FEDERAL COURT OF AUSTRALIA Australian Municipal Administrative, Clerical & Services Union v TAB Limited [2001] FCA 626 industrial LAW – application for interlocutory relief – threat of lockout – requirement to genuinely try to reach an agreement – discretionary factors going to award of interlocutory relief. Workplace Relations Act 1996 (Cth), ss 170MU, 170NC, 10ML, 170MP(3), 170MT(2), 298K(1), 298L(1). Automotive Food Metals Engineering Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859, cited Australasian Meat Industry Employees Union v G & K O'Connor Pty Ltd [1999] FCA 310, applied AUSTRALIAN MUNICIPAL ADMINISTRATIVE, CLERICAL & SERVICES UNION v TAB LIMITED N325 of 2001 MADGWICK J 4 APRIL 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N325 of 2001 BETWEEN: AUSTRALIAN MUNICIPAL ADMINISTRATIVE, CLERICAL & SERVICES UNION APPLICANT AND: TAB LIMITED RESPONDENT JUDGE: MADGWICK J DATE OF ORDER: 4 APRIL 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for interlocutory relief is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N325 of 2001 BETWEEN: AUSTRALIAN MUNICIPAL ADMINISTRATIVE, CLERICAL & SERVICES UNION APPLICANT AND: TAB LIMITED RESPONDENT JUDGE: MADGWICK J DATE: 4 APRIL 2001 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application for interlocutory relief principally relying on ss 170MU, 170NC, 298K and 298L(l) of the Workplace Relations Act 1996 (Cth) ("the Act"). The applicant is a federally registered industrial organisation of employees and I will refer to it as the ASU. It has a number of members employed by TAB Limited ("TAB"), the well known betting establishment, at premises at Ultimo, a Sydney suburb. 2 Mr Foley is the Secretary of the ASU's New South Wales and Australian Capital Territory (Services) Branch to which I will refer as the Services Branch. Mr Foley purported, on behalf of the ASU, to initiate a bargaining period for the purposes of Division 8 of Part VIB of the Act. He gave notice that the ASU rather than the Services Branch intended to try to make an agreement falling within s 170MI of the Act. He signed a notice, directed to the TAB, describing himself as the secretary of the Services Branch. It was attacked by the TAB on the basis that s 170MI implicitly requires that the person acting on behalf of an organisation of employees, in giving such a notice, be clearly authorised by or under the rules of the union to do so. It is enough if I say that, in my opinion, there is at least a very arguable case to the contrary. 3 The notice of initiation of the bargaining period was followed by a letter from Mr Foley to the human resources manager of the TAB in which he asked for an appointment, obviously to discuss what was said to be the union's wish to negotiate an enterprise agreement. The TAB replied that it was currently considering its position and would shortly contact the ASU. 4 On 20 March 2001, there was served on the TAB a notice of the giving of authorisation to engage in industrial action. In it Mr Paul Slape, the national secretary of the ASU said: "Under section 170MR, of the Act, notice is hereby given to the Registrar that the members of the ASU have been authorised to engage in Industrial action, within the bargaining period, against TAB Limited." On the same day, Mr Slape by letter, gave notice, albeit on Services Branch letterhead: "…that all members of the ASU employed by TAB Limited will take industrial action in the form of a stop work meeting or stop work meetings between 1pm and 8pm on Saturday the 24th of March 2001. The industrial action is in support of the notice contained in Annexure A [which set out subject matters for discussion] of the Notification of Bargaining Period" 5 On 21 March 2001, the TAB replied so far as is material: "After careful consideration, TAB limited does not wish to negotiate an enterprise agreement with your Union. TAB already has a comprehensive state award with the Federated Clerks Union of Australia, NSW Branch ("FCU") which prescribes the terms and conditions of our PhoneTAB operators' employment until 1 July 2002. Such comprehensive award was only made by the Industrial Relations Commission of NSW on 8 February 2001. TAB is bound by that award to make no further claims for alterations in conditions until 1 July 2002. TAB intends on honouring that obligation. TAB only recognises the FCU as having been accorded rights under the relevant industrial instrument on behalf of its PhoneTAB operators. You should note that this remains TAB's position until a Court of competent jurisdiction orders it to do otherwise. In the meantime, we note that your Union is proposing to organise industrial action. In order that we can properly consider our position in relation to that industrial action, could you please provide us with a list of PhoneTAB Operators you say are members of your Union and a copy of the resolution of the National Executive of the ASU authorising the Initiating of Bargaining Period and the said industrial action. In the absence of this material we will be forced to assume that the industrial action is unprotected." 6 Stop work meetings then occurred at 2.30 pm and at 7pm and a good many employees attended, though a good many did not. On 28 March, the solicitors for the TAB forwarded a letter to Mr Foley which said: "In the event that your contention, that the activities engaged in by our PhoneTAB employees…[were] protected action within the meaning of the Workplace Relations Act 1996 (Cth) ("the Act"), please find enclosed by way of service on your Union a Notice to Lock Out Employees pursuant to Section 170MO of the Act." A notice indicating an intention to lock out all ASU members employed by the TAB at Ultimo from 8.30 am Saturday 31 March until 9.00 am Monday 30 April 2001 was enclosed. However, in deference to the proceedings in this Court, by agreement, the TAB did not proceed with a lock out pending the hearing of these interlocutory proceedings. 