FEDERAL COURT OF AUSTRALIA

EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 360

THE COURT ORDERS THAT:

1.    The application for a stay of the decision of the Fair Work Commission dated 25 March 2013 in matter B2013/61 is refused.

2.    The application for an interlocutory injunction restraining the Construction, Forestry, Mining and Energy Union from taking any of the classes of action described in paragraphs [1], [2], [3] or [4] of its notice dated 10 April 2013 is dismissed.

Note:    Settlement of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In this proceeding the applicant, EnergyAustralia Yallourn Pty Ltd (“EnergyAustralia”) seeks the issue of writs of certiorari and mandamus directed to the second respondent, the Fair Work Commission (“the Commission”):

(a)    to quash the decision of the Commission dated 25 March 2013 in matter B2013/61 (“the Decision”), allowing an extension of the 30 day period in which the first respondent, the Construction, Forestry, Mining and Energy Union (“CFMEU” or “the Union”) can commence protected industrial action pursuant to s 459(1)(d) of the Fair Work Act 2009 (Cth) (“the FW Act”); and

(b)    to require the Commission to determine, according to law, the CFMEU’s application in matter B2013/61 for an extension of time within which to commence protected industrial action.

The Commission filed a submitting appearance.

2    Although styled as an application seeking the issue of prerogative writs in relation to the decision of a single commissioner dated 25 March 2013 (Bissett C), on the better view, it is an application seeking relief in relation to a decision of the Full Bench of the Commission dated 2 April 2013 (Lawler V.P, Sams D.P and Lewin C). EnergyAustralia appealed the decision of Bissett C to the Full Bench, permission to appeal was granted, but the appeal was dismissed. In effect, in its decision of 2 April 2013 the Full Bench confirmed the decision by Bissett C.

3    Because the substantive proceeding relates to a decision of the Full Bench the Chief Justice has advised that, in the interests of comity, it should be heard by the Full Court rather than a single judge.

4    The subject of the present hearing is the applicant’s claim for urgent interlocutory relief. It seeks:

(a)    a stay of the Decision until the hearing and determination of the substantive application; and

(b)    in the alternative, an interlocutory injunction restraining the CFMEU from taking various classes of threatened industrial action until the hearing and determination of the substantive application.

The urgency relates to two 24 hour work stoppages by the members of the CFMEU at the Yallourn Power Station in Victoria that the Union has threatened will occur on Thursday 18 and Friday 19 April 2013. On 17 April 2013 the Court heard this application on short notice. Because of the urgency, orders were made on that date without the provision of reasons. These are the reasons.

The Facts

5    EnergyAustralia is the owner and operator of the Yallourn Power Station which supplies almost one quarter of Victoria’s electricity needs. The CFMEU is a registered organisation under the FW Act, and it has members that are employed by EnergyAustralia at the power station.

6    It is common ground that EnergyAustralia is currently bargaining with a number of unions, including the CFMEU, for an enterprise agreement to replace the existing workplace agreement.

7    On 17 January 2013 the CFMEU made an application for a protected action ballot order pursuant to s 437 of the FW Act.

8    On 22 January 2013 the Commission made a protected action ballot order pursuant to s 443 of the FW Act. The order provided that the applicant’s employees who were also CFMEU members and who would be covered by the proposed enterprise agreement were to be asked whether they authorised the following five types of protected industrial action, to be taken separately, concurrently and/or consecutively:

(a)    an unlimited number of stoppages of work, including consecutive stoppages of work, of between (1) and twenty-four (24) hours in duration;

(b)    an unlimited number of bans on working higher duties;

(c)    an unlimited number of bans on working overtime;

(d)    an unlimited number of bans limiting the output of individual generators; and

(e)    an unlimited number of bans on the issue and/or restoration of permits to work on plant or apparatus.

9    On 14 February 2013 the results of the protected action ballot were declared by the Australian Electoral Commission. The declaration of result reveals that 83.8% of CFMEU members eligible to vote did, and between 92% and 96% of those members approved the various forms of protected industrial action proposed.

10    Without descending into the detail of each notice, it appears that since the ballot the CFMEU has given the applicant a number of written notices of intention to take various related but different forms of industrial action, on:

(a)    14 February 2013;

(b)    25 February 2013;

(c)    5 March 2013;

(d)    15 March 2013;

(e)    26 March 2013;

(f)    2 April 2013; and

(g)    10 April 2013.

