FEDERAL COURT OF AUSTRALIA Airservices Australia v United Firefighters' Union of Australia [2011] FCA 476 