7 On 28 March, a letter was given to all TAB employees thought by the TAB management to have been likely to have attended the stop work meetings. That letter was in the following terms: "RE: YOUR UNAUTHORISED ABSENCE FROM WORK ON SATURDAY 24 MARCH 2001 We refer to our earlier letter to all PhoneTAB Operators of 21 March 2001. As you would be no doubt aware, the Autumn Carnival racing calendar is the Company's second busiest trading period of the year. It is paramount that the Company is able to service all its PhoneTAB customers during this period. We confirm that our records show that you attended a stop work meeting on Saturday 24 March 2001. As your actions indicate that you are unable to give the Company your commitment to work, and to remain at work, during this busy trading period, the Company does not require your services until you give us your commitment that you will work and continue to work in accordance with your contract of employment and the reasonable lawful directions of the Company, or until Monday 30 April 2001, whichever comes first. We note that the Australian Services Union asserts that your conduct is "protected action" for the purposes of the Workplace Relations Act 1996 ("the Act"). You are aware that TAB has received advice that the action is not protected. In any event, to avoid doubt, we herewith give you notice that if you wish to maintain that your absence was protected industrial action we will act on that assertion and you are herewith notified that you are "locked out" for the purposes of the Act from Saturday 31 March until Monday 30 April 2001. Unless we hear to the contrary before Saturday 31 March 2001 we will assume that you maintain that you absence was pursuant to protected industrial action and you will be locked out. Such lock out is the Company's right pursuant to the terms of the Workplace Relations Act 1996 in response to the ASU Services' industrial action. If you wish to access the TAB Credit Union during this time, please contact your Call Centre manager on 92181231 and access will be arranged. Otherwise, you will not be required to work, nor will you be given access to the Company's Ultimo or Granville offices, until Monday 30 April 2001." Relevant Legislation 8 Section 170MU, so far as relevant, is in the following terms: "(1) An employer must not: … (b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employees prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action (2) Subsection (1) of this section does not apply to any of the following actions taken by the employer: … (b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed; (c) action of the employer that is itself protected action." Ms Howell, counsel for the applicant, indicated that this was the section principally relied upon by the applicant in the claim for interlocutory relief. 9 Section 170NC, so far as relevant, provides: "(1) A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, or not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mentioned in paragraph (c). … (2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)." It is obvious that both these sections can only apply if the action of the employer was not itself protected action. 10 The TAB relies on s 170ML which, so far as relevant, provides: "(1) This section identifies certain action (protected action) to which the provisions in section 170MT (which confers certain legal immunity on protected action) are to apply. … (3) Subject to subsection (6) [which is irrelevant to the present case], during the bargaining period, the employer is entitled, for the purpose of: (a) supporting or advancing claims made by the employer in respect of the proposed agreement; or (b) responding to industrial action by any of the employees whose employment will be subject to the agreement; to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action." 11 Section 170MT(2) provides: "Subject to subsection (3) [which is not material here], 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." 12 Section 298K(1) relevantly 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: … (c) alter the position of an employee to the employees prejudice;" 13 Section 298L(1) relevantly 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: … (l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions;" Reasoning 14 In Automotive Food Metals Engineering, Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859, Goldberg J treated s 170MU(2) as "an answer to the applicant's claim", where the applicant was claiming that s 298K was not protected or was ousted, even in the case of protected action by virtue of the provisions of s 170MT(2). Goldberg J, as he noted was, like me, giving his decision in circumstance of some urgency and as his Honour said: "… these reasons, of necessity, [had] been prepared in haste but nonetheless with care." 15 Certainly my preparation has also been hasty. I hope that others may consider it to have been careful. I am not persuaded that Goldberg J was wrong in the substance of his approach to the matter and it seems to me that that approach was powerfully supported by the observations of a Full Court of this Court in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 1760, at para 79. 