FEDERAL COURT OF AUSTRALIA SITA Australia Pty Limited ACN 002 902 650 v Transport Workers' Union of Australia ABN 80 519 643 130 [2002] FCA 1593 INJUNCTION - injunctive relief sought in respect of stop-work action by employees of applicant who are members of the respondent union Workplace Relations Act 1996 (Cth) s 127 BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275 distinguished SITA AUSTRALIA PTY LIMITED (formerly known as PWM AUSTRALIA PTY LIMITED) ACN 002 902 650 v TRANSPORT WORKERS' UNION OF AUSTRALIA ABN 80 519 643 130 and HUGHIE WILLIAMS Q 195 OF 2002 DRUMMOND J 17 DECEMBER 2002 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 195 OF 2002 BETWEEN: SITA AUSTRALIA PTY LIMITED (formerly known as PWM AUSTRALIA PTY LIMITED) ACN 002 902 650 APPLICANT AND: TRANSPORT WORKERS' UNION OF AUSTRALIA ABN 80 519 643 130 FIRST RESPONDENT HUGHIE WILLIAMS SECOND RESPONDENT JUDGE: DRUMMOND J DATE OF ORDER: 17 DECEMBER 2002 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. An injunction issue restraining until 4.00 pm on 20 December 2002 the first respondent by its officers, employees, delegates and agents, respectively, including the second respondent, from engaging in, directing, encouraging or inciting any strike, stop-work meeting, overtime bans or any other restriction, ban or limitation on the performance of work by any employee of the applicant. 2. Nothing in the first order shall impose any obligation, directly or indirectly, on any delegate or agent of the first respondent otherwise than while such delegate or agent is acting in performance of their duties as delegate or agent. 3. The proceedings be adjourned to 2.15 pm on Friday, 20 December 2002. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 195 OF 2002 BETWEEN: SITA AUSTRALIA PTY LIMITED (formerly known as PWM AUSTRALIA PTY LIMITED) ACN 002 902 650 APPLICANT AND: TRANSPORT WORKERS' UNION OF AUSTRALIA ABN 80 519 643 130 FIRST RESPONDENT HUGHIE WILLIAMS SECOND RESPONDENT JUDGE: DRUMMOND J DATE: 17 DECEMBER 2002 PLACE: BRISBANE REASONS FOR JUDGMENT 1 SITA Australia Pty Limited ("SITA"), the garbage collector contractor to the Brisbane City Council, applies on short notice for an injunction in respect of stop-work action by garbage truck drivers employed by SITA who are members of the Transport Workers' Union ("TWU"), the first respondent. The injunction is sought under s 127(6) the Workplace Relations Act 1996 (Cth). 2 Stop-work action commenced about 12 noon today. The evidence indicates that there is a likelihood that it will continue for some little time at least into the future. SITA brought the matter before me only a short while ago. The respondents, the TWU and its Queensland Branch Secretary, have, however, been notified and appear by their solicitor. Understandably, the only material now before me is that read on behalf of SITA. 3 In the events that have happened in the course of the hearing, the respondents' solicitor does not dispute that some intervention by the Court is appropriate. He does not, of course, consent to it, but recognises the realities of the matter in taking up that position. The debate has therefore resolved itself into what form of short-term injunctive relief should issue. In order to deal with that matter, it is necessary to say something about the background to the dispute that has led to the present proceedings coming before this Court. 4 It is clear from the material before me that work by drivers under SITA's contract with the Brisbane City Council, a contract that commenced on 1 July 2002, has been disrupted over the past couple of months. The TWU and various drivers have claimed that drivers' safety has been put at risk from time to time because SITA's trucks foul overhead electricity and other street cabling. There is no reason to doubt, on the material before me, that the safety issue is a real one. For example, the TWU and SITA have been engaged in proceedings before the Australian Industrial Relations Commission ("the Commission") since October 2002. SITA's Brisbane City Council Contract Manager, Mr de Silva, says: 18. On 10 December 2002, the Applicant received a Notice of Listing to attend a hearing on 11 December 2002 at 2.00 pm before Commissioner Hoffman in relation to safety issues. 19. I am advised by Neil Perry, Queensland State General Manager for the Applicant, and verily believe that he attended a conciliation conference before Commissioner Hoffman at 2.00 pm on 11 December 2002. He advised that also in attendance at the conference were Hughie Williams and David Prior of the First Respondent, representatives of the Brisbane City Council and Energex [the electricity supply authority in Brisbane], as well as several delegates of the First Respondent. 20. I am further advised by Neil Perry and verily believe that arising out of the conciliation conference a report back which all the parties were to attend was scheduled by Commissioner Hoffman for 10.30 am on Friday 20 December 2002. The purpose of the report back was for the Applicant to update the Commission and the First Respondent on a number of measures which the Applicant was taking to address any safety concerns which the First Respondent had in relation to the issue of low-hanging cables and power lines. 