National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441

FEDERAL COURT OF AUSTRALIA

National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441

INDUSTRIAL LAW – Workplace Relations Act 1996 (Cth) – coercion of persons to make, vary or terminate certified agreements etc. - s 170NC – offer of additional funding to institutions of higher education by Commonwealth through Workplace Reform Programme – offer conditional upon meeting programme criteria - importance of funding to institutions - whether Commonwealth or Minister intended to coerce institutions into entering certified agreements on particular terms – whether inducement to enter voluntary funding programme constitutes coercion - whether introduction of programme constitutes "industrial action or other action" within s 170NC(1)(a) - what conduct amounts to coercion WORDS AND PHRASES – "industrial action or other action", "with intent to coerce" Workplace Relations Act 1996 (Cth), ss 170LJ, 170LK, 170NC, 170ND, 170NF, 170WG and 347 Higher Education Funding Act 1988 (Cth), ss 4, 15-18 Higher Education Funding Amendment Act 1999 (Cth) s 17 Trade Practices Act 1974 (Cth) s 51AA Vallance v The Queen (1961)108 CLR 56 at 82 referred to Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16 at 23-27 followed Community and Public Sector Union v Telstra Corporation Ltd (2000) 108 FCR 52 at 62 referred to National Union of Workers v Qenos (2001) 108 FCR 90 referred to Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at 388 referred to Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 45-46 referred to Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at 541 referred to Blomley v Ryan (1956) 99 CLR 362 at 405 referred to Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 474 referred to Cadbury Schweppes P/L v Australian Liquor, Hospitality and Miscellaneous Workers' Union [2000] FCA 1793 at [19] referred to Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461 referred to Beckwith v The Queen (1976) 135 CLR 569 at 576 referred to Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186 at 189-193 referred to Ellis v Barker (1871) 40 LJ Ch 603 referred to Hodges v Webb [1920] 2 Ch 70 at 86-87 referred to Cornelius v The King (1936) 55 CLR 235 at 246 referred to R v Kempley (1944) 44 SR(NSW) 416 referred to R v Owen (1951) VLR 393 referred to R v Zion [1986] VR 609 referred to Smith v William Charlick Ltd (1924) 34 CLR 38 referred to R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 referred to Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 referred to Legione v Hateley (1983) 152 CLR 406 referred to Louth v Diprose (1992) 175 CLR 621 referred to Garcia v National Australia Bank Ltd (1998) 194 CLR 395 referred to C G Berbatis Holdings v ACCC (2001) 185 ALR 555 referred to Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed, 2000, at 246-251 NATIONAL TERTIARY EDUCATION INDUSTRY UNION v COMMONWEALTH OF AUSTRALIA and DAVID ALISTAIR KEMP V447 of 2000 WEINBERG J 12 APRIL 2002 MELBOURNE