FEDERAL COURT OF AUSTRALIA Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union [1999] FCA 1443 BURSWOOD RESORT (MANAGEMENT) LTD v AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION W 86 of 1999 CARR J 27 AUGUST 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 86 OF 1999 BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD Applicant AND: AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION Respondent JUDGE: CARR J DATE OF ORDER: 27 AUGUST 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 86 OF 1999 BETWEEN: BURSWOOD RESORT (MANAGEMENT) LTD Applicant AND: AUSTRALIAN LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS UNION Respondent JUDGE: CARR J DATE: 27 AUGUST 1999 PLACE: PERTH REASONS FOR JUDGMENT 1 The Court has before it an application for urgent interlocutory relief by way of an injunction that, until further order of the Court, the respondent and any of its officers, members or employees, "restrain" it says, but it must be "refrain", from initiating and taking part in any form of industrial action as defined in s 4 of the Workplace Relations Act 1996 of the Commonwealth, including any stoppages of work and the bans and limitations on the performance of work in contravention of s 170NC(1) of that Act. 2 The parties to the principal application comprise Burswood Resort (Management) Ltd as applicant and the respondent, which is the Australian Liquor Hospitality and Miscellaneous Workers Union. The evidence before me today indicates that the applicant carries on the business of conducting a casino and other business activities in relation to that casino. On 7 April 1999 the respondent served a notice of initiation of bargaining period pursuant to s 170MI(2) of the Workplace Relations Act. For brevity I will refer to that Act as "the Act". Thereafter the evidence shows that on 6 May 1998 the Australian Industrial Relations Commission convened a conciliation conference. I understand that there have been at least two such conferences. 3 By a letter dated 24 August 1999, that is, on Tuesday of this week, the respondent wrote to the applicant in terms of exhibit BD3 to Mr Di Girolami's affidavit. Relevantly the letter referred to the applicant's indication that it was not willing to negotiate an enterprise agreement with the respondent, and that it (the applicant) intended to negotiate an agreement with the (State registered) Liquor Trades Union. The letter then continued in these terms: "In these circumstances the Union has no option but to notify you of our intention to take protected industrial action pursuant to s 170ML of the Workplace Relations Act. This action will begin on Saturday, 28 August 1999. The intended action will be in the form of stoppages of work, bans and limitations." 4 There is evidence before the Court that a circular has been distributed by a section or division of the respondent to employees of the applicant, foreshadowing industrial action starting tomorrow. The respondent makes no secret of the fact that it intends to take industrial action tomorrow. By a letter, dated today, to the applicant's solicitors in response to a complaint from them that the notice given on 24 August was deficient, the respondent relevantly said this: "We do not concede our notification of intention to take industrial action is deficient in any aspect. However, in respect of the undertaking you seek we are willing to indicate that we do not intend to take any industrial action in the form of bans and limitations." 5 The applicant comes to this Court on the basis that, on its submissions, all that it is told that will take place, in terms of the intended action, will be stoppages of work. The principal application was filed this afternoon. In it the applicant seeks a declaration that the respondent has contravened s 170NC and relief similar to that which I described as the interlocutory relief which it sought, an order that a penalty be imposed, an injunction and costs. 6 I now turn to the relevant statutory provisions applicable to this matter. First of all there is s 170NC(1) which relevantly provides that a person must not take or threaten to take any industrial action with the intent to coerce another person to agree to making an agreement under division 2 or 3. However, s 170NC(2) provides: "Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)." 7 Section 170MO sets out some of the requirements that must be met before an action is protected action. The relevant requirement in this matter is provided in s 170MO(2); that there be at least three working days' written notice of the intention to take the action. There is no issue in this proceeding that three working days' written notice had been given. The issue that arises in the principal application and which, on a provisional basis, must be decided this evening relates to the provision in s 170MO(5) which is in these terms: "A written notice or other notification under this section must state the nature of the intended action and the day when it will begin." 8 The question which the principal application raises is whether the notice given by the respondent on 24 August complies with s 170MO(5). The first question which arises this evening is whether a serious question to be tried has been raised by the applicant as to whether the notice given by the respondent complies with that section. As to the matter of interlocutory relief, s 170NG provides that an eligible court, which this Court is, may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision. It is clear that s 170NC is a penalty provision because s 170ND(e) so provides. 9 It was not submitted by the respondent that this Court lacks jurisdiction to grant an interlocutory injunction to restrain a proposed contravention of s 170NC(1); the Full Court in Davids Distribution Pty Ltd v National Union of Workers (1999) FCA 1108 so held. I follow that decision in that regard, so there are in my view, no jurisdictional problems. 