5 On learning early this morning of a stop-work meeting that was planned for, and did proceed at, 12 noon today, SITA applied to the Commission and obtained an order under s 127 the Workplace Relations Act at about 10.50 am. This order provides, by par 3, as follows: 3. Industrial Action to Stop (a) The employees referred to in paragraph 2(b)[ie, TWU members employed by SITA in connection with the Brisbane City Council contract] must immediately cease and refrain from engaging in industrial action in the form of any strike, stop-work meeting, overtime bans or any other restriction, ban or other limitation on the performance of work. (b) The employees referred to in paragraph 2(b) herein must make themselves available for work and perform work as SITA may reasonably require and in accordance with the Agreement [ie, the SITA Australia Pty Limited Brisbane Drivers' Enterprise Agreement 2002]. (c) The TWU, and its officers, employees, delegates and agents, respectively must not engage, direct, encourage or incite any strike, stop-work meeting, overtime bans or any other restriction, ban or limitation on the performance of work. (d) The TWU must take any and all steps necessary and available under the Rules of the TWU to ensure that the employees referred to in paragraph 2(b) above who are members of the Union are notified of this Order and comply with this Order. 6 The employees mentioned in pars 3(a) and (b) of Commissioner Hoffman's order are not parties to this action. Any injunctive relief that might be granted by this Court can only issue against the TWU and its secretary, who alone are respondents to the present proceedings. Such an injunction could properly issue in terms which would indirectly impose obligations on the TWU's own officers, agents and employees. But since the member drivers are not parties to the present proceedings in this Court, there is no basis that I can see upon which, in the proceedings as presently constituted, this Court could impose any obligation on SITA drivers themselves. 7 It appears clear that the first and second respondents, however, are involved, in connection with the stop-work activity I have referred to, in conduct that constitutes contraventions by them of par 3(c) of this order of the Commission made this morning. There is evidence before me that representatives of the TWU and persons in attendance at the midday stop-work meeting have distributed a flyer calling on all the TWU's members employed by SITA to attend that meeting. The flyer bears this notation: Authorised by H. Williams for the Transport Workers' Union of Australia, Queensland Branch … 8 There is also evidence from Mr Keeble, SITA's Maintenance Manager, that Mr Williams, the second respondent, took an active part at today's stop-work meeting. 9 There is no basis on the material before me for thinking that the drivers' activities in stopping work, and the respondents' involvement in those activities, might be protected, ie, lawful action. SITA has therefore established a prima facie case for short-term interlocutory relief to restrain the two respondents from further contravening the Commission's order made earlier today. 10 There is nothing that I can see which would constitute a discretionary justification for refusing appropriate relief against the TWU and its secretary. I have referred to the material indicating that there is a real ground for concern by SITA drivers and the TWU that drivers have been, and may still be, put at risk of personal harm while operating SITA collection trucks from time to time. But there is nothing in the material before me to indicate that that risk is now so pervasive in SITA's workplace or that it affects so many of SITA's drivers who are members of the TWU that that consideration might justify, on discretionary grounds, refusal of the injunctive relief sought against the two respondents. 11 It may well be the case, and the material before me suggests it to be so, that individual SITA drivers will continue from time to time to be confronted, while operating SITA's trucks, with situations in which they may justifiably fear for their safety. As I have said, the drivers are not parties to this action. Unless a particular driver were to take the highly unusual course of encouraging the first or second respondent to contravene the injunction that will issue against those two respondents now, no driver can be subject to any obligation under any injunction that the Court will issue today. In order to make it abundantly clear, I should say that the injunction I intend to issue against the first and second respondents will not, in any way, prevent a driver employed by SITA in respect of the Brisbane City Council contract from refusing to continue to operate his truck in circumstances where he believes himself to be at risk of personal harm. 12 Generally speaking, an order in terms of par 1 of the draft proposed by counsel for SITA is appropriate. However, the solicitor for the respondents