11    The applicant relies on affidavits by Michael Hutchinson, the applicant’s Group Executive Manager, Operations & Construction, sworn 20 March 2013 and the applicant’s solicitor, Kate Lehane sworn 15 April 2013. These affidavits indicate that some of the industrial action in the various notices has been threatened but not carried out, some has been carried out in part only, and some carried out in full. The deponents set out the applicant’s estimated loss of profits from the industrial action taken to date as:

(a)    action to 13 March 2013 - $407,815;

(b)    24 hour stoppage on 3 April 2013 - $132,600.

12    The deponents also point to the possibility or likelihood of much more significant losses which may be suffered in the future if the proposed stoppages go ahead. Senior Counsel for the applicant conceded that the extent of any future losses was necessarily speculative and, in any event, this was indicated by the great range in the estimates provided. The focus of the applicant’s urgency was two 24-hour work stoppages proposed to take place on 18 and 19 April 2013. The deponents state that the first 24-hour stoppage caused losses of $132,600 but they point to circumstances which could well mean that the losses from later stoppages may be far greater. Whatever view is taken of the likely losses from the proposed work stoppages, I accept that some significant loss will be suffered by the applicant if the stoppages proceed.

13    The CFMEU relies on an affidavit by its solicitor Carita Kazakoff sworn 17 April 2013. On the basis of information provided by Greg Hardy, Secretary of the relevant division of the CFMEU, Ms Kazakoff deposes that in recent times the applicant has taken a tactical approach in the negotiations. Amongst other things, she says that on 5 April 2013 the CFMEU withdrew all current industrial action, including a proposed stoppage of work, on the basis that further negotiations would occur and that at these meetings Mark Pearson, the Executive Manager of the applicant would attend. She deposes that Mr Pearson had not previously attended negotiations and that, notwithstanding this agreement, he failed to attend the negotiations and the other representatives did not give substantial attendance.

14    Without descending to the detail, I am satisfied from the affidavits filed by both parties that during the period of the protected industrial action there has been real progress in the negotiations, although the parties remain firmly in dispute over several remaining issues that are of importance to them.

The application for an extension of the 30 day period

15    On 15 March 2013 the 30 day period provided in s 459(1)(d) for the commencement of the types of industrial action referred to in the protected action ballot order expired. While not conceded by the CFMEU, it appears that no industrial action by way of work stoppages commenced within the 30 day period. Ms Kazakoff deposes that a short stoppage was planned within the 30 day period but shortly prior to it taking place the applicant sent the relevant employees home.

16    On 18 March 2013 the CFMEU applied to the Commission pursuant to s 459(3) of the FW Act seeking an extension of the 30 day period within which protected industrial action could commence. Central to the dispute between the parties is that the application to extend the period was made on 18 March 2013, that is after the 30 day period allowed in s 459(1)(d) had elapsed.

17    The applicant opposed the application for an extension of the period for protected action before both Commissioner Bissett and the Full Bench, on the basis that:

(a)    the Commission did not have jurisdiction to make an extension order after the 30 day period had elapsed; and

(b)    if the Commission had jurisdiction the Commission should in the exercise of its discretion under s 459(3) refuse the application on the merits.

The applicant filed detailed submissions in support of its arguments but these were rejected by both Commissioner Bissett and the Full Bench.

Legislative Framework

18    Part 3.3 of the FW Act authorises the parties to an industrial dispute to engage in protected industrial action, with statutory immunity (subject to certain exceptions) against action taken under any law: ss 415 and 460 of the FW Act. The Part enables and authorises unions, employees and employers to lawfully engage in industrial action during the period that it is “protected”.

19    Section 459 of the Act provides the circumstances in which industrial action is authorised by a protected action ballot. Relevantly s 459(1) provides:

Industrial action by employees is authorised by a protected action ballot if:

(a)    the action was the subject of the ballot; and

(b)    at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c)    more than 50% of the valid votes were votes approving the action; and

(d)    the action commences:

(i)    during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii)    if the FWC has extended that period under subsection (3)—during the extended period.

20    Section 459(3) allows the extension of the 30 day period. It provides:

The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a)    an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b)    the period has not previously been extended.

It is common ground that in this case the 30 day period had not previously been extended.

21    Section 460 relevantly provides:

(1)    This section applies if:

(a)    the results of a protected action ballot, as declared by the protected action ballot agent for the ballot, purported to authorise particular industrial action; and

(b)    an organisation or a person, acting in good faith on the declared ballot results, organised or engaged in that industrial action; and

(c)    either:

(i)    it later becomes clear that that industrial action was not authorised by the ballot; or

(ii)    the decision to make the protected action ballot order is quashed or varied on appeal, or on review by the FWC, after the industrial action is organised or engaged in.

