Workplace Relations Act 1996 (Cth)  ss170EA, 170EC, 170ECA, 170ECB, 170EE, 170EH; 430, 431. 





Linnane v Monash University (unreported, IRCA, North J, 2 January 1996);

Henman v Westpac Banking Corporation (unreported, IRCA, Moore J, 17 March 1995);

Guivara v National Aboriginal and Torres Strait Islander Employer Association Ltd (unreported, IRCA, Parkinson JR, 31 August 1994);

APESMA v Skilled Engineering Pty Ltd (1994) 1 IRCR 106;

Dunham v Randwick Imaging Pty Ltd (1994) 1 IRCR 54.
Tognolini v Burnett Petroleum Distributors Pty Ltd (1994) 1 IRCR 25.




HUTCHISON & SDAEA v WOOLWORTHS (VIC) PTY LTD

VI96/2751


Before:                       MURPHY JR
Place:                         MELBOURNE
Date of Hearing:       18 DECEMBER 1996
Date of Judgment:    18 DECEMBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI96/2751

BETWEEN:

TREVOR JAMES HUTCHISON

Applicant

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Applicant

AND

BEFORE:      MURPHY JR
PLACE:         MELBOURNE
DATE:           18 DECEMBER 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.   The proceedings No 2751 of 1996 be consolidated with proceedings No 2518 of 1996;

2.   The application is refused.

3.   The applicants pay the respondent costs fixed at $200.00.

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

VI96/2751

BETWEEN:

TREVOR JAMES HUTCHISON

Applicant

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Applicant

AND

BEFORE:      MURPHY JR
PLACE:         MELBOURNE
DATE:           18 DECEMBER 1996

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

The Court has before it an application dated 13 December 1996 under s170ECB of the Workplace Relations Act 1996 (Cth) (formerly the Industrial Relations Act 1988) (“the Act”), seeking an order that the respondent reinstate the first applicant to his position in accordance with the decision of the Australian Industrial Relations Commission (“AIRC”) dated 22 August 1996, and also seeking an interim order enforcing the reinstatement made in that decision.

By way of letter dated 17 December 1996 the solicitors for the applicants advised the solicitors for the respondent that they intended to seek an injunction in the associated jurisdiction of the Court in the same terms as that sought in the application.  That appears to be the reference to the associated jurisdiction of the Court in application No 2518 of 1996 between the same parties, referred to the court on 6 November 1996, and arising out of the termination of the first applicant's employment on 3 October 1996. 

The applicants relied on an affidavit sworn by Mary Lambert on 13 December 1996.  The respondent relied on affidavits sworn on 17 December 1996 by Michael Toole, Wayne Armstrong and Keith Foxley.  The affidavit material revealed that the applicant was employed by the respondent until 6 July 1996 when he was dismissed.  He brought an application under s170EA of the Act.  Subsequently the parties entered into a Deed of Release (“the Deed”) on 6 August 1996 (Exhibit ML2 to Mary Lambert's affidavit).

Pursuant to that Deed Commissioner Foggo of the AIRC issued a  decision on 22 August 1996 wherein she determined that the first applicant be reinstated to his position.  The affidavit material reveals that the first applicant was reinstated by the respondent and remained employed by the respondent until he was given two weeks notice of termination on 3 October 1996.  On 11 October 1996 the applicant filed a further application with the AIRC.  This application was apparently the subject of an unsuccessful conciliation, referred to the court and is now listed for trial before the court in March 1997.  Although not stated expressly, the application for an interim injunction was until the trial of the extant application for a remedy under s170EA of the Act.

The nature of the application before the Court. 

The respondent has taken an initial point that the Court does not have jurisdiction to proceed with this matter because the nature of the application is not one arising under s170ECB of the Act.  The basis for this submission was that there was no consent arbitration under s170EC of the Act. 

The terms of ss170EC, 170ECA and 170ECB appear to establish a code for the purposes of consent arbitration by the AIRC, to provide for rights of appeal to a Full Bench of the Commission:  s170ECA, and for enforcement of orders by the Court:  s170ECB. 

Here a perusal of both the Deed and the decision of Commissioner Foggo (Exhibit ML3 to Mary Lambert’s affidavit) reveal on their face that neither the parties nor Commissioner Foggo were purporting to engage in consent arbitration under the Act. 

