd (unreported) [2008] NSWSC 635 and Australian Style Pty Ltd v .au Domain Administration Ltd (unreported) [2009] VSC 422. In most of these authorities consideration of this question commences with a reference to the speech of Lord Reid in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 253 at 249 to 250:
It appears to me that clause 11(a)(1) is intended to apply to all material breaches of the agreement which are capable of being remedied. The question then is what is meant in this context by the word "remedy". It could mean obviate or nullify the effect of the breach so that any damage already done is in someway made good. Or it could mean cure so that matters are put right for the future. I think that the latter is the more natural meaning. The word is commonly used in connection with diseases or ailments and they would normally be said to be remedied if they were cured although no cure can remove the past effect or result of the disease before the cure took place. And in general it can only be in a rare case that any remedy of something that has gone wrong in the performance of a continuing positive obligation will, in addition to putting it right for the future, remove or nullify damage already incurred before the remedy was applied.
(Emphasis added)
376 Two things can be said about this passage. The first is that his Lordship is addressing contractual provisions creating continuing positive obligations. This is to be contrasted with the provision presently under consideration which is a statutory power conferred on a court to make an order to remedy the effect of a past failure to comply with the statutory prohibition not to organise or engage in industrial action. The second is that the word "remedy" can have a meaning of obviating or nullifying the effect of a past event "so that any damage already done is in someway made good". In my opinion, in the statutory context in which the word "remedy" appears that second meaning is certainly one it is capable of having in s 494(5)(b). If so, then making good the damage caused by the contravening conduct could include ordering the person who engaged in the contravening conduct to pay compensation to a person damaged economically by the conduct.
377 In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia the High Court considered, amongst other things, the scope of the power conferred by s 298U(e) of the WR Act to make orders "necessary to…. remedy [the] effects [of the conduct alleged to contravene s 298K]". One issue was whether such an order could be made as an interlocutory order or whether it was necessary for the contravening conduct to be established on a final basis. The plurality appeared to accept that the power was only enlivened when the contravening conduct was established (at [26]) though Gaudron J took the contrary view (at [113]). However neither that the plurality nor Gaudron J suggested that power had a narrow sphere of operation. The power conferred by s 298U(e) was part of a suite of powers which included, expressly, a power to order the payment of compensation. This might, in the particular statutory context considered by the High Court, have suggested that s 298U(e) was not itself a source of power to order compensation. I discuss this shortly.
378 What then is the scope of the power to make an order to "remedy [the] effect" of the industrial action and, in particular, does it include a power to order compensation? The answer to this question is informed by at least three principles of statutory construction. The first is that it is quite inappropriate to read provisions conferring jurisdiction or granting powers to court by making implications or imposing limitations which are not found in express words: FAI General Insurance Company Limited v Southern Cross Exploration N.L. (1988) 165 CLR 268 at 284 and 290, Knight v F.P. Special Assets Limited (1992) 174 CLR 178 at 185, 202-203 and 205, and Australasian Memory Pty Limited v Brien (2000) 200 CLR 270 at 279. The principle was expressed this way in Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of The State of Victoria (2001) 207 CLR 72 at [11]:
Section 17(2) is a provision which confers jurisdiction upon a court and it is, on that account alone, to be given no narrow construction. Rather, it is to be construed with all the amplitude that the ordinary meaning of its words admits. It follows that the conclusion that there is express provision to the contrary will seldom, if ever, be available in the absence of explicit words excluding the jurisdiction of the Court of Appeal to hear an appeal from any determination of the Trial Division when constituted by a judge.
379 However it is a principle which depends on the terms of the legislation. As McHugh J observed in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [32] – [33]:
…This Court has said more than once in recent years that powers conferred on superior courts should not be read down or confined. But that is a general rule. In a particular statutory setting, it may be overridden by the terms of the legislation.
The power to give directions under s 481(1)(b) is wide. It should be read literally and widely, so far as it is possible to do so. But wide as the power is, it is not possible to read it as conferring a power to give a direction that is inconsistent with an express provision of the Act.
380 The second principle is that words and expressions in an Act are presumed to have the same meaning throughout the Act: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450, Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, Taikato v R (1996) 186 CLR 454, Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151, State of Queensland (Queensland Health) v Che Forest (2008) 168 FCR 532 and Doughty v Martino Developments Pty Ltd and Doughty v Martino Developments Pty Ltd [2010] VSCA 121.
381 The third principle is that a provision conferring a power in general terms should not be treated as a source of power to do an act or perform a function expressly authorised by a specific provision in the same Act, the exercise which is subject to conditions or limitations: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. The principle was described in the following way by Gummow and Hayne JJ at [59]:
Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power", or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
382 The second and third principles might have relevance in the following way. The Act, in addition to conferring the power to make an order to "remedy the effect [of conduct]" in s 494 contains powers expressed in the same terms elsewhere. It may therefore be appropriate to treat the expression as having the same meaning and comprehending the same power. However in some contexts in which the power is conferred, there is an additional express power to award compensation which is subject to a condition (usually the person to whom the compensation might be paid). At least arguably the power to make an order to "remedy effect [of conduct]" in such a context would not be treated as a power to award compensation which is expressly conferred subject to a condition. In order to address completely the issue, it is necessary to refer to the recent legislative history of Commonwealth industrial law.
383 The WR Act was formerly known as the Industrial Relations Act 1988 (Cth) before it was amended and renamed on 25 November 1996. The operation of the Act substantially commenced on 31 December 1996 and on various dates in 1997. In its original form, the Act contained only two sections, ss 187AD and 298U which conferred the power to "remedy [the] effect" of proscribed conduct.
384 The first was s 187AD which provided:
(1) In respect of contraventions of section 187AA or 187AB, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:
(a) an order imposing on a person who contravened or is contravening that section a penalty of not more than $10,000;
(b) if the person contravened or is contravening section 187AB—an order requiring the person to pay to an employer compensation of such amount as the Court thinks appropriate;
(c) injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(d) any other consequential orders.
(2) The Court must not make an order under paragraph (1)(b) requiring compensation to be paid to an employer who has contravened subsection 187AA(1) in connection with the contravention referred to in that paragraph.
(Emphasis added)
385 The contravening conduct proscribed by ss 187AA and 187AB was, respectively, payments being made or accepted in relation to periods of industrial action and organisations taking action for payments in relation to periods of industrial action. Paragraph (1)(c) conferred in the Court a power to make an order to "remedy [the] effects" of the proscribed conduct, namely making or accepting payments in relation to periods of industrial action or taking action to secure such a payment. Paragraph (1)(b) conferred on the Court, in addition, power to make "an order requiring the person to pay an employer compensation of such amount as the Court thinks appropriate", though only in relation to the conduct proscribed by s 187AB namely, taking action to secure such payments. This formulation to confer powers in the Court had not appeared in earlier Commonwealth industrial laws including the Industrial Relations Act 1988 (Cth).
386 Section 298U provided:
In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:
(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i) in the case of a body corporate—$10,000; or
(ii) in any other case—$2,000;
(b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;
(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;
(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f) any other consequential orders.
(Emphasis added)
The contravening conduct proscribed in this part is the discrimination against or victimisation of employers, employees and independent contractors because they are, or are not, members or officers of industrial associations. Again, the power to order the payment of "compensation" and another power to "remedy [the] effects" appear in this section as well.
387 The WR Act was amended in December 1997 by the Workplace Relations and Other Legislation Amendment Act 1997 to include a number of new sections. One of those was s 253ZX, which provided:
(1) The amalgamated organisation, or an officer or member of the organisation, must not impose, or threaten to impose, a penalty, forfeiture or disability of any kind on:
(a) a member or officer of the organisation; or
(b) a branch, or other part, of the organisation;
because the member, officer, branch or part concerned does, or proposes to do, an act or omission to which section 253ZW applies.
(2) The Court may, if the Court considers it appropriate in all the circumstances, make one or more of the following orders in respect of conduct that contravenes subsection (1):
(a) an order imposing on a person whose conduct contravenes that subsection a penalty of not more than:
(i) in the case of a body corporate—$10,000; or
(ii) in any other case—$2,000;
(b) an order requiring the person not to carry out a threat made by the person, or not to make any further threat;
(c) injunctions (including interim injunctions), and any other orders, that the Court considers necessary to stop the conduct or remedy its effects;
(d) any other consequential orders.
…
(Emphasis added)
The provision was intended to proscribe conduct designed to prevent a member or part of an organisation from having a penalty, forfeiture or disability of any kind imposed on them, or a threat thereof. No power was conferred in the Court, expressly, to order the payment of "compensation", but was conferred with a power to "remedy [the] effects". Both ss 187AD and 298U remained in their previous forms.
388 In March 2006, the Act was substantially amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). This included the introduction of s 494 which effectively replaced s 170MN. It is set out earlier. The conduct proscribed is the taking of industrial action before the nominal expiry date of a workplace agreement or determination. At this time, other provisions were enacted proscribing certain conduct and conferring a power in the Court to make an order to "remedy [the] effects" of such conduct if it occurred, though not conferring, expressly, a power to order compensation. They were ss 495, 507 and 509. The conduct proscribed for these sections respectively, the taking of industrial action before the nominal expiry date of an AWA, payments being made or accepted in relation to periods of industrial action and the coercion of people for payments in relation to periods of industrial action.
389 Section 448 dealt with an aspect of the subject matter of protected action, a concept introduced into the Act by the March 2006 Amendments. It provided:
(1) An employer must not:
(a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or
(b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
…
Civil remedy provisions
(3) Subsection (1) is a civil remedy provision.
(4) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1):
(a) an order imposing a pecuniary penalty on the person;
(b) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects.
(5) The pecuniary penalty under paragraph (4)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
(6) Other orders the Court may make under paragraph (4)(b) include (but are not limited to):
(a) if the contravention was constituted by dismissing an employee—an order to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and
(b) in any case—to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.
