DECISION NO: 371/96
CATCHWORDS
INDUSTRIAL LAW - respondent withholding wage increase - allegation that applicants were being injured in their employment and/or having their positions altered to their prejudice - applicants induced to stop being union members
INTERLOCUTORY RELIEF - whether there is a serious issue to be tried - balance of convenience
JURISDICTION - injunctive relief - section 431 couched in wide terms - whether relief is prohibitory or mandatory - whether Court has power to grant a mandatory injunction against the State of Tasmania
CONSTITUTION - what constitutes the Constitution of Tasmania - special considerations relating to legislation that strikes at the judicial power of the States - pre-eminent Federal legislation does not threaten the continued existence or independence of Tasmania
LEAVE TO APPEAL - decision lacks sufficient doubt - no substantial injustice if leave to appeal refused - application for leave to appeal refused
Industrial Relations Act 1988 ss 334, 431
Industrial Relations Act 1984 (Tasmania) s58
Conciliation and Arbitration Act 1904 s109
Crown Proceedings Act 1993 (Tasmania) s8
Judiciary Act 1903 ss 78B, 79
Commonwealth Constitution s106
Industrial Relations Court Rules 052 r2B
AB v National Crime Authority, Federal Court of Australia, VG 765 of 1995, Full Court, 3 July 1996
Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Another (1981) 148 CLR 170
Bowling v General Motors-Holden’s Pty Ltd (1980) 50 FLR 79
Decor Corporation Pty Ltd an Another v Dart Industries Inc (1991) 33 FCR 397
Dunham v Randwick Imaging Pty Ltd (1994) 1 IRCR 54
General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Lewis Construction Co Pty Ltd & Ors v Martin & Ors (1986) 17 IR 122
Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49
McCawley v The King and Others (1920) 28 CLR 106
McCawley v The King and Others (1919) 26 CLR 9
Pearce v W.D. Peacock & Company Limited (1917) 23 CLR 199
R v Sweeney and Another; ex parte Northwest Exports Proprietary Limited (1981) 147 CLR 259
Re Australian Education Union and Others; ex parte The State of Victoria and Another (1995) 184 CLR 188
Re Tracey; ex parte Ryan (1988-89) 166 CLR 518
Squires v Flight Stewards Association of Australia (1982) 2 IR 155
The Queen in Right of the State of Victoria and Anor v Australian Teachers Union (No 2) (1993) 48 IR 109
Trade Practices Commission v Manfal Pty Ltd and Others (1990) 97 ALR 231
No. VI 1944 of 1996
HEALTH SERVICES UNION OF AUSTRALIA, DENISE BRAZENDALE AND DAVID WAREING v STATE OF TASMANIA
JUDGE: Marshall J
PLACE: Melbourne (heard in Tasmania)
DATE: 14 August 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
No. VI 1944 of 1996
BETWEEN: HEALTH SERVICES UNION
OF AUSTRALIA,
DENISE BRAZENDALE and
DAVID WAREING
Applicant
AND: STATE OF TASMANIA
Respondent
JUDGE: Marshall J
PLACE: Hobart
DATE: 31 July 1996
ORDER
THE COURT ORDERS THAT:
1. Pending the hearing and determination of this proceeding or further order, the Respondent by itself, its servants or agents, refrain from contravening or continuing to contravene Section 334(1)(a) of the Industrial Relations Act 1988 by withholding and/or denying to the Secondnamed and Thirdnamed Applicants, and members of the Firstnamed Applicant employed by the Respondent in its Department of Community and Health Services, the first instalment of the 5.5% wage increase, granted on and from 14 July, 1996, to all employees of the Respondent employed in its Department of Community and Health Services who are not members of the Firstnamed Applicant.
2. Pending the hearing and determination of this proceeding or further order, the Respondent by itself, its servants or agents, refrain from contravening or continuing to contravene Section 334(3A) of the Industrial Relations Act 1988, by withholding and/or denying to the
Secondnamed and Thirdnamed Applicants and members of the Firstnamed Applicant employed by the Respondent in its Department of Community and Health Services, the first instalment of the 5.5% wage increase, granted on and from 14 July, 1996, to all employees of the Respondent employed in its Department of Community and Health Services, who are not members of the Firstnamed Applicant.