The Deed provides for what is in effect private arbitration between the first applicant, the second applicant (“the union”) and the respondent.  Included in the recitals is a statement that the union has indicated that it intended to initiate proceedings alleging breaches of an Award of the AIRC.  In consideration of the parties agreeing to arbitration the union agrees not to proceed.  Further, the applicants agree to discontinue the original application under s170EA of the Act.  In addition the parties release each other from any more claims arising out of the engagement of the applicant and the proceedings issued by the applicant. 

I am satisfied that the Deed is therefore an agreement that is not an agreement for consent arbitration under s170EC of the Act.  It is an agreement to privately arbitrate matters that arose out of the termination of the applicant's employment, but it is wider than that.  The Deed denies the respondent its right to appeal against the decision of the arbitrator under s170ECA.  It denies the union the right to take proceedings for award breaches.  It substitutes consent to arbitration for those rights.

Clause 6 of the Deed provides that if any term of the Deed “is breached by a party to it, then any or all of the other parties to (it) may institute any proceedings as are available to them and appropriate or necessary to enforce the terms of the deed”.  Clause 6 makes no reference to s170ECB of the Act, which gives the right of a party to a consent arbitration to take enforcement proceedings. 

It follows from my analysis of the Deed that the application does not meet the requirements of an application under s170ECB(1) because there has been no consent arbitration under the Act.

The second basis on which the application was made was in the court's associated jurisdiction under s430 of the Act, being associated with the s170EA proceedings extant in the court.  Again this was not explicitly stated on the face of either the application filed 13 December 1996 or in the letter of 17 December 1996, but was made clear by counsel for the applicants.  The jurisdiction of a judicial registrar to deal with that matter would arise because it is associated with the claim under s170EA of the Act. 

Counsel for the applicants argued that the Court has jurisdiction under s431 of the Act to grant an injunction in the terms sought.  He sought to rely on the decisions Linnane v Monash University (unreported, IRCA, North J, 2 January 1996), Henman v Westpac Banking Corporation (unreported, IRCA, Moore J, 17 March 1995), and Guivara v National Aboriginal and Torres Strait Islander Employer Association Limited (unreported, IRCA, Parkinson JR, 31 August 1994).

It was said that there was a common substratum of facts here because, on the material before the Court, the termination of employment alleged in the s170EA application itself constituted the breach of the decision of Commissioner Foggo made on 22 August.  It was argued that there was a substantial issue to be tried and that the balance of convenience supported the grant of such an order.  It was further argued that an injunction would be enforcing the decision made by Commissioner Foggo and thus the interest sought to be maintained supported its grant.  This submission was made to overcome the comments expressed in a number of cases that courts are reluctant to grant injunctions to enforce contracts of personal service.

I should make reference to some of the cases.  In Linnane(above) there was material before the court that the employer had agreed to employ the employee for a fixed term expiring in 1998.  Further, the contract of employment had at that stage not been terminated.  Also the claim in the associated jurisdiction was on the basis of estoppel, i.e. that the employer had promised the employee to employ him for a further three years.  Here the contract of employment is at an end and the only agreement of the respondent that can be pointed to is to abide by the terms of the arbitration.  There is nothing on the face of either the Deed or the decision of Commissioner Foggo to suggest that the reinstatement of the first applicant would be indefinite.

The interests thus sought to be protected by the application for an injunction and the s170EA application are thus very similar.  This brings the Court to Henman v Westpac Banking Corporation (above).  Counsel for the applicant relied on that case on the basis that Moore J accepted that the provisions of s170EH should not, when read with s431 of the Act, deprive the Court of power to make an injunctive order in its associated jurisdiction.  Moore J relied on comments in APESMA v Skilled Engineering Pty Ltd (1994) 1 IRCR 106 at 117, where Gray J disagreed with comments of Wilcox CJ in Dunham v Randwick Imaging Pty Ltd (1994) 1 IRCR 54.