points out that TWU delegates will, and agents of the TWU may, be driver-employees of SITA. He says they should not be under any pressure from the injunction issued by this Court against the first and second respondents to work in particular circumstances in which they consider they are at risk of harm. 13 I think the point is well-founded. I will therefore make an order that an injunction issue restraining until 4 pm on 20 December 2002 the first respondent by its officers, employees, delegates and agents respectively, including the second respondent, from engaging in, directing, encouraging or inciting any strike, stop-work meeting, overtime bans or any other restriction, ban or limitation on the performance of work by any employee of the applicant. This order is in the terms sought by SITA; no injunction operating directly on the second respondent is now sought. 14 I will further order that nothing in this order shall impose any obligation, directly or indirectly, on any delegate or agent of the first respondent otherwise than while such delegate or agent is acting in performance of their duties as delegate or agent. 15 SITA also seeks an injunction in terms which will direct the first respondent "to take any and all steps necessary and available under the Rules of the First Respondent to ensure that employees of the Applicant who are members of the First Respondent and subject to the SITA Australia Pty Limited Brisbane Drivers' Enterprise Agreement 2002 Industrial Action Order ("the Order") to notify those members to enable them to comply with the Order" (sic). The "order" referred to in this draft is, of course, the order made by Commissioner Hoffman earlier today. Draft order 2 proposed by SITA seeks to compel compliance by the TWU with par 3(d) of Commissioner Hoffman's order which I have earlier set out. There is no reason apparent to me for thinking that SITA is not well able to notify its own current employees of their obligations under the Commissioner's order. But it is understandable that SITA wants an injunction from this Court compelling the TWU to do what order 3(d) directs it to do, ie, compelling the TWU to ensure that member drivers themselves comply with the Commission's order. 16 When asked to identify provisions of the TWU's rules (which are in evidence before me) that would empower the first respondent to do what it is sought to compel it to do by draft order 2, viz, to ensure that SITA employees who are members of the first respondent are notified of Commissioner Hoffman's order to ensure they comply with that order, counsel for SITA submitted, firstly, that the onus was on the first respondent to establish that there were no relevant rules which would arm it with that power over its members; secondly, he referred to two of the TWU's rules. Rule 37(3)(e), in the rule dealing with the branch secretary, ie, the second respondent, says this: The powers and functions of the Branch Secretary include: … (e) answering and filing correspondence; 17 He also referred to r 39(2)(a), the rule dealing with branch organisers. That sub-rule says: The powers and functions of the Branch Organisers are: (a) to assist in the work of the Branch generally; 18 Neither of those sub-rules, to my mind, comes anywhere near arming the TWU with power to take the kind of action with respect to members which order 3(d) of the Commission's order directed it to take and which it is sought to require the TWU to take by par 2 of the draft order. 19 Counsel also relies upon a decision of this Court in BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275. That case involved action taken by the employer for the imposition of a penalty on the union for breach of an order of the Commission under s 127 the Workplace Relations Act. The order is set out at p 281 of the report and pars 3.1, 3.2 and 3.3 of the order in question in that case are in terms not materially different from pars (a), (b) and (d) of Commissioner Hoffman's order made earlier today. 20 As appears from par [76] of the judgment at p 294, the union in the BHP Steel case not only challenged the validity of the order made in that case to which I have referred, it also submitted that the provisions of the order were not clearly expressed so that no breach of any of the subparagraphs of par 3 of the order could be established. That is the issue here. The learned trial judge dealt specifically with par 3.3 of the order before him which, as I have said, is in terms not materially different from par 3(d) of the order made by Commissioner Hoffman in this case. His Honour said at p 295, par [83]: As has been seen, in its amended statement of claim, BHP points to a wide range of powers available to the Union in the present kind of context; and significantly, the Union called no factual evidence on the question at all. 21 No attempt has been made to demonstrate that the rules of the union in question in the BHP Steel case are materially the same as the rules of the TWU which are of concern in this case. That is a sufficient basis for finding nothing in the BHP Steel case of any assistance as justification for this Court making an order in terms of par 2 of the draft order sought. But his Honour, in the BHP Steel case, made some additional comments upon which counsel also relied. At p 295, par [85], his Honour said that: As a matter of legal principle, compliance must be, in some way, within the power or capacity of the person directed before it could be held to have failed to comply. 