3. Application for leave to appeal is refused.
4. On or before 7th August, 1996 the Applicants are to file and serve their Statement of Claim.
5. On or before 14th August, 1996 the Respondent is to file and serve its Defence.
6. On or before 21st August, 1996 the parties are to file and serve a list of all relevant documents.
7. Directions hearing adjourned to 26th August, 1996 at Melbourne.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY )
No. VI 1944 of 1996
BETWEEN: HEALTH SERVICES UNION
OF AUSTRALIA,
DENISE BRAZENDALE and
DAVID WAREING
Applicant
AND: STATE OF TASMANIA
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Tasmania)
DATE: 14 August 1996
REASONS FOR JUDGMENT
BACKGROUND
On 31 July 1996, shortly after the conclusion of the submissions of counsel, I made the following orders:-
“1. Pending the hearing and determination of this proceeding or further order, the Respondent by itself, its servants or agents, refrain from contravening or continuing to contravene Section 334(1)(a) of the Industrial Relations Act 1988 by withholding and/or denying to the Secondnamed and Thirdnamed Applicants, and members of the Firstnamed Applicant employed by the Respondent in its Department of Community and Health Services, the first instalment of the 5.5% wage increase, granted on and from 14 July, 1996, to all employees of the Respondent employed in its Department of Community and Health Services who are not members of the Firstnamed Applicant.
2. Pending the hearing and determination of this proceeding or further order, the Respondent by itself, its servants or agents, refrain from contravening or continuing to contravene Section 334(3A) of the Industrial Relations Act 1988, by withholding and/or denying to the Secondnamed and Thirdnamed Applicants and members of the Firstnamed Applicant employed by the Respondent in its Department of Community and Health Services, the first instalment of the 5.5% wage increase, granted on and from 14 July, 1996, to all employees of the Respondent employed in its Department of Community and Health Services, who are not members of the Firstnamed Applicant.”
I said that I would deliver my reasons for deciding to make those orders as soon as was reasonably practicable. What follows are my reasons for so doing.
The matter before the Court is an application pursuant to s431 Industrial Relations Act 1988 (“the IR Act”) in which the applicants seek injunctive relief requiring the respondent to cease what they allege is a contravention of the IR Act by it. The firstnamed applicant, Health Services Union of Australia (“HSUA”) is an organisation of employees registered under the IR Act. The second and thirdnamed applicants are members of HSUA.
The applicants allege that the respondent is acting in contravention of s334(1)(a) and s334(3A) of the IR Act. Those provisions are set out as follows:-
“334 (1) [Dismissal prohibited] An employer shall not dismiss an employee, injure an employee in his or her employment, or alter the position of an employee to the employee’s prejudice, because the employee:
(a) is or has been, or proposes, or has at any time proposed, to become an officer, delegate or member of:-
(i) an organisation; or
(ii) an association that has applied to be registered as an organisation;
(b) ....
......
(3A) [Inducement by employer to cease membership of an organisation is prohibited] An employer must not (whether by threats or promises or otherwise) induce an employee to stop being an officer, delegate or member of an organisation, or of an association that has applied to be registered as an organisation.”
The application under s431 of the IR Act was filed on 24 July 1996. On the same day the applicants filed a notice of motion seeking an interlocutory order compelling the respondents to cease the relevant alleged contraventions of the IR Act pending the final determination of the proceedings. The notice of motion was heard on 31 July 1996 in Hobart.
The applicants contend that the relevant contraventions of the IR Act arise out of the conduct of the respondent in withholding from HSUA members employed within its Department of Community and Health Services (“the Department”), a wage increase which on and from 31 July 1996 is to be paid to all other persons employed within the Department, i.e., members of the Community and Public Sector Union (“CPSU”) and/or its State associated body, the State Public Services Federation, Tasmania (“SPSFT”), members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), and non-unionists.
