FEDERAL COURT OF AUSTRALIA Maritime Union of Australia v Burnie Port Corp [1999] FCA 1196 MARITIME UNION OF AUSTRALIA -v- BURNIE PORT CORPORATION PTY LTD (ACN078 720 279) V467 of 1999 RYAN J MELBOURNE 20 AUGUST 1999 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V467 OF 1999 BETWEEN: MARITIME UNION OF AUSTRALIA Applicant AND: BURNIE PORT CORPORATIONPTY LTD (ACN078 720 279) Respondent JUDGE: RYAN J DATE OF ORDER: 20 AUGUST 1999 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondent file and serve by 30 August 1999 its defence to the applicant's amended statement of claim. 2. The respondent file and serve by 14 September 1999 any further affidavit or affidavits on which it intends to rely at the trial of the action herein. 3. The applicant file and serve by 24 September 1999 any affidavit or affidavits in answer to the affidavits already filed herein on behalf of the respondent, and to any affidavit or affidavits filed in accordance with par 2 of this order. 4. Each party file and serve by 29 September 1999 a list of the full names and occupations of the persons other than those who have sworn affidavits herein from whom that party intends to adduce evidence at the trial of this application. 5. Subject to any further or other direction of the docket judge, the application be set down for trial in Burnie on 4 and 5 October 1999. 6. Liberty be reserved to either party to apply on not less than 48 hours notice in writing to the other party. 7. The application for interlocutory relief herein be otherwise refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V467 OF 1999 BETWEEN: MARITIME UNION OF AUSTRALIA Applicant AND: BURNIE PORT CORPORATION PTY LTD (ACN078 720 279) Respondent JUDGE: RYAN J DATE: 20 AUGUST 1999 PLACE: MELBOURNE EX-TEMPORE REASONS FOR JUDGMENT 1 There is before the Court an application by the applicant, the Maritime Union of Australia ("the MUA"), for interlocutory relief against the respondent, Burnie Port Corporation Pty Ltd ("BPC"), arising out of a claim for relief against alleged contraventions by BPC of ss 170WG and 298K of the Workplace Relations Act 1996 ("the Act"). The evidence discloses that BPC which has succeeded to the business formerly carried on by the Burnie Port Authority is bound by an agreement certified by the Australian Industrial Relations Commission ("the Commission") and known as the Burnie Port Authority Integrated Labour Force Agreement 1995 ("the ILF Agreement"). 2 The nominal expiry date of the ILF Agreement was 8 January 1999. The MUA is a party to the ILF Agreement and during 1999 has been negotiating intermittently with BPC in the hope of concluding an enterprise bargaining agreement to replace the ILF Agreement. Those negotiations so far have been curt and to date suggest little prospect of resulting in an agreement. 3 Early in August this year BPC decided to recruit two new employees to positions as port operative/relief cold store operators. It appears that interviews were conducted with six persons who had standing applications with BPC against the possibility that a suitable vacancy might arise. In the course of those interviews it was intimated on behalf of BPC that it was a condition of engagement that any prospective employee enter into an Australian Workplace Agreement ("AWA"). That intimation has not been denied by the deponents of affidavits filed on behalf of BPC. Mr Michael Gibbons, BPC's Personnel and Safety Superintendent, deposed in par 7: "At around that time, in management discussions in which I was involved, it was decided to hire the new employees on an AWA. In consequence of that decision, in the week commencing 26 July 1999, I held discussions by telephone with Mr Calvin Fisher, Compliance Officer with the Melbourne office of the Office of the Employment Advocate. In those discussions, I asked whether or not it would be proper to hire new employees on the basis they entered into an AWA. He responded to the effect that it was quite in order to make acceptance of an AWA, a condition of employment." 4 In par 10 Mr Gibbons went on to depose: "The general practice was that Greg House would start each interview by explaining how we would proceed, that is by me outlining the position including points on supervision, general cleaning including toilets and garbage runs, weighbridge operation, forklift operation, Cold Store, crane driving (if qualified), incinerator operation, superannuation, safety, AWAs, and 3 month probationary period. As to AWAs I said that it was a requirement of the position that an AWA be entered into. Greg House would then give a potted view of the Cold Store operations. He would then go through the questionnaire while I recorded some of the answers. Following this each applicant was directed to our office lunchroom where they filled out the test paper before handing it into the reception on the way out of the building." 