16 In my preliminary view, the scheme of the Act would be rendered nugatory if parties to protected action under Division 8 of Part VI were, for conduct falling within the scope of protected action, to be at risk of the far reaching provisions of Division 3 of Part XA of the Act, which also includes a "reverse onus" provision in s 298V. Doubtless it is for these reasons that Ms Howell, indicated that she was principally relying on s 170MU rather than ss 298K and 298L. 17 The TAB says that the action it was taking and proposed by its letter of 28 March 2001, set out at [6] above, was protected action and in any event that it amounted to no more than an indication that its view was that the conduct of its employees did not amount to protected action for the purposes of Division 8 of Part VIB of the Act. In that event, it wished to assert what it considered to be its right to repudiate the existing contracts or arrangements for what it would regard as anticipatory breaches of the contract by the employees. Alternatively, if the conduct did amount to protected action for the benefit of the employees, it was asserting its right to rely on the protected quality of that action to respond to it in a way contemplated by the Act. 18 The ASU argues that the third paragraph of the letter, indicating that unless the employees, who are mostly casuals, although regular casuals and seemingly not subject to de facto engagement for each race day, were to express a commitment to work in accordance with their contracts of employment, went beyond the scope of a lockout. If the letter should be read so that paragraph 2 is a cumulative requirement upon that set out in paragraph 3, it seems to me that, at least arguably, this would be correct. However, my preliminary impression is that the matter is only barely arguable. 19 In my opinion, the TAB's characterisation of the letter is probably the correct one and if the demand for compliance with the contract is an alternative to the lockout then questions would arise as to the actual motivation of the TAB. It seems to me that the ASU's case on that aspect is not strong either. There may be an arguable case but, in short, in relation to those matters, it does not appear to me to have any very great strength. I think the balance of convenience, and a reasonable exercise of discretion, a matter which I will come to shortly, would clearly lie against granting interlocutory relief. 20 It was also argued by the ASU that the TAB is in breach of its apparent obligation pursuant to s 170MP(3) that, before an employer begins a lockout, it should have "genuinely tried to reach agreement" with the relevant organisation. Again, in the time available to me, I have not formed a view that the approach to this matter by Marshall J in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [1999] FCA 310, at paras 41 to 45 is clearly wrong. On the contrary, I am inclined to the view that his Honour's approach is correct. What amounts to genuinely trying to reach agreement will depend very much on the circumstances. 21 In this case, as will be seen, the TAB takes the view that it would be entirely destructive of the process of negotiation which it recently underwent and which resulted in agreement with a New South Wales registered industrial union of employees, which is the alter ego of another ASU branch, which it is sufficient to call the Clerical Branch of the ASU. It would be very destructive, if the TAB were now to agree to wholesale re-negotiation of a wide range of terms and conditions of employment governed by that consent State Award. As the TAB, on the face of it with some justification, holds that position, a principled employer, mindful of its obligations genuinely to try to reach agreement, could do little more than set out this position courteously, amply and in a way that did not forbid or forestall future approaches to it. 22 I reject the applicant's suggestion that what s 170MP(3) contemplates is that the parties have genuinely to try to reach a certified agreement. It is very likely that, Parliament intended that if the parties came to some other agreement, for example that there be no formal agreement at all, then they should not be interfered with. If, on this aspect, the ASU has a prima facie case, which I very much doubt, it is in my view, a very slender one. However, assuming that the ASU does have an arguable case, though of probably little strength, in my opinion, discretionary factors apart from, but including, the probable weakness of the ASU's case to final relief go against the grant of interlocutory relief. 23 Other matters of significance are these: · There is, as I have mentioned, and as the TAB pointed out in the statement of 21 March 2001, a comprehensive State Award recently made which regulates terms and conditions of the relevant employees' employment for a further 15 months. I was informed, without serious contest from the bar table, that that Award was made by consent and that opportunities were given for consideration of it by all the employees covered by it and that, at meetings for that purpose, the majority approved it; · The ASU is not seeking the intervention of the Australian Industrial Relations Commission to substitute arbitrated conditions of employment upon any argument that in industrial justice and equity, the employees are inadequately remunerated or that their conditions are otherwise inadequately regulated by that State Award; and · The Act recognises at a number of points that there are concurrent state systems of industrial regulation and shows no intention to discourage respect for awards that state industrial authorities duly make, far less, consent awards. 24 Furthermore, the current dispute arises out of a conjunction of circumstances. In the first place, some of the ASU members, though by no means all, have, at least for the time being, lost confidence in the handling of their affairs by the Secretary of the ASU's Clerical Branch and have indicated in writing to the ASU that, unless they can transfer to the Services Branch, they will resign from the ASU. The dissatisfaction arises out of a dispute with the TAB concerning the latter's announced intention progressively to transfer its operations from Ultimo to Granville, a location some distance from Ultimo which is close to both rail and bus transport hubs. Very considerable inconvenience would be involved for a number of the employees in trying to maintain their employment at the new location. There are also issues of new technology, which seem likely to threaten the jobs of a number of the affected employees. It seems probable that some employees would feel obliged to discontinue their employment on account of the relocation or because of the introduction of new technology. 