It was submitted by counsel for the applicants, Mr Kenzie QC, that by being denied a wage increase which is to be paid to all other persons, HSUA members employed within the Department are being injured in their employment and/or are having their positions altered to their prejudice because of their membership of HSUA. It was also submitted by Mr Kenzie that the respondent is inducing employees within the Department to stop being members of HSUA.
The quantum of wages of employees within the Department has been governed in recent years with some exceptions, most notably nursing staff, by agreements registered under the Industrial Relations Act 1984, (Tasmania) (“the State Act”). The last of such agreements expired on 30 June 1996. The respondent and CPSU, SPSFT and CEPU agreed to extend the agreement which expired on 30 June 1996 in respect of members of those trade unions. As a result of such extension agreements, a 1.4% wage increase was to be paid to such members with effect from the first pay period after 1 July 1996. An identical wage increase was to be paid to non-unionists who accepted the same wage increase offer which was accepted by CPSU, SPSFT and CEPU. Further increases under that regime are due on 1 January 1997 (2.1%) and 1 July 1997 (2%). The period of operation of the extension agreements concludes on 31 December 1997.
HSUA did not reach agreement with the respondent. It sought an increase of 10% or $50 (whichever was higher) rather than the 5.5% agreed to by the respondent. An extant industrial dispute which was found by the Australian Industrial Relations Commission (“AIRC”) to exist in or about 1992 between the HSUA and a number of public sector employers provided the jurisdictional foundation for the AIRC to arbitrate in respect of HSUA’s claim for a 10% wage increase. An arbitration of that claim was scheduled to be heard in the week commencing 12 August 1996. As at 31 July 1996, persons who were members of HSUA without also being members of CPSU, SPSFT or CEPU had not been paid the first instalment of the increase, i.e. the 1.4% payable to all other employees in the Respondent with effect from the first pay period on or after 1 July, 1996, i.e. from 14 July 1996.
SERIOUS ISSUE TO BE TRIED
The first step in determining whether or not to grant interlocutory relief involves a consideration of whether the evidence discloses that there is a serious issue to be tried. I am of the view that it does and, further, that if the evidence remains as it is now when the matter reaches trial, the applicants have a substantial prospect of success. I have formed that view given the following matters.
In February 1996 members of HSUA instructed HSUA to attempt to achieve a larger wage outcome for them than that achieved by the other unions. In April and May unsuccessful negotiations occurred between HSUA and the respondent. In late May and early June, HSUA members imposed bans and limitations. On 7 June 1996, HSUA issued a notice under s170PD of the IR Act to initiate a bargaining period. Numerous conferences thereafter occurred in the AIRC in an attempt to settle the dispute between HSUA and the respondent. On 20 June 1996, Senior Deputy President MacBean of the AIRC terminated the bargaining period pursuant to s170PD of the IR Act.
On 3 June 1996, during a period of industrial action, a representative of the respondent issued a “Staff Bulletin”. Insofar as the bulletin refers to HACSU, it must be understood as the name which HSUA is known as in Tasmania. The notice provided as follows:
“Staff Bulletin
To All Staff - An Update on the HACSU
Pay Dispute
Background
The Health and Community Services Union (HACSU) has sought a $50 a week or 10% pay increase for its non nursing members. The Government has stated it won’t grant this increase but is prepared to pay a 5.5% increase. A 5.5% increase is a fair and reasonable offer and is in line with what all public servants will receive. It is also what the Government can afford. The other major union representing non nursing staff, the CPSU, has already agreed to the 5.5% increase.
Current Situation
HACSU has a number of work bans in place. They are mainly impacting on the functioning of the Launceston General Hospital and the Royal Hobart Hospital and are affecting patient care.
The Government has restated that it would be unreasonable to pay anything over the 5.5%, and it cannot afford more. This is particularly relevant in light of anticipated federal budget cuts to Tasmania. A 5.5% increase for non nursing staff will cost the Government $10 million - for which it has made provision.
The Government has also stated that it will do everything to ensure that the sick people in our hospitals are properly looked after. Staff who are not doing their duties and continue to jeopardise patient care will be stood down.
HACSU members involved in the dispute have been reassured via a staff notice that they will still receive the 5.5% increase regardless of the outcome of the industrial dispute. They have been told that this is a rock solid offer that will not be withdrawn. They have also been urged to consider resuming normal duties.