10 The guidelines to be applied when deciding whether to grant an interlocutory injunction are well settled by the authorities. The courts usually approach the matter on this basis, - by asking first whether there is a serious question to be tried, and secondly where the balance of convenience lies. Those two tests, as they are sometimes described, are not compartmentalised. A strong case on the question of whether there is a serious question to be tried may compensate for the balance of convenience which might lie against an applicant; so the two tests are applied simultaneously. There are other discretionary matters to be considered which are not raised in this case. 11 On the question of the balance of convenience, as I indicated in argument, I think an appropriate way of referring to it is to try and assess as best one can on the evidence where the risk of doing an injustice to one or other party lies. I should emphasise that nothing which I say this evening concerning factual matters or indeed legal matters should be taken as any kind of a final view. Except for the evidence of Mr Kelly (who was cross-examined) none of the evidence before the Court and certainly none of the evidence of the applicant has been tested by cross-examination or otherwise. 12 So everything that I say in the way of a factual nature and indeed in relation to the law must be on a provisional basis and on the state of the evidence to date. The applicant says that there is a serious question to be tried in that the notice does not comply with s 170MO(5) because it does not state the nature of the - and it underlines the second "the" - intended action. The applicant relies fairly heavily on the Full Court's observations in Davids' case and indeed, in response, Mr Farrell for the respondent also relies on what the Full Court said in Davids' case, to the extent that it did not disagree with what North J said at first instance in that case. 13 I accept that what the Full Court said in Davids' case about s 170MO(5) was not necessary for the purposes of its decision. But still the Court went out of its way to attempt to clarify the matter. I rely on what the Full Court said and regard it as highly persuasive, as I think I am obliged to do. The applicant says that the notice of 24 August does not say whether all or some of the employees will be involved. To that Mr Farrell takes me to the notice of intention. He says that the notice of 24 August 1999 has to be read in the context of the notice of intention and it can be seen from subparagraph (b), the second subparagraph (b) of that notice, that it concerns all employees eligible to be members of the respondent union. 14 That may, after a full trial of the matter, well be a proper interpretation. Mr Farrell says that the expression "stoppages of work" when read with the notice of initiation of the bargaining period makes it sufficiently clear that it involves all employees. At this stage I cannot decide that issue one way or the other. All I can say is that, consistent with the traditional tests for interlocutory injunctions, there is a serious question to be tried as to whether the respondent's notice applies to all or some of the employees. I find that there is a serious question to be tried in that regard. 15 The applicants complain that the notice does not say whether the stoppages at work are to be total stoppages or for so many minutes in each hours or whether they are to be rolling stoppages. Mr Farrell says that it is sufficiently clear from the notice that it is to be a general stoppage and the evidence and the statements made from the bar table this evening suggest strongly that that is what is proposed; that there will be a general stoppage of all employees. However, that is not to the point. The point is, what was conveyed by the notice of 24 August? In my view a serious question to be tried arises as to whether the description in the notice coincides sufficiently with what I have been told this evening is to be the nature of the stoppages of work. 16 Then the applicant complains that the description "stoppages of work" does not convey whether the whole of the applicant's resort is to be involved, or whether the stoppages are to be confined to one or other of its various areas of business which include the casino, restaurants and other areas of business. I have mentioned Mr Farrell's reliance on passages from North J's decision at first instance in Davids. Mr Farrell contends, in particular, that the last sentence of North J's reasons for judgment, as quoted in paragraph 82 of the Full Court's reasons, are not inconsistent with what the Full Court said in paragraph 84 of those reasons. 17 That may well again turn out to be quite correct when this matter proceeds to a final hearing, but all I can say at this stage is that it emerges quite clearly from what North J said at first instance, as to some extent corrected by their Honours in the Full Court, and even as not corrected, that it is really a question of degree as to how much detail needs to be given in the notice and how much needs to be said - it may not even be detailed - in the notice of taking action, to comply with s 170MO(5). 18 It is quite clear, as I have mentioned, that the respondent does, unless it enjoined, intend to take industrial action in the form of stoppages of work tomorrow, so there is the threat, the threat which the applicant perceives as borne out by the evidence and certainly not placed in issue from the respondent's side. The respondent submits that there is a danger that some slight lack of clarity in a notice under this subsection might result too readily in the grant of interlocutory relief, until a body of case law is established. I think that is a valid submission. Again it is a question of degree. 