FEDERAL COURT OF AUSTRALIA Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1795 INDUSTRIAL LAW – application for interlocutory relief – whether serious issue to be tried – whether duress in contravention of s170WG of the Workplace Relations Act 1996 (Cth) – consideration of balance of convenience – individual circumstances of personal applicants Workplace Relations Act 1996 (Cth) s170WG G & K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992 Federal Meat Industry [Processing] Award 2000 Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1607 referred to Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1760 applied Australasian Meat Industry Employees' Union v Hamberger [2000] FCA 1197 applied Bullock v The Federated Furnishing Trades Society of Australasia (1985)5 FCR 464 applied AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, COLLIN ROSS and ORS v G & K O'CONNOR PTY LTD (ACN 005 934 029) V 833 OF 2000 MARSHALL J MELBOURNE 12 DECEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 833 OF 2000 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION FIRST APPLICANT COLLIN ROSS SECOND APPLICANT AND OTHERS (According to Schedule annexed hereto) THIRD TO THIRTY - FIRST APPLICANTS AND: G & K O'CONNOR PTY LTD (ACN 005 934 029) RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 12 DECEMBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: Pending the hearing and determination of the substantive proceeding or until further order and upon the first applicant giving the usual undertaking as to damages: 1. The respondent be restrained from failing and/or refusing to accord to each of the second to thirty-first applicants wages, penalties, allowances and conditions that are no less beneficial than those provided by the G & K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992. AND IT IS FURTHER ORDERED THAT: 2. This order shall come into effect at the beginning of the next pay period after the making of the order. 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 833 OF 2000 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION FIRST APPLICANT COLLIN ROSS SECOND APPLICANT AND OTHERS (According to Schedule annexed hereto) THIRD TO THIRTY-FIRST APPLICANTS AND: G & K O'CONNOR PTY LTD (ACN 005 934 029) RESPONDENT JUDGE: MARSHALL J DATE: 12 DECEMBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 14 November 2000, in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1607, I declined the applicants' application for interlocutory relief on jurisdictional grounds. An application for leave to appeal was lodged from that judgment. Leave was granted, the appeal upheld and the matter remitted to me: see Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1760. Accordingly, I now consider the exercise of my discretion to grant interlocutory relief free of any jurisdictional concerns. 2 It is unnecessary to repeat the nature of the substantive application or the form of the interlocutory relief which was sought in the application. Those matters are set out at [1] and [2] of the 14 November 2000 judgment. However, it should be noted that the interlocutory relief set out in paragraphs 2 to 5 of the Notice of Motion is no longer pressed by the applicants. 3 In determining the application for interlocutory relief, I consider that it is only necessary to focus on the applicants' claim in the substantive proceeding that the respondent has engaged in conduct in breach of s170WG of the Workplace Relations Act 1996 (Cth) ("the Act"). Section 170WG of the Act provides as follows: "(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." 4 I consider, on the evidence before the Court in affidavit form, that there is a serious issue to be tried whether the respondent has applied duress to each personal applicant in connection with an Australian Workplace Agreement. I do so for the following reasons. 5 On 25 August 2000, a Full Court of this Court held in Australasian Meat Industry Employees' Union v Hamberger [2000] FCA 1197 that the 1992 Agreement referred to in my 14 November 2000 judgment applied to the personal applicants up to and including a date in November 1999. There is nothing in the reasons of the Full Court to suggest that the agreement did not continue to apply to the personal applicants thereafter. One might understand, having regard to certain observations made by Boulton J in the Australian Industrial Relations Commission, in the course of a decision dealing with s127 of the Act, why the respondent remunerated the personal applicants after the conclusion of the lockout in accordance with a so-called "safety net" award. However, after the Full Court judgment in August 2000 there remained, at least highly arguably, no basis upon which the safety net award should have been applied instead of the 1992 Agreement. By not applying the 1992 Agreement and by paying the personal applicants pursuant to the safety net award, whilst according other employees more superior wages and conditions pursuant to an Australian Workplace Agreement, the respondent, on the current state of the evidence, has applied duress to the personal applicants to entice them to also sign an Australian Workplace Agreement. At the very least, there is a serious issue to be tried concerning whether such conduct has been engaged in by the respondent. The applicants' allegation of breach of s170WG of the Act may be described as "an apparently strong claim" to use the words of Woodward J in Bullock v The Federated Furnishing Trades Society of Australasia (1985)5 FCR 464 at 472. 6 The respondent sought to rely upon the making of the Federal Meat Industry [Processing] Award 2000 ("FMIPA 2000") on 21 November 2000 in order to defeat the submission of the applicants that the 1992 Agreement applies. It is at least arguable that the FMIPA 2000 is not an award within the contemplation of s148 of the Act as it is an award binding an employer association and not the respondent specifically. It may therefore not override an existing, specific award or certified agreement binding the respondent such as the 1992 Agreement. Hence, there is a live issue whether the FMIPA 2000 operates to the exclusion of the 1992 Agreement. The questions whether the FMIPA 2000 deals with the same subject matter as the 1992 Agreement and whether the FMIPA 2000 is general and therefore does not override the specific terms of the 1992 Agreement also remain to be resolved in the substantive proceeding. The respondent's respective positions on these issues are by no means unanswerable. The effect of the new award, having regard to s148 of the Act, remains to be finally determined. The existence of a debate on that topic does not take this matter out of the category of one which discloses a serious issue to be tried. If it subsequently transpires that this aspect of the respondent's submissions finds favour with the Court in this proceeding or in a related one, any payments over and above those liable to be made under the new award can be repaid by the personal applicants or by the first applicant in accordance with its undertaking as to damages. 