When the comments of Gray J are considered in full he envisages that the power of the court under s431 to grant injunctions is in cases where the contract of employment is not at an end.  He said:

“It should also be noted that the construction which I have adopted assists in giving meaning and effect to section 170EE(4).  In cases in which the “termination” by the employer has not succeeded in bringing to an end the contract of employment, it would in my view be open to the Court to grant appropriate interim and interlocutory relief.  In expressing this view, I am respectfully differing from the view expressed by the learned Chief Justice in Dunham v Randwick Imaging Pty Ltd.  Division 3 of Part VIA of the Act is legislation giving rights, not taking them away.  The fact that it does not extend to contraventions of Subdivision B the power to grant a statutory injunction pursuant to s431 of the Act (as to which see s170EH) is not an indication that it has taken away whatever rights might exist to injunctions or other orders that could have been granted by a court of equity, independently of the statutory power - s419 of the Act gives to this Court the fullest power to grant orders of all kinds, including interlocutory orders.  That power is expressly preserved by s170EE(4) in the case of applications under s170EA.  It must be borne in mind, however, that the granting of such orders is discretionary.  The availability of the remedies of reinstatement and compensation will no doubt be a factor in the exercise of the Court's discretion.  So also will be whatever ability the Court may have to provide an early hearing of a claim lodged under s170EA.” 

Here the contract of employment is at an end.  The grant of the injunction sought would in terms allow the Court to do what Wilcox CJ found in his analysis of the provisions of s431 and s170EH in Dunham (above), the Court was not able to do.  Parliament intended that it should not be able to issue orders preventing termination of employment.  Wilcox CJ said at 1 IRCR 54 at 63:

            “The conclusion that the Act confers no power on the Court to restrain a proposed termination of employment in contravention of Subdiv.B of Div. 3 of P.VIA is defensible in policy terms;  although, no doubt some people would prefer the opposite position.  If it were possible for employees threatened with dismissal to obtain an injunction restraining the employer from proceeding with the dismissal, it is likely that numerous applications would be made; whether because the employee genuinely wished to stay in the job or as a tactical move to obtain a cash settlement.  The burden on the Court would be enormous, having regard to the number of unlawful termination claims being filed in the Court.  The high rate of filings actually experienced since 30 March was predicted when the legislation was under consideration and may have influenced the policy adopted in the Act.

            There is a second point.  An application for an interim injunction restraining a proposed termination would require the Court to look at the facts of the case and form a view about them, if only a superficial view.  In the normal course, this would have to be done before the case had been referred to the Industrial Relations Commission for conciliation.  So the scheme intended by the Parliament (conciliation first, litigation - if absolutely necessary - later) would be subverted.”

In Tognolini v Burnett Petroleum Distributors Pty Ltd (1994) 1 IRCR 25 at 28, Spender J, when he analysed these provisions, said:

            “While it is not submitted by counsel for the respondent that the Court did not have the power to make the interlocutory order sought in each application, and it was no part of the respondent's case to embrace the views that I had expressed in the course of argument concerning the absence of those powers, my conclusion is that the only effect I can sensibly give to s170EH is to read it as denying to this Court power to make interlocutory orders as sought in these proceedings.  The matter is elliptical but the provisions of the Act to which I have referred indicate to me a statutory intention not to permit interlocutory orders requiring the continuance of employment pending the determination of the question of whether there has been a contravention of Subdiv. B. 

            Such a view seems to me to be consistent with long-standing policy and with the reluctance of courts to issue injunctions in the area of  the performance of personal services.  I am aware that the question of interlocutory relief sought in the present case might impact on the rights of persons not parties to these proceedings, including the employees of the respondent other than the applicants.”

Counsel for the applicant relied on the decision Guivara v National Aboriginal and Torres Strait Islander Employer Association Limited (above).  That decision is not related to the reinstatement of employment and is a case where the order was made under s170EE(6).  It does not assist here. 

It follows from this consideration of the authorities that assuming, but without deciding, that the Court has jurisdiction to entertain this application as it is associated with the application under s170EA presently listed before the Court, I am not prepared to make the order sought on discretionary grounds because it seeks to enforce an alleged agreement for personal services which Parliament by reason of s170EH has indicated should not be the subject of mandatory orders until the hearing of the merits of the matter.  The weight of the decisions in Dunham and Tognolini is that on discretionary grounds injunctive relief of this type is not to be granted.  Therefore on the basis of the material before me I refuse the application.

I certify that this and the preceding seven (7) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.

Associate:      KAREN HALSE
Dated:            18 December 1996

APPEARANCES