(2)    No action lies against the organisation or person under any law (whether written or unwritten) in force in a State or a Territory in relation to the industrial action unless the action involved:

(a)    personal injury; or

(b)    intentional or reckless destruction of, or damage to, property; or

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

…

The applicant contends that this provision operates such that even if the Decision is ultimately shown to have been in excess of jurisdiction, it may be unable to recover damages for losses suffered as a result of the protected industrial action undertaken in good faith on the basis of the Decision.

22    Section 461 provides:

A technical breach of a provision of this Division does not affect the validity of any of the following:

(a)    a protected action ballot order;

(b)    an order, direction or decision of the FWC in relation to a protected action ballot order or a protected action ballot;

(c)    a direction or decision of the protected action ballot agent in relation to a protected action ballot order or a protected action ballot;

(d)    a protected action ballot;

(e)    the conduct of a protected action ballot;

(f)    the declaration of the results of a protected action ballot.

It indicates that the capacity to take protected industrial action is not affected by technical breaches in relation to protected action ballot orders or orders of the Commission in relation to protected action ballot orders.

Consideration

The applicant’s substantive claim

23    In the substantive application for judicial review the applicant contends that the Commission exceeded its jurisdiction in making the Decision. It says that on a proper construction of s 459 of the FW Act the Commission cannot make an order extending the period for the taking of protected industrial action after the initial 30 day period allowed in s 459(1)(d) had elapsed.

24    The substantive claim was not the subject of the hearing but it is necessary in dealing with the interlocutory relief claimed to understand it. The applicant’s argument is one of statutory construction. It contends that on the plain meaning of the text of s 459, in particular the word “extend”, the power to extend a period of protected action provides that the Commission may continue an existing 30 day period but may not grant a new period after the 30 day period has expired. It argues that the power to extend the period of protected action, considered in light of the statutory purpose and context, requires that an application for extension of time be made within the relevant 30 day period.

The claim for interlocutory relief

25    In dealing with the interlocutory application, whether treated as an application for a stay or for injunctive relief, although I do not consider its case to be strong I have no difficulty in accepting that the applicant has an arguable case that the construction of s 459 for which it contends is available.

26    The applicant’s primary argument is that it will suffer loss that is unrecoverable if not granted a stay or injunctive relief, and that this is so even if it is ultimately successful in establishing that the Decision was made outside jurisdiction. It argues that, even if the Decision is quashed, the relevant industrial action would remain “protected” by the operation of s 460 of the FW Act and the losses incurred because of that industrial action will be unrecoverable. In my view, it must be accepted that it is likely that the applicant will suffer losses through the threatened protected industrial action, and that it is likely that it will be unable to sue the Union or its members for such losses even if it is successful in quashing the Decision.

27    Of course, freedom from the fetter of litigation is an important part of the legislative scheme. As North J observed in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 18 (cited with approval by Merkel J in Australian Workers’ Union v Yallourn Energy Pty Ltd (2000) 95 IR 207 at 213):

The purpose of this statutory scheme is to allow negotiating parties, both employer and employee, maximum freedom consistent with a civilised community to take industrial action in aid of the negotiation of agreements without legal liability for that action.

The Union’s submissions

The utility of the prerogative writs

28    The CFMEU firstly argues that the application for a writ of mandamus to require the Commission to determine the application again in accordance with law is untenable because the claim is moot. The Union submits that the period in which the Commission can grant an extension under s 459(3) of the FW Act is limited to the period of 60 days after the declaration of the protected action ballot and that period expired on 14 April 2013. It argues that judicial review to require the Commission to reconsider the application to extend the period in accordance with law is therefore an exercise in futility. It says that there is no utility or basis for the writ of mandamus and similarly no basis for the writ of certiorari. While there is some force to this contention, and it was not directly met by the applicant, I will not decide this issue in an urgent hearing where the parties have not had the opportunity to formulate and advance their competing positions in some depth. It must await the substantive hearing.

Is the decision spent?

29    The Union opposes a stay primarily on the similar basis that the 30 day extension ordered by the Commission on 15 March 2013 expired by effluxion of time on 14 April 2013. It argues that the FW Act does not permit the Commission to grant an extension after the expiry of 60 days from the date of declaration of the protected action ballot and it therefore contends that the Decision is spent. It having done its work, there is nothing to stay.

