Federal Court of Australia

Haeusler v Australian Capital Territory [2023] FCA 1304

ORDERS

THE COURT ORDERS THAT:

1.    The claim for interlocutory relief included in the originating application filed on 6 October 2023 be dismissed.

2.    There be no order as to costs in respect of the claim for interlocutory relief included in the originating application filed on 6 October 2023.

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

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    The applicants in this proceeding comprise eighteen individual employees of the respondent, the Australian Capital Territory, and the employees’ union, the Construction, Forestry Maritime, Mining and Energy Union. The employees are employed by the Territory as general service officers or road workers. The employees, the union and the Territory are each covered by an enterprise agreement approved under the Fair Work Act 2009 (Cth), the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026 (the 2023 EA). They were also covered by a previous enterprise agreement which was in relevantly similar terms (the 2022 EA).

2    In an originating application filed recently, the applicants and the union allege that the Territory contravened a clause in the 2022 EA and two clauses in the 2023 EA and thereby contravened s 50 of the Fair Work Act. The employees and the union claim that those clauses, in summary, required the Territory to do two things before it entered into a contract with an external contractor in respect of the provision of work that could be performed by the employees: first, to ensure that the employees of the proposed contractor would receive equivalent terms and conditions to the Territory’s employees; and second, to consult the employees and the union prior to issuing the tender or engaging the proposed contractor. The employees and the union allege that the Territory entered into a contract with Ox Traffic Pty Ltd in respect of the provision of traffic management services without doing either of those things.

3    In the interlocutory application presently before the Court, the employees and the union seek supposedly urgent interlocutory relief, pursuant to either s 23 of the Federal Court of Australia Act 1976 (Cth) or s 545 of the Fair Work Act. That interlocutory relief being in the form of an injunction restraining the Territory from issuing work orders or requests, or otherwise awarding or allocating work to, Ox Traffic unless it consults with the employees and the union and takes steps to ensure that employees of Ox Traffic who may be engaged to perform that work will receive pay and conditions at least equivalent in overall terms to the pay and conditions of Territory employees. The Territory opposed the granting of that interlocutory injunction. They contended that the employees and the union did not have a prima facie case and that the balance of convenience weighed against the grant of the interlocutory injunction.

4    For the reasons that follow, I do not propose to grant the interlocutory relief sought by the employees and the union. While I am satisfied that there is a serious case to be tried in respect of the claim that the Territory contravened the 2023 EA and s 50 of the Fair Work Act, I am not persuaded that the balance of convenience favours the making of an injunction in the terms sought by the employees and the union.

Evidence and factual findings

5    The parties relied on voluminous affidavit and documentary evidence. There was no objection to any of the evidence. That was notwithstanding the fact that the relevance and admissibility of at least some of the affidavit evidence was fairly dubious. There was also no cross-examination of the deponents to the affidavits. That was notwithstanding the fact that there appeared to be some disputed factual issues and some inconsistencies, if not conflicts, between the evidence relied on by the employees and the union and the evidence relied on by the Territory. I am not being critical of the parties for taking that approach to the evidence. It would appear that the parties, quite sensibly, took the view that the contestable parts of the affidavits and some of the disputed factual issues did not materially bear on the question whether the interlocutory relief should be granted. That said, it left me in the somewhat unenviable position of wading through voluminous affidavit and documentary evidence with a view to resolving untested evidence concerning disputed factual issues.

6    In the circumstances, I will only endeavour to address the factual disputes that appear to be material or were addressed in the parties’ submissions. I also make it clear that I have not closely considered all of the voluminous documentary evidence. As I advised the parties at the hearing, I propose only to address the documentary evidence to which I was taken or that was the subject of the parties’ submissions.

7    As already indicated, the employees are all employed by the Territory as general service officers or road workers. The work that they carried out would appear to mostly involve filling potholes and fixing trip hazards on footpaths and roads, clearing up after car accidents and removing trees and other hazards from roads and footpaths. It would also appear, however, that the employees occasionally performed some traffic control work. Traffic control work involved managing traffic, using a “stop” or “slow” sign, while road works were carried out or, it appears, when major accidents caused traffic issues. If the employees wanted to perform such work, they could apply to be on the call out or traffic control roster.

8    While some traffic control work was carried out by workers employed by the Territory, the Territory had, since about 2004, also engaged external contractors to perform that and other more involved and complex traffic management services. During 2022, the Territory had a contract with Lack Group Constructions Pty Ltd which included the provision of such services. That contract expired on 30 June 2023.

9    The 2022 EA was approved by the Fair Work Commission on 17 January 2022. The 2022 EA included the following clauses under the heading “B11 – Insourcing and secure employment”:

B11.1    The ACTPS is committed to promoting permanent employment and job security for employees within the ACTPS and accordingly agrees to the provisions in this clause.

B11.2    The ACTPS is committed to establishing an insourcing and Secure Employment Framework for assessing if applicable procured work should be provided by the public sector.

B11.3    The ACTPS is committed to all of the following:

B11.3.1    Minimising the use of consultants and contractors and labour-hire across the ACTPS.

B11.3.2    Minimising the use of sub-contractors and increase the use of direct employment of workers across the ACTPS.

B11.3.3    Supporting direct employment relationships, but where sub­contractors are operating, that industrial and legal mechanisms to protect their rights, be developed and implemented.

B11.4    As part of the introduction of the Secure Employment Framework and to assist in the promotion of permanent employment for employees, the ACTPS will ensure that the employees of any consultants or contractors the ACTPS proposes to engage, receive pay and conditions at least equivalent in overall terms to ACTPS pay and conditions.

B11.5    Prior to making decisions about matters covered by this clause, appropriate consultation must be undertaken with relevant employees and unions in accordance with clause G1 - of this Agreement.