(signed)
Adrian Kelly
A/Director Corporate Services”
The last paragraph of the Staff Bulletin was a clear inducement to members of HSUA to refrain from imposing bans and limitations on the basis that they would receive the 5.5% increase in any event.
Additionally, Chief Executive Officers of Launceston General and Royal Hobart Hospitals issued notices to HSUA members which concluded with the words:
“Once again, no one will be denied the 5.5% increase. With that in mind I strongly urge you to consider resuming your normal duties.”
On 17 July 1996, Mr Kelly, on behalf of the respondent, telephoned Ms Harvey, the Acting State Secretary of HSUA, and informed her that a decision had been made to pay the initial 1.4% instalment of the 5.5% increase only to all non-HSUA members.
He also informed Ms Harvey that the payment would be made administratively, i.e., without taking the matter to the Tasmanian Industrial Commission (“TIC”). Additionally, Ms Harvey was informed that all non-unionists would be asked to complete a form requesting to be paid the 1.4% increase.
The respondent chose not to take the matter to TIC because any industrial agreement registered by that body would, upon registration, be applicable to every employee employed at the relevant work site. See s58(1)(c) of the State Act. The respondent’s apparent intention was to discriminate against HSUA and its members for not agreeing to a total wage claim settlement of a 5.5% increase.
A staff circular issued by Mr Kelly on 17 July 1996 accorded with what he had informed Ms Harvey in their telephone conversation. Attached to the circular was a form required to be filled in by non-unionists to achieve the 1.4% instalment. A non-unionist was required to sign the form in acceptance of “the Terms of the State Services Wages Arrangements offer summarised below”. Those terms were three in number. First, that a salary increase would be paid. Second, that a change would be instituted on 1 January 1997 in the method of calculation of fortnightly salary and third, the period of operation, i.e. up to 31 December 1997. Contrary to the submissions of Mr Bleby QC, who appeared for the respondents, non-unionists were not required to offer any “offsets” to achieve a pay increase other than the effort of putting pen to paper.
Further, in a “Question and Answer Fact Sheet”, distributed by the respondent to supervisors and line managers, such persons were instructed to advise employees that there were only two terms to the extension of the Wages Agreement which expired on 30 June 1996. Those terms were said to be a salary increase and an alteration to the existing formula used to calculate fortnightly salary. Again, not one word of any supposed offset. The “fact sheet” made it clear that HSUA members would not receive any increase until HSUA’s claim had been finalised. It dealt with the consequences of resigning from HSUA and advised that if an employee did so that employee would receive a wage increase.
Not surprisingly, numerous HSUA members approached HSUA about resigning from the organisation to obtain a wage increase. Some HSUA members were advised by line managers to resign from HSUA. A number of resignations have been received by HSUA. It is an understatement to say that the actions of the respondent have undermined the industrial standing of HSUA and its representative role as an organisation under the IR Act. Those actions have occurred as a result of HSUA exercising its rights under the IR Act to have its claim arbitrated by the AIRC.
Mr Bleby submitted that s334 of the IR Act is not concerned with the protection of organisations but with the protection of their members. That submission is erroneous. The protection extends to both the organisation and the member. See Bowling v General Motors-Holden’s Pty Ltd (1980) 50 FLR 79, 94 where the Full Court of the Federal Court of Australia said of the predecessor section:-
“The policy and purpose of sub-ss.(1) and (4) of s. 5 is to protect organizations of employees and their representatives from discrimination and victimization by employers.”
Gray J in Lewis Construction Co Pty Ltd & Ors v Martin & Ors (1986) 17 IR 122, 128 cited that passage and said:-
“The purpose of protection of organisations has been seen to be linked with the protection of their members.”
See also Pearce v W.D. Peacock & Company Limited (“Pearce”) (1917) 23 CLR 199, 205 where Isaacs J said of the original anti-victimisation provision in the 1904 Act that:-
“Now, as I read that section, it is designed, among other things, to preserve organizations, so that the method selected by Parliament for settling disputes shall not be thwarted.”