19 On a provisional basis, as all of these reasons are, one would not expect the notice to descend to every nut and bolt of the proposed industrial action. The question I have to look at, on a provisional basis, is whether "stoppages of work" sufficiently describes the nature of the intended action, in terms of a serious question to be tried, so as to comply with s 170MO(5). I am satisfied that there is a serious question to be tried, on that issue. Again very much on a prima face basis, because (of necessity) the evidence taken and the arguments submitted have been somewhat truncated, I am inclined to think that the applicant's case is reasonably strong on that point but I should not be taken in any manner as having prejudged that. 20 When the matter goes to trial and is fully argued and all the evidence is in, this would not be the first case where the final conclusion on that point, being a conclusion of law, was to the complete opposite effect of a view formed at an interlocutory stage. But on the materials before me today I think there is a serious question to be tried and I think it is a reasonably strong case. 21 I then turn to the balance of convenience. It is clear from Mr Wadsworth's affidavit that the action which the respondent has described is likely to cause a considerable disruption to the applicant's business. Mr Wadsworth deposes to the particular concerns of patrons of a gambling establishment. They like regularity. They do not like things happening which do not normally happen. They are superstitious. They do not like interruptions and the like. I am paraphrasing his evidence. Again it is untested; he has not been cross-examined. But it appears from Mr Wadsworth's evidence - and his experience in the industry is extensive having been employed by the applicant since it started operations in December 1985 - that there is a likelihood that gamblers may be put off, possibly even permanently, by disruptions of the type contemplated by the respondent which of course would not be to the point if it was sufficiently clear that the notice under s 170MO(5) complied with the requirements of that subsection. 22 On the state of the evidence to date I am satisfied that there would be a likelihood not just of loss of revenue but also of goodwill at a time when, on Mr Wadsworth's evidence the applicant's main source of revenue - that is, customers from overseas - are reappearing on the scene. I am conscious also that if the respondent turns out to have complied with the notice provision, and is so found to have complied at the final hearing of this matter, it would have been deprived of a significant tactical advantage and I have, as this matter has progressed this afternoon and this evening, turned my mind to that with some anxiety. 23 To some extent, this could be redressed from the union's point of view in that they can engage in further protected action at a later date. On that score the respondent has called evidence from Mr Kelly to indicate that the applicant may be about to reach an agreement with the (State) Liquor Trades Union and to have that agreement registered at the State Industrial Commission. This, on Mr Kelly's evidence, would greatly diminish the likelihood of the respondent reaching agreement with the applicant in relation to the coverage of its members. 24 I take that evidence into account in the balance of convenience as between the applicant and the respondent and I weigh it on the respondent's side . I also take into account on the respondent's side of the scales the evidence which Mr Kelly has given concerning the importance of engaging in industrial action tomorrow night. He has described the organisational activities that took place before the giving of the notice and the problems of getting access to the employees at their place of work and the number of organisers within the respondent who have been drawn from other areas of the union, apart from the hospitality section. I take that into account, and seriously so. 25 However, on balance I am not persuaded that the respondent will be unable to try again, either with or without a further notice, on another Saturday night. That is again on a provisional basis. My impression is that the respondent will not lose all of the momentum which its evidence suggests it has built up as a result of organising the proposed industrial action with the help of the other organisers within the union. 26 Mr Farrell, counsel for the respondent, has proffered an undertaking that there would be no bans or limitations, but the problem with that is that it is fairly late in the piece. It may be that the question of bans or limitations can be left out of the interlocutory relief sought. 27 All in all, in the interests of justice, I think it is appropriate to maintain the status quo for a short period of time. By "a short period of time" I am referring to a period ending early or in the middle of next week, when the respondent could come back and revisit whether there should be any further extension of the interlocutory injunction. 28 For those reasons I consider there is sufficient evidence before the Court and sufficient has been put to me by way of legal submissions that a short interim injunction should be issued to maintain the status quo. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. Associate: Dated: Counsel for the Applicant: Mr R.L. Le Miere QC with Mr B Di Girolami Solicitor for the Applicant: Messrs Mallesons Stephen Jaques Counsel for the Respondent: Mr R.D. Farrell with Mr M.E. Herron Solicitor for the Respondent: Messrs Gibson & Gibson Date of Hearing: 27 August 1999 Date of Judgment: 27 August 1999