30    Although it is unnecessary to reach a final view I am not inclined to agree. To my mind the Decision is not spent and it has a continuing effect in that the order of 25 March 2013 allowed the commencement of particular forms of protected industrial action, and in particular industrial action by way of “work stoppages”. This form of industrial action may continue indefinitely as protected industrial action if it has been commenced within the extended period. A stay of the Decision may operate to mean that future work stoppages are not “protected”.

The test for the grant of a stay or injunctive relief

31    In some circumstances a stay of an order of the Commission, or the granting of an interlocutory injunction against a party to an order of the Commission, may be appropriate to preserve the subject matter of a proceeding pending its hearing. The Court has an inherent or implied jurisdiction to enable it to discharge its duties as a Court by preserving the subject matter so as to preserve its processes and prevent a proceeding being rendered nugatory. Often it is exercised by the grant of a stay pending the hearing of an appeal (Tait v The Queen (1962) 108 CLR 620 at 623-4), or alternatively by grant of an injunction to preserve the subject matter of a proceeding until the proceeding is heard (Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu & Others (2000) 171 ALR 341 at [7] per Gleeson CJ): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [280] to [292] per Lander and Gordon JJ.

32    The first question to be determined is, what test the applicant must meet in order to obtain the orders that it seeks. Whilst conceding in written submissions that the applicant was required to demonstrate “exceptional circumstances” to warrant the grant of a stay, in oral submissions Senior Counsel for the applicant submitted that a second line of authority exists supporting the proposition that the relevant threshold may be lower than that.

33    In support of this latter contention Senior Counsel took the Court to the decisions of Heerey J in Henderson and Others v Amadio Pty Ltd and Others (No 3) 65 FCR 66 and Besanko J in Commonwealth Bank of Australia v Barker [2012] FCA 1076. In the latter case his Honour was considering an application made under Rule 36.08 of the Federal Court Rules 2011. In the words of Senior Counsel, the authority to grant a stay on this basis is derived “…from the ability of this court to, in advance of an appeal in the appellate jurisdiction, not as in this case in the original jurisdiction,…to stay a judgment pending the appeal…”

34    I do not accept that in the circumstances of this case I should adopt the approach and lower threshold that Senior Counsel suggests. This is an application to the Court in its original jurisdiction seeking the issue of prerogative writs, and seeking orders under s 23 of the Federal Court of Australia Act 1976 (Cth). Rule 36.08 applies in relation to the Court’s appellate jurisdiction. I am bound to have regard to the principles set out by McHugh J in Re Australian Nursing Federation; Ex parte State of Victoria and Anor (1993) 112 ALR 177 (“Re ANF”). As his Honour explained where a stay is sought in respect of an order of the Commission the applicant must show some particular detriment if the order were to be allowed to stand while the judicial review application is pending – such that exceptional circumstances exist which warrant the grant of a stay. At 185 his Honour also made it clear that a strong case will need to be shown before a stay will be granted.

35    This approach is consistent with well established authority involving applications for judicial review of decisions of the Commission and its predecessors. For example, in Re Moore: Ex parte Pillar (1991) 103 ALR 11 (“Pillar”) Dawson J was dealing with an application to stay an order of the Industrial Commission fixing the date for amalgamation of two trade unions. Although initially granting a stay ex parte, on hearing an application by the two unions affected by the stay, his Honour removed it. His Honour explained:

As Mason J observed in Re Marks, at 212, the grant of a stay of an order in the exercise of the inherent jurisdiction of the court is an exceptional course. Ultimately the power to grant a stay is to be found only where it is necessary to preserve the subject matter of the litigation or, perhaps, where the refusal of the stay would make it difficult in the determination of the proceedings in this court to grant the relief sought: [citations omitted].

36    In another case, again in the context of an order made in an industrial dispute by a predecessor of the Commission, Brennan J observed in Re Griffin and Others; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 at 42:

However that may be, there are more substantial reasons for refusing a stay. A stay of a Commissioner’s decision is exceptional. This was pointed out in Re Federated Ironworkers’ Association of Australia; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1981) 55 ALJR 395 at 396-7; 34 ALR 208 at 211; in Re Merriman; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1984) 53 ALR 440 at 443, and in Re McKenzie, Ex parte Federated Liquor and Allied Industries Employees Union (1985) 11 IR 297 at 298. There are sound reasons for this rule. Decisions of the Commission are made in a climate of industrial relations and of economic conditions which presents a multitude of considerations which the Commission must evaluate in deciding where the merits lie. This Court is concerned solely with the legality of the exercise or purported exercise of the Commission’s powers and not with the merits of the decision whose legality is challenged. Exceptional circumstances need to be shown to warrant the making of an order by this Court, before it determines the legality of an impugned decision, which affects the merits of a problem in industrial relations. In this case, it would be inappropriate for this Court to attempt to determine where the merits lie. Yet that is the result which the applicant seeks by an exercise of this Court’s discretion to stay the Commissioner’s decision until the case is disposed of. A stay must be refused and the position must be left unaltered by this Court until the Full Court decides whether the Commissioner has validly exercised her powers. If, in the meantime, the parties wish to invoke the Commission’s jurisdiction to alter that position, whether under s. 35(2)(a) or otherwise, there is no order of this Court which inhibits their freedom to do so or which restricts the Commission in the exercise of its powers.

37    In Re Marks and Federated Ironworkers’ Association, Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208 at 211 Mason J explained that “the stay of an order of the kind in question in the exercise of the inherent jurisdiction pending an application for prohibition is at best an exceptional undertaking.” See also Re Merriman and Others; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1984) 53 ALR 440 per Brennan J. In Re McKenzie and Anor; Ex parte Federated Liquor and Allied Industries Employees Union and Anor (1985) 11 IR 297 at 298 per Dawson J his Honour explained “the jurisdiction to grant a stay is to be exercised with caution and in a case such as the present should be exercised sparingly.”

38    Importantly, the CFMEU contends that the type of detriment claimed by the applicant in this case is not one of the two types indicated by Dawson J in Pillar. It argues that the subject matter of the litigation is the Decision of the Commission and that this is preserved no matter whether a stay is granted or not. However, this contention might be seen as somewhat artificial. Taking a broader view, the subject matter of the litigation could be seen to be the extension of the period for commencement of protected industrial action and the resultant right of the Union to bring protected industrial action against the applicant. If this is the subject matter of the litigation then, in reality, the proceeding could be rendered nugatory by a refusal to grant a stay. However, this possible distinction is of no importance given my finding on other matters below.

Has the applicant met the test for the grant of a stay or an injunction?

39    In my view, the applicant has failed in the circumstances of this case to establish exceptional circumstances sufficient to justify a stay, or in the alternative, the grant of an injunction.

The legislative context and purpose

40    Firstly, in my view the applicant’s argument as to the construction of s 459 of the FW Act is not strong. Re ANF indicates that a strong case is necessary to satisfy the required exceptional circumstances.

41    In my view the context and purpose of the FW Act indicates that the better construction of s 459 is that which allows an extension of time outside the initial 30 day period. The object of the Act is “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action”: see s 3(f) of the FW Act. In aid of this object, the Act provides for protected industrial action on the condition that it is first authorised through a secret ballot, and that the relevant notice requirements have been met.

42    Section 459(1)(d) indicates that once a ballot has been conducted and a particular form of industrial action authorised, the members of the union must commence such action within 30 days, or it is no longer protected. However, there is nothing in the FW Act that would prevent a union from seeking another authorisation of the same form of industrial action upon the expiry of the 30 day period. As is evidenced by the initial application, the process involved in obtaining a protected action ballot order is relatively straightforward and quick.

43    I note also the Commission’s discretion under s 459(3) as to whether to allow an extension of the protected action period. In the circumstances that:

(a)    the Commission is given a discretion as to whether to allow extension or not; and

(b)    a party not granted an extension could immediately apply for a fresh ballot;

it seems unlikely that s 459(1) is intended to operate as a guillotine such that once the 30 day period had passed it cannot be extended by the Commission.

44    I note too, as the Full Bench observed at [22], there is an unfortunate result if the construction advanced by the applicant is preferred:

The construction advanced by the Appellant would be likely to lead to a greater and sometimes unnecessary resort to protected industrial action. As the expiry of the 30 day period approaches, there will be a natural incentive for a union bargaining representative to initiate forms of protected industrial action authorised by a protected action ballot that have not yet been utilised in order to preserve their availability for future use in the bargaining, even if bargaining is progressing satisfactorily and appears likely to be successful without resort to action of that type. A prudent bargaining representative will take account of the possibility that bargaining may not be successful without resort to such protected industrial action. The construction for which the union contends is better attuned to the objects of the Act.