10    Clause G1, referred to in sub-cl B11.5, included a number of subclauses which dealt with consultation. Subclauses G1.1 to G1.4 were in the following terms under the heading “G1 – Consultation”:

G1.1    There must be effective consultation with an employee(s) and their representatives, including union representatives, on workplace matters. The ACTPS recognises that consultation and employee participation in decisions that affect them is essential to the successful management of change.

G1.2    If there are proposals by the ACTPS to introduce changes that would have a significant effect on an employee or a group of employees, the head of service must consult with the affected employees and the union(s). Consultation means a genuine opportunity to contribute to and influence the decision making process prior to decisions being made.

G.1.2.1    Significant effect includes, but is not limited to, effects of proposals that deal with any of the following:

G.1.2.1 (a)    The termination of the employment of employees through redundancy.

G.1.2.1 (b)    Changes to the composition, operation or size of the directorate workforce or the skills required of employees.

G.1.2.1 (c)    The elimination or diminution of job opportunities (including opportunities for promotion or tenure).

G.1.2.1(d)    The alteration of hours worked.

G.1.2.1(e)    The need to retrain employees.

G.1.2.1(f)    The need to physically relocate employees.

G.1.2.1(g)    The restructuring of job-roles, positions, structures or directorates.

G.1.2.1(h)    Changes to employment policies.

G.1.2.1(i)    Anything likely to materially affect workloads.

G.1.2.1(j)    Any other matter deemed relevant by parties covered by this Agreement.

G1.3    An employee(s) or their representative(s) may also initiate consultation on any matters or proposals if such consultation hasn't already been initiated under subclause Gl.2.

G1.4    The head of service must provide relevant information to assist the employee(s) and the union(s) to understand the reasons for the proposed changes and the likely impact of these changes so that the employee(s) and union(s) are able to contribute to the decision making process.

11    Subclauses G1.5 to G1.7 made provision for the establishment of a Directorate of Consultative Committees and sub-cl G1.8 concerned consultation by the Chief Minister. Subclauses G1.9 to G1.13 dealt with consultation on changes to regular rosters or ordinary hours of work.

12    Consultation was defined in the dictionary to the 2022 EA in following terms:

Consultation means providing relevant information to employees and their union or other employee representatives. It means more than a mere exchange of information. For consultation to be effective the participants must be contributing to the decision-making process not only in appearance but in fact.

(Emphasis in original)

13    On 16 December 2022, Roads ACT, presumably an arm of the Territory government that dealt with roads, commenced a tender process for a contractor to replace Lack Group. For ease of reference, I will generally refer to Roads ACT and its officers as the Territory.

14    News that the tender process for traffic control work had commenced prompted the union to write to the Territory in April 2023, and claim that the 2022 EA committed the Territory to minimise the use of contractors and required the Territory to consult with it about that matter. The union pointed out that there had been no such consultation. The union also pointed out that it did not have any information as to whether the Territory had taken steps to ensure that the contractor’s employees would receive equivalent wages and conditions to Territory employees. The union contended that the 2022 EA required the Territory to ensure the equivalence of pay and conditions in that regard.

15    The Territory’s response to the union’s letter, conveyed by an executive branch manager, was that it would hold off making any procurement decision until meeting with the union.

16    Shortly following that exchange of correspondence, there was a meeting between officers of the Territory and the union. During that meeting a relatively senior officer of the Territory admitted that the Territory had not complied with sub-cl B11.5 of the 2022 EA and had been unaware of sub-cl B11.4. An email sent by the Territory to the union shortly after the meeting confirmed that the Territory had failed to meet its obligation to consult prior to issuing the tender documents and that the tender did not request pay and conditions information from the tenderers. The email indicated that the Territory would seek legal advice concerning those issues.

17    The Territory’s email provoked the union to instruct its lawyers to write to the Territory on 16 May 2023 and demand that, in light of the Territory’s concession that it had failed to consult and failed to take the steps to ensure compliance with sub-cl B11.4 of the 2022 EA, the Territory should cease the tender process.

18    The Territory responded to the union’s lawyer’s letter within days. In its response, the Territory conceded that consultation had not occurred in accordance with sub-cl B11.5 of the 2022 EA, stated that the procurement process had been suspended and undertook that no contract would be entered into until it could arrange a meeting with the union to discuss its concerns.

19    There was a meeting between the union and Territory officers on 2 June 2023, no doubt prompted by the preceding correspondence between the union’s lawyers and the Territory. During that meeting, the union voiced its concerns about whether the proposed tenderer could satisfy the equal pay and conditions requirement in the 2022 EA.

20    The Territory subsequently sought clarification from the then proposed tenderer, Ox Traffic, about its ability to meet the equal pay and conditions requirement in the 2022 EA. On 22 June 2023, the Territory received a statutory declaration from an officer of Ox Traffic which stated as follows:

That Ox Traffic Pty Ltd complies with Clause B11.4 “As part of the introduction of the Secure Employment Framework and to assist in the promotion of permanent employment for employees, the ACTPS will ensure that the employees of any consultants or contractors the ACTPS proposes to engage, receive pay and conditions at least equivalent in overall terms to ACTPS pay and conditions.” of the Enterprise Agreement. [sic]

21    The Territory did not give the union a copy of that statutory declaration, though it did advise the union that it had received a statutory declaration. It is perhaps not surprising that the Territory did not give the union a copy of the statutory declaration. It would hardly have inspired confidence that the commitment of equal pay and conditions would be met. Nor was it likely to have assuaged the union’s concerns about its absence of information concerning that issue. Indeed, quite to the contrary. It is difficult to imagine that the Territory would not have appreciated that to be the case.

22    In any event, shortly after being told of the existence of the statutory declaration, the union wrote to the Territory and indicated that it doubted that the statutory declaration would satisfy the requirement of sub-cl B11.4 of the 2022 EA. The union also effectively demanded that the Territory take steps to actually ascertain the wages and conditions that Ox Traffic would offer its employees.

23    In the meantime, on 19 June 2023, the Fair Work Commission approved the 2023 EA. Clause B8 of the 2023 EA, under the heading “Secure Employment”, contained subclauses that were in relevantly identical terms to the subclauses in cl B11 of the 2022 EA. Likewise, cl F1 of the 2023 EA contained subclauses which were in relevantly identical terms to the subclauses in cl G1 of the 2022 EA. As cl B8 of the 2023 EA was the main focus of the argument in respect of the interlocutory application it is appropriate to set it out in full:

B8.1    The ACTPS is committed to promoting permanent employment and job security for employees within the ACTPS and accordingly agrees to the provisions in this clause.

B8.2    The ACTPS is committed to establishing an Insourcing and Secure Employment Framework for assessing if applicable procured work should be provided by the public sector.

B8.3    The ACTPS is committed to all of the following:

B8.3.1    Minimising the use of consultants and contractors and labour-hire across the ACTPS.

B8.3.2    Minimising the use of sub-contractors and increase the use of direct employment of workers across the ACTPS.

B8.3.3    Supporting direct employment relationships, but where sub­contractors are operating, that industrial and legal mechanisms to protect their rights, be developed and implemented.

B8.4    As part of the introduction of the Secure Employment Framework and to assist in the promotion of permanent employment for employees, the ACTPS will ensure that the employees of any consultants or contractors the ACTPS proposes to engage, receive pay and conditions at least equivalent in overall terms to ACTPS pay and conditions.

B8.5    Prior to making decisions about matters covered by this clause, appropriate consultation must be undertaken with relevant employees and unions in accordance with clause F1 - of this Agreement.

24    The correspondence from the union and its lawyers plainly caused consternation and concern on the part of the senior officers of the Territory who were responsible for the tender process. On 30 June 2023, a senior Territory officer wrote to the union and advised it that a “probity adviser” was going to undertake a review of what had occurred in respect of the tender and that in the meantime the tender process would be “paused”.

25    That undertaking did not entirely placate the union. In its reply to the Territory’s letter, the union demanded that the Territory undertake not to recommence the procurement or tender process until the union had been advised of the outcome of the probity review, the parties had met to discuss the issues and the Territory had ensured that the terms and conditions of employment of Ox Traffic’s employees were equivalent to those offered to Territory employees. The union threatened to commence proceedings seeking an injunction against the Territory unless such an undertaking was given.

26    On 7 July 2023, a senior Territory officer replied to the union’s letter. While the reply did not, in terms, provide the undertaking demanded by the union, it reiterated that the procurement process had been paused to allow for the review, that the Territory would “defer” further engagement with the union until the review was completed and that, as the process had been paused and was the subject of an ongoing review, the injunctive relief foreshadowed by the union would be premature and unnecessary.

27    About two months later, the Territory notified the tenderers that the procurement would be proceeding. Within days a tender evaluation was signed, awarding the contract to Ox Traffic.

28    The Territory took those steps without notifying the union of the outcome of the probity review, without notifying the union that the procurement would be proceeding and without any attempt to consult with the union about the tender or the contract. That the Territory would take that action without further engaging with the union would appear, at least at first blush, to be entirely at odds with the previous implicit, if not explicit, assurances given by the Territory in the correspondence that it would engage further with the union after the probity review and before recommencing the tender process.

29    Shortly after the decision to award the tender to Ox Traffic, a union representative met with Territory officers to discuss interim traffic management arrangements. It is readily apparent that the union did not, at this point, know that the Territory had awarded the tender to Ox Traffic. The Territory officers told the union representatives that they could not talk about interim traffic management arrangements as they had been directed not to speak with the union about procurement matters.

30    On 26 September 2023, the Territory and Ox Traffic executed a deed providing for the provision by Ox Traffic of traffic management services to the Territory over the following year, with options to extend that term. The deed does not require or oblige the Territory to issue any particular work orders or requests, or award or allocate any specific work to Ox Traffic. Rather, it regulates how and on what terms Ox Traffic will supply traffic control work if requested to do so. More significantly, the deed does not include a provision which requires Ox Traffic to provide its employees with wages and conditions equivalent to those that the Territory provides to its employees who perform equivalent work.

31    Three days after the deed was executed, the Territory advised the union’s lawyers, for the first time, that the procurement process had been completed and that Ox Traffic had been awarded the contract.

The relief claimed by the employees and the union

32    The principal final relief sought by the employees and the union in its originating application is as follows:

1.    Declarations pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or s 562 of the Fair Work Act 2009 (Cth) (FW Act) that:

a.    the Australian Capital Territory contravened clause B11.5 of the ACT Public Sector Infrastructure Services Enterprise Agreement 2021-2022 (2022 Agreement) and therefore s 50 of the FW Act on or about 1 November 2022 and on or about 16 December 2022 by failing to consult with the employees covered by the 2022 Agreement and/or employee organisations covered by the 2022 Agreement prior to making decisions to issue an advance tender notice and/or issue a request for tender for ACT Roads Traffic Management Services;

b.     the Territory contravened clause B8.5 of the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026 (the 2023 Agreement) and therefore s 50 of the FW Act by failing to consult with the employees covered by the 2023 Agreement and/or employee organisations covered by the 2023 Agreement prior to awarding a contract in relation to ACT Roads Traffic Management Services to Ox Traffic Pty Ltd on or about 22 September 2023;

c.     the Territory contravened clause B8.4 of the 2023 Agreement on or about 22 September 2023 and therefore s 50 of the FW Act by failing to take steps to ensure that employees of Ox Traffic Pty Ltd, being the contractor proposed to be engaged and the contractor ultimately engaged to perform the work the subject of the ACT Roads Traffic Management Services tender, who were engaged by Ox Traffic Pty Ltd to perform the work the subject of the tender, received pay and conditions at least equivalent in overall terms to ACTPS pay and conditions.

2.     Orders pursuant to s 545(1) of the FW Act and/or s 23 of the FCA Act that the Territory, by its officers, employees or agents, be restrained from issuing work orders or requests, or otherwise awarding or allocating work to Ox Traffic Pty Ltd in relation to ACT Roads Traffic Management Services unless the Territory consults with the employees covered by the 2023 Agreement and/or organisations of employees covered by the 2023 Agreement and takes steps to ensure that employees of Ox Traffic Pty Ltd who may be engaged to perform work the subject of the tenders will receive pay and conditions at least equivalent in overall terms to ACTPS pay and conditions.

(Emphasis in original)

33    The interlocutory relief sought by the employees and the union is an order in the same terms as the final order save that the restraint only operates until the determination of the proceeding. As the interlocutory relief is the main focus of argument, it is appropriate to set it out in full:

1.     Orders pursuant to s 545(1) of the FW Act and/or s 23 of the FCA Act that, until determination of these proceedings, the Territory, by its officers, employees or agents, be restrained from issuing work orders or requests, or otherwise awarding or allocating work to Ox Traffic Pty Ltd in relation to the Roads ACT Traffic Management Services tender, unless the Territory consults with the employees covered by the 2023 Agreement and/or registered organisations of employees covered by the 2023 Agreement and takes steps to ensure that employees of Ox Traffic Pty Ltd who may be engaged to perform work the subject of the contract will receive pay and conditions at least equivalent in overall terms to ACTPS pay and conditions.

34    In short, the employees and the union seek to restrain the Territory from requesting or awarding work to Ox Traffic under the deed unless and until it consults with the employees and the union and takes steps to ensure that Ox Traffic’s employees who perform any such work will receive pay and conditions equivalent to the pay and conditions the Territory provides its employees.

Relevant principles – interlocutory injunctions

35    The applicable principles in respect of interlocutory injunctions are settled and do not need to be rehearsed at length in this judgment.

36    In order to secure an interlocutory injunction, the plaintiff must generally show: first, that there is a serious question to be tried, or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that, at the trial of the action, the plaintiff will be held entitled to relief; second, that the plaintiff will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and third, that the balance of convenience favours the granting of an injunction: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; [1986] HCA 58; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at [13]; Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 (Samsung v Apple) at [53].

37    The Court’s task of assessing the balance of convenience and justice requires the Court to determine whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused is outweighed by the injury which the defendant would suffer if an injunction were granted: see Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1; Samsung v Apple at [58].

38    The question whether the plaintiff must show that they will suffer irreparable harm if no injunction is granted is one of the matters which will ordinarily need to be addressed in the Court’s consideration of the balance of convenience and justice. That question involves an assessment by the Court as to whether the plaintiff would, in all material respects, be in as good a position if they were confined to its damages remedy as they would be if an injunction were granted. The matter should not be elevated into a separate and antecedent enquiry, but rather, is best left to be considered as part of the Court’s assessment of the balance of convenience and justice: see Samsung v Apple at [61]-[63].

39    Resolution of the question of where the balance of convenience and justice lies requires the Court to exercise a discretion. In exercising that discretion, the Court is required to assess and compare any prejudice and hardship likely to be suffered by the defendant, third persons, and the public generally if an injunction is granted, and that which is likely to be suffered by the plaintiff if no injunction is granted. In determining this question, the Court must assess the likelihood that the final relief, if granted, “will adequately compensate the plaintiff for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted”: see Samsung v Apple at [66].

40    The question whether there is a serious question to be tried or whether there is a prima facie case “should not be considered in insolation from the balance of convenience”, and the “apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance”: see Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595 at [15]; Samsung v Apple at [67].

Is there a serious question to be tried?

41    The employees and the union contended that there is a prima facie case that the Territory failed to consult it and the employees before entering into the deed with Ox Traffic and that such consultation was required by sub-cl B8.5 of the 2023 EA. It followed, in their submission, that there was a prima facie case that the Territory had contravened sub-cl B8.5 and consequently contravened s 50 of the Fair Work Act.

42    The employees and the union submitted that the evidence revealed that the Territory had not consulted at all with the employees in respect of the tender process and that such communications as had taken place between the Territory and the union concerning the process did not amount to consultation as defined in, and as required by, the terms of the 2023 EA. Indeed, in their submission the Territory had engaged in obfuscation and subterfuge. Having initially admitted that it had failed to consult, the Territory had effectively undertaken to pause the procurement process until a review was completed and it had discussed the issues with the union. It subsequently went ahead with the procurement without further contacting, let alone consulting, with the union. There had, so it was submitted, in those circumstances been no bona fide or effective consultation. That is because, among other things, the union and the employees had not been afforded the actual opportunity to participate in the decision-making process. The employees and the union also submitted that they had not been consulted about whether Ox Traffic’s employees would receive equivalent pay and conditions because they had not been provided with any relevant information concerning that issue.

43    The unions and the employees also contended that there was a prima facie case that the Territory had failed to take steps to ensure that Ox Traffic’s employees who performed work under the deed received pay and conditions equivalent in overall terms to the employees. It followed, so the employees and the union contended, that there was a prima facie case that the Territory had contravened sub-cl B8.4 of the 2023 EA and s 50 of the Fair Work Act. The unions and the employees submitted that the only step taken by the Territory to ensure that the Ox Traffic employees would receive equal pay and conditions was to obtain a statutory declaration from Ox Traffic. That statutory declaration, however, was said to be manifestly deficient, if not meaningless.

44    For its part, the Territory contended that there was no prima facie case that it had contravened sub-cls B8.4 and B8.5 of the 2023 EA and therefore no prima facie case that it had contravened s 50 of the Fair Work Act. Its primary submission in support of that contention was that, properly construed, sub-cls B8.4 and B8.5 simply did not apply to the circumstances under consideration and did not oblige the Territory to either take any steps to ensure that Ox Traffic’s employees obtained equivalent pay and conditions or consult with the union or the employees about the procurement process or the award of the tender to Ox Traffic. The Territory also submitted, albeit in fairly short and summary terms, that even if those subclauses in the 2023 EA applied in the circumstances, the evidence did not establish that the Territory had failed to comply with them. In the Territory’s submission, there had been “significant consultation” between the parties.

The construction issue

45    Put simply, the Territory’s argument that sub-cl B8.4 of the 2023 EA, properly construed, does not apply to the facts of this case, focussed on the fact that cl B8.4 opens with the words “[a]s part of the introduction of the Secure Employment Framework”. The Secure Employment Framework is also referred to in sub-cl B8.2 as something that the Territory is “committed to establishing … for assessing if applicable procured work should be provided by the public sector”. The Territory submitted that it is evident from the reference to the Framework in sub-cl B8.4 that the obligations in the clause are only enlivened once the Framework is introduced. The evidence indicated that the Framework, which is a form of policy that the Territory proposes to implement by the Chief Minister making a disallowable instrument, is yet to be implemented. It followed, so it was submitted, that sub-cl B8.4 was not yet enlivened.

46    As for sub-cl B8.5 of the 2023 EA, the Territory’s submission, again put simply, was that, read in context, the reference in sub-cl B8.5 to the “matters covered by this clause” is a reference to the commitments referred to in sub-cls B8.1 and B8.3 and the obligation referred to in sub-cl B8.4. In the Territory’s submission, those commitments and that obligation are sought to be fulfilled by the establishment of the Framework. It followed, therefore, that decisions about those matters “are ones that are tied to the Framework”. The Territory’s submission appeared to be that the decisions in question in this matter – the Territory putting traffic management out to tender and entering into an agreement with Ox Traffic – were not ones which were tied to the Framework.

47    As for sub-cl B8.4, the Territory similarly submitted that the obligation referred to in that subclause is only enlivened once the Framework is introduced. In the Territory’s submission, the words “and to assist in the promotion of permanent employment for employees” in sub-cl B8.4 did not comprise a separate obligation imposed on the Territory. Rather, that commitment was again tied to the introduction of the Framework.

48    For their part, the employees and the union submitted that cl B8 should not be construed in the narrow way contended by the Territory. They submitted that the commitment to establish the Framework in sub-cl B8.2 is only one of the commitments in cl B8 and that the obligation to consult about “matters covered by this clause” in sub-cl B8.5 imposes an obligation to consult about the other broader and more general commitments in the other subclauses. They also submitted that the Territory’s narrow reading of sub-cl B8.4 ignores relevant context, including the fact that similar subclauses appeared in earlier iterations of the enterprise agreement between the parties.

49    While in some cases it may be appropriate to finally determine issues of law or construction which arise in the context of an interlocutory application, this is not such a case. I do not propose to express a concluded view on the construction of cl B8 of the 2023 EA. The question of construction is difficult and complex. The wording of the clause is obscure and opaque, even by the unfortunately low standards of industrial instruments. The concept of consulting about decisions about commitments is awkward and rather difficult to comprehend. In my view, the task of properly construing cl B8 requires a detailed contextual consideration of the clause, including the history of provisions of this sort in earlier enterprise agreements between the parties and the industrial context. I am unable to fully complete that task given the relatively limited argument before me and the relevantly limited time available to me to decide this issue. More significantly, it would appear that an identical constructional issue is to be decided on a final basis by another judge in related proceedings between the parties. Those proceedings are listed for final hearing in early December. Common sense would suggest that it would be appropriate to hear this proceeding, or at least hear and determine the issue of construction, along with those other proceedings.

50    What I am prepared to find in the context of this interlocutory application is that there is at least a serious question to be tried concerning the construction of cl B8 of the 2023 EA and that the construction of the clause advocated by the employees and the union is reasonably arguable. It is in my view reasonably arguable that “decisions about matters covered by” sub-cl B8.5 include decisions that may impact on the “matters” generally identified in sub-cls B8.1 and B8.3, including job security, the minimisation of the use of consultants, contractors and sub-contractors, increasing the use of direct employment of workers, and supporting direct employment relationships. It is also reasonably arguable that the decision to enter into the contract with Ox Traffic in respect of traffic management services was such a decision.

51    I am not persuaded that the narrow construction advocated by the Territory is necessarily correct or preferable. Indeed, in my view it tends to ignore relevant context, in particular the history of enterprise agreements between the parties and largely ignores the “industrial realities” in which the agreement was drafted: cf City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53], [57]; Ridd v James Cook University (2021) 274 CLR 495; [2021] HCA 32 at [17]. I find it difficult to accept, once regard is had to the history of the dealings between the parties and the industrial realities, that the employees and the union would have agreed to consult only about a rather nebulous government policy yet to be implemented.

The factual issue

52    In my view, the employees and the union also have a prima facie case that, as a factual matter, the Territory failed to properly or adequately consult with them about decisions involving “matters” covered by cl B8. There is at least a serious question to be tried in respect of that issue.

53    It is true that there were meetings between the Territory and the Union at which there were discussions concerning the tender process and the issue of equivalent pay and conditions. The evidence at this interlocutory stage would tend to suggest, however, that those meetings were convened only after the union alleged, and the Territory conceded, that there had been no consultation concerning the tender process and the issue concerning equivalent pay and conditions. The absence of any consultation was also one of the main topics of discussion at the meeting, along with the union’s contention that it had not been provided with any, or any adequate, information in respect of the issue of equivalent pay and conditions.

54    In any event, the critical point to note is that the evidence at this stage tends to suggest that, having effectively conceded that there had been no effective consultation, the Territory advised the union that the tender process had been paused while that issue was the subject of a probity review. The Territory also at least implicitly undertook that it would consult further with the union after the probity review had been finalised. Unfortunately, however, the Territory did not abide by that undertaking. Instead, it finalised the tender process, awarded the contract to Ox Traffic and entered into that contract without any further consultation with the union. Indeed, the available inference from the evidence in its current state is that the Territory deliberately neglected to advise the union that it proposed to conclude the tender process and enter into the contract with Ox Traffic.

55    The employees and the union submitted that the Territory’s conduct in resuming the tender process and awarding the tender to Ox Traffic without advising the union or engaging in the promised consultation constituted obfuscation and subterfuge. I perhaps would not go so far. I would conclude, however, that that conduct must be taken into account in considering whether the Territory had in fact engaged in any bona fide or effective consultation. In all the circumstances, in my view the employees and the union have at least a prima facie case that the Territory did not consult with it in respect of the decision to enter into the contract with Ox Traffic and that such consultation was required by sub-cl B8.5 of the 2023 EA.

56    I am also of the view that there is at least a serious question to be tried as to whether, as a factual matter, the Territory failed to take sufficient or adequate steps to ensure that the employees of Ox Traffic would receive pay and conditions at least equivalent in overall terms to the pay and conditions that the Territory offered its employees. The evidence at this stage tended to suggest that the Territory relied entirely on the statutory declaration it received from Ox Traffic. As has already been noted, that statutory declaration was almost self-evidently deficient. It may also be noted in this context that the Territory appears to have made no attempt to include a provision concerning equal pay and conditions in the contract it entered into with Ox Traffic. The unions and the employees have a prima facie case in respect of a contravention of sub-cl B8.4 on the evidence as it currently stands.

57    While I have found that the employees and the union have a prima facie case that the Territory contravened sub-cls B8.4 and B8.5, I should emphasise two points.

58    First, I would not at this point characterise the case as a strong prima facie case. Some of the evidence concerning the discussions that occurred at meetings was of a hearsay nature or otherwise less than satisfactory. That is not a criticism as the deficiencies may perhaps be explained on the basis that the evidence had been compiled at relatively short notice for the purposes of an interlocutory injunction. It is likely that the evidence will be supplemented for the purposes of the final hearing. Once that occurs, the issue as to the extent of any consultation that occurred at the meetings between the Territory and the union may turn out to be more complex and not as straightforward.

59    The strength of the prima facie case, of course, is relevant to the balance of convenience. I will address that issue shortly.

60    Second, and perhaps more significantly, the fact that the employees and the union may have a prima face case that the Territory contravened sub-cls B8.4 and B8.5 does not necessarily mean that it has a compelling case for the injunction sought by them. That is because the alleged breaches of those subclauses are past breaches. There is no allegation in the originating application of any continuing breaches. It is, in those circumstances, not entirely clear why a prima facie case in respect of those past breaches would necessarily justify the interlocutory injunction sought by the employees and the union.

61    In relation to the alleged contravention of sub-cl B8.5, the essential allegation in the originating application is that the Territory failed to consult with the employees and the union prior to awarding the contract to Ox Traffic. It is not alleged that there was or is any ongoing obligation under sub-cl B8.5 to consult, for example, in respect of decisions that might be made, or any conduct that may be engaged in, in respect of the performance of the contract with Ox Traffic. Yet the interlocutory injunction sought by the employees and the union, if made, would in effect restrain the Territory from making any such decisions, or engaging in any such conduct.

62    When queried in respect of this issue at the hearing of the interlocutory application, senior counsel for the employees and the union submitted that sub-cl B8.5 imposes an ongoing obligation to consult once a contractor is engaged by the Territory. In my view, however, it is somewhat doubtful that the obligation to consult under sub-cl B8.5 could be said to extend to the granular level of ongoing decisions concerning work orders and requests made under a contract entered into between the Territory and a contractor. In any event, as already noted, that is not what is currently alleged in the originating application. Given the conclusion I have reached in respect of the balance of convenience, it is unnecessary for me to reach a concluded view in respect of this issue. It is, however, an issue which might arise at the final hearing.

63    Similarly, in relation to the alleged contravention of sub-cl B8.4, the essential allegation is that the Territory failed to take steps to ensure that employees of the proposed contractor, Ox Traffic, would receive pay and conditions at least equivalent in overall terms to the pay and conditions offered to the Territory’s employees. The emphasis on “proposed” is consistent with the terms of sub-cl B8.4, which imposes the relevant obligation on the Territory in respect of “any consultants or contractors [it] proposes to engage”. It is not clear that there is any ongoing obligation under sub-cl B8.4 once the consultant or contractor is engaged. Nevertheless, the injunction sought by the employees and the union would, if made, restrain the Territory from making decisions concerning the performance of the contract with Ox Traffic unless and until it takes steps to ensure that Ox Traffic’s employees are in fact receiving equivalent pay and conditions.

64    When queried in relation to this issue at the hearing of the interlocutory application, senior counsel for the employees and the union submitted that sub-cl B8.4 imposed an obligation on the Territory even after the contractor is selected and a contract is entered into. I entertain some doubts that sub-cl B8.4, properly construed, imposes such an ongoing obligation. It is, however, again unnecessary for me to express a concluded view in respect of this issue.

Where does the balance of convenience lie?

65    As discussed earlier, an applicant for an interlocutory injunction must ordinarily establish that they will suffer irreparable injury or harm for which damages will not be an adequate compensation unless an injunction is granted. That injury or harm should then be weighed against the injury or harm that the defendant would likely suffer if an injunction were granted.

66    The employees and the union contended that they would suffer “significant prejudice” if the injunction sought by them was not granted. That prejudice was said to comprise: first, the fact that the “valuable right of consultation will be rendered largely nugatory”; second, the job security of the employees “is apt to be undermined”; third, the income of the employees “is apt to decrease”; and fourth, the employees will be deprived of the “non-pecuniary benefit of performing traffic management work”. As for any harm that might be suffered by the Territory if the injunction is granted, the employees and the union submitted, in effect, that the Territory is unlikely to suffer any harm if the injunction is granted. That is because the Territory is only precluded from providing work to Ox Traffic unless and until it consults the employees. That consultation, so it was submitted, could be engaged in “quickly and simply”.

67    I am not persuaded that the employees will suffer any of the alleged forms of prejudice if the injunction is not granted. Nor am I satisfied that the alleged forms of prejudice, even if made out, could be said to amount to irreparable injury or harm for which damages would be an appropriate remedy. I am, however, persuaded, contrary to the submissions of the employees and the union, that the injunction, if granted, could result in significant harm to the Territory and its road users.

Potential harm to the employees if an interlocutory injunction is not granted

68    As for the claim that the valuable right of consultation will be rendered nugatory, it may readily be accepted that the right of consultation, in the industrial context, is an important and substantive right: cf Australian Federation of Air Pilots v HNZ Australia [2015] FCA 755 at [30]. I am not, however, persuaded that the right of consultation that the employees and the union have under sub-cl B8.5 of the 2023 EA would be rendered nugatory if the interlocutory injunction is not granted. The alleged breach of sub-cl B8.5 is a past breach – a failure by the Territory to consult prior to entering into the contract with Ox Traffic. If that breach is made out at the final hearing, the Court will no doubt make appropriate orders in respect of that breach irrespective of whether or not an interlocutory injunction had been granted.

69    If the interlocutory injunction is not granted and it is established at the final hearing that there was or is an ongoing requirement to consult, the fact that the interlocutory injunction was not granted will mean that the employees and the union were deprived of the right of consultation during the period between the interlocutory hearing and the final hearing. That may be little more than a period of a few months. I doubt that that could be said to be a significant prejudice, let alone irreparable harm. That is all the more so given that the consultation that would or may have occurred had the interlocutory injunction been granted, may not, in any event, have produced any material benefit for the employees.

70    As for the contention that the employees’ job security may be undermined, the evidence adduced by the Territory indicated that all but one of the employees was a permanent employee, the other employee being on a fixed term temporary contract. Each of the employees work standard hours under the 2023 EA and there has been no change to those hours. The evidence also appeared to indicate that the traffic control work to be performed by Ox Traffic employees was not work that was normally carried out by the employees. The evidence did not suggest that the engagement of Ox Traffic meant that the employees no longer had any work to do. There is also no suggestion, let alone evidence, that the Territory will or even might terminate their employment in the period leading up to the final hearing if the interlocutory injunction is not granted. In the circumstances, the contention that the employees’ job security will be undermined if the interlocutory injunction is not granted has little or no substance. While it may be accepted that some of the employees may feel some insecurity about their jobs, I doubt that that amounts to irreparable injury or harm. I also doubt that the making of an interlocutory injunction would necessarily alleviate that feeling of insecurity in any material way.

71    As for the contention that the employees’ income may be reduced, the evidence adduced by the Territory indicated that there had been no change to the employees’ base salary as a result of the Territory entering into the contract with Ox Traffic. While some of the employees may lose some additional income that they earned between the time that the contract with the previous contractor ceased and the contract with Ox Traffic commenced, it is somewhat doubtful that any such loss of income could be said to flow from any failure to consult. If, on the other hand, it is established at the final hearing that the failure to consult resulted in the employees losing some income, that pecuniary loss may be recoverable. It is at best doubtful that any such loss could be said to be irreparable injury for which monetary compensation is not an adequate remedy.

72    Finally, the somewhat nebulous contention that the employees will be deprived of “the non-pecuniary benefit of performing traffic management work” if an interlocutory injunction is not granted has no merit. As already indicated, the evidence adduced by the Territory indicated that the traffic management work to be performed by Ox Traffic employees was not work that was ordinarily carried out, or able to be carried out, by the employees. In any event, even if it could be said that the employees might be deprived of this non-pecuniary benefit if an interlocutory injunction is not granted, that could hardly be said to be an irreparable injury warranting the granting of the injunction in circumstances where the deprivation may only subsist for a matter of months.

Potential harm to the Territory if an injunction is granted

73    The Territory’s contention that it will suffer harm if an interlocutory injunction is granted has more merit. The evidence adduced by the Territory established, in summary, that the interlocutory injunction, if granted, would complicate and delay the performance of important road and maintenance works. That work depends, to a significant extent, on the performance of the traffic control work envisaged to be carried out by Ox Traffic under the contract. The evidence indicates that the sort of traffic control work which is required for the programmed road and maintenance works cannot fully or adequately be performed by the employees alone. To make matters worse, if the programmed road and maintenance works are delayed or complicated by an interlocutory injunction, that could result in inconvenience, if not safety risks, to road users in the Territory.

74    The employees and the union sought to counter the evidence adduced by the Territory by suggesting that the injunction only prevented work being carried out under the contract with Ox Traffic unless and until consultation occurred. They submitted that consultation could take place quickly and simply. They confirmed that the proposed interlocutory injunction would not require the Territory to consult them before it issued each and every work order or request. It required only one round of consultation. It followed, so it was said, that the injunction would not impose any significant burden on the Territory.

75    That submission would appear, at first blush, to have some force. The current controversy could potentially be resolved by the Territory simply arranging a meeting with the union and the employees in the near future for the purpose of consulting with them about the issues raised by the Ox Traffic contract, including equal pay and conditions. If the Territory provided relevant information and gave the union and the employees a real opportunity to contribute to the decision-making process (see the definition of “consultation” in the Dictionary to the 2023 EA) that would likely constitute consultation and the Territory could proceed to issue work orders or requests, even if the interlocutory injunction remained in force.

76    If common sense prevailed, that is what should occur. Indeed, if common sense prevailed, that would already have occurred and this interlocutory application probably would not have been necessary or at least would not have proceeded to hearing. The difficulty however, is that common sense has not prevailed to date and there appears little prospect of it prevailing in the near future.

77    This perhaps exposes what is perhaps the more fundamental problem with the submission advanced by the employees and the union. That problem is that, if the interlocutory application in the form proposed by the employees and the union is granted, it appears almost inevitable that it will simply give rise to further disputation and further interlocutory applications, or even contempt applications. That is because the attitude displayed by the parties both preceding and at the hearing of the interlocutory application demonstrates that they will almost inevitably disagree about what would constitute consultation for the purposes of the interlocutory injunction if granted. The form of interlocutory injunction does not specify at all, let alone with precision, exactly what the parties are to consult about, let alone what exactly would constitute consultation for the purposes of the interlocutory injunction.

78    There is, of course, ample authority concerning what would, in a general sense, constitute consultation: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (2010) 268 ALR 514; [2010] FCA 591 at [40]-[44]. It does not follow, however, that the parties will agree that what has occurred between them constitutes consultation. Indeed, the attitude displayed by the parties to date would regrettably suggest that they will continue to disagree and the issue will have to be resolved by the Court unless there is a sudden and unexpected outbreak of common sense.

79    The other problem with the submission advanced by the employees and the union is that it does not address the other thing that the Territory would have to do if the interlocutory application was made and it wanted to proceed to issue work orders or requests. In addition to consulting with the employees and the union, the interlocutory injunction would also require the Territory to take steps to ensure that employees of Ox Traffic will receive pay and conditions equivalent in overall terms to those offered to Territory employees. The difficulty, once again, is that the conduct of the parties to date suggests that, if the interlocutory injunction is granted, the parties will continue to disagree about what would constitute adequate or reasonable “steps” to discharge the obligation in the interlocutory injunction.

80    As Logan J noted in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 at [17], “[c]ourts do not make orders of an injunctive kind, the breach of which may sound in a contempt, by using such imprecise language that the nature and extent of the obligation entailed is rendered uncertain”. His Honour cited, in support of that proposition, the decision of the High Court in Pakenham Upper Fruit Company Limited v Crosby (1924) 35 CLR 386 at 395; [1924] HCA 55. His Honour went on to note that the term “consultation” was not a term which had about it an imprecision of the kind deprecated in Crosby. I accept that the term consultation may not itself be imprecise, however there may be cases where there may be considerable scope for disagreement and dispute about whether what has occurred could be said to constitute consultation. This is such a case.

81    I do not suggest that this uncertainty as to the operation of the proposed injunction is a reason in and of itself to refuse to grant the interlocutory injunction in this case. It is more a response to the submission advanced by the employees and the union to the effect that they are not asking for much and that the consultation effectively required by the interlocutory injunction could be quickly and simply provided by the Territory. The scope for further dispute if the interlocutory injunction is granted is also a factor that must be considered or weighed up in respect of the balance of convenience.

82    The final matter that should be noted in the context of the balance of convenience is that there is a realistic prospect that there may be an early final hearing in this matter. As noted earlier, there are related proceedings between the parties which raise similar issues to those raised in this matter. In particular, I have been told by the parties that those proceedings raise a similar, if not identical, question of construction in respect of a clause in relevantly identical terms as cl B8 of the 2023 EA. The related proceedings are listed for final hearing before Shariff J in early December 2023. There would appear to be some scope for these proceedings to be consolidated or heard together with those proceedings, though that of course will be entirely a matter for Shariff J. The point is that if there is an early final hearing in this matter, the prospect or possibility that the employees will suffer any irreparable harm or injury if an interlocutory is not granted would appear to be even more remote.

83    In all the circumstances, I am not persuaded that the balance of convenience favours the granting of an injunction in the terms sought by the employees and the union.

Costs

84    The Territory submitted that the employees and the union should pay its costs of the unsuccessful interlocutory application. They submitted that the interlocutory application fell within section 570(2)(a) of the Fair Work Act, which provides that a party may be ordered to pay costs only if the Court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause. There is, in my opinion, no basis for the contention that the employees and the union commenced these proceedings vexatiously or without reasonable cause. Indeed, as I have already indicated, in my view they have established that there is a serious case to be tried, or that they have at least a prima facie case in relation to the relief they seek in the originating application.

85    It was submitted on behalf of the Territory that it was appropriate to order costs because, when the interlocutory application first came before a duty judge, it was suggested by the Territory that the interlocutory application should be deferred, and the proceeding heard together with or consolidated with the related proceedings being considered by Shariff J, to which reference was made earlier in these reasons. In my opinion, that is an insufficient basis upon which to contend that the proceedings were instituted vexatiously or without reasonable cause.

86    I should also, for completeness, add that I am not satisfied that the fact that the Territory initially submitted that the matter was more appropriately dealt with at an early final hearing before Shariff J provides any basis for concluding that the employees and the union engaged in any unreasonable act or omission which caused the Territory to incur costs: see section 570(2)(b) of the Fair Work Act. In short, in my view, while the employees and the union failed in their interlocutory application, it was by no unreasonable for them to pursue that application, nor could it seriously be said to be vexatious or an application without reasonable cause. Accordingly, the Territory’s application for costs is dismissed.

Conclusion and disposition

87    It follows that the application by the employees and the union for interlocutory relief in the form of an injunction will be dismissed. There will be no order as to costs.

Associate:

Dated:    27 October 2023

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