FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 3) [2014] FCA 1324

THE COURT ORDERS THAT:

The applicants have leave to file an amended statement of claim, in the form attached as annexure A to the interlocutory application filed by the applicants on 8 August 2014, within 14 days of today’s date.

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

REASONS FOR JUDGMENT

1    The applicants in the substantive proceeding seek leave to file an amended statement of claim in the form attached as annexure A to the interlocutory application filed by them on 8 August 2014. This interlocutory application of the applicants is opposed by the respondent to this proceeding.

2    The background to the current proceedings is set out in two prior judgments in this matter, namely Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd [2014] FCA 89 (“first judgment”) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Stanwell Corporation Ltd (No 2) [2014] FCA 593 (“second judgment”).

3    As I explained in the first judgment, the applicants take issue with the respondent in respect of the respondent’s decision to withdraw its Swanbank Power Station from service and increase capacity at its Tarong Power Station. This is because the applicants claim, materially, that although that decision will require additional work from existing employees and the employment of additional contractors, the respondent has not complied with relevant clauses of the Tarong Power Station Enterprise Agreement 2012 (“Tarong Agreement”) which provides for consultation by the respondent with the applicants prior to implementation of such decisions. In the first judgment I refused to grant an interlocutory injunction restraining the respondent taking any further step in relation to that decision until it had complied with relevant terms of the Tarong Agreement. Following the first judgment the applicants filed a statement of claim supporting their substantive application, and the respondent subsequently sought orders from the Court to strike out certain paragraphs of that statement of claim. As is apparent from the second judgment, I accepted submissions of the respondent that certain paragraphs of the statement of claim did not plead material facts. Materially I made the following orders:

1.    The following paragraphs of the applicants’ statement of claim be struck out:

(a)    paragraphs 19-23;

(b)    paragraph 24, to the extent that it relates to an alleged contravention of clause 2.11 of the Tarong Power Station Enterprise Agreement 2012; and

(c)    paragraph 25, to the extent that it relies on the allegation pleaded in paragraph 23.

4    The applicants have returned to Court with a proposed amended statement of claim in which they have substantially redrafted clauses previously struck out. Indeed, the applicants have now sought leave to insert new paragraphs 19-42 into the statement of claim with a consequent amendment to paragraph 43. These paragraphs represent a major amendment to the statement of claim, which the applicants submit cures previous faults in that document. The respondent submits however that statement of claim remains defective, and the Court should refuse leave.

Proposed amendments

5    The proposed paragraphs sought to be inserted into the statement of claim are as follows:

19.    As at February 2014 the persons employed at Tarong, covered by the Tarong agreement, in maintenance and operations, consisted of:

(a)    a fuel team;

(b)    a coal team;

(c)    an ash team;

(d)    a day operations team;

(e)    an auxiliary team;

(f)    North Tarong Power Station Team; and

(g)    shift operator teams.

20.    At February 2014 the fuel team was composed of approximately 13 employees.

Particulars

The fuel team was comprised of the following:

(a)    One (1) power worker;

(b)    One (1) electrical fitter mechanic (myself);

(c)    Three (3) fitters (training to become maintainer operators);

(d)    Two (2) boiler makers;

(e)    Two (2) boiler maker apprentice

(f)    One (1) mechanical apprentice

(g)    One (1) electrical apprentice

(h)    One (1) superintendent; and

(i)    One (1) process area officer.

21.    The Fuel Team has responsibility for maintaining pulverisors which turn coal into pulverized fuel to be used in the generation of power and maintaining pipes and coal feeders at both Tarong and Tarong North power stations.

22.    As at February 2014 the Fuel Team was working at capacity in that each of its members was full engaged in required work for his or her ordinary hours of employment.

23.    When units 4 and 2 are brought back into service additional work will be required of the fuel team because additional coal bunkers and pulverisors will be brought on line to supply the additional generators.

Particulars

There are six coal bunkers per unit including 24 at Tarong and five at Tarong North. At present 12 bunkers are in operation at Tarong and five at Tarong North. When units 4 and 2 are brought back into operation at Tarong an additional 12 coal bunkers, coal pulverisors and coal feeders will require to be maintained and operated.

24.    At February 2014 the Coal Team was composed of approximately 15 employees.

Particulars

The Coal Team was comprised of the following:

(a)    One (1) superintendent;

(b)    Three (3) coal handlers;

(c)    One (1) maintainer operator;

(d)    One (1) Process Area Officer

(e)    Two (2) electricians

(f)    Three (3) power workers

(g)    One (1) power worker/rigger

(h)    One (1) or (2) apprentices; and

(i)    One (1) contract fitter.

25.    The Coal Team is responsible for maintaining the conveyor systems that carry the coal, the weighting systems and the bunkers themselves at the Tarong Power Station and Tarong North Power Station. The Coal Team is also responsible for responding to and fixing breakdowns in the conveyor systems and weighting systems.

26.    There are six bunkers for each of the four units at Tarong Power Station and five bunkers at Tarong North Power Station.

27.    As at February 2014 the Coal Team was currently working at capacity in that each of its members was fully engaged in required work for his or her ordinary hours of employment.

28.    When units 4 and 2 are brought back into service additional work will be required of the Coal team as they will be maintaining the conveyor systems, weighting systems and bunkers of four units at Tarong Power Station.

Particulars

At present only Unit 1 and Unit 3 are operational. When units 4 and 2 are brought back into operation the conveyor systems, weighing systems and bunkers of two further units will need to be maintained.

29.    At February 2014 the Ash Team was composed of approximately 11 employees.

Particulars

The Ash Team was comprised of the following:

(a)    One (1) superintendent;

(b)    Two (2) electrical fitter mechanics;

(c)    Two (2) instrument and control technicians;

(d)    Two (2) maintainer operators;

(e)    Two (2) mechanical fitters

(f)    One (1) power worker; and

(g)    One (1) process area officer.

30.    The Ash Team has responsibility for maintaining the plant which collects the ash by-product, changes it to a slurry, and transports it to the ash dam or mine void.

31.    As at February 2014 the Ash Team was working at capacity in that each of its members was fully engaged in required work for his or her ordinary hours of employment.

32.    When Units 4 and 2 are brought back into service additional work will be required of the Ash Team as they will be maintaining the plant of four units at Tarong Power Station.

Particulars

At present only Unit 1 and Unit 3 are operational. When units 4 and 2 are brought back into operation the generators, turbine and associated plant of two further units will need to be maintained.

33.    At February 2014 the Day Operations team was composed of approximately 14 employees.

Particulars

The Day Operations Team was comprised of the following:

(a)    One (1) day operations superintendent;

(b)    One (1) process area officer;

(c)    One (1) senior technician;

(d)    One (1) instrument control technician;

(e)    Two (2) electricians;

(f)    Two (2) mechanical fitters;

(g)    One (1) power worker/trades assistant; and

(h)    Five (5) day operators

34.    The Day Operations Team has responsibility for maintaining the generators, turbine and associated plant which is directly related to the turbine generator of the operating units at Tarong Power Station.

35.    As at February 2014 the Day Operations Team was working at capacity in that each of its members was fully engaged in required work for his or her ordinary hours of employment.

36.    When units 4 and 2 are brought back into service additional work will be required of the Day Operations team as they will be maintaining the generators, turbine and associate plant of four (4) units at Tarong Power Station.

Particulars

At present only Unit 1 and Unit 3 are operational. When units 4 and 2 are brought back into operation the generators, turbine and associated plant of two further units will need to be maintained.

37.    As at February 2014 the Auxiliary Team was composed of approximately 12 employees.

Particulars

The Auxiliary Team was comprised of the following:

(a)    One (1) Auxiliary Plant Superintendent;

(b)    One (1) Chemical Plant Maintainer;

(c)    One (1) Maintainer Operator.

(d)    One (1) Process Area Officer;

(e)    Two (2) electricians;

(f)    Two (1) (sic) instrument control technicians;

(g)    One (1) senior technician;

(h)    Three (3) fitter mechanics; and

(i)    One (1) power worker/trade assistant.

38.    The Auxiliary Team is responsible for maintaining ancillary plant and services at the Tarong Power Station including:

(a)    Switchboards boards and faults on site;

(b)    Heavy electrical work (high voltage lines and transformers);

(c)    Water treatment plant;

(d)    Hydrogen plant;

(e)    Ammonia plant;

(f)    Chlorine plant;

(g)    Acid dosing plant;

(h)    Cooling water plant;

(i)    Raw water plant;

(j)    General purpose raw water plant;

(k)    Domestic water plant;

(l)    Treated water plant;

(m)    Sewage and effluence plant;

(n)    Security gates;

(o)    Lifts; and

(p)    Air conditioning.

39.    The Auxiliary Team is also responsible for maintaining water and chemical analysis at Tarong North Power Station.

40.    As at February 2014 the Auxiliary Team was working at capacity in that each of its members was fully engaged in required work for his or her ordinary hours of employment.

41.    When units 4 and 2 are brought back into service additional work will be required of the auxiliary team as the ancillary plant will require higher levels of maintenance and there will be more breakdowns.

Particulars

At present the non core plant is only working at production levels to support the two units at Tarong Power Station. When units 4 and 2 are brought back into operation the non core plant will be at higher production levels, requiring more regular maintenance and the higher likelihood of breakdowns.

42.    By reason of the matters alleged in paragraphs 15 to 41 the Respondent’s decision to bring back into service units 4 and 2 at Tarong will or is likely to result in:

(a)    Major change to the composition, operation or size of the respondent’s workforce at Tarong or the skills required of employees;

(b)    The alteration of hours of work;

(c)    The need to retrain employees;

(d)    The restructuring of jobs.

Particulars

If no additional labour is brought in to undertake the tasks of the teams referred to above in respect of Units 4 and 2 the employees of the each [sic] of the teams referred to above are likely to have to work additional hours and/or undertake training for additional tasks or have their jobs restructured to allow for the additional work to be undertaken. If new employees are brought in it will result in a change to the size of the respondent’s workforce. If contract labour is brought in it will result in a change to the composition of the respondent’s workforce.

6    The applicant also seeks leave for paragraph 43 of the statement of claim to now read:

43.    By reason of the matters alleged in paragraph 15-42 the Respondent was required to consult with the Applicants and its employees in respect of any preliminary decision to bring the Tarong units 4 and 2 back into service.

Submissions of the parties

7    In summary, the respondent opposed the grant of leave to the applicant to amend the statement of claim on the following grounds:

    The amended pleading does not comply with r 16.02(2)(c) and (e) of the Federal Court Rules 2011 (Cth) which provides:

(2)    A pleading must not:

(a)    …

(b)    …

(c)    be evasive or ambiguous; or

(d)    …

(e)    fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

    Paragraphs in the proposed statement of claim including paragraph 40 and 41 are vague and ambiguous because they rely on vague allegations of work performed by particular teams. If the applicants are trying to say that relevant workers are currently performing work which needs to be done and, once units 4 and 2 are brought on line, those workers will be given new responsibilities without being relieved of the existing ones, the applicants should say so. The pleading should be by reference to the work each person in the team is doing, and why that is said to be so. In their current form these paragraphs plead conclusions.

    There is a factual disconnect between the mere recitation of relevant work teams, their composition, the type of work that they undertake and their size, and the conclusions that those teams are “working at capacity” or are “fully engaged”.

    Paragraph 42 pleads a series of speculative allegations which do not lead to material facts and are inadequate to engage clause 2.11(1) of the Tarong Agreement. Further the conclusions in paragraph 42 are not supported by the allegations in paragraphs 15 to 41.

    The applicants’ case is essentially a bare allegation that re-starting units 4 and 2 together with some potential further steps which may or may not at some future time be taken by the respondent, together amount to a major change as contemplated by clause 2.11(1) of the Tarong Agreement. No material facts are pleaded referable to these allegations.

8    The applicants claim, in short, that:

    Although the respondent complains about paragraphs 40 and 41, and similar paragraphs of the draft statement of claim, clause 2.11 of the Tarong Agreement concerns consultation in respect of changes in the workplace. To that extent terms including “likely to” and “significant change” are appropriate in the statement of claim.

    Terms such as “fully engaged” and “capacity” are not conclusionary. In any event not all conclusionary pleadings are struck down as deficient.

    It is not the applicants’ case that workers might be relieved of duties and given different duties.

    The applicants are entitled to plead their case in the manner they think best.

    The Court should bear in mind the overarching purpose of s 37N of the Federal Court of Australia Act 1976 (Cth).

Consideration

9    It is common ground that the Court will ordinarily permit a party to replead provided it is clear that there is point in doing so and that the further time and opportunity will have utility: Nulyarimma v Thompson (1999) 96 FCR 153 at 210; Kirby J in Thorpe v Commonwealth (No 3) (1997) 144 ALR 677 at 686–7. I am prepared to grant the applicants leave to file the proposed amended statement of claim in the form of annexure A to its interlocutory application. I have formed this view for the following reasons.

10    As a general proposition I note that, in order to be competent, the statement of claim must be such as to put the respondent on notice of an applicant’s case. The parties have drawn my attention to a number of cases where this Court has considered pleadings and whether those pleadings stated material facts, being facts necessary for the purposes of formulating a complete cause of action. I note in particular Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413; McKellar v Container Terminal Management Services (1999) 165 ALR 409; and Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510. These cases contain helpful and learned expositions of legal principle relevant to the case before me. It is trite to note, however, that each case must be resolved in accordance with its own facts.

11    Critically, clause 2.11(1)(b) of the Tarong Agreement requires the respondent to notify employees and consult with them if the respondent has made a preliminary decision to introduce a major change to the workplace and “the change is likely to have a significant effect on employees of the enterprise”. It is clear that mere bald allegations in the statement of claim to the effect of the language in clause 2.11(1)(b) would be inadequate to support that pleading. Indeed, the respondent claims in substance that the proposed amendments achieve no more than a bald statement to that effect.

12    I do not agree. The proposed amendments to the statement of claim in this case contain material facts upon which the applicants rely in support of their claim that the decision of the respondent to restart units 4 and 2 at Tarong is likely to have a significant effect upon employees. In this respect, for example, the statement of claim as proposed by the applicant in this case can be contrasted with the paragraphs in the statement of claim struck out in Trade Practices Commission v David Jones. In that case, in respect of a claim of parties acting in accordance with “an arrangement” in contravention of s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth), the applicant pleaded that the respondents “made an arrangement or arrived at an understanding” without actually pleading material facts supporting that statement. In comparison, the proposed amendments to the applicants’ statement of claim in the case before me follow a pattern in that they:

    state material facts describing a series of teams and their responsibilities;

    state that those teams are working at capacity in that each of the members of the team was fully engaged in required work for his or her ordinary hours of employment; and

    plead further that when units 4 and 2 are brought back into service additional work will be required of the teams because additional plant will be brought on line.

13    In the case before me the proposed amendments clearly state material facts relevant to the current duties of employees of the respondent, and the manner in which the recommencement of operation units 4 and 2 will allegedly impact on those duties.

14    The respondent takes particular issue with the applicants’ claims in paragraphs 22, 27, 31, 35 and 40 that the workers are “working at capacity” because they are “fully engaged” in their work. While the phrases “at capacity” and “fully engaged” are conclusionary, I accept Mr Friend’s submission that pleading in a statement of claim that workers are fully engaged with their work is unremarkable when supported by pleaded specific facts describing the occupations of employees and their respective duties. In this respect I also note the principle articulated in relevant authorities to the effect that not all conclusionary pleadings are liable to be struck out as deficient, and that the proper approach to such pleadings will depend upon whether the facts are pleaded at too great a level of generality (Charlie Carter at 418; Wright Rubber Products at [5]). In my view the facts here pleaded are not at too great a level of generality – rather they are specific and relate to the cause of action pressed by the applicants.

15    In McKellar v Container Terminal Management Services at [26] Weinberg J observed in the context of that case that material facts must be pleaded which show a required causal link between the impugned conduct and such loss as is said to have been suffered by the relevant applicants. It is also my view that, in this case, it is appropriate to read the pleaded material facts in the context of the applicants’ cause of action, namely a claim that certain conduct of the respondent is likely to have a particular result. Clearly, the cause of action in this case raises speculative issues, and an evaluation of probabilities. The applicants have – in my view unobjectionably – set out the nature of the work performed by employees, and claimed that additional work will be required of those employees in the circumstances as a result of the respondent’s plans. The relevant causal link between the obligation cast on the respondent by clause 2.11(1) of the Tarong Agreement and the necessity for the consultation required by that clause is adequately pleaded. If I were to accept the submissions of the respondent and require the applicant to further elaborate its pleadings in the manner the respondent submits is necessary, I consider that the result would be akin to requiring the applicants to put on evidence before the pleadings have closed. This is not an obligation of the applicants at this stage of the proceeding.

16    Finally, I note that in paragraph 42 the applicants plead that, in light of facts already pleaded in paragraphs 15 to 41, the respondent’s decision to bring units 4 and 2 back into service is likely to result in major changes to matters including the composition, operation or size of the respondent’s workforce at Tarong or the skills required of employees. The respondent takes issue with this paragraph. I consider however that this paragraph is unobjectionable in that it simply ties together facts pleaded earlier and links those facts with the case the applicants seek to prove in respect of clause 2.11(1) of the Tarong Agreement.

Conclusion

17    The nature of the respondent’s complaint concerning the proposed amendments is in the nature of an attack on the merits of the applicants’ case. Such an attack is premature, unless the respondent were to claim that the applicants’ case should be struck out as frivolous or vexatious (which the respondent does not do). This is not a case where the applicants have pleaded conclusions without facts to support them, or where the applicants’ case is vague or ambiguous. To the extent that proposed paragraphs in the applicants’ statement of claim are conclusionary, they are supported by stated facts sufficient to put the respondent on notice as to why the applicants claim that the respondent has contravened clause 2.11(1) of the Tarong Agreement.

18    In my view the deficiencies in the statement of claim as it currently stands would be remedied by the Court granting the leave sought by the applicants. I am prepared to make the order sought.

Associate:

Dated:    4 December 2014