7 In its written submissions filed subsequent to the judgment of the Full Court, the respondent contended that as the 1992 Agreement "ordains an entirely different method of calculating … wages, a method which assumes the existence of a particular system of recording and evaluating workload for work groups in an abattoir - the "tally system"", the applicants must persuade the Court that the respondent should have employed that system. If the 1992 Agreement applies, employees of the respondent should now be no worse off financially under that agreement because of a change in the employer's method of recording of its employees' work. It would be inappropriate for an employer to avoid its obligations under industrial law simply by reorganising the way in which it remunerates its employees. 8 On the balance of convenience, it may be observed that the question of the application of the 1992 Agreement is in issue in another proceeding before another Judge of this Court. In my 14 November 2000 judgment I expressed the view that this factor counted against the applicants on the question of balance of convenience. Those observations were obiter dicta having regard to my earlier, on reflection, erroneous view on the question of jurisdiction. Additionally, they were made without consideration of any question whether there was a serious issue to be tried, in circumstances where "serious issue" and "balance of convenience" generally ought to be considered together: see Bullock at 472, per Woodward J (with whom Smithers and Sweeney JJ agreed). 9 Having regard to the observation of Woodward J at 472 in Bullock concerning the lack of necessity to find a marked balance of convenience in favour of interlocutory relief when there is, in effect, a very serious issue to be tried, it is sufficient to observe that balance of convenience considerations in this matter overwhelmingly favour the applicants. The only significant factor going in the opposite direction is the existence of the other proceedings referred to above. That factor is more than outweighed by the following considerations: · the personal applicants are receiving substantially inferior wages and conditions to those accorded to them prior to the lockout; · most of the personal applicants are experiencing stress as a consequence of being paid substantially less than other employees working alongside them; · most of the personal applicants are in precarious financial circumstances and are experiencing further stress because of that; · many of the personal applicants have mounting unpaid bills and are struggling to survive financially; and · some of the personal applicants are experiencing poor mental health as a consequence of the position in which they have been placed. 10 For the purposes of considering where the balance of convenience lies, I have considered the individual circumstances of each personal applicant as referred to in their affidavits and in the affidavits of Ms Lester and Mr Cooney from the applicants' solicitors. Whilst the hardship being experienced by the individual applicants varies from person to person, I do not consider any single individual's circumstances to be such as to disentitle any such person to the interlocutory relief contained in the orders I will make. This is especially so having regard to the strength of the serious issue to be tried. However, given the overwhelming preponderance of factors relevant to the balance of convenience being in favour of the applicants, the Court would be inclined to make the orders set out below even if the applicants' claim may be described as a "more doubtful one": see Bullock at 472. 11 In all the circumstances, it is appropriate to grant the following interlocutory relief which is set out below. 12 The order of the Court is as follows: Pending the hearing and determination of the substantive proceeding or until further order and upon the first applicant giving the usual undertaking as to damages: 1. The respondent be restrained from failing and/or refusing to accord to each of the second to thirty-first applicants wages, penalties, allowances and conditions that are no less beneficial than those provided by the G & K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992. AND IT IS FURTHER ORDERED THAT: 2. This order shall come into effect at the beginning of the next pay period after the making of the order. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 12 December 2000 Counsel for the Applicant: Mr S Rothman SC with Mr E White Solicitor for the Applicant: Gill Kane & Brophy Counsel for the Respondent: Dr C Jessup QC with Mr N Harrington Solicitor for the Respondent: Blake Dawson Waldron Date of Remittal: 5 December 2000 Date of Completion of Written Submissions: 8 December 2000 Date of Judgment: 12 December 2000 SCHEDULE OF APPLICANTS Fili ASA Third Applicant Darryl BISHOP Fourth Applicant Adam BROCKMAN Fifth Applicant Ronald BROWN Sixth Applicant Ross DAVIES Seventh Applicant Philip DEMPSTER Eighth Applicant Paul ELLIS Ninth Applicant Samuel GLEESON Tenth Applicant Raymond MURPHY Eleventh Applicant Mark OSBORN Twelfth Applicant Andrew OULD Thirteenth Applicant Kelvin PETERSON Fourteenth Applicant David PITCHER Fifteenth Applicant Murtagh SHEEAN Sixteenth Applicant Chris SYMONS Seventeenth Applicant David ZIVOLIC Eighteenth Applicant Carmel ANDERSON Nineteenth Applicant William ANDERSON Twentieth Applicant Stanley BLACKWOOD Twenty - First Applicant Peter DYALL Twenty - Second Applicant Brendan EVANS Twenty - Third Applicant William KIRKHAM Twenty - Fourth Applicant Nathian KNIGHT Twenty - Fifth Applicant Thomas MCMASTER Twenty - Sixth Applicant Ronald RYAN Twenty - Seventh Applicant James TAUBE Twenty - Eighth Applicant Karen THOM Twenty - Ninth Applicant Jodie TREADWAY Thirtieth Applicant Peter VOSS Thirty - First Applicant