FEDERAL COURT OF AUSTRALIA Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 794 INDUSTRIAL LAW - whether lockout effected by the respondent pursuant to Div 8 of Part VID of the Workplace Relations Act 1996 (Cth) is immune from suit as a consequence of the provisions of s170WC of the Workplace Relations Act 1996 (Cth) - whether prohibition on the application of duress in connection with the making of an Australian Workplace Agreement contained in s170WG of the Workplace Relations Act 1996 (Cth) is in conflict with such immunity Workplace Relations Act 1996 (Cth) Part VIB, Part VID, ss111, 170ML, 170MT, 170MW, 170NC, 170WC, 170WG Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 1217 referred to Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 1705 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to ASU v Electrix Pty Ltd [1999] FCA 211; (1999) 93 IR 43 referred to Schanka v Employment National (Administration) Pty Ltd [1999] FCA 1334; (1999) 166 ALR 663 followed AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION and BARRY DONALD DAVIDSON v G & K O'CONNOR PTY LTD (ACN 005 934 029) V 489 of 1999 V 650 of 1999 MARSHALL J MELBOURNE 16 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 489 & V 650 of 1999 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION FIRST APPLICANT BARRY DONALD DAVIDSON SECOND APPLICANT AND: G & K O'CONNOR PTY LTD (ACN 005 934 029) RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 16 JUNE 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Question (a) be answered "Yes". 2. Question (b) be answered "No". 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 V 489 & V 650 OF 1999 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION FIRST APPLICANT BARRY DONALD DAVIDSON SECOND APPLICANT AND: G & K O'CONNOR PTY LTD (ACN 005 934 029) RESPONDENT JUDGE: MARSHALL J DATE: 16 JUNE 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 3 September 1999 I published my reasons for judgment in which I declined to grant interlocutory relief to the applicants in respect of a lockout engaged in by the respondent pursuant to Div 8 of Part VID of the Workplace Relations Act 1996 (Cth) ("the Act"). See Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 1217. An application for leave to appeal from that judgment was refused by a Full Court in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 1705. Each of those judgments should be read together with these reasons for judgment. Those judgments dealt with the proceeding which is V489 of 1999. On 17 December 1999 I ordered that V489 of 1999 and V650 of 1999 (a related proceeding) be consolidated. Inter alia, the Court also ordered on 17 December 1999 as follows: "That pursuant to Order 29 rule 2 of the Federal Court Rules, the Court determine the following preliminary questions: (a) Whether the respondent by its notices of AWA industrial action of 14 August 1999, validly gave notice of a lockout to each of its employees pursuant to Division 8 of Part VID of the Workplace Relations Act 1996 (Cth) ("WRA"). (b) If the answer to (a) is in the affirmative, whether action lies in respect of a lockout effected pursuant to those notices under sections 127(6), 170VV, 170VZ, 178(1) (in so far as it relates to an order under section 127), or section 298U of the WRA." 2 When submissions on the separate questions were heard on 1 June 2000 there was no dispute that the answer to question (a) was "yes". The Court was then called upon to consider whether the lockout effected by the respondent pursuant to Div 8 of Part VID of the Act is immune from suit as a consequence of the provisions of s170WC of the Act. Mr S Rothman SC appeared with Mr E White of counsel for the applicants. Dr C N Jessup QC appeared with Mr N Harrington of counsel for the respondent. 3 Section 170WC of the Act is in the following form: "(1) Subject to subsection (2), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of AWA industrial action unless the action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (2) Subsection (1) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action. (3) If an employer locks out an employee under subsection (1), the employer is entitled to refuse to pay any remuneration to the employee in respect of the period of the lockout. (4) An employer is not entitled to lock out an employee under subsection (1) unless the continuity of the employee's employment, for such purposes as are prescribed by the regulations, is not affected by the lockout." 4 Section 170WG of the Act is in the following form: "(1) A person must not apply duress to an employer or employee in connection with an AWA or ancillary document. (2) A person must not knowingly make a false or misleading statement to another person with the intention of persuading the other person to make, or not to make, an AWA or ancillary document." 5 Mr Rothman submitted that the answer to question (b) is governed by the interrelationship between ss170WC and 170WG. He referred the Court to the following passage in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381-382 especially at par 70 where the following was said: "A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme." 6 Mr Rothman effectively categorised ss170WC and 170WG of the Act as conflicting provisions which required the Court to determine which is the leading provision and which the subordinate provision, and which must give way to the other. Mr Rothman compared the provisions of Pt VIB of the Act with those of Pt VID of the Act. He drew attention to the certain similarities between s170WC and s170MT. Section 170MT of the Act provides as follows: "(1) An order made by the Commission under section 127 does not apply to protected action. (2) Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action." 