25 Familiar questions arise as to whether those who decide themselves that they cannot continue their employment should really be treated as having been made redundant by the TAB and whether, if so, and in the case of redundancies forced by technological change, persons who are not averse to being made redundant voluntarily should be permitted to do so before involuntary redundancy or involuntary resignation is forced on others. These are serious issues for the employees concerned. The point is, however, that the State Award provides for a grievance resolution procedure concerning individual employees. After compulsory discussions with management which they may initiate, and which culminate in a written response from the employer outlining why a remedy sought by an employee cannot be provided, if the matter still remains unresolved, it may be referred to the State Industrial Relations Commission. 26 There is nothing put before me by evidence or argument to suggest that access to the State Commission, assuming negotiations fail, could not provide a full and fair remedy for one or many individual employees concerned by their proposed treatment. It may be inferred that, since Granville is not far from the geographical centre of Sydney, a considerable number of TAB employees would not be disadvantaged by the move to Granville at all, and so it is a case of the employees understandably wanting fair and humane treatment for individuals adversely affected. It has not been suggested or proven that the ASU could not or would not be able to bring about a situation in which the counterpart State Union would represent the employees concerned, and there is no evidence before me to suggest that the processes available within the ASU's own councils to resolve a dispute between a branch Secretary and disaffected members have either been exhausted or would be unlikely to reach a tolerable result for all concerned. 27 There is also a very strong prima facie case, as I have held in related proceedings, that it is not in accordance with the ASU's Rules that Mr Foley's Services Branch should be representing the employees concerned. It seems to me that for the Court to intervene here would be to give aid and comfort to methods of resolving the intra-ASU dispute which are destructive of orderly industrial relations and not shown to be likely to advantage the employees concerned any more than if the Court does not intervene. Additionally, contrary to the view of the ASU, implicit in the structure of its Rules is that amalgamation of unions into the ASU and respect for the rights of the branches founded on those amalgamations was more in the interests of ASU members as a whole than for any other course. 28 Further, in my view, subs (2) (3) and (4) of s 170MR show a legislative policy that technical matters should not, unless they also raise matters of substance, impede the access of union members to the protection of the relevant provisions of the Act. It seems to me that, by analogy, where in substance an employer is responding to protected action, a like philosophy can fairly dictate a degree of curial restraint in interfering on a prima facie basis. 29 I should mention that Ms Howell in her argument for the ASU stressed that it is the ASU, not the employer, which is a party to the proceedings and that its ability to represent members would be impaired if the TAB has travelled beyond the realm of protected action or not brought itself within the confines of the Act's protection, and that that impairment could not be cured by final relief. She also says that there is a likely loss of members from the ASU, but I think the evidence falls a long way short of establishing that, nor does it ultimately seem likely to me that this would be so, considering the industrial realities of the position. She says, thirdly, that the employees would, unless the Court intervenes, face the difficult position either of losing income or of taking no further industrial action and having to sign a pledge in effect that that would be so. 30 In relation to the pledge factor, if it were wished to challenge the legality of that demand it would still be possible to do so by an amendment of these proceedings because that legality would be within the scope of the underlying dispute. Otherwise, it is true that the employees face a choice but that is really what the relevant Division of the Act contemplates. The Division simply allows the strengths of the parties, within limits, to determine outcomes. Whether this is desirable is not a fit subject for comment by the Court. 31 I should mention also that the TAB argues that the notice of protected action was not shown to have been adequately authorised but, at least on a prima facie basis, I am not satisfied that this is so. Rule 14 of the ASU's Rules and a reasonably beneficial interpretation of subs (1) and (2) of s 170MR probably answer the submissions that have been made by the respondent on this matter. Disposition 32 For the reasons given, I decline to grant the interlocutory relief sought. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 6 June 2001 Counsel for the Applicant: C. Howell Solicitor for the Applicant: R.L. Whyburn & Associates Counsel for the Respondent: G. Hatcher Solicitor for the Respondent: Fisher Cartwright Berriman Date of Hearing: 3 April 2001 Date of Judgment: 4 April 2001