That passage in Pearce was cited with approval by the High Court in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235, 240 and in R v Sweeney and Another; ex parte Northwest Exports Proprietary Limited (1981) 147 CLR 259, 265.
Nothing could be more calculated to damage an organisation and strike at its representative capacity than the actions of an employer designed to single out members of the organisation for special, inferior treatment and to encourage such members to relinquish their membership.
It amounts to victimisation of the organisation and of its members in the work place. But the question still arises as to whether it, in terms, involves a breach of s334 of the IR Act. I believe a strong case has been made out by the applicants that it does so in the circumstances of this proceeding.
The action of the respondent in singling out a member of the HSUA for denial of a wage increase is in the circumstances an “injury” to such an employee in “his or her employment” within s334(1)(a)(i) of the Act. The action of the respondent involved it treating HSUA members “... differently to other employees and for reasons not associated with the manner in which (they are) performing (their) work. ...” See Squires v Flight Stewards Association of Australia (1982) 2 IR 155, 164. Further, I am satisfied that, as the evidence stands, HSUA members have had their positions altered to their prejudice. They were assured during a period in which bans and limitations had been imposed by them that the 5.5% wage increase would be paid to them regardless of industrial action. The respondent reneged on this assurance and as a result the “expectations and benefits” which were to accrue to HSUA members were lost. See Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49, 62.
It is also clear that the applicants have established a strong case to the effect that s334(3A) of the Act has been breached. The evidence discloses inducements by the respondent to HSUA members to stop being HSUA members. It amounted to the respondent saying “if you want the 1.4% increase you resign from HSUA”. It is difficult to imagine a more blatant breach of the sub-section as the evidence currently stands.
BALANCE OF CONVENIENCE
The balance of convenience overwhelmingly supports the granting of interim relief. The respondent is not prejudiced by the payment of the increase to HSUA members. It had already committed itself to pay a 5.5% increase during the currency of the industrial action referred to above. Failure to grant interim relief would result in continuing damage to the representative capacity of HSUA and to unwarranted perpetuation of the victimisation of its members that flowed from the respondent’s wrongful acts.
Accordingly, the Court would ordinarily go no further than this stage and simply grant the interlocutory relief sought. However, Mr Bleby raised several so-called jurisdictional issues which he submitted denied the Court the jurisdiction to grant the relief now sought. I do not believe any such ground to have any substance. Below I set out my reasons for rejecting each of them.
SECTION 431
Mr Bleby submitted that s431 of the IR Act does not confer jurisdiction to grant an injunction relating to any contravention of that Act, but only concerns a matter in relation to which the Court otherwise has jurisdiction. Section 412(1)(a) of the IR Act invests the Court with jurisdiction with respect to matters arising under the Act in relation to which applications may be made to it under that Act. In my opinion, an application under s431 of the IR Act is an application to which s412(1)(a) of the IR Act refers. In Dunham v Randwick Imaging Pty Ltd (“Dunham”)(1994) 1 IRCR 54, 59 the Chief Justice (Wilcox CJ) said of s431 of the Act:-
“... The section is couched in wide terms. On its face, it extends to any contravention or proposed contravention of the Act, whether or not that contravention was, or would be, a criminal offence. The power is not limited to the grant of final injunctions. It would enable the court to grant an interlocutory injunction restraining a proposed contravention.”
I agree with the observances of Wilcox CJ referred to above. There is no reason to read down s431 of the Act in the way suggested by Mr Bleby. The Explanatory Memorandum accompanying the second reading speech of the Hon Laurie Brereton, MHR, the then Minister, said of the proposed s431 of the Act:-
“The Court may order a person not to disobey, or to cease disobeying, the Act under this proposed provision.” (emphasis supplied)
There was no requirement referred to in the memorandum that the power was confined to issues arising in proceedings jurisdictionally sourced elsewhere.