5 In par 11 Mr Gibbons continued: "Mr Rolls was the fourth candidate we interviewed. When we got to question 11 as to what kind of wage/salary are you looking for he asked if he could be frank and told us that he was very concerned that we were placing the new employees in an awkward situation by requiring them to sign an AWA. He went on to say that he had been through the pulp dispute and did not want to get involved with anything like it again. I took his reference to the pulp dispute to be a reference to the industrial dispute that took place at APPM Burnie in the early 1990's. I thanked him for his honesty and suggested to him that if he felt that strongly about the matter, then perhaps we should terminate the interview at that point. I went on to say that if he wished we could finish the interview and that if he was one of the two successful candidates he would be offered the position and he could then decide whether he wished to work under the terms of an AWA or not. I also advised him that the positions would be offered on merit. Questions 19, 30 and 31 dealt with stress, pressure and deadlines and working with other people. It was in this part of the interview that Mr Rolls came back to the AWA and the possible stresses that may be placed on him by being employed under an AWA. At the end of the interview we thanked him for his honesty, gave him the test paper and advised him that we would be in touch either late the same week or some time in the following week." 6 Mr Tyson, the Chief Executive Officer of BPC, deposed in par 12 of his affidavit: "At around the time it was decided that new employees would be engaged in July, BPC decided that employment would be offered on the basis that an AWA was entered into. On my instructions Michael Gibbons being the Personnel and Safety Superintendent of BPC, soon thereafter contacted the Office of the Employment Advocate in Melbourne. Mr Gibbons tells me and I believe that the representative of the Employment Advocate told him that BPC was in order to make the acceptance of an AWA a condition of employment." 7 Then in par 14, Mr Tyson deposed: "From discussions with Mr Gibbons, I understand that each of the persons was interviewed on 3 August 1999. At the interviews each was told that any offer to be made would be on the terms that an AWA was entered into. No draft or proposed AWA was provided to any of the individuals. " 8 There is evidence that unemployment in the Burnie area is considerably higher than the national average. Moreover, the evidence, albeit hearsay at this interlocutory stage, discloses that one of the successful applicants for the two vacancies to which I have referred, Mr Donoghue, had complied with BPC's requirement to sign an AWA because he was "desperate for the job". It is submitted on behalf of the MUA that a serious question to be tried arises in two different ways. In the first place it is said that s 298K(1) of the Act proscribes conduct of the kind in which BPC has engaged in requiring execution of an AWA as a condition of appointment to a vacancy. That subs provides: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person." 9 Prohibited reasons are identified in s 298L(1) which, so far as is relevant, provides: "Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (h) is entitled to the benefit of an industrial instrument or an order of an industrial body." 10 It seems to be accepted on both sides that any prospective employee, upon engagement, would be entitled to the benefit of the ILF Agreement and other industrial agreements or awards if he or she did not sign an AWA. However, Mr Parry of Counsel for BPC has argued that a prospective employee, before a contract of employment has been concluded, necessarily has no entitlement to the benefit of an industrial instrument or an order of industrial body binding on the prospective employer. 11 This argument derives some force from the actual language of s 298L(1)(h) but it entails a very considerable restriction on the proscription in s 298K(1)(d) and (e) against an employer refusing to employ another person, or discriminating against another person in the terms or conditions on which the employer offers to employ that other person. It is sufficient for me to indicate at this stage of the litigation that I do not regard the construction urged by Mr Parry as so compelling that it can be said that the applicant's invocation of s 298K does not raise a serious question to be tried. 12 The applicant also relies on s 170WG(1) of the Act which provides: "A person must not apply duress to an employer or employee in connection with an AWA or ancillary document." The meaning of "employee" in that subs is affected by s 170VB(2) which provides: "In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate." 13 The concept of duress in s 170WG has already received a good deal of judicial exposition, the most recent by R.D. Nicholson J in Maritime Union of Australia v Geraldton Port Authority (1999) FCA 899 (unreported, 5 July 1999), where his Honour observed at par 365 and following: "While "duress" is not to be found in the Workplace Relations Act it is a concept well understood in the law. The rationale of the doctrine of economic duress "is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party when the law regards that pressure as illegitimate": Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45 (per McHugh JA with Samuels and Mahoney JJA agreed). 366. The rationale for section 170WG "is to ensure that processes that might lead to the making of an AWA occur in a way that ensures that free choice is exercised": Peter Schanka v Ors v Employment National Administration Pty Ltd, Moore J, FCA, 9 September 1998, unreported) at 12. 