…
(Emphasis added)
The conduct proscribed in the section was an employer dismissing, threatening to dismiss, injuring an employee in their employment, threatening to injure, altering the employee’s position to their prejudice, or threatening to alter if they engaged in protected industrial action. It can be seen that s 448(4)(b) confers a power to make an order to "remedy [the] effects" of the proscribed conduct. It is tolerably clear from s 448(6)(b) that this power includes a power to order compensation. I do not think the word "include" in s 448(6) should be taken to indicate that the type of orders in s 448(6)(a) and (b) were otherwise not comprehended by s 448(4)(b). Plainly, for example, ordering reinstatement is an obvious means of remedying the effect of an unlawful dismissal.
390 Section 508 was part of the March 2006 amendments and dealt with an aspect of the subject matter formerly dealt with by s 187AD. It provided:
(1) An organisation, or an officer, member or employee of an organisation, must not:
(a) make a claim for an employer to make a payment to an employee in relation to a day during which the employee engaged, or engages, in industrial action; or
(b) organise or engage in, or threaten to organise or engage in, industrial action against an employer with intent to coerce the employer to make such a payment.
Note: This subsection is a civil remedy provision: see subsection (4).
…
Civil remedy provisions
(4) Subsection (1) is a civil remedy provision.
(5) The Court may make one or more of the following orders in relation to a person who has contravened subsection (1):
(a) an order imposing a pecuniary penalty on the person;
(b) an order requiring the person to pay to the employer concerned compensation of such amount as the Court thinks appropriate;
(c) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
(d) any other consequential orders.
(6) The pecuniary penalty under paragraph (5)(a) cannot be more than 300 penalty units for a body corporate or 60 penalty units in any other case.
…
(Emphasis added)
In this section powers were conferred to the Court to make an order to "remedy [the proscribed conduct’s] effects", and to pay compensation, but as separately identified powers. The formulation was:
(b) an order requiring the person to pay to the employer concerned compensation of such amount as the Court thinks appropriate;
(c) injunctions, and any other orders, that the Court considers necessary to stop the contravention or remedy its effects;
391 A similar formulation appears in ss 616, 632, 769 and 807. These sections respectively provided for conduct relating to an employer prejudicing an employee for reasonably refusing to work on a public holiday, an employer prejudicing an employee for making an application or having an order made under Part 12 Division 3 in relation to equal remuneration for work of equal value, and conduct contrary to the objects of Part 16; which in brief was the freedom for employers, employees and independent contractors to become, or not become, members of industrial associations.
392 At 30 March 2009, the Act was in its form as amended on 23 June 2008. There had been inclusion of two more sections that conferred the Court the power to "remedy [the] effects" at that time; ss 346ZK and 904. Section 346ZK was of a similar formulation to s 508, and provided for conduct relating to the dismissal or threatened dismissal of employees whose workplace agreements did not pass the fairness test. Section 904 was similar in its formulation to s 448, and provided for conduct in relation to sham arrangements involving employees and independent contractors.
393 While this legislative history sustains a cogent argument that when the legislature intended to confer a power to award compensation it did so expressly and its failure to do so in s 494 can be taken to indicate that the power was not intended to be conferred. That argument is fortified by the fact that at the time s 494 was enacted, other sections were enacted (ss 508, 616, 632, 769 and 807) which expressly conferred a power to order compensation separately from and in addition to the power to make an order to remedy the effects of the proscribed conduct. However, pointing in the opposite direction was the section enacted at the same time which point to the power to award compensation as comprehended by the more general power to make an order to remedy the effects of proscribed conduct (s 448) and a section to similar effect enacted later (s 904).
394 Ultimately the question is whether these are sufficiently clear signals that the express words should be treated as limited in the way discussed in FIA General Insurance referred to earlier. They are not. The words used "should be construed with all the amplitude that [their] ordinary meaning…admits". That would include making an order requiring the payment of money to defray the financial effects of the industrial action. I have power to award compensation under s 494(5)(b).
395 An additional argument was advanced by the respondents that the power to make an order under s 494(5)(b) is discretionary and can be made requiring payment of a sum which remedies some of the financial consequences of the action but not all of them. I accept that the power is discretionary in the sense that I am not required to make an order under s 494(5)(b) and, in any given case, could decide not to make such an order. However, I do not accept that if I decide to exercise the power, it can be exercised in a qualified or limited way. I think the position is as stated by Wilcox J in Printing and Kindred Industries Union v Vista Paper Products Pty Ltd (1994) 127 ALR 673 at 691:
I accept that the word "may" confers on the court a discretion whether or not to order payment of an underpayment: see s.33A(2A) of the Acts Interpretation Act 1901 (Cth). Section 178(6) does not prescribe criteria for the exercise of this discretion, so the court must exercise it by reference to the scope and purpose of the legislation. Plainly, the purpose of s.178(6) is to facilitate the payment to employees of unpaid award benefits. Unlike the earlier provisions of s.178, the subsection is not penal in character. Accordingly, the extent of the employee's loss must always be a relevant consideration, in determining whether or not to make an order for payment of the underpayment. Where there is no significant loss, notwithstanding the employer's failure to comply with the award, the court might justifiably decline an order.
However, I accept Mr Rothman's submission that the subsection gives no discretion as to the quantum of the order. The court may or may not make the order, but its nature is specified. It is an order "to pay to the employee the amount of the underpayment"; not part of the amount of the underpayment. Once the court decides that, having regard to all relevant factors and as an exercise of discretion, it ought to make an order for payment, it has no choice other than to make an order extending to the whole of the underpayment
Later in these reasons I touch upon the question of how the power to award compensation might be exercised in this case.
3.3.1 The statutory provisions
396 Qantas claims the TWU has breached EBA 7 and has thereby contravened s 719. The relevant statutory provisions are, firstly, s 351 which provides:
A workplace agreement that is in operation binds:
(a) the employer in relation to the agreement; and
(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement; and
(c) if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations of employees with which the employer made the agreement.
Note: A person can be bound by a workplace agreement because of Part 11 (which deals with transmission of business).
and s 719 which provides:
(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.
…
(4) The maximum penalty that may be imposed under subsection (1) for a breach of an applicable provision is:
(a) 60 penalty units for an individual; or
(b) 300 penalty units for a body corporate.
…
and s 719 which provides:
In this Part:
applicable provision, in relation to a person, means:
(a) a term of one of these that applies to the person:
…
(iv) a collective agreement;
…
3.3.2 The terms of the agreement
397 Clause 7 of EBA 7 provided:
"Clause 7 No Extra Claims
This is a comprehensive Agreement in settlement of all TWU enterprise bargaining claims and as such the parties agree that they will not pursue any extra claims".
Clause 11 of EBA 7 provided:
"Clause 11 Procedures for the settlement of industrial disputes.
11.1 In the event of a dispute arising in the workplace about matters arising under this Agreement is the procedure to resolve the matter will be as follows:
11.1.1. The employee and the employee's supervisor meeting and conferring on the matter.
11.2.1 If the matter is not resolved at this meeting, the parties to the dispute must arrange for further discussions between the employee and more senior levels of management.
11.3.1. If the matter cannot be resolved it may be referred by either party to the Commission in resolution. This does not affect the right of either party to a dispute to take other action to resolve the dispute.
11.3 Until the matter is determined, work will continue as instructed by the Company unless an employee has a reasonable concern about imminent risk to safety or health. In this case, an employee must not unreasonably fail to comply with a direction of the Company to perform other available work, whether at the same or another workplace that is safe and appropriate for the employees to perform. No party would be prejudiced as to the final settlement by the continuance of work in accordance with this clause".
398 Qantas contended the TWU breached both clause 7 and clause 11 and, in so doing, breached an applicable provision for the purposes of s 719. A penalty, it contended, should be imposed for those breaches.
399 I consider first the alleged breach of clause 7. In order to assess whether the clause has been breached, it is necessary to consider whether on about 30 March 2009 the TWU was pursuing a claim and, if so, was that an "extra claim" for the purposes of the clause. Evidence given by Smith suggests that Qantas did not perceive the events of 30 March 2009 as the prosecution of a claim by the TWU. However I am prepared to assume then that the events of that day were the pursuit by the TWU of a wider and longer term objective of either stopping or slowing down Qantas' attempts to have individuals not employed by Qantas perform baggage handling or other ramp services for Qantas or subsidiaries and Jetstar in particular. I am also prepared to assume that the pursuit of this objective might be characterised as the pursuit of a claim.
400 However clause 7 is, in my opinion, directed to claims of a particular character, namely claims which are capable of settlement embodied in a workplace agreement. Clause 7 declares EBA 7 to be a comprehensive agreement and, as such, an agreement in settlement of all the TWU's enterprise bargaining claims. The clause focuses on claims of a particular type that had been made by the TWU. It is tolerably clear, in my opinion, that the agreement of the TWU not to pursue extra claims was an agreement concerning the claims earlier made to the extent they were not fully satisfied by the agreement and perhaps, additionally, different claims of the same character which might be addressed in such an agreement.
401 However I do not accept that the clause is directed to claims which were capable of agreement to be included in a workplace agreement. The claim being pursued (as I have assumed) was not of that character because of ss 356 and 358 of the WR Act together with reg 8.5 of the Workplace Relations Regulations. Those provisions prevented parties to a workplace agreement reaching agreement about, in substance, outsourcing agreements or the wages and conditions of employment of labour hire. A workplace agreement could not contain a term addressing those matters. The TWU did not breach clause 7.
402 I next address the alleged breach of clause 11. Similar considerations arise in relation to that alleged breach. That clause concerns disputes "about matters arising under this Agreement". The dispute central to the events of 30 March 2009 concerned outsourcing and labour hire. That was not a matter addressed by the agreement. As just discussed, it could not be. Nor was it, in my opinion, a matter arising under the agreement assuming that expression is of wider import. A dispute about a matter arising under the agreement necessarily involves a dispute about a topic or subject matter with which, in some way, the agreement is concerned. If the subject matter cannot be dealt with by the agreement then it is difficult to see how the parties can agree to a dispute settlement procedure which facilitates the settlement of disputes about that matter. If the dispute settlement clause had such an operation, it would enable the parties to achieve indirectly through a dispute settling mechanism, what the WR Act prohibited directly, namely agreement about prohibited content. That cannot be done: Australian Building Construction Employees and Builders Labourers Federation v Masters Builders Association of New South Wales (1986) 69 ALR 515 at 525.
3.4 Contravention of the Trade Practices Act
3.4.1 The statutory provisions
403 The following provisions of the Trade Practices Act 1974 (Cth) (as it was at the relevant time - now called the Competition and Consumer Act 2010 (Cth)) relied on by Qantas concern secondary boycotts. Section 45D prevents two or more people engaging in conduct in concert which would hinder or prevent a third person from supplying goods or services to a fourth person or acquiring goods or services from a fourth person. The section is infringed if the boycott is engaged in for the purpose of, and is likely to have the effect of causing substantial loss or damage to the business of the person unable to be supplied. Where boycotts relate to the pursuit of legitimate employment-related matters or are directed to protecting the environment or consumers they are permitted under s 45DD. Section 45D provides:
(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:
(a) that hinders or prevents:
(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
Note 2: This section also has effect subject to section 45DD, which deals with permitted boycotts.
(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
(3) Subsection (1) applies if the fourth person is a corporation.
(4) Subsection (1) also applies if:
(a) the third person is a corporation and the fourth person is not a corporation; and
(b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.
404 Section 45DB provides:
(1) A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.
Note 1: Conduct that would otherwise contravene this section can be authorised under subsection 88(7).
…
405 Section 45DD provides:
Dominant purpose of conduct relates to employment matters—conduct by a person
(1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.
Dominant purpose of conduct relates to employment matters—conduct by employee or organisation and employees
(2) If:
(a) An employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:
(i) an organisation of employees; or
(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by paragraph (a); and
(c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);
the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection 45D(1), 45DA(1) OR 45db(1) by engaging in the conduct.
…
406 The term "engage in conduct" is defined in s 4(2) as follows:
Doing or refusing to do an act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant.
407 The meaning of "in concert" is not defined in the Trade Practices Act. In Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 136 Gibb J said that the words "engaging in conduct" and "conduct" have an extended meaning, "a person who refuses to do, or refrains (otherwise than inadvertently) from doing, an act engages in conduct within the section". This meant that:
the refusal of any one of the third plaintiffs, in concert with another, to man a tug or lineboat for the purpose, and with the likely effect, of causing substantial loss or damage to one of the companies would amount to a contravention of s 45D, and that in those circumstances the union would also be deemed to contravene the section unless it established that it took all reasonable steps to prevent the third plaintiffs from engaging in the conduct.
408 The meaning of the term "in concert" was discussed by French J in J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (1992) 44 IR 264. At 273, his Honour, in considering whether authorisation by an association of unions could constitute conduct in concert with a union member of the association imposing the ban, stated:
The notion of conduct "in concert" imports elements of combination, co-operation or union (see Oxford English Dictionary). While it may be readily suggestive of arrangements of a horizontal character, there is no reason dictated by policy or statutory construction that requires it to be so limited. Conduct involving direction and response may, according to the circumstances of the case, be conduct in concert on part of the person directing and the person acting upon that direction.
French J referred to the findings of Gray J in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 at 329 where his Honour discussed the difficulties arising when the conduct is engaged in at separate locations and at different times which become "acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act". The problem being at what point the actions of a person who has contributed to an event are to be viewed as acting "in concert".
409 The community of purpose that the notion acting "in concert" suggests requires a "consensual element". As Isaacs J said in R v Associated Northern Collieries (1912) 14 CLR 387 at 400:
Community of purpose may be proved by independent facts, but it need not be. If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.
(Emphasis added)
The mere advocacy of a strike by union officials was held not to be sufficient reason to find that the union was acting in concert with the union members who participated in the strike action: Australasian Meat Industry Employees' Union v Meat & Allied Trades Federation of Australia.
410 The "purpose", referred to in s 45D(1) is the operative subjective purpose of those engaging in the relevant conduct in concert by the Full Court of the Federal Court in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367. In Tillmans a "black ban" was placed on the slaughtering of cattle and delivery of meat to the appellant. The question whether the conduct had been engaged in for the "purpose" required by s 45D(1) was answered by reference to the real reasons for the conduct and "what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert" (at 383). The purpose of the union in Tillmanns was determined by reference to the purpose of those through whom it acted. It was held (at 384) that the black ban had been plainly imposed as a means of bringing pressure to bear on the appellant to accede to the union demands in relation to union membership of the appellant's employees.
411 The required "purpose" was not established in Keith Russell Simplicity Funerals Pty Ltd v Cremation Society of Australia (ACT) Ltd (1982) 57 FLR 472 where there was no evidence of the relevant subjective purpose nor that the result of the ban was that the fourth and fifth respondents refused to supply chapel facilities or cremation facilities to the applicant. They wished to continue to supply the services but it became commercially impossible because of the ban. This case was distinguished in Gibbins v Australasian Meat Industry Employees' Union (1986) 12 FCR 450 where the union imposed a ban preventing the delivery of live meat to the employer of union members by certain carriers and obstructed access to the ships by trucks carrying live sheep. In Gibbins v Australasian Meat Industry Employees' Union substantial evidence of the relevant "purpose" existed.
412 Section 45DD covers situations in which boycotts will not attract ss 45D or 45DB. These include situations where the dominant purpose of the conduct relates to either remuneration, conditions of employment, working hours or working conditions of employees engaged in the conduct, or the dominant purpose relates to environmental protection or consumer protection and the conduct is not industrial action.
413 In Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2008) 169 FCR 583, a case concerning whether environmental protection was the dominant purpose of the respondent's conduct, it was noted at [42] that the respondent bore the burden of proving that he or she fell within the exemption in s 45DD. The Court noted at [34] that while s 45DD(3) should be given a wide construction and while the parliament was "conscious of ensuring that the fundamental democratic right of expression of opinions on government and political matters relating to environmental and consumer protection should not be unduly proscribed or constrained", there were bounds. For the respondent to successfully raise this defence, there must be an objective element in the dominant purpose "substantially related" to the environment.
414 In their further submissions of 5 April 2011, Qantas identified the following people as involved in the breach of s 45D in Brisbane:
(a) The first person is the TWU and/or Sheldon and/or Connolly and/or Gallacher;
(b) The second person is TWU and/or Sheldon and/or Connolly and/or Gallacher where that person has not been identified as the first person and/or the officers and members of the TWU employed by WFI.
(c) The third person is WFI;
(d) The fourth person is Qantas.
415 In respect of Perth, the following people were identified:
(a) The first person is the TWU and/or Sheldon and/or Connolly and/or Gallacher and/or Burton;
(b) The second person is TWU and/or Sheldon and/or Connolly and/or Gallacher and/or Burton where that person has not been identified as the first person and/or the officers and members of the TWU employed by WFI.
(c) The third person is WFI:
(d) The fourth person is Qantas.
416 The infringing conduct on 30 March 2009 at the Brisbane domestic and/or international air terminals occurred when the identified people, in concert together and in concert with other persons engaged in conduct which prevented and/or hindered the supply of goods and services by WFI to Qantas at Brisbane or their acquisition by Qantas. The identified people called and conducted a meeting which included employees of WFI. The WFI employees stopped work which hindered or prevented Qantas from acquiring services from WFI with the purpose and likely effect of causing substantial loss or damage to Qantas. The Qantas Employees and/or WFI Employees engaged to perform work at the domestic and international air terminals, engaged in industrial action between approximately 9.00 am (local time) and 1.00 pm and imposed bans, limitations or restrictions on the performance of work or on the acceptance of or offering for work by them, failed or refused to attend for work or failed or refused to perform work having attended for work; and/or during time they were rostered to perform work, attended a meeting of Qantas Employees and/or WFI Employees. This conduct had the effect of causing substantial loss and damage to the business of Qantas Airways.
417 In Perth, the infringing conduct was described in much the same way.
418 In relation to the alleged breaches of s 45DB, Qantas alleged the first persons were the TWU and/or Sheldon and/or Connolly and/or Gallacher and the second persons were the TWU and/or Sheldon and/or Connolly and/or Gallacher where that person has not been identified as the first person and/or the officers and members of the TWU employed by WFI. The third person for the purposes of s 45DB is Qantas. It was contended that the identified persons had in concert together and in concert with other persons and other members of the TWU including WFI employees and the TWU by its officers and members acting in concert engaged in conduct for the purpose and having the likely effect of preventing or substantially hindering Qantas Airways from engaging in trade or commerce involving the movement of goods between Australia, in particular Brisbane and places outside Australia and between Perth and places outside Australia.
419 Qantas submitted that there is no evidence that the respondents or the WFI employees engaged in conduct with a "dominant purpose" substantially related to the remuneration, conditions of employment, hours of work or working conditions of the WFI employees.
420 The gravamen of Qantas' case was that, in relation to Brisbane, any of the TWU, Sheldon, Gallacher, Connolley and, in relation to Perth, Burton as well had acted in concert with the others as well as WFI employees who were members of the TWU to prevent WFI supplying services to Qantas or Qantas acquiring these services. This basic framework also applies to and engages s 45DB.
421 For my part, I cannot see how, in relation to Perth, Qantas passes the threshold of demonstrating that the identified TWU officials or the TWU acted in concert with the WFI employees in the way the authorities contemplate. At base, Qantas’ case is that, in Brisbane and Perth, some WFI employees attended the meetings of the general TWU membership and, as a result stopped working thus preventing WFI from supplying services to Qantas or Qantas acquiring them. However, in relation to Perth, the evidence falls short of establishing the TWU or any other respondent took steps to secure or even promoted participation of WFI employees in the meeting. Those employees chose to attend. Nothing about these circumstances points to the alleged participants in the secondary boycott acting "in concert". The same might be true of Brisbane. However, and in any event, I infer from the evidence that the "dominant purpose" of the stoppage by the WFI employees at Brisbane and Perth was substantially related to their conditions of employment and security of their employment in particular. They had no particular interest in meeting to protect the conditions of employment of fellow members of TWU employed by Qantas. It is more likely, and I infer, they were participating in the meetings to protect their own interests though undoubtedly there would have been a high measure of overlap between what might be done to protect their interests and those of the employees of Qantas. The claim under the Trace Practices Act is dismissed.
3.5 The tort of interference with trade or business
3.5.1 The applicable principles
422 The economic tort of interference with trade or business, also referred to as causing loss by unlawful means, was recognised in early English authorities such as Garret v Taylor (1620) Cro Jac 567 in which the defendant drove away customers from Headington Quarry by threatening them with vexatious suits and in Tarleton v M'Gawley (1790) 1 Peake NPC 270 where the defendant, the master of the ship Othello used his cannon to drive away natives on the West African coast to prevent them from trading with the plaintiffs.
423 The general principle established in these early cases, where unlawful threats had been used to intimidate potential customers, was approved by the House of Lords in Allen v Flood [1898] AC 1129, in Rookes v Barnard [1964] AC 1129 and J T Stratford & Son Ltd v Lindley [1965] AC 269 where Lord Reid stated that such interference with business is tortious because unlawful means were used.
424 The history and the development of the tort was essayed in detail by Lord Hoffmann in OBG Ltd v Allan [2008] 1 AC 1. In this recent decision the House of Lords redefined the tort. Two different economic torts were identified and distinguished, namely inducing breach of contract and unlawful interference with trade. Lord Hoffmann referred to the second of these torts as having four elements. Firstly it is a tort of primary liability, not requiring a wrongful act by anyone else. Secondly it requires the use of means which are unlawful under some other rule. Thirdly liability for unlawful means does not depend on the existence of any contractual relationship. Lastly the defendant must have intended to cause damage to the claimant. Damage to economic expectations is sufficient.
425 The specific tort of interference with trade or business by unlawful means has not been declared by the High Court to be part of common law of Australia. The majority of the High Court in Sanders v Snell (1998) 196 CLR 329 at pars [35] – [36] did not find it necessary to decide whether this tort should be recognised in Australia but referred to the decision in Northern Territory v Mengel (1995) 185 CLR 307:
In Mengel the Court overruled Beaudesert Shire Council v Smith. It thus rejected the proposition for which Beaudesert stood: that "a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other." And it did so having first noted that the preferable view of Beaudesert (and the view favoured in later cases that had considered it) was that an "unlawful act" was intended to refer to an act forbidden by law rather than an unauthorised act in the sense of an act that is ultra vires and void. The majority judgment in Mengel noted that it seemed that the "embryonic or emerging tort" of interference with trade or business interests by an unlawful act does not extend to all unlawful acts and "at least in that regard, it is in need of further definition." Their rejection of Beaudesert is, however, consistent with confining what is an unlawful act for the purposes of this tort (if, that is, the tort is to be recognised in this country). It is also consistent with (or at least not inconsistent with) excluding from the definition of what is an unlawful act for this purpose acts whose only "unlawful" aspect is that they are unauthorised in the sense that they are ultra vires and void.
The guidance from authority is necessarily uncertain at the moment; the tort is embryonic or emerging. Consideration of principle, however, provide a more certain guide and require that unauthorised acts of the kind just mentioned are excluded from the understanding of what is an unlawful act for the purposes of this tort. If they are not excluded, the tort of interference with trade or business interests by unlawful act would cover the whole of the field now covered by the tort of misfeasance in public office or would cover that field and much more, thereby extending the liability of public officers very greatly.
426 Their Honours explained at [31] that the tort "that is emerging, or has emerged in the United Kingdom" is one of "interference with trade or business interests by an unlawful act directed at the persons injured." The essential element of the tort being "unlawfulness" because without this, unremarkable conduct could be considered tortious, including traders competing normally with trade rivals whereby they obtain business that would otherwise go to the trade rival. The fact that such action is engaged in deliberately is not sufficient. It may in certain circumstances give rise to statutory remedies, however, unless the means of competition used are unlawful, the essential element of the tort will not be fulfilled.
427 The issue of whether the common law of Australia included this tort arose in the Queensland Court of Appeal in Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) ACA 342. The President, McMurdo P observed at [25] that, "…the tort does not seem to have been successfully established in Australia since the High Court's failure to embrace its incorporation into the laws of torts in this country in Sanders v Snell", though the President appeared to accept its existence for the purposes of further analysis of the facts of the case. Williams JA also observed at [74] that in view of the approach of the High Court in Sanders and Mengel, " I am not satisfied that Australian law recognises a tort of interference with business by unlawful means, it is not for this Court, in my view, to hold that such a tort does exist in Australian law." Helman JA agreed with the reasons of McMurdo P and Williams JA.
428 The question of whether the tort presently exists in Australia has arisen from time to time. For example in Scott v Pedler [2003] FCA 650 Gray ACJ discussed the decision of the High Court in Sanders at pars [35] – [36] as it applied to a claim for intentional infliction of harm by an unlawful act and said at [78]:
It appears from what their Honours said that, if the tort is recognised in Australia, it requires that there be an act which is unlawful in the sense of being prohibited by law. It is not sufficient that the act be unauthorised in the sense that it is ultra vires and void.
Once the putative tort is analysed in this way it is clear that, even if it be recognised in Australia the applicants cannot rely on it in the present case. To the extent to which they rely on omission, they do not invoke the element of the tort that requires a positive act… Further, if the tort exists in Australia, and if it is not limited to interference with trade or business interests, it nonetheless requires an intention on the part of the alleged tortfeasor to injure.
(Emphasis added)
As it turned out, an intention to injure was not established by the evidence in Scott. The Full Court in Scott v Pedler [2004] FCAFC 67 affirmed the findings of the primary judge.
429 What then should a trial judge to do in relation to a tort which has been said by the High Court only to be "embryonic or emerging" and where, subsequently, an intermediate court of appeal has refrained from declaring it is part of the common law of Australia? I think the surest guidance is the approach of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89. In that matter, the Court of Appeal of New South Wales had decided an appeal on the basis of its view of the applicable equitable principles which, at the very least arguably, did not sit comfortably with earlier authority of the High Court. The High Court was not uncritical of this approach and pointed to the confusion and injustice caused by the Court of Appeal departing from the decision of the High Court in Consul Developments Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373, particularly as the reasoning of the Court of Appeal appeared "to be offered not as supposedly helpful obiter dicta but as an independent ground of decision" (at [132]). The High Court observed at [134] that recognising a new and additional avenue of relief was not a step that should have been taken "in the face of long-established authority and seriously considered dicta of a majority of this Court." Their Honours discussed the extent to which intermediate appellate judges and trial judges may reform common law and stated at [135]:
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principles applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel's submission that he was obliged not to do so.
430 It seems to me it would be inappropriate for me to take the step of deciding the tort exists in the face of the decision of the Court of Appeal of Queensland. I decline to do so.
431 Nonetheless, for completeness, it is appropriate to set out the pleaded cause of action. Qantas alleged that on 30 March 2009 Sheldon, Pieri, Connolly, Loader, Gallacher, Magree, Spring and Burton interfered with the trade or business of Qantas by unlawful means by "inducing, asking, persuading, advising or procuring" Qantas employees or employees of WFI not to perform their work in accordance with their contracts of employment and thus prevented the applicant from performing its contractual obligations to its respective customers. It is also alleged that Sheldon and Pieri prevented, obstructed and interfered with the entry and egress of members of the general public, including customers, passengers, suppliers, contractors and transport operators to and from SIT.
432 In particular, it is alleged that on 30 March 2009 Sheldon "induced, asked, persuaded, advised or procured" Qantas employees to cease performing work and leave their normal workstations. Sheldon also "induced, asked, persuaded, advised or procured" Qantas employees and other to impede the access to and egress from SIT by blocking the road in front of and immediately proximate to SIT and blocking the footpath in front of and immediately proximate to SIT.
433 It is alleged that Pieri on 30 March 2009 "induced, asked, persuaded, advised or procured" Qantas employees, including Danny Dooley and/or Jim Mitropolous and others to cease work and leave their workstations and in their capacity as delegates of the TWU to induce, ask, persuade, advise or procure the applicant's employees to cease work and leave their normal workstations.
434 The applicant alleged that Connolly "induced, asked, persuaded, advised or procured" Qantas employees and/or WFI employees, including Peter Seage and/or Grant Mitchell to cease work and leave their normal workstations at Brisbane domestic and/or international air terminals. The applicant alleged that Connolly “induced, asked, persuaded, advised or procured Seage and/or Mitchell as delegates of the TWU to induce, ask, persuade, advise or procure Qantas employees and/or WFI employees to cease work and leave their normal workstations at Brisbane domestic and/or international air terminals. Loader is alleged to have "induced, asked, persuaded, advised or procured" Qantas employees, including Richard Hubarenko to cease work and leave their normal workstations at Adelaide airport. Gallacher is alleged to have "induced, asked, persuaded, advised or procured" Qantas employees, including Richard Hubarenko, to cease work and leave their normal workstations at Adelaide airport. Magree and Spring are alleged to have "induced, asked, persuaded, advised or procured" Qantas employees to cease work, leave their normal workstations and attend a meeting of members of the TWU in the lunchroom at Adelaide airport. Burton is alleged to have "induced, asked, persuaded, advised or procured" Qantas employees, including Mark Bebich and/or WFI employees to cease work and leave their normal workstations at Perth airport.
435 The claim based on the tort of interference with trade or business is dismissed.
3.6 The tort of inducing breach of contract
3.6.1 The applicable principles
436 The development of a separate tort of inducing breach of contract began with the decision in Lumley v Gye (1853) 118 ER 749. A famous singer, Johanna Wagner, was engaged under contract by the plaintiff to perform exclusively at the Queen's Theatre. A rival promoter, knowing of the contract, persuaded Miss Wagner to break her contract and to sing at his theatre instead. This was viewed as an actionable tort.
437 I should commence by noting that in the detailed submissions of Qantas and the respondents a comparatively large number of authorities were referred to (and were authorities which led to other authorities) and, while pointing in generally the same direction, there were differences of emphasis or in degree about what needs to be established to prove the commission of the tort. Perhaps some of those authorities in which the net of the tort is cast widely involved circumstances where there was no other remedy to address what the judge or judges viewed as an obvious injustice. For example, there was not in place, unlike the present case, a statutory system regulating, controlling, penalising and creating means of compensating for unlawful industrial action.
438 In due course I will point to authorities in this court which I believe I should treat as the touchstone in determining this question concerning the elements of the tort. There is no judgement of the High Court which the parties referred me or of which I am otherwise aware which provides a ready answer. One qualification I should make to this last statement is that the respondents referred to observations of Dixon J sitting in the High Court's original jurisdiction in James v The Commonwealth (1939) 62 CLR 339 and, in particular, his apparent adoption with approval observations in broadly contemporaneous editions of Salmond, Law of Torts about the type of conduct necessary to constitute inducement. A distinction was drawn between advising a breach of contract and inducing a breach of contract. The latter involved creating a reason for the party to break the contract. As to inducement, an example was given in the quoted passage from Salmond in relation to inducing a servant to leave his employment by an offer of higher wages or by a threat to inflict some harm upon him, legal or illegal, if he continued in it. This distinction between advice and inducement is repeated in a much more recent judgement of the judge of this Court which I propose, indeed I am bound, to follow.
439 The tort was described in Thomson v Deakin [1952] Ch 646 by Jenkins LJ at 694:
Direct persuasion or procurement or inducement applied by the third party to the contract breaker, with knowledge of the contract and the intention of bringing about its breach, is clearly to be regarded as a wrongful act in itself, and where this is shown a case of actionable interference in its primary form is made out.
440 There is no doubt that intention is a necessary element. The Full Court of the Federal Court held in Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at par [127]:
The gravamen of the tort of inducing breach of contract is intention. Although the requirement of knowledge of the contract is sometimes discussed as if it were a separate ingredient of the tort, it is in fact no more than an aspect of intention. The requirement that the alleged tortfeasor have sufficient knowledge of the contract is a requirement that he have sufficient knowledge to ground an intention to interfere with contractual rights. Both the intention to interfere with contractual rights and the necessary supporting knowledge of the contract refer to the state of mind of the alleged tortfeasor: All State Life Insurance Co v ANZ Banking Group Ltd (1995) 58 FCR 26 at 43.
(Emphasis added)
441 It is not necessary to prove that the respondents knew the precise terms of the agreement: Carlton & United Breweries Ltd v Tooth & Co Ltd (1986) 71 IPR 581 at 625; Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545 at 552, 553; Greig v Insole [1978] 1 WLR 302 at 335-6; C Thomson & Co Ltd v Deakin [1962] Ch 646 at 687. Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 at 138.
442 However to say that it is necessary that the tortfeasor intended that the contract be breached tends to obscure issues which were considered in detail by the Full Court in Allstate Life Insurance Company v Australian and New Zealand Banking Group Ltd (1995) 58 FCR 26 which is an authority I am bound to follow unless there is a later High Court or Full Court authority modifying or qualifying the earlier judgement. There is not.
443 The leading judgement was that of Lindgren J. The immediate issue was whether Allstate could amend its pleadings. However that raised for consideration whether the proposed pleadings traversed all elements necessary to establish the tort of inducing a breach of contract. The Full Court concluded they did not and refused the amendment. Significantly, for present purposes, was a submission made by Allstate (see 34.2) that the tort can be established if it is proved that the alleged tortfeasor was aware of the contract, did acts intentionally and, in the result, the contract was breached, as a matter of fact, by the doing of those acts. Lindgren J observed that "[a]ccording to this submission, the alleged tortfeasor may not have given the subject of breach of contract a passing thought". This submission was relevant to the pleading against the State Bank and the Sumitomo Bank (see 34.8).
444 Lindgren J ultimately concluded (at 43.2):
In my opinion, the authorities established conclusively that the gravamen of the tort is intention. Although the requirement of knowledge of the contract is sometimes discussed as if it was a separate ingredient of the tort, it is in fact an aspect of intention. The requirement that the alleged tortfeasor have "sufficient knowledge of the contract" is a requirement he have sufficient knowledge to ground an intention to interfere with contractual rights.
Both this intention to interfere with contractual rights and the necessary supporting knowledge of the contract refer to the "actual" or "subjective" state of mind of the alleged tortfeasor.
445 One other aspect of intention should be mentioned. Unlawful conduct must "in some real sense be 'aimed at' the contract" (Jacob J in Oren v Red Box Toy Factory Ltd [1999] FSR 785 at 799) such that there is a clear causal link between the defendant's conduct and the breach. In Oren, whilst it was held that there the infringement of one of the registered designs for a foldable mattress may have made the exploitation of the design less successful commercially, it did not affect the contractual relationship between the first and second respondent or their respective obligations. It was insufficient (see [35]-[41]) for the tort of inducing breach of contract that interference was the natural and probably consequence for the defendant's activities and that the defendants knew this to be the case. Jacob J concluded that the defendants did not have the requisite intention and it was a matter of indifference to them if anyone's contract was affected or not.
446 As Jenkins LJ in Thomson v Deakin said at 694:
It is to be observed that in all these cases there is something amounting to a direct invitation by the third party of the rights of one of the parties to the contract, by prevailing upon the other party to do, or doing in concert with him, or doing without reference to either party, that which is inconsistent with the contract; or by preventing, by means of actual physical restraint, one of the parties from being where he should be, or doing what he should do , under the contract.
(and at 698)
Furthermore, as the judge in effect pointed out in his judgment, almost every strike, if to any extent successful, must cause breaches of contracts between the employer against whom it is directed and the persons with whom he is doing business, the very object of the strike being to bring his business to a standstill or himself to terms. Again, many a strike embarked on in support of a strike in progress in some other concern must have had for its immediate object the cutting off of supplies to, or prevention of distribution of the products of, or the application of similar pressure upon, that other concern.
…I do not think that the inciters of the strike could be held so liable in the absence of proof that they knew of the existence of a particular contract, and, with a view to bringing about its breach, counselled action by employees in itself necessarily unlawful (as, for example, breach of their contracts of employment) designed to achieve that end.
447 In addition to establishing intention, it is necessary to show the tortfeasor procured or induced the breach of contract. This element was discussed by Finkelstein J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering Australia Pty Ltd (2005) 223 ALR 480. His Honour said at [19]:
The first mentioned tort [inducing breach of contract] was given life by Lumley v Gye (1853) 2 El & Bl 216. See also Quinn v Leathem [1901] 1 AC 495. The gist of the cause of action, at least where the interference is direct, is the knowing interference with (or procuring a breach of) contractual relations, when there is no sufficient justification for the interference or procuration. Proof of malice in the sense of spite or ill-will is unnecessary: South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239, 246, 250. It is, however, necessary to show that the breach of the contract has been “procured” or “induced”. Sometimes the cases have noticed a distinction between “procuring” or “inducing” which is said to be unlawful, and “advice” which is said not to be unlawful. The prevailing view is that to induce a breach of contract means to create a reason for breaking it; to advise a breach of contract is to point out the reasons that already exist. The former is actionable while the latter is not. See generally South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239; D C Thomson & Co Ltd v Deakin [1952] Ch 646 at 686.
448 It is tolerably clear that his Honour was adopting what had been said on the subject of "procuring" and inducing" in Thomson v Deakin at 686. It is a passage in the judgement of Evershed MR which reads:
I appreciate that in these matters there is a difficult question of distinguishing between what might be called persuasion and what might be called advice, meaning by the latter a mere statement of, or drawing of the attention of the party addressed to, the state of facts as they were. In the case of Camden Nominees Ld. v Forcey [1940] Ch. 352, before Simonds J., it was held that the advice given was of such a nature (was of a character obviously intended to be acted upon) that it was for all practical purposes equivalent to persuasion; but, if the matter be advice be merely (in the ordinary sense of that word), it seems to me that there can be no complaint about it; nor do I think that Mr. Beyfus can derive any substantial assistance by saying that Bowaters proved themselves merely chicken-hearted and that the ease with which a person may be persuaded is not a relevant consideration in determining whether the persuader was wrongful in what he was doing. That may, as a general proposition, be true; but in this case the evidence on this motion, whatever may emerge when the matter is fully investigated, falls too far short of any proof of what is required to constitute a cause of action such as would entitle the plaintiffs to an injunction. Put another way, I cannot see that the evidence establishes that there was anything done by Bowaters vis-À-vis the plaintiffs which is fairly attributable to any such pressure, persuasion or procuration on the part of any of these defendants, as would in any event cause them to be liable in tort.
449 The case of Camden Nominees Ld. v Forcey referred to in this passage involved an action by a landlord who owned a block of flats against the chairman and secretary of a tenants' association which had been formed by disaffected tenants in the block. There was, it appears, widespread concern about the condition of the flats. After steps were taken to constitute the association which involved some meetings, there was a general meeting held at which, amongst other things, it was resolved that the committee sent a letter to the landlord setting out complaints and demands and saying if they were not resolved, rent would be withheld. The trial judge found that one of the defendants actually advocated in the meeting that other tenants withhold their rent and thereby committed the tort (though the proceedings were not for damages but rather injunctive relief). As to other defendant, while he did not say anything expressly at the meeting, he had been so intimately associated with events involving the formation of the association, the holding of the meeting and the proposal that other tenants be asked to withhold rent that the trial judge determined he was likewise liable.
450 It seems to me this dichotomy between advice which appears to be a fairly broad concept and pressure, persuasion or procuration is relevant to my assessment of whether any of the respondents have committed the tort.
451 I should note that Qantas emphasised that the tort can be committed by indirect as well as direct interference with the contract and relied on both. This is undoubtedly so. However, as I understand the authorities, indirect interference involves circumstances where X requires B to do certain things in order for X to discharge its contractual obligations to Y. There is an indirect interference with X's contract with Y by A if A applies pressure on B (or otherwise induces B) to act in a particular way which prevents B doing what is required to enable X to discharge its contractual obligations to Y. An example, in an industrial context, is Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570. In that case A were senior officials of an employee Federation, B were employees (tugmen and lock-keepers), X was the owner of a ship under a time charter to another party who can be assumed to be Y. The captain, as the owner's representative (as the captain is under a time charter), was contractually obliged "to prosecute voyages with the utmost dispatch". The tugmen and lock keepers engaged in industrial action, at the behest of the senior officials, which prevented the vessel from sailing and thereby prevented the owner from prosecuting the voyage with the utmost dispatch as it was contractually bound to do. For my part I do not see how indirect interference has any relevance if, I am considering only the circumstances of the Qantas employees. It may well be that Qantas's emphasis on direct and indirect interference was intended to relate to an aspect of its case which it abandoned at the hearing.
452 Qantas alleged that on 30 March Sheldon, Pieri, Connolly, Loader. Gallacher, Magree, Spring and Burdon "induced, asked, persuaded, advised or procured" Qantas employees and/or WFI employees not to perform their work in accordance with their contracts of employment and prevented Qantas from performing its contractual obligations to its respective customers, including client airlines, knowing that Qantas was in the business of providing air transport services, was a party to contracts for the provision of air transport services and contracts with third parties for the purchase of air transport services. It is alleged that all the respondents also knew that Qantas was a party to the contract with WFI for the provision of ramp services and to contracts with third parties for the provision of ramp services, including ramp, baggage, fleet, water/waste, pushback and freight. The applicant asserts that it has sustained loss and damage as a consequence of the conduct of all the respondents. At the hearing Qantas indicated it was content to restrict its case to one involving the respondents inducing Qantas employees to breach their contract of employment. In particular, as pleaded, it was contended all the respondents "induced, asked, persuaded, advised or procured" Qantas employees either directly or indirectly to cease work and leave their normal workstations.
453 The TWU is alleged by Qantas to be vicariously liable for the conduct of their delegates and the conduct of the individual respondents.
3.6.3 The defence of justification
454 Justification is the only defence available for the tort of inducing breach of contract. It is raised by the respondents. The onus of proving justification is on the party who has interfered with the contractual relations of another: Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 143, Edwin Hill and Partners v First National Finance Corporation Plc [1989] 1 WLR 225 at 228. The essence of the defence is that the conduct of the alleged tortfeasor involved the assertion of a greater right. The authorities demonstrate that the defence has rarely succeeded. As the Full Court of the Federal Court stated in Odco, "[t]here is good reason for the rarity of cases where justification has been shown. In a society which values the rule of law, occasions when a legal right may be violated with impunity ought not to be frequent."
455 Romer LJ recognised in Glamorgan Coal Company, Limited v South Wales Miners' Federation [1903] 2 KB 545, the difficulties that may arise in determining whether there has been justification for procuring another to break his contract in the circumstances of a particular case. His Honour said at 573-575:
I think it would be extremely difficult, even if it were possible, to give a complete and satisfactory definition of what is 'sufficient justification,' and most attempts to do so would probably be mischievous. I certainly shall not make the attempt. In particular I do not think it necessary or useful to discuss the point as to how far the question of justification can be assimilated to the question of malice in cases of libel and slander...I will only add that, in analysing or considering the circumstances, I think that regard might be had to the nature of the contract broken; the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person who breaks the contract; and I think also the object of the person in procuring the breach.
456 As Bowen LJ remarked in Mogul Steamship Co Ltd v McGregor, Gow and Co (1889) 23 QBD 598 at 618-19: "The good sense of the tribunal which had to decide would have to analyse the circumstances and to discover on which side of the line each case fell".
457 What constitutes justification as it currently exists in Australian law was described by the High Court in Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [587].
The rarity of instances of success [of the defence of justification] probably reflects the high store placed on compliance with contractual obligations by English law and by the common law systems derived from it. The assertion of justification by a stranger to interfere with such compliance necessarily impinges on the general approach of the law. It is for that reason that justification requires either the authority of statute or some other superior right if the interference is to be lawful
However, in stating the law for Australia, it should now be accepted that, where the superiority of right rests in some characteristic of the general law, then, as indicated above, and as perceived by Jordan CJ, temporal priority of other purely contractual rights will not suffice.
458 Cases in which justification has been found to exist include, Brimelow v Casson [1924] 1 Ch 302 where the defendants, representatives of theatrical unions, induced a theatre manage to break a contract with the plaintiff because the wages being paid were so low the women were resorting to prostitution to supplement their income. In Edwin Hill the Court of Appeal held that there was justification on the facts of the case. The defendant's right to receive payment of principal and interest on the loan to a property developer was a superior right which justified their interference with the plaintiff's contract for architectural services with the property developer. The defendants had agreed in the circumstance to finance the development themselves, instead of exercising their power of sale and as a condition of this involvement, the defendants insisted that the property developer should dismiss the architects.
459 I have discussed earlier in those reasons the conduct of the individual respondents and their involvement in the stoppages. I do not repeat that discussion. However it seems to me that none of the individual respondents, by their actions, engaged in conduct intended by them to have the result that any given Qantas employee would breach his or her contract of employment. It is true, as I discuss elsewhere, that each of them (save for Magree and Spring) organised or otherwise participated or were involved in the meetings in a way that constituted industrial action. Each of them appreciated that there was a high likelihood any given Qantas employee would stop working as they were contractually obliged to do. However the evidence falls short of establishing, in my opinion, that they intended any given Qantas employee to stop work. They knew it may well happen but they also knew any given employee might, in the circumstances, continue working. It seems to me that for Qantas to succeed in this aspect of its case it would need to establish that the individual respondents took some step which manifest any intention to induce, in the way discussed earlier, one, some or all of the individual employees who stopped work to do so. It has not.
460 The TWU is in a slightly different position. Qantas relies not only on the conduct of the respondents for which the TWU might be vicariously liable but also any other person (most notably delegates) for whom it might also be vicariously liable. Two possible instances of conduct might have this result. The first concerns the way Seage marshalled the members to attend the meeting at Brisbane domestic terminal. He did so at Connolly's request. It is to be recalled he walked around the baggage room advising members of the meeting. He later told Goebel, on Goebel's account, that "he called them [the members] off but on Scott's [Connolly's] instructions". This has the appearance, on one view, of Seage having directed or instructed all the members to stop work. However, these comments were made in response to a question from Goebel, on Goebel's account, which was "who made the call for staff to meet and stop work". The sequence in the question is, in this context, important. In asking someone to attend a meeting (a request they might decline) when they were working might have the result that they stopped working. This, in the context of this tort, appears to me to be materially different to a bare request to someone to stop working. The latter probably does involve inducing a breach of contract, the former does not. In any event, as discussed earlier, Seage only requested the members to attend the meeting.
461 The second instance was the evidence that someone said over the radio at SIT "get off the tarmac" or words to that effect. Those words are capable of being viewed as a direction or exhortation to those employees then on the tarmac to leave their workplace and not continue to work as they almost certainly were contractually required to do. If so, the person entered the realm of inducing a breach of the employment contract of the employees then working on the tarmac. However Qantas has not established who that person was and it is therefore not possible to determine, on the balance of probabilities, that it was a person in a position or exercising authority which would render the TWU vicariously liable.
462 For completeness though without descending into detail, I should add that the TWU's submission that the terms of the individual contracts were not proved and absent such proof, breach could not be demonstrated is one I would not have readily accepted. I was told by Qantas' counsel (an assurance I accept) that such documentation as there was evidencing the contracts was in evidence (it is on one or a number of CDs though it has been unnecessary for me to look at it). Also I doubt that it is necessary for Qantas in any event to prove the precise terms of each contract of employment to establish that any given individual breached his or her contract by stopping work in the way that occurred on 30 March 2009 though, that said, some individuals who attended the meetings may well have done so without breaching their contract. I should also add the respondents defence of justification seemed to me, on the authorities, doomed to fail. Lastly I should note that given the conclusion I have reached it is unnecessary for me to address the difficult issue raised by the respondents about the effect of Qantas' intimation to its workforce that it was obliged (by s 507) to dock the employees participating in the stoppages, four hours pay. It is conceivable that would have a material bearing on damages.
3.7.1 The applicable principles
463 This claim was abandoned by Qantas during final submissions. However I should note several matters before moving on to other aspects of the proceedings.
464 Public nuisance can arise in a diversity of circumstances involving interference with rights of the public at large, including obstructing public highways or waterways as distinct from private nuisance which traditionally relates to interference with an interest in the use and enjoyment of land. Public nuisance is only actionable by an individual where there is proof that particular damage has occurred beyond that suffered by the rest of the public. In Walsh v Ervin [1952] VLR 361, Sholl J reviewed the early English authorities and the history of this tort in considerable detail at [363]. His Honour concluded at [371]:
(1) An individual person or corporation cannot sue in his or its own name in respect of a nuisance to a public highway, except for "particular damage" occasioned to him or it thereby.
(2) "Particular damage" is not limited to "special damage" (in the sense of actual pecuniary loss).
(3) It may consist of proved general damage, e.g., inconvenience and delay—as in the present case—provided that it is substantial, that it is direct and not consequential, and that it is appreciably greater in degree than any suffered by the general public.
(4) Since such particular damage must be thus proved, it follows that mere nominal damages cannot be recovered, since there is no presumption of particular damage.
(5) But I see not reason why exemplary damages might not in a proper case be awarded.
465 More recently in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 the Court of Appeal of Victoria considered whether there had been a public nuisance committed by the respondents in parking their vehicles on and across a forest access road, so hindering the free passage of the public, in particular members of a pro-logging group (who were the plaintiffs and appellants) along the road to the extent required to constitute a significant obstruction and public nuisance. The Court concluded that while there was sufficient obstruction to cause a public nuisance, the appellants did not have a right of action in respect of that public nuisance because particular substantial injury was not suffered by them, beyond that suffered by other members of the public. At [131] the Court said:
…an injury for public nuisance is not actionable unless it be the "direct, necessary, natural and immediate consequence of the wrongful act". Consequently, as Lord Hanworth MR and Lawrence LJ both held in Harper [Harper v G N Haden & Sons Ltd [1933] Ch D 298] a private individual cannot maintain an action in respect of wrongful obstruction of the highway unless the individual has suffered particular substantial injury beyond that suffered in common by all other members of the public affected by the nuisance. A claimant may establish "particular" damage where he or she has suffered injury or inconvenience which is a direct and not merely consequential result of the public nuisance and is of a substantial character so as to distinguish it from the inconvenience suffered by the public at large. And, as Sholl J explains in Walsh v Ervin, "particular damage" in the sense of actual pecuniary loss. But such general damage, usually in the form of inconvenience and delay, must be appreciably greater in degree than that suffered by the general public (although the fact that there may be numerous plaintiffs who may have suffered the same or similar "particular" damage will not disqualify them from bringing action).
466 It is alleged by Qantas that the conduct of the Sheldon and Pieri involved obstruction to members of the public who were seeking to enter or exit SIT and so interfered with their rights and the ordinary use of SIT by Qantas and members of the public.
467 In particular Sheldon and Pieri "induced, asked, persuaded, advised or procured" Qantas employees and others to impede the access and egress from SIT by blocking the road in front of and immediately proximate to SIT and by blocking the footpath in front of and immediately proximate to SIT. Sheldon and Pieri also entered and remained on premises occupied by the applicant at SIT.
468 Qantas acknowledged that it was necessary for it to have suffered special damage in order to be able to sue. It put it in terms that "standing to bring an action for public nuisance requires the applicant to demonstrate they suffered an interference with rights different in kind or greater in extent from that suffered by the public at large". It identified its special position as being firstly the blockage constituted obstruction and besetting of members of the public and customers of Qantas seeking to enter and leave SIT (though this was put various ways) and that the event was the widely reported as conduct by Qantas employees which necessarily damaged the brand and reputation of Qantas.
469 As the claim was abandoned it is not necessary to consider whether there was any evidence to support any of those propositions.
470 The claim in nuisance should be dismissed.
471 Having been drawn into litigation by Qantas' claims, the TWU has cross-claimed. It contended that certain representations were made by Qantas in negotiations which led to the making of EBA 7 which were false or misleading. This involved, so it was contended, a contravention of s 401 of the Act and a penalty should be imposed.
3.8.2 The statutory provisions
401
(1) A person contravenes this section if:
(a) the person makes a false or misleading statement to another person; and
(b) the person is reckless as to whether the statement is false or misleading;
and
(c) the making of that statement causes the other person:
(i) to make, approve, lodge, vary or terminate a workplace agreement; or
(ii) not to make, approve, lodge, vary or terminate a workplace agreement.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 11 for provisions on enforcement.
472 To establish contravention of s 401 it is necessary to show that a person has made a false or misleading statement, the person must have been reckless as to whether the statement was false or misleading and the making of the statement must have caused the person to whom it was made to make or approve a workplace agreement. An examination of the circumstances established by the evidence in the proceedings will be necessary to prove that a false or misleading statement caused another person to act in a particular way. The representation must be a real inducement or one of the real inducements to engage in the conduct which occasions the loss: San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 366.
473 The Full Court of the Federal Court in Shop Distributive & Allied Employees' Association v Karellas Investments Pty Ltd (2008) 166 FCR 562 discussed the operation of s 401 in relation to two documents circulated by the respondent employer containing false and misleading information about penalty rates and a pay rise in a proposed collective agreement. The operations manager of the respondent signed the documents for the respondent and he was aware of the contents of the 2003 agreement and the proposed 2007 agreement. He was also aware that the documents were being published to induce the employees to vote in favour of the 2007 agreement. The Court inferred that the operations manager was aware of the substantial risk that the misstatements might induce employees to vote in favour of the 2007 agreement and he did not deny this in sworn testimony. Section 5.4 of the Criminal Code Act 1995 (WR Regulations 8.15) was considered. This section provides:
(1) A person is reckless with respect to a circumstance if:
(a) he or she is aware of a substantial risk that the circumstances exists or will exist; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a) he or she is aware of a substantial risk that the result will occur; and
(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
The respondent was held to be reckless as to whether or not the statements that the trial judge found to be false and misleading were, in fact, false and misleading.
474 It is also necessary, in this matter, for the TWU to prove that the statements caused the making or approval of the 2007 agreement. Reference was made to statements of principle listed by Wilson J in Gould v Vaggelas (1985) 157 CLR 215 at 236 where his Honour referred to the discussion of the law by the trial judge arising from an analysis of Smith v Chadwick (1884) 9 App Cas 187 at 196, Arnison v Smith (1889) 41 Ch D 348 at 369, Holmes v Jones (1907) 4 CLR 1692 at 1710 and Cheshire and Fifoot on the Law of Contract (4th Aust ed) at [1028] and [1029]. His Honour re-stated the applicable principles as follows:
1. Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case.
2. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.
3. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation.
4. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.
(Emphasis added)
475 In Shop Distributive & Allied Employees' Association v Karellas Investments Pty Ltd there was no evidence adduced that any employee, apart from one, who had read or considered the documents that contained the false and misleading statements, relied on the false or misleading documents. In the circumstances it was difficult to draw the inference that the employees agreed to the 2007 agreement because of the representations made in the documents. The appeal was dismissed.
476 The principles discussed in Shop Distributive & Allied Employees' Association v Karellas Investments Pty Ltd were applied by Cowdroy J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Luxottica Retail Australia Pty Ltd (2009) 185 IR 164. In Luxottica it was claimed by the union that the information provided to employees relating to the vote for a new industrial agreement for 2009 was misleading. His Honour held at [33]:
[T]he court must have some evidence before it that the employees were aware that the proposed agreement was clearly more advantageous to the Award, that is, whether the employees were aware of the content of the Award. In Karellas No 1 the information provided to the employees was sufficient to enable the court to find that it was misleading and was likely to "distract" the employees…It was self-evident that the misinformation was likely to have provided an incentive to vote for the agreement. Without similar evidence the court is unable to find the "likely effect" of the alleged misinformation, since any such finding would be wholly speculative. The evidence is inadequate to warrant a finding that the statements caused employees to be distracted in their voting.
477 The TWU (cross-claimant) alleged that there was contravention of s 401(1) of the WR Act in that the ACTU Protocol representation and the site rates representation made by Qantas were false and misleading statements and/or Qantas was reckless as to whether they were false and misleading statements. These representations caused the respondents to agree to the EBA 7 agreement with Qantas. In the respondents' further amended defence and cross-claim the cross-claim is pleaded in [28] and [66] – [69] as follows:
28. As to paragraph 28 of the statement of claim:
(a) The Respondents say:
(i) there has been a long running dispute between the First Respondent, the Applicant, and subsidiaries of the Applicant, concerning the outsourcing of work by the Applicant and its subsidiaries with the objective of procuring labour at lower rates of pay;
(ii) during the course of negotiations between the First Respondent and the Applicant in respect of the Transport Workers Union (Qantas Airways Ltd) Enterprise Agreement 7 (2008-2011) ("The Agreement") the Applicant represented to the First Respondent that, in respect of outsourcing, that in future:
(A) it would maintain the current agreement between the Applicant and the First Respondent that any outsourcing that occurred would not undercut the rates and conditions of the Agreement ("the Site Rates Representation") and
(B) the Applicant and its subsidiaries would comply with the ACTU Protocol concerning outsourcing ("the ACTU Protocol Representation");
Particulars
(1) The ACTU Protocol required that the Applicant and its subsidiaries engage in an extensive consultation process before engaging in any outsourcing of work.
(2) A copy of the ACTU Protocol may be inspected at the offices of the solicitors for the Respondents by appointment.
(iii) the First Respondent relied upon these representations in entering into the Agreement;
(iv) the Agreement came into operation on 12 December 2008;
(v) in late December 2008, the Applicant informed the First Respondent that the operations of the baggage room at Perth Airport, in which members of the First Respondent worked, would be reviewed with the objective of outsourcing the work performed there;
(vi) the First Respondent with the assistance of the Applicant prepared its own in-house bid for the work at the Perth Airport Baggage room;
(vii) the First Respondent's in-house bid was prepared with the assistance of external accountants paid for by the Applicant at a cost of approximately $30,000;
(viii) the First Respondent's in-house bid was based upon the rates and conditions of the Agreement, in reliance upon the Site Rates Representation;
(ix) in early 2009, the First Respondent learned that the Applicant had awarded the Perth baggage room contract to Aero-Care Pty Ltd ("Aero-Care"), which had tendered at rates and conditions significantly below those provided for in the Agreement;
(x) in early 2009, and before 30 March 2009, the First Respondent was advised by a representative of the Applicant that the Applicant would not honour the Site Rates Representation;
(xi) at all relevant times prior to March 2009, the baggage room operations at Sydney International Air Terminal of Jetstar Airways Pty Ltd ("Jetstar"), a wholly owned subsidiary of the Applicant, had been performed by employees of the Applicant under the terms of the Agreement or its predecessors;
(xii) in early March 2009, Jetstar announced that its baggage room operations at Sydney International Air Terminal were to be outsourced to Aero-Care;
(xiii) neither the Applicant nor Jetstar engaged in any consultation with the First Respondent or its members in accordance with the ACTU Protocol or at all prior to this announcement;
(xiv) Aero-Care employees who perform the Jetstar baggage room work at Sydney International Air Terminal consequent upon this announcement do so upon rates and conditions significantly below those provided for in the Agreement;
(xv) The First Respondent has at all relevant times held the view, and it was in fact at all relevant times the case, that the use of outsourced labour by the Applicant and its subsidiaries created a greater risk to the endangerment of safety and security at Australian airports, since such labour is frequently inadequately trained, not subject to proper security checks, and due to the transient nature of their employment vulnerable to direction to perform work in an unsafe and insecure way;
(xvi) The First Respondent discussed the above matters at the meetings on 30 March 2009 referred to in paragraphs 15(b), 18(a), 20(a) and 25(a) above;
(xvii) After 30 March 2009, the Applicant did not proceed with the outsourcing of the Perth Baggage Room;
and otherwise does not admit the paragraph.
[66]
The Site Rates Representation and the ACTU Protocol Representation made by the Cross-respondent were false and misleading statements and/or the Cross-respondent was reckless as to whether they were false and misleading statements.
[67]
The Site Rates Representation and the ACTU Protocol Representation caused the Cross-claimant to make the Agreement with the Cross-respondent.
[68]
By reason of the matters stated in paragraphs 66 and 67 above, the Cross-respondent contravened s 401(1) of the Workplace Relations Act 1996.
[69]
The conduct of the Cross-respondent in contravention of s 401(1) of the Workplace Relations Act 1996 has caused loss and damage to the Cross-claimant and its members employed or formerly employed by the Cross-applicant.
(Emphasis added)
478 The TWU claims that a pecuniary penalty should be imposed on Qantas under s 407 of the WR Act and an order made that it be paid to the TWU under s 841 of the WR Act, as well as an order that members of the TWU employed or formerly employed by Qantas under s 413. Pecuniary penalties should be imposed on Qantas under s 807(1)(a) of the WR Act because of the contraventions of s 792(1) and an order made that these pecuniary penalties be paid to the TWU under s 841 of the WR Act. An order should also be made for compensation to be paid to the TWU and members of the TWU formerly employed by Qantas in the Perth Airport baggage room under s 807(1)(b) due to contravention of s 792(1) of the WR Act.
479 At the heart of TWU's cross-claim is whether things were said or written during the negotiations leading to and bringing about the making and approval of EBA 7 concerning Qantas' intentions which were false and misleading. Did Qantas misrepresent its intentions? The cross-claim will be made out if the TWU establishes what Qantas' intentions were and what was said misrepresented them or was otherwise misleading and deceptive.
480 I deal first with the ACTU Protocol. The agreement, if that is the correct way of describing a protocol, is ambiguous in at least one respect. It is, in terms and having regard to its heading and content, an agreement intended to apply to Qantas and its subsidiaries. At the time the agreement was made there was only one subsidiary, Qantas Catering Group Ltd. Jetstar had not been incorporated nor, necessarily, had its business been created. Immediately there is a question of whether the agreement was originally intended to apply only to subsidiaries then existing or, additionally, to subsidiaries which may later be created. It is not my task in this case to construe the document and express a view about the scope of its operation. That would not ordinarily depend on the subjective intentions of the parties: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352.
481 But the cross-claim centrally concerns the intentions of one party, Qantas. Has the TWU established that Qantas understood the agreement, when made, was to apply to subsidiaries created in the future or formed that view later, possibly as and when new subsidiaries were created or represented to the TWU that it would act on this basis or acted as if it did apply to new subsidiaries? If so, it may have misrepresented its position in the latter part of 2008 if it then intended not to apply the agreement to subsidiaries created since the ACTU Protocol was first adopted (and Jetstar in particular). However, there is no direct evidence that Qantas, through any employee or agent, adopted the position that the ACTU Protocol applied to subsidiaries created after the Protocol was agreed in the 1990's. Nor is there other evidence which might establish by inference that Qantas intended it apply in this way. Nor is there cogent evidence it represented to the TWU that it intended to apply the ACTU Protocol to new subsidiaries or acted as if it did. Events at Coolangatta do not, as discussed earlier, provide that evidence. Nor is there evidence, directly or indirectly (through inference) that would sustain a conclusion that Qantas represented to the TWU that it intended to apply the ACTU Protocol to new subsidiaries irrespective of whether it did intend to apply it.
482 The preceding comments have been seen in the context of the TWU bearing the burden of proving its case to the civil standard in proceedings for a penalty. Unless I am satisfied that Qantas intended the ACTU Protocol to apply to a subsidiary created after the mid 1990s, had represented that it would apply it in such a situation had acted as if it would at the time it wrote the side letter on 11 December 2008 or understood the TWU believed it would operate this way and did not disabuse it of this belief, then this aspect of the cross-claim fails at what is really the threshold. I am not so satisfied.
483 A similar analysis applies to the site rates representation. There was a fundamental difference apparent in the evidence between Qantas and certain of the TWU witnesses about the scope of the operation of the site rates arrangement. Of course, what is an arrangement in this context is itself an elusive notion. What then does the evidence establish about Qantas' intentions concerning the practice of paying site rates? And this analysis has to be undertaken bearing in mind that the false or misleading characteristic of Qantas' conduct, as it has been pleaded, is that it did not intend to adhere to the practice when it said it would because it was apparent shortly after EBA 7 was concluded, it did not require parties tendering for ramp work at Perth and, as to Jetstar, SIT (and perhaps Hobart and Adelaide as well) to agree to pay site rates.
484 It is tolerably clear that Qantas adopted a practice of requiring the payment of site rates to employees of labour hire firms working alongside Qantas employees and that it followed that practice. However, it is equally clear that the evidence does not establish, either directly or indirectly (by inference), that Qantas intended, at least in the last decade, the practice to have any application to, or scope to operate on, employees of contractors who successfully tendered to take over an aspect of Qantas' operations as a result of a decision by Qantas to outsource that operation. Nor does the evidence establish that Qantas, through its employees or agents, said anything to the TWU, its officers, employees or members which suggested it intended to apply the practice more widely or had acted as if it would.
485 It is true that in probably 1997 Qantas had put out to tender its baggage handling and ramp services operations in Melbourne on the footing that the successful tenderer would have to pay site rates. But by the time Bussell said what she did in August 2008 about not walking away from or changing existing labour hire site rates arrangements, it was clear that Qantas, if seeking to outsource an entire area of operation or activity, would not be requiring tenderers to commit to paying site rates. That had been the position in Perth and Adelaide and known to some and probably all the members of the negotiating committee and TWU officials. The statement of Bussell would only have been intended to be, was and should have reasonably been taken to be concerned only with labour hire employees provided by labour hire firms working alongside Qantas employees doing similar work. That was the only field of operation of "existing arrangements". This aspect of the cross-claim is not made out.
486 The cross-claim should be dismissed.
487 There are probably two matters I should advert to concerning the question of what various respondents might be liable to pay Qantas as compensation for the contravening conduct. The first is whether I should exercise the discretion under s 494(5)(b) to make an order to remedy the effects of the contravention at all and, if so, against whom should the order be made. I presently see no compelling reason not to make such an order though equally I presently see no compelling reason to make an order against any respondent other than the TWU. The second is whether I need to assess the effect of the contravening conduct on Qantas’ operations taking into account the failure of Qantas employees to work during the period following Qantas' intimation, dictated by s 507, that its employees would not be paid. This really involves an evaluation of the nature of the power to order the payment of compensation in the statutory context in which power is conferred. The analysis, in point of principle, would appear to be much the same as that undertaken by the High Court in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109. That is, if the industrial action led to a sequence of events including Qantas adopting a position having regard to s 507, then the adverse financial consequences on Qantas of all those events should be viewed as "the effects" of the industrial action for the purposes of s 494(5)(b). There would be no room to suggest Qantas, by its own actions, was responsible for some of the effects and, accordingly, the respondents were not. On the approach I presently consider is appropriate, the TWU would be ordered to pay compensation for such damage as Qantas suffered directly or indirectly from the industrial action and irrespective of the effect of Qantas' intimation it would not pay employees for four hours on the 30 March 2009.
488 The conclusions in this section are expressed tentatively because the parties did not know (when the wide ranging submissions were made in the first phase of these proceedings) what conclusions I would reach about the operation of both s 494(5)(b) and s 507 together with those about the availability of damages at common law. I do not suggest that I have an entirely open mind on the issue of who should pay compensation and how it should be assessed. I do not but nor are my views immutable. The parties may, if they wish, address these issues in the next phase of these proceedings on 26 and 27 May 2011.
489 I propose to sit on the dates earlier agreed to determine what orders should be made. Accordingly, I stand the matter over for further hearing on 26 May 2011.
| I certify that the preceding four hundred and eighty-nine (489) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. |
Associate:
