FEDERAL COURT OF AUSTRALIA

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union (No 2) [2019] FCA 2034

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s application filed 4 September 2019 is dismissed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    The applicant in this proceeding (Metro) operates the metropolitan public railway network in Melbourne and surrounding suburbs. The network is part of an integrated public transport system which includes trams and buses and regional trains. Metro seeks, by an amended originating application filed on 20 September 2019, declarations of contraventions of various orders made on 9 August 2019 by a judge of this court.

2    There are 222 stations in the metropolitan rail network, 85 of which are “Premium Stations”, and 27 of which are “Host Stations”. A Premium Station is staffed by Metro employees from the first train service in the morning to the last service at night. A Host Station is staffed by Metro employees during the morning peak period, with employees moving in and out of those stations as they visit other stations. Stations that are not Premium or Host Stations are not staffed. There are 30 premium stations that have passenger ticket barriers (known as “barrier stations”).

3    The respondent in this proceeding (the RTBU) is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth). The RTBU seeks revocation nunc pro tunc of certain of the orders Metro says it contravened.

4    On 22 December 2015, the Fair Work Commission approved the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2015-2019 (the 2015 Agreement), which covers Metro, all employees of Metro directly involved in the running of trains across the suburban network and certain defined “support functions”, as well as the RTBU. The nominal expiry date of the 2015 Agreement was 30 June 2019.

5    From February 2019 to date, Metro has bargained with the RTBU for an agreement to replace the 2015 Agreement, in accordance with the bargaining requirements in Division 8 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act).

6    The RTBU is the default bargaining representative for the employees of Metro whose industrial interests it is entitled to represent. That group comprises the vast majority of Metro’s employees, including station attendants, customer service officers and train drivers.

7    Bargaining between the parties is yet to secure an agreement.

8    On 19 June 2019, the RTBU applied to the Fair Work Commission for a protected action ballot order. The order, which sets out different forms of proposed industrial action upon which Metro employees would vote to approve in accordance with the FW Act, was issued on 1 July 2019. The subsequent ballot of members approved the taking of industrial action.

Industrial action

9    By notice dated 5 August 2019 (the 5 August notice), the RTBU and its members employed by Metro advised of their intention to organise and take protected industrial action against Metro from Monday 12 August 2019. The industrial action included keeping ticket barriers open on 12 August and 19 August for 24 hours and refusing to inspect Myki cards. The notice was as follows:

1.    Employees will perform their work differently by keeping open the passenger ticket barriers at train stations, commencing at 00:01 on Monday 12 August 2019 and finishing at 23:59 on Monday 12 August 2019. The employees intending to engage in the protected action would be all employees who are employed in any station grade who are members of the RTBU and whose employment will be subject to the proposed agreement.

2.    Employees will perform their work differently by refusing to sell and upload Myki money and Myki passes and refusing to inspect passenger Mykis, commencing at 00:01 on Monday 12 August 2019 and finishing at 23:59 on Monday 12 August 2019. The employees intending to engage in the protected action would be all employees who are employed in any station grade and any authorised officer grade who are members of the RTBU and whose employment will be subject to the proposed agreement.

…

13.    Employees will perform their work differently by keeping open the passenger ticket barriers at train stations, commencing at 00:01 on Monday 19 August 2019 and finishing at 23:59 on Monday 19 August 2019. The employees intending to engage in the protected action would be all employees who are employed in any station grade who are members of the RTBU and whose employment will be subject to the proposed agreement.

14.    Employees will perform their work differently by refusing to sell and upload Myki money and Myki passes and refusing to inspect passenger Mykis, commencing at 00:01 on Monday 19 August 2019 and finishing at 23:59 on Monday 19 August 2019. The employees intending to engage in the protected action would be all employees who are employed in any station grade and any authorised officer grade who are members of the RTBU and whose employment will be subject to the proposed agreement.

10    On the same day, the RTBU issued a media release advising the industrial action was aimed at “Metro’s hip pocket not the travelling public”. The media reported this industrial action as involving a “free travel day” on the next two Mondays.

11    Also on 5 August 2019, Ms Luba Grigorovitch, Secretary of the Victorian Branch of the RTBU, was interviewed on the “Drive” program hosted by Mr Tom Elliott on Melbourne radio station 3AW, during which the following exchange occurred:

Mr Elliott:    ...So, between August the 12th, which is next Monday, and August the 19th, ticket barrier gates will be left open. Hooray no Myki!

…

Mr Elliott:    So if I’m catching the tram or the train next week, what will I notice next week? What’s different?

Ms Grigorovitch:     So we’ve got open barriers, which on Monday, obviously we will have open barriers and that’s a win for commuters because RTBU members won’t be checking tickets on that day ...

…

Mr Elliott:    ...So on Monday, you’ll have open barriers so anyone travelling anywhere on a train on Monday, you don’t have to scan on your Myki, you can just walk through. And your members will be wearing casual clothes apart from, I don’t know, a safety vest or whatever. Is there anything else that customers might notice?

Ms Grigorovitch:     Yes. So, you should have received my media release, I would hope that you have.

12    On 7 August 2019 Metro emailed a letter to Ms Grigorovitch inviting the RTBU to withdraw paragraphs 1, 2, 13 and 14 of the 5 August notice. The RTBU declined that invitation.

13    On 8 August 2019 Metro filed and served an originating application seeking relief in the nature of declarations, compensation and penalties in respect of alleged contraventions of ss 343, 345 and 348 of the FW Act.

14    Metro alleges that the RTBU made misleading statements about the effect of certain notified forms of purported industrial action (in contravention of s 345 of the FW Act), and by threatening to take certain of those forms of purported industrial action, the RTBU threatened to engage in conduct with intent to coerce Metro into acceding to the claims that have been made against it during bargaining for the proposed agreement (in contravention of each of ss 343 and 348 of the FW Act).

Application by Metro for urgent interlocutory relief

15    Metro brought on an urgent application for interlocutory relief on the morning of Friday, 9 August 2018, before Snaden J.

16    After hearing from counsel for both parties, his Honour made orders largely in the form sought by Metro, which relevantly for present purposes included the following orders, numbered 2, 3, 5 and 6:

2.    Not later than 11:00pm on Friday, 9 August 2019, the respondent generate a notice on its letterhead in the form of Attachment 1 to these orders, signed by its Victorian Branch Secretary, Ms Luba Grigorovitch, and:

(a)    post a copy of the notice on the home page of the respondent’s internet site;

(b)    ensure that the notice posted in accordance with order 2(a) above remains so posted until 11:59pm on Monday, 19 August 2019;

(c)    post a copy of the notice on the home page (whether described as a ‘timeline’, ‘feed’, or otherwise) of each online social media account (including accounts on the social media platforms Facebook and Twitter) normally used by the respondent to communicate with its members who are employed by the applicant, and which are accessible by those members;

(d)    ensure that the notice posted in accordance with order 2(c) above remains posted in a manner that is immediately visible on the home page (whether by ‘pinning’ the posted notice or otherwise) until 11:59pm on Monday, 19 August 2019; and

   (e)    provide a copy of the notice to the applicant.

3.    Not later than 4:00pm on Saturday, 10 August 2019, the respondent post a copy of the notice referred to in order 2 on all noticeboards at the applicant’s train stations normally used by the respondent for communicating with the applicant’s employees;

…

5.    The respondent take all reasonable steps to cause to be published in the print editions of the Herald-Sun newspaper and The Age newspaper on 10 and 11 August 2019, an advertisement in the form of Attachment 1 to these orders, and take all reasonable steps to ensure that the advertisement:

  (a)    is placed within the first 10 pages of those newspapers;

  (b)    is at least 14 centimetres by 4 columns in size;

  (c)    has a headline font of at least 12 point bold; and

  (d)    has a body text font of no less than 11 point.

6.    The respondent take all reasonable steps to cause to be published in the online editions of the Herald-Sun newspaper and The Age newspaper on 10 and 11 August 2019, an advertisement in the form of Attachment 1 to these orders, and take all reasonable steps to ensure that the advertisement:

(a)    is placed on the home pages of each of the Herald-Sun newspaper and The Age newspaper;

   (b)    has a headline font of at least 12 point bold; and

   (c)    has a body text font of no less than 11 point.

17    The RTBU did not seek leave to appeal the orders made by the judge on 9 August, nor did it seek to vary them.

What happened after the orders were pronounced

18    The hearing before Snaden J adjourned at 3:03pm.

19    From about 3:45pm to 4:00pm, Ms Grigorovitch held a press conference. That press conference was organised at some point before 3:00pm.

20    Ms Grigorovitch then held a meeting at 4:00pm, with Ms Hannah Scott (a Member Support Officer), Mr Amadeo D’Aprano (a Campaigns, Communications & Industrial Officer), Mr Darren Galea (an organiser), Ms Vik Sharma (an Industrial Officer) and Mr Victor Moore (the Branch Divisional President), at which Ms Grigorovitch told them of the cessation of the barrier action.

21    Ms Grigorovitch then convened a meeting at 4:30pm with Ms Scott and Mr D’Aprano. Ms Grigorovitch allocated the following tasks to Ms Scott:

(1)    generating a notice on Victorian Branch letterhead (in the form of Attachment 1 to the Orders) (the 9 August notice);

(2)    arranging the placement of advertisements in the print and online weekend editions of the Herald Sun and the Age;

(3)    sending an email (to be prepared by Mr D’Aprano) to relevant delegates directing them to post the 9 August notice on noticeboards at Metro train stations;

(4)    posting a copy of the 9 August notice on the home page of the Victorian Branch’s website;

(5)    posting a copy of the 9 August notice on the homepage of the Victorian Branch’s Facebook page; and

(6)    posting a copy of the 9 August notice on the home page of the Victorian Branch’s Instagram page.

22    Ms Scott told Ms Grigorovitch that she had a dinner scheduled at 6pm, but that she would take the laptop with her, complete the dinner as quickly as possible, and then go home and carry out the remaining tasks using the laptop.

23    Mr D’Aprano sent via email a media release to media outlets at approximately 5:00pm on 9 August 2019, which said:

Rail workers will shut down Melbourne’s passenger train network for four hours on Tuesday 27 August from 10am to 2pm.

RTBU Victorian Secretary Luba Grigorovitch said:

“It is clear that to reach a decent new enterprise agreement with Metro we have to resort to strike action to get this giant greedy corporation to see sense.

“Late last night Metro notified all members that their pay will be docked over the mild industrial action we are taking next week.

“Metro doesn’t have to do that. It is a blatant attempt to bully members out of taking action.

“We will continue to bargain in good faith to try and reach a fair agreement. Metro can avoid strike action by offering a fair deal.

“Next week’s notified industrial action will go ahead (other than keeping the ticket barriers open which Metro went to Court to stop).

“We will not be intimidated by Metro. Together we will achieve a fair deal!”

24    At 5:04pm, Ms Scott made an advertising request through the online portal of the Herald Sun newspaper, and at 5:51pm made a similar request through the online portal of The Age newspaper.

25    Ms Grigorovitch spoke to Mr Marcus Clayton of Gordon Legal at approximately 5:15pm and asked that Gordon Legal assist the RTBU in attempting to place advertisements with the Herald Sun and The Age newspapers in accordance with the court’s order.

26    At around 5:25pm, Mr James Higgins, of Gordon Legal, spoke with Mr Chris Nolan of Principle Media Group, to assist with placing the advertisements.

27    After speaking with Mr Higgins, Mr Nolan immediately contacted Mr Royce Zygarlicki, Sales Director for the Herald Sun.

28    Mr Zygarlicki told Mr Nolan that he was not accepting any more advertisement bookings. He told him that the deadline for the print and online editions of the Herald Sun weekend papers was Thursday at 12 noon, and that, in the absence of existing creative material, it was impossible.

29    Mr Nolan gave the following evidence in respect of placing an advertisement in The Age:

I knew at that stage that we had no chance of placing the advertisement in the Age. I knew from my experience that the deadline for the print and online editions of The Age weekend papers is also on Thursday at 12 noon and we did not have any creative developed and ready to go. The same obstacles that applied to getting the advertisement in the Herald Sun, as discussed above, applied to The Age.