367. Duress, "like undue influence, focuses upon the effect of pressure upon the quality of the consent or assent of the pressured party rather than the quality of the conduct of the party against which relief is sought" (Westpac v Cockerill (1998) 152 ALR 267 at 289 per Kiefel J), while, generally speaking, the types of pressure considered to be illegitimate will involve unlawful threats or pressure that amounts to unconscionable conduct. The categories of conduct are "not closed" and "otherwise lawful conduct may, in certain circumstances, amount to illegitimate pressure" (Crescendo Management Pty Ltd v Westpac Banking Corporation at 46). 368. These general law propositions are applicable to section 170WG. It can be duress in relation to an AWA in contravention of section 170WG to refuse to deal with someone if they do not enter into an AWA with an employee or not to employ someone except on an AWA, or to threaten an existing employee with loss of employment if he or she does not enter into an AWA: Schanka. An inquiry into an allegation of duress for the purposes of section 170WG must involve a consideration of the "possible or probable impact of the conduct" of the party applying duress to the other party: Schanka at 12." 14 A similar approach to the application of s 170WG to the present case would require an examination of, amongst other things, the terms of the AWAs currently offered by BPC to prospective employees, and the reasons which have prompted BPC to insist on the execution of those agreements as a condition of engagement. However, on the present state of the evidence, I am not able to say that there is not a serious question to be tried as to the availability of relief under s 170WG. 15 Counsel for BPC also questioned whether the MUA has standing, either as a matter of interpretation of the relevant sections of the Act including ss 170VV and 170VZ or by application of relevant common law principles governing standing. It is undesirable that I say more about that issue at the present stage than that I do not regard the respondent's arguments as strong enough to displace the existence of the serious questions which I have identified earlier in these reasons. 16 The convenience to the respective parties which would flow from the grant of interlocutory relief in the terms now sought by the MUA is more or less evenly balanced. The consideration, however, which has been decisive in influencing me to refuse an interlocutory injunction at present is the ability of the Court to accord a final hearing of this application within a relatively short time. It is unlikely that BPC in that time will be in a position to appoint further new employees to its workforce. Mr Tyson has deposed in par 18 of his affidavit: "Whilst BPC does not have any vacancies on the books now and the turnover is small, it is possible that over the next few months positions will become available." 17 Moreover, after the hearing ended yesterday Mr Parry indicated that he had instructions to undertake on behalf of BPC that pending the hearing and determination of this application, it would give to the applicant not less than seven days' notice in writing of its intention to interview, with a view to engaging or offering employment to, any person not presently employed by the respondent. That undertaking, in conjunction with the liberty to apply which I propose to reserve, would enable the Court to reconsider the application for interlocutory relief in the context of an actual proposed engagement of a new employee should that eventuate before the trial, which, I contemplate, will occur early in October. 18 For these reasons the order of the Court will be that upon the respondent by its Counsel undertaking, pending the hearing and determination of this application, to give to the applicant's solicitors not less than seven days' notice in writing of its intention to interview with a view to engaging or offer employment to any person not presently employed by the respondent, 1. The respondent file and serve by 30 August 1999 its defence to the applicant's amended statement of claim. 2. The respondent file and serve by 14 September 1999 any further affidavit or affidavits on which it intends to rely at the trial of the action herein. 3. The applicant file and serve by 24 September 1999 any affidavit or affidavits in answer to the affidavits already filed herein on behalf of the respondent, and to any affidavit or affidavits filed in accordance with par 2 of this order. 4. Each party file and serve by 29 September 1999 a list of the full names and occupations of the persons other than those who have sworn affidavits herein from whom that party intends to adduce evidence at the trial of this application. 5. Subject to any further or other direction of the docket judge, the application be set down for trial in Burnie on 4 and 5 October 1999. 6. Liberty be reserved to either party to apply on not less than 48 hours notice in writing to the other party. 7. The application for interlocutory relief herein be otherwise refused. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN J. Associate: Dated: 20 August 1999 Counsel for the Applicant: Mr W L Friend Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for the Respondent: Mr F Parry Solicitor for the Respondent: Mr S McIlwaine Date of Hearing: 20 August 1999 Date of Judgment: 20 August 1999