7 Section 170NC of the Act was identified by Mr Rothman as "the equivalent section" to s170WG when one compares Pt VIB to Pt VID of the Act. Section 170NC(2) of the Act provides that: "Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)." 8 The absence of a like subsection in s170WG of the Act was relied upon by Mr Rothman to support his submission that Part VID does not render lawful the action, it merely grants an immunity in relation to the taking of AWA industrial action subject to the conditions that are there set out. The failure to make a provision like s170NC(2) in s170WG was said by Mr Rothman to support the view that s170WG is a leading provision and s170WC a subordinate provision. 9 In my view, the search for a leading provision and a subordinate provision is an unnecessary journey. It assumes that the provisions in question are in irreconcilable conflict. I do not consider that assumption to be valid for all purposes. Part VID is entitled "Australian Workplace Agreements (AWAs)". It deals with the making of agreements between employers and individuals. Part VIB is entitled "Certified Agreements". It deals with the making of collective agreements between employers and groups of employees. Primacy must be given to the actual words used by the legislature in Part VID of the Act to ascertain how ss170WG and 170WC coalesce. This is particularly so having regard to the fact that, collective agreements having been part of the industrial regulatory landscape for decades, the precise method of industrial regulation introduced by Part VID of the Act was new to Australia's industrial relations regulation. 10 Section 170WC of the Act, subject to certain immaterial exceptions, starkly provides that 'no action lies … in respect of AWA industrial action". As the heading to the section suggests, limited immunity from suit is conferred by the section, that is, limited by the section and not by implication from consideration of Part VIB of the Act. The taking of AWA industrial action may be seen as applying duress but to the extent that it is legitimately so seen, no suit will lie for breach of s170WG as a consequence of the taking of AWA industrial action. This is because when Part VID of the Act is read as a whole, s170WG of the Act does not operate to permit legal action against a person who takes AWA industrial action. It rather applies to situations such as that which obtained in ASU v Electrix Pty Ltd [1999] FCA 211; (1999) 93 IR 43. Similarly, the taking of protected industrial action under Part VIB may be seen as coercion within the context of s170NC but for s170ML of the Act. The absence of a provision like s170NC(2) in s170WC of the Act is an insufficient basis upon which to read down the immunity provided by s170WC given that different types of agreements are considered in Pt VID when compared to Pt VIB. In any event, it may be, as Dr Jessup submitted, that conduct in breach of s170NC of the Act, but immune from suit, can be relied upon by the Australian Industrial Relations Commission ("the Commission") to take administrative steps such as the termination of a bargaining period under s170MW of the Act or the Commission's refraining from taking any further steps with respect to an industrial dispute under s111(1)(g)(iv) of the Act. 11 In Schanka v Employment National (Administration) Pty Ltd [1999] FCA 1334; (1999) 166 ALR 663 (at par 38) Moore J considered the proper construction of s170WG of the Act. In the context of so doing his Honour observed that the "element of coercive influence" which flowed from AWA industrial action was permitted in what "otherwise" was "intended to be free bargaining". I agree with that observation. 12 In the alternative, Mr Rothman submitted that the words "in force in a State or Territory" in s170WC of the Act refer to laws that are not generally applicable but only apply in a particular State or Territory. I reject that submission. "In force in a State or Territory" means what it says. It refers to a law that applies at the relevant time in a State or Territory where the AWA industrial action occurs. In this case, the AWA industrial action occurred in Victoria and the Act was at all material times in force in Victoria. If it had been the intention of s170WC of the Act to exclude other provisions of the Act from its protective reach, that intention was capable of being plainly stated. It has not been. In my view, the alternative submission is devoid of merit. 13 For the foregoing reasons I consider that the answers to the separate questions are: (a) Yes (b) No 14 The order of the Court is that: 1. Question (a) be answered "Yes". 2. Question (b) be answered "No". I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 16 June 2000 Counsel for the Applicants: Mr S Rothman SC with Mr E White Solicitor for the Applicants: Gill Kane & Brophy Counsel for the Respondent: Dr C N Jessup QC with Mr N Harrington Solicitor for the Respondent: Dunhill Madden Butler Date of Hearing: 1 June 2000 Date of Judgment: 16 June 2000