22 But then his Honour added: At the same time "Where an injunction is mandatory in its terms, it is the duty of the party bound by the injunction to discover the proper means of obeying the order." 23 His Honour referred to an English decision in a case in which it appears a party was moved against for contempt for failing to comply with an injunction to abate a nuisance. In the course of his judgment in that case, Chitty J said: That there was a nuisance and that for some months past there had been a nuisance which satisfactorily proved. It was the duty of the defendants to find out the proper means of obeying the order. … It was, however, no part of a plaintiff's duty to point out to a defendant the proper means to remedy a nuisance. It was the defendant's duty to find out the proper mode of complying with the order. 24 His Honour in the BHP Steel case then continued: Applying that approach here, it appears clearly from the evidence that, although at all times well aware of the requirements of the Order, the Union took no steps to ensure that the Employees complied. …the Union did not seek to lead evidence that compliance with the Order was not, in fact, possible under the rules. No legal reason of any substance for the Union's failure to comply with the Order was forthcoming. 25 It is said, in reliance on the BHP Steel case, that the TWU has the obligation of finding a way that will enable it to take the action with respect to its members directed by the Commission's order 3(d) and that therefore the Court is justified in making the order sought by par 2 of the draft order. 26 No doubt a person enjoined to abate a nuisance must work out how to comply with such an injunction. But if there be no power available under the TWU's rules that would empower or permit the TWU to take all the steps available under the rules and necessary both to ensure that driver-members are notified of Commissioner Hoffman's orders 3(a) and (b) and also to ensure that those driver-members comply with those orders of the Commission, the TWU should not be compelled by order of this Court to do that which the rules do not require or even permit it to do. Any injunction of the kind sought that this Court might issue against the TWU which prima facie will bind the TWU and expose it to proceedings for contempt if it is in breach will turn out to be wholly futile. If there is no such rule, this Court would not make any finding of contempt against the TWU for failure to comply with an injunction in the terms sought by SITA by draft order 2, ie, for failure to do what is not possible. 27 I do not think that any question of there being an onus on the respondent can arise when the issue is whether an applicant should have an injunction in particular terms that casts a particular obligation on the respondent. Either there is a rule in the TWU's rules that empowers or permits it to ensure not only that members are notified of the Commissioner's order, but also to ensure that members comply with that order, or there is no such rule. It seems to me that before a party can ask this Court to grant an injunction which will expose the respondent to proceedings for contempt if it breaches the injunction, that party has an obligation to propose an injunctive order in clear terms which will enable the respondent to know exactly what the respondent has to do and an obligation to satisfy the Court that there is a proper legal basis for enjoining the respondent in the terms proposed. In my opinion, the applicant is not entitled to an injunction in terms of par 2 of the draft order unless it can point to some power or powers in the rules of the TWU which would enable it to do that which it is proposed the Court should order it to do, viz, to ensure that it take steps which are available to it under the rules which will ensure that employees of the applicant who are members of the TWU are notified of Commissioner Hoffman's order and which will also ensure that those TWU members comply with the Commissioner's order. The applicant has failed to satisfy on that matter. 28 I will not make any order in terms of par 2 of the draft. 29 I will further order that the proceedings be adjourned to 2.15 pm on Friday next, 20 December. I will direct that any material upon which the respondents may wish to rely on the further hearing of the proceedings for interlocutory relief must be filed and served by 2 pm on Thursday, 19 December 2002. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond. Associate: Dated: 18 December 2002 Counsel for the Applicant: KF Watson Solicitor for the Applicant: McCullough Robertson Lawyers Solicitor for the Respondent: Reidy & Tonkin Date of Hearing: 17 December 2002 Date of Judgment: 17 December 2002