At 8.09pm, I emailed Mr Clayton and advised:

Unfortunately it is the same issue. Printing is done by the same company and has the same deadlines. With regard to digital – given we don’t have the content for the ad in digital format the production departments of the publishers are closed. Typically digital requires the content to be delivered 3 days before broadcast to allow for the technical loading of the content.

Regards

Chris

30    Between 5:20pm and 5:50pm, Ms Scott prepared, and had Mr Clayton finalise, the 9 August notice.

31    At 8:38pm, Ms Scott sent an email (drafted by Mr D’Aprano) attaching the 9 August notice to all Administrative Branch Division delegates employed by Metro and all Rail Operations Branch Division delegates employed by Metro. The email read:

Following Metro’s Federal Court injunction on your industrial action, it is an order of the court that the attached notice be posted on all noticeboards at Metro train stations which are normally used by the RTBU for communicating with Metro employees. It is important that the notice is posted.

32    At approximately 10pm, Ms Scott posted a copy of the 9 August notice on the home page of the Victorian Branch, and on the Facebook page of the Victorian Branch, and on the Instagram page of the Victorian Branch.

33    The next day, Saturday 10 August, a number of meetings of Metro members were held at various Metro train stations, which had been arranged to update members on the progress of bargaining for a new Metro operations enterprise agreement.

34    At 1:36pm, lawyers for Metro sent a letter to the lawyers for the RTBU alleging non-compliance with the orders of 9 August, relevantly as follows:

The Orders required your client to take various steps to remedy the effects of the matters the subject of the Proceeding, which will otherwise occasion significant economic harm on our client, and cause extensive disruption (and legal and financial exposure) to the travelling public. The importance of these orders was discussed in the affidavit of Mr Sleigh, and the written outline of submissions, filed in the Proceeding, and were ventilated in the course of the hearing on Friday, 9 August 2019.

The steps required of your client pursuant to the Orders included your client:

•    posting, by 11 :00pm on Friday, 9 August 2019, a copy of a prescribed notice in the form set out in the Orders (Notice):

•    on the home page of its internet site;

•    on the home page (whether described as a “timeline”, “feed” or otherwise) of each online social media account (including accounts on the social media platforms Facebook and Twitter) normally used by your client to communicate with its members who are employed by our client and which are accessible to those members; and

•    taking all reasonable steps to cause the Notice to be published in the print and online editions of the Herald Sun and The Age newspaper for 10 and 11 August 2019, in the manner described in the Order.

It appears to us that your client has not complied with the Orders.

Specifically, no copy of the Notice appears to have been published on the:

•    home page of the RTBU website found at wwww.rtbu.org.au;

•    Facebook account named “RTBU Australia”, found at www.facebook.com/RTBUAus/;

•    Facebook account named “RTBU Loco Division Victoria”, found at www.facebook.com/RTBULD/; and

•    Twitter account named “RTBU”, found at https://twitter.com/RTBUnion.

Further, we are unable to locate a copy of the Notice published in either the print or online versions of the Herald Sun or The Age of today’s date.

Our client is reasonably concerned that the purpose of the Orders (in light of their importance as is identified above) will not be met, and about the effect that this will have on both it, and the travelling public. These concerns are understandably heightened in the context of further action that has been organised by your client to take place from Monday, 12 August 2019.

The effect of your client’s failure to comply with the Orders is that it is no longer able to organise, and that the relevant employees it represents are unable to engage in, protected industrial action. We refer you to s.413(5) of the FW Act in this regard.

As a result, it appears to us that all industrial action contained within the IA Notices, and the notice of a 4 hour stoppage that was provided to our client dated 9 August 2019, will be unprotected.

As a result, our client requires that your client undertake to immediately:

•    withdraw the IA Notices;

•    communicate to its members that:

•    the IA Notices have been withdrawn; and

•    that they are directed to not engage in the action described in those notices, by posting a notice to that effect on the home page of its internet site, and the home page (whether described as a “timeline”, “feed” or otherwise) of each online social media account normally used by it to communicate with its members who are employed by our client and which are accessible to those members;

•    ensure that it takes all steps (past and future) required of it under the Orders; and

•    provide our client with written confirmation that each of these steps have been completed by no later than 11:00am on Sunday, 11 August 2019.

Should such an undertaking not be forthcoming, our client intends to take immediate steps to have the matter brought before the Court on an urgent basis seeking further injunctive relief.

Our client will also seek to recover the damage occasioned to it by the taking or organisation, by your client of unlawful actions (including unprotected industrial action) against our client, and the contravention of the Orders. It anticipates these damages will be substantial.

35    At 2:46pm, Ms Grigorovitch sent a series of text messages to the National Secretary of the RTBU, Mr Bob Nanva, asking him to assist in posting the notices on the national RTBU Facebook and Twitter platforms, to which she received no response.

36    At 2:49pm, she sent text messages to Mr Stewart Prins (a Communications consultant) asking if he could assist posting the notices on the national RTBU platforms. He then called her to discuss the matter. At 4:10pm she told Mr Prins that she no longer needed it on the national RTBU platforms.

37    At 3:58pm, Ms Grigorovitch told Mr D’Aprano to send a text message to all Administrative Branch Division delegates, and all Rail Operations Branch Division delegates employed by Metro, reminding them to post the 9 August notice. The text message stated:

Delegate. Please ensure the last notice that was sent to you last night via email has been posted on the union notice board at your station. Please text a photo to +61488305088 to confirm this has been done. RTBU.

38    On Sunday 11 August 2019, at approximately 11:00am, Ms Heather Pennell (Marketing Communications Manager at Metro) received a telephone call from Ms Stephanie Luelf (Interim Head of Internal Communications at Metro), who requested that she arrange for an online advertisement to be made as soon as practicable confirming that passengers were required to travel with a valid ticket on 12 August 2019.

39    After Ms Pennell spoke with Ms Luelf, she did the following:

(a)    at approximately 11:30am, she called Ms Georgina Pownall, Managing Director of McCann Melbourne (McCann), Metro’s media and creative works agency, to request that an urgent digital campaign “go live” that day on various Melbourne news sites to advise passengers to “touch on” their Myki as per usual on 12 and 19 August 2019;

(b)    by approximately 4:30pm, McCann had created the required digital advertisements and provided them to Metro for internal approval; and

(c)    at approximately 5:03pm, McCann provided by email revised digital advertisements incorporating requested amendments.

40    By approximately 6:50pm, all of the digital advertisements were live and visible on the online platforms for The Age, news.com.au, the Herald Sun and SkyNews.

RTBU seeks revocation of orders because of the effect of s 413(5) of the FW Act

41    By an interlocutory application dated 4 September 2019, the RTBU seeks orders revoking orders 2, 3, 5 and 6 of the orders made on 9 August 2019 nunc pro tunc.

42    It does so because it seeks to avoid the consequence of s 413(5) of the FW Act, which when read with other relevant provisions in Div 2 of Pt 3-3 of the FW Act, means that if a bargaining representative (here the RTBU) has contravened any orders that apply to them, it may not engage in or organise “protected” industrial action.

43    Section 415 of the FW Act provides that no action lies under any law (written or unwritten) in relation to any industrial action that is protected industrial action unless it has involved or is likely to involve personal injury, wilful or reckless destruction of, or damage to, property, or the unlawful taking, keeping or use of property. Industrial action will be protected industrial action for a proposed enterprise agreement under s 408(a) if it is an “employee claim action” for the agreement in the terms of s 409 and if it meets the “common requirements” in s 413.

44    Section 413 specifies the common requirements for industrial action to qualify as protected industrial action relevantly as follows:

(5)    The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a)    if the person organising or engaging in the industrial action is a bargaining representative for the agreement − the bargaining representative;

…

45    The parties accepted that the effect of the decision of the majority in Esso Australia v Australian Workers’ Union (2017) 263 CLR 551 (Kiefel CJ, Keane, Nettle and Edelman JJ) is that (as the headnote in the Commonwealth Law Report correctly states):

[Sub-Section] 413(5) applies to past contraventions of orders relating to, or relating to industrial action that relates to, a proposed enterprise agreement or a matter that arose during bargaining for that agreement. Such an order need not be one that continues in operation at the time of the proposed protected industrial action, or with which it is still possible to comply at that time, or that would apply to the proposed protected industrial action. Accordingly, a person who contravenes an order that is in operation at the time of the contravention but thereafter ceases to operate is a person who has contravened an order that applies to that person within the meaning of s 413(5).

46    Metro opposes the application and says that the Court should instead make declarations that the RTBU has relevantly contravened orders no 2, 3, 5 and 6.

Consideration

47    The RTBU did not ultimately dispute that it had contravened order 3. See, for example the Respondent’s Outline of Final Submissions dated 23 October 2019 at [105]-[106].

48    The RTBU also made an apology in these terms: “I, Luba Grigorovitch, am authorised by Mark Diamond, the National Secretary of the RTBU, to apologise for the failure of the RTBU to fully comply with the Orders of the Court made on 9 August 2019 and to also convey to the Court the union’s remorse for that non-compliance”.

49    In my view, notwithstanding the RTBU’s submissions that order 2 was too imprecise or should instead be construed to have been directed at the Victorian Branch of the RTBU, it also contravened order 2. The order is directed to the RTBU and it was ordered to post a copy of the relevant notice “on the home page of the respondent’s internet site”, which on any view it did not do.

50    In my view, and contrary to the case argued by Metro, the RTBU did not contravene orders 5 or 6, because it did take “reasonable steps” to place the advertisements in accordance with the terms of those orders. Metro’s submission that its (Metro’s) ability to arrange another form of advertisement using its contacts in the trade (recited at [38]-[40] above) somehow demonstrates that the steps taken by the RTBU were not reasonable is unpersuasive.

51    In those circumstances it is unnecessary to consider in detail the submissions made about whether any non-compliance is properly to be characterised as casual, accidental or deliberate (a debate that took up a considerable part of the hearing).

52    But a more fundamental question arises that was not the subject of submissions by the parties at the hearing. After closing submissions had been completed, I caused an email to be sent by my associate to the parties’ legal representatives, as follows:

Dear Practitioners

His Honour asks that the parties consider this question:

On the assumption that at least one of the orders made by the Court on 9 August 2019 was not complied with, would the making of an order “revoking [it] nunc pro tunc” have the consequence that the RTBU can be said “not [to] have contravened” that order within the meaning of s 413(5) of the Fair Work Act, when that order remained valid at the time of non-compliance. See, eg, State of New South Wales v Kable (2013) 252 CLR 118, esp at 133 [32], 135-136 [38]-[41], 140-141 [56]-[58].

His Honour requests that the parties file and serve written submissions in relation to that question, by no later than 4pm on 25 November 2019.

If having considered those submissions his Honour is of opinion that a further oral hearing is required, such a hearing will be held at the earliest date convenient to the parties and to the Court, but in any event, prior to 13 December.

53    The parties filed written submissions, as directed. Having read those submissions, I did not consider it necessary to convene a further hearing.

54    Metro submitted that the decision in State of New South Wales v Kable (2013) 252 CLR 118 (Kable) provides a complete answer to the RBTU’s application, as follows:

There is no suggestion that the 9 August Orders were invalidly made. However, by analogous reasoning, revocation orders nunc pro tunc may arguably deprive the 9 August Orders of their legal effect (in the sense that they would be incapable of sustaining, for example, an action in contempt). However, that would not address the factual existence of the RTBU’s contravention, which came into existence at the latest at 4:01pm on Saturday, 10 August 2019. The factual existence of that contravention would be sufficient to trigger the operation of “another, valid, law” [citing Kable at 138-139 [52]]: being s 413(5) of the FW Act. That section, it must be recalled, applies to any past contraventions of relevant orders, and does not require that the contravention be continuing at the time of the taking or organising of industrial action. Assuming that to be correct, the RTBU’s application would not (indeed could not) achieve its practical aim: s 413(5) would remain triggered.

55    In the alternative, Metro submitted that:

[A]ssuming for the moment that the foregoing analysis is incorrect, the plurality’s discussion of the essential characteristics of judicial power exercised by superior courts nonetheless demonstrates powerful reasons why this Court would follow the observations of the plurality in Esso Australia Pty Ltd v AWU (2017) 263 CLR 551 … in eschewing revocation nunc pro tunc. The conundrum which the plurality in Kable … articulates at [39] – that is, the sorts of ‘catch-22’ scenarios arising from what would effectively be mere ‘provisional’ court orders – is a live one in the context of revoking orders nunc pro tunc.

56    The RBTU submitted to the contrary, as follows:

The present case is not one like Kable where orders are argued to be invalid (as they were made in excess of jurisdiction) and are being sought to be quashed, leading to an issue as to the effect of the orders before they are quashed.

In the present case the Respondent asks the Court to make an order revoking certain of the 9 August 2019 Orders nunc pro tunc, that is, retrospectively with effect from 9 August 2019. The consequence of such an order would be that those 9 August 2019 Orders would be treated as if they had never been made.

If an order of the kind referred to in the preceding paragraph was made, it would have the consequence that the revoked orders would never have been in force and thus, the Court could not make a finding that the Respondent has contravened any of these orders within the meaning of s.413(5) of the Fair Work Act 2009 (Cth). This outcome is consistent with the reasoning of the plurality in Esso at [49]-[50] of their judgment. It is also reflective of the submission made by counsel for Esso to the High Court at transcript p20, lines 847-859. At [49]-[50] their Honours observed that applications to vary or revoke orders including on a nunc pro tunc basis are a solution to avoid or deal with any capricious and unjust results that could result from the Court’s construction of s.413(5).

It is of no consequence whether the orders were valid at the time of non-compliance because the antedating of the relief has the consequence that the orders are revoked as if they were never made.

57    I cannot accept the RBTU’s submission. As the plurality makes clear in Kable at 133, [32]:

It is now firmly established [citing Cameron v Cole (1944) 68 CLR 571 at 590, 598, 606-607; DMW v CGW (1982) 151 CLR 491 at 501-505, 507; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193-194, 222-223; Ex parte Marsh (1985) 157 CLR 351 at 374-375; Re Macks (2000) 204 CLR 158 at 177-178 [19]-[23], 183-187 [46]-[57], 235-237 [214]-[220], 247-249 [253]-[257], 278-279 [342]-[344]] by the decisions of this Court that the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction). It was not submitted that any of these decisions should be reopened and there would be powerful reasons not to disturb such a long-established stream of authority …

58    As the plurality went on to explain, decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed, because the orders of a superior court of record are treated as valid until set aside (Kable at 135, [39]):

Were this not so the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.

59    Consistently with that fundamental proposition, orders that are intended to have retrospective operation may only be made if they affect procedural, not substantive rights. Such orders “cannot deem something to exist which does not exist and cannot deem something to have remained in existence which no longer remains in existence” (Hartley Poynton Ltd v Ali (2005) 11 VR 568 at 613, [91]). Likewise, retrospective orders cannot deem something that did exist (here, valid and binding orders) never to have existed or be deemed never to have been made. But that would be the precise effect of the making of the orders sought by the RTBU in this case. In the context of contempt proceedings see Papas v Grave [2013] NSWCA 308 at [65]-[70] (Emmett JA, Basten JA and Sackville AJA agreeing); Ross v Lane Cove Council (2014) 86 NSWLR 34 at 39, [17] (Leeming JA, Meagher JA and Tobias AJA agreeing)(“… it remains a contempt to disobey orders that are subsequently set aside”); Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506 at 528, [114]-[116] (Basten JA, with whom McColl JA agreed)).

Disposition

60    Orders 2 and 3 applied to the RTBU, and it contravened them by not doing those acts it was required to do within the stipulated times (or at all). It thus contravened orders that applied to it within the meaning of s 413(5) of the FW Act.

61    For the reasons given above, I decline to make the orders sought by the RTBU and its application must be dismissed.

62    In the circumstances, and in light of these reasons, there is no utility in making the declarations sought by Metro.

Associate:

Dated:    6 December 2019