Retrospectivity

45    The applicant argues that to construe s 459 as the Full Bench did is to give it retrospective operation, as it conferred protection on industrial action taken after the expiry of the 30 day period but before the extension order was made. Contrary to this submission, as the Full Bench observed at [26], it is far from clear that a proper construction of s 459(1)(d) permits the Commission to retrospectively legitimise industrial action that was unprotected at the time it was taken. The provision focuses on when action “commences”.

46    In any event, as Senior Counsel for the applicant concedes, the thrust of the interlocutory application does not relate to whether past industrial action is protected or not. Its thrust is that the order of the Commission made on 25 March 2013 extending the period for commencing industrial action should not be allowed to operate prospectively, that is in relation to the pending industrial stoppages. In relation to prospective action, as stated above, the FW Act allows the Union to take the necessary steps to commence further industrial action through a fresh protected action ballot.

Another contextual indication relevant to exceptional circumstances

47    It is important too that Division 8 of Pt 3.3 dealing with protected action evinces an intent that the taking of industrial action which has been authorised by a protected action ballot, not be unduly frustrated by issues concerning the legality or validity of steps taken in the process of obtaining authorisation. That intent may be seen from s 436 which provides that the object of Division 8 (in which s 459 is located) is “to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.” In relation to s 436 and Division 8 the Explanatory Memorandum to the Fair Work Bill 2008 provides:

The process the Division establishes is not intended to delay or frustrate the taking of protected industrial action by employees.

48    Section 460 contemplates that industrial action which is organised and taken in good faith and on the basis of the declared ballot result, is immune from action even if it is later determined that the action was not so authorised. This provision indicates a preference for a practical capacity to exercise the right to take protected action notwithstanding the existence or possible existence of legal invalidity. That preference is confirmed by s 606(3) which prohibits the Commission from granting a stay in relation to a protected action ballot order. It is further confirmed by s 461 which provides that technical breaches of the provisions of Division 8 do not affect the validity of a protected action ballot order or a range of other orders or steps required in the process of industrial action obtaining the authorisation which Division 8 requires.

49    In the light of this intent, the Court should be slow to interfere with the taking of proposed industrial action which, on a prima facie basis, appears to have been authorised in accordance with the requirements of Div 8. This must feed into whether exceptional circumstances exist and the balance of convenience.

Will the applicant suffer the loss in any event?

50    While I do not speculate as to what will occur if a stay or an injunction is granted, the applicant has not established that the harm that is likely to arise upon refusal of a stay will likely only occur in that circumstance. That is, whatever the fate of the application before the Court the FW Act provides the CFMEU with the right to make an application for a fresh protected action ballot proposing the same forms of industrial action as are now proposed. While one cannot know whether the Union will apply for another ballot, should a stay be granted, it seems that there is a high degree of support for industrial action. I infer this from the fact that more than 90% of the relevant CFMEU members voted in favour of the industrial action. I note too that, if the position of these members has altered since the protected action ballot order - to the point that such industrial action is no longer supported by them - then the proposed industrial action will not be taken in any event and the losses which underpin the application for a stay or an injunction will not arise.

The Union’s bargaining position

51    In relation to the application for a stay and for injunctive relief it must be noted that the Union also has interests that require to be taken into account. As the victor before the Commission it is entitled to the benefit of the order which enables its members to carry out “protected” work stoppages. Ms Kazakoff deposes that, given the present impasse in negotiations, the right of the Union and its members to take protected industrial action is the only effective leverage available to it to progress bargaining in aid of the new enterprise agreement which all parties are working towards. I accept that the ability of the Union to threaten or to take protected industrial action is an important tool for it in negotiations.

52    As against this the applicant argues that the rights of the Union and its members to take protected industrial action are only delayed rather than lost if a stay is granted. That is technically correct, but industrial negotiations involving protected industrial action must be seen in the light of the pressure felt by both sides, and the time period over which the pressure is applied. The Court cannot know what stage these particular negotiations are at or how close the parties are to reaching an agreement. While the adverse effect on the bargaining position of the Union of an inability to conduct protected “work stoppages” for a period cannot be easily quantified, it is nevertheless very real.

53    I note also that the extent of any delay is presently unknown. I do not presently know when this matter can be heard and determined by the Full Court, although I hope that it would be possible during the next sitting period. If a stay is granted the Union will be at some significant disadvantage until the matter is finally determined.

54    For these reasons the application for a stay on the Decision must be refused, as must the applications for injunctive relief against the Union.

Associate:

Dated:    18 April 2013