As Wilcox CJ demonstrated in Dunham at 328-329, s431 of the Act is the successor provision to s61 of the 1988 Act which was referrable to s109(1)(b) Conciliation and Arbitration Act 1904. At 59-60, the Chief Justice said:-
“Section 109(1)(b) was amended during its life, as recounted by Gray J in R v Australian Teachers Union (No 2) (1993) 48 IR 109 at 111-12. By the date of repeal of the Conciliation and Arbitration Act, the paragraph empowered ‘the Court’ (by then the Federal Court) ‘to enjoin an organization or person from committing or continuing a contravention of this Act or the regulations’. In Medcraft v Federated Engine Drivers and Firemen’s Association (1984) 8 IR 211 Gray J discussed the purpose of s109(1)(b). He made the point that, traditionally, courts of equity would not grant an injunction to restrain the commission of a criminal offence. At 218 his Honour said:
In time, this principle mellowed to the extent that the Attorney-General, of his own motion or on the relation of a private citizen, was held to be entitled to seek an injunction to enforce the criminal law. This right is based on the duty of the Attorney-General to safeguard the public interest. It is of comparatively modern use, and confined to cases where an offence is frequently repeated in disregard of an inadequate penalty, or to cases of emergency: see Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 49-50; 32 ALR 485, where Mason J cited Gouriet v Union of Post Office Workers [1978] AC 435. Side by side with the exceptional nature of this jurisdiction, there appears to have grown up a practice, based on Boyce v Paddington Borough Council [1903] 1 Ch 109, whereby a private citizen may claim an injunction where a breach of a public right is involved if that breach also involves a breach of a private right, or where the person making the claim suffers special damage not suffered by other members of the public. In the case of such special damage, it appears that no infringement of any private right is required. The precise nature of the special damage which must be shown to exist has been the subject of considerable debate. ... In recent authorities, such as Wentworth v Woollahra Municipal Council (1982) 42 ALR 69, there appears a trend towards recognition of a broader class of persons entitled to claim injunctions where breaches of statutes providing for criminal sanctions are involved.
Gray J remarked that, when s 109(1)(b) was first enacted:
... it, together with the former s 109(1)(a), was the sole express grant to a newly created court, the Commonwealth Industrial Court, of any power to grant injunctions.
He went on at 218-19:
It may be that there are possible contraventions of the Act which would not amount to criminal offences. In such cases, where no other specific provision for interim restraining orders is made, the grant of an injunction under s 109(1)(b) may be appropriate. Similarly, the grant of an injunction at the suit of the Attorney-General against a persistent offender under the Act would probably fall within the power given by s 109(1)(b). In my view, the power now given to this court by s 109(1)(b) does permit the grant of an injunction where the conduct alleged constitutes a criminal offence under some provision of the Act, and where the person seeking the injunction has suffered some special damage of the kind referred to above. In those circumstances, an interlocutory injunction may be granted upon the principles which normally apply to such relief.
Counsel submitted that these principles apply to the new s 431.
I think s 431 certainly covers the cases mentioned by Gray J, subject to any specific statutory exception; indeed, as will appear, I think the section extends further than his Honour suggested in relation to s 109(1)(b).”
I concur with those views expressed by the Chief Justice. In my view s431 of the Act is a source of jurisdiction for the Court when read with s412(1)(a) of the Act.
Mr Bleby submitted that s61 of the IR Act as it stood in 1988 (“the 1988 Act”) was interpreted as not empowering the Court to grant an injunction to restrain a breach of s311 of the 1988 Act. However, s311 of the 1988 Act dealt with wilful contraventions of awards and not with contraventions of that Act. Special considerations arise when one considers the use of injunctions to restrain award breaches. See The Queen in Right of the State of Victoria and Anor v Australian Teachers Union (No 2) (1993) 48 IR 109, 112, where Gray J said:-
“... There is no warrant for the reintroduction of the use of injunctions to restrain breaches of awards, thereby circumventing a specific code designed to deal with such breaches, merely because such breaches could be characterised as having occurred or being threatened ‘wilfully’. According to current fashion, an interlocutory injunction may be granted on a finding that there is a serious question to be tried. The mere allegation of a breach might be regarded as raising a serious question to be tried as to whether the breach alleged was, or would be, wilful. Alternatively, the element of wilfulness could be supplied by knowledge that a threatened or intended act would be a breach of the award. Thus, there are few breaches of award which could not be brought within the ambit of the power to grant injunctions.
On 1 March 1989, the C & A Act was repealed and replaced by the Industrial Relations Act. What had been s 109(1)(b) of the C & A Act became s 61 of the Industrial Relations Act and what was s 122 became s 311 of the Industrial Relations Act which makes it an offence wilfully to contravene an award. The enactment of those provisions without significant amendment, in the light of the reasoning in Frugalis, together with the retention of the code of provisions dealing with the consequences of the breaches of awards in Division 1 of Part VII of the Industrial Relations Act, demonstrate the intention of Parliament that the remedy of injunction should continue to be unavailable in respect of breaches of awards.”
A MANDATORY INJUNCTION AGAINST TASMANIA
Mr Bleby next submitted that the Court has no power to grant a mandatory injunction against the State of Tasmania. He submitted that although prohibitory in form, the relief sought by the applicants was in substance of a mandatory nature. He referred the Court to s 8(2) Crown Proceedings Act 1993 (Tasmania) which provides that a mandatory injunction is not to be granted against the Crown. He also referred the Court to s79 Judiciary Act 1903 which provides as far as is material that:-
“The laws of each State or Territory, ... shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
Assuming that the relief sought can be truly described as a mandatory injunction, I am of the view that “the laws of the Commonwealth” have “otherwise provided” as referred to in s79 Judiciary Act 1903, in the context of this proceeding. Section 6 of the IR Act provides that:-
“SECTION 6 APPLICATION TO CROWN
6 This Act binds the Crown in right of the Commonwealth, each of the States, the Australian Capital Territory and the Northern Territory, but nothing in this Act renders the Crown in right of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory liable to be prosecuted for an offence.”
Mr Bleby cited Trade Practices Commission v Manfal Pty Ltd and Others (“Manfal”) (1990) 97 ALR 231 in support of his submission. The question in that case was whether a State law was binding on the Commonwealth Crown. Quite different considerations arose in that case to the ones which arise for consideration here. The relevant crucial consideration in Manfal was, as Wilcox J put it at 245, “the inability of the Western Australian Parliament to bind the Crown in the right of the Commonwealth”. See also French J at 262-263.
The combined effect of s79 Judiciary Act 1903 and ss 6, 334 and 341 of the IR Act is to permit the Court to make the orders it made on 31 July 1996 in this matter notwithstanding s8(2) Crown Proceedings Act 1993 (Tasmania).
SECTION 106 OF THE CONSTITUTION
In the alternative, Mr Bleby submitted that the grant of a mandatory injunction against a State is contrary to s106 of the Constitution. Section 106 provides that:
“The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.”
Mr Bleby argued that the Constitution of Tasmania includes s8 Crown Proceedings Act 1993 (Tasmania). In support of that contention he directed the Court’s attention to McCawley v The King and Others (“McCawley”) (1919) 26 CLR 9, 51 where Isaacs and Rich JJ referred to the Constitution of “a colony” as “... the rules by which its action as a recognized entity is regulated.”. In so doing their Honours found that the Supreme Court Acts of Queensland were part of that State’s Constitution.
However, as Mr Kenzie pointed out, the decision of the High Court in McCawley was reversed by the Privy Council in (1920) 28 CLR 106. At 116-117 in the judgment of the Privy Council the following appears:
“... The Constitution of Queensland is a controlled Constitution. It cannot, therefore, be altered merely by enacting legislation inconsistent with its articles. It can only be altered by an Act which in plain and unmistakable language refers to it; asserts the intention of the Legislature to alter it, and consequentially gives effect to that intention by its operative provisions. It must at once be observed that such a Constitution as the respondents conceive of would be, so far as the Board is aware, unique in constitutional history. It is neither controlled nor is it uncontrolled. It is not controlled, because posterity can by a merely formal Act correct it at pleasure. It is not uncontrolled, because the framers have prescribed to their successors a particular mode by which, and by which alone, they are allowed to effect constitutional changes.
Their Lordships are clearly of opinion that no warrant whatever exists for the views insisted upon by the respondents, and affirmed by a majority of the Judges in the Courts below. It was not the policy of the Imperial Legislature, at any relevant period, to shackle or control in the manner suggested the legislative powers of the nascent Australian Legislatures. Consistently with the genius of the British people, what was given was given completely, and unequivocally, in the belief, fully justified by the event, that these young communities would successfully work out their own constitutional salvation. An examination of the various Statutes which are relevant to the matter renders this conclusion, in the opinion of the Board, certain.”
There is a world of difference in any event between considering legislation that deals with the judiciary to be part of a State Constitution as against State legislation which deals with remedies that may be sought against a State which directly collides with federal legislation. Special considerations arise when one considers legislation that strikes at the judicial power of the States. See Re Tracey; ex parte Ryan (1988-89) 166 CLR 518, 547.
Further, it is absurd, in my view, to suggest the pre-eminence of ss 6, 334 and 341 of the IR Act over the Crown Proceedings Act 1993 (Tasmania) threatens the continued existence or independence of Tasmania, burdens the functioning of Tasmania or seeks to control it in the exercise of its constitutional functions. As Mr Kenzie submitted, it is difficult to see how a command that a State not breach a Commonwealth statute involves an impairment to the State of a kind which s106 of the Constitution is designed to prevent; as to which see Re Australian Education Union and Others; ex parte The State of Victoria and Another (1995) 184 CLR 188, 226.
When Mr Bleby raised the question concerning the possible application of s106 of the Constitution a debate ensued as to whether, within the terms of s78B(5) Judiciary Act 1903, the proceedings related to “urgent relief of an interlocutory nature” such that the Court was not bound to proceed no further with the matter until notices were given to the Attorneys-General of the States and the Commonwealth. I accepted Mr Kenzie’s submission that the proceedings related to urgent relief of an interlocutory nature. I was influenced in so doing by the fact that the respondent was due to make the relevant adjustments to the wages of its employees, other than HSUA members, on the very day of the hearing of the notice of motion seeking interlocutory relief.
UNDERTAKING AS TO DAMAGES
Mr Bleby requested that as a condition of the grant of an interlocutory injunction the Court should require the applicants to give “the usual undertaking as to damages”. I declined to do so in this matter. In my view, in the circumstances prevailing in this case, it was inappropriate to do so. This was because the effect of the order was to require part payment of a sum which the respondent had previously represented to its employees, being HSUA members, that they would receive, i.e. a 5.5% increase.
LEAVE TO APPEAL
Pursuant to Order 52 rule 2B of the rules of Court, Mr Bleby requested that I grant leave to appeal from my interlocutory judgment. I declined to grant leave to appeal. I said that I would later provide my reasons for so declining. What follows are those reasons.
I do not believe that my decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court. I also do not believe that substantial injustice would result if leave were refused. See Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397. The case for the applicants on the merits was overwhelming and the jurisdictional objections of the respondent were without substance.
The real justice of the situation demanded the granting of the interlocutory relief which was ordered. No substantial injustice results in circumstances where the respondent had advised HSUA members previously that they would receive the 5.5% wage increase and where the Court has ordered that the first instalment be paid at the same time as it is received by everyone else working in the department.
Additionally, the Court should not readily grant leave to appeal from interlocutory judgments where matters of practice and procedure are involved. At least as to the non-jurisdictional issues this would support the refusal of leave. See Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Another (1981) 148 CLR 170, 177 and AB v National Crime Authority, Federal Court of Australia, VG 765 of 1995, Full Court, 3 July 1996 per Burchett and Whitlam JJ at 2.
As referred to above, the jurisdictional submissions of the respondent were devoid of merit. Given the abovementioned matters, I did not consider that the grant of leave to appeal was warranted.
I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 14 August 1996
Counsel for the Applicant: R. Kenzie QC
Solicitor for the Applicant: Maurice Blackburn and Co
Counsel for the Respondent: D. Bleby QC, with G. Smith
Solicitor for the Respondent: Freehill, Hollingdale and Page
Date of hearing: 31 July 1996
Date of orders: 31 July 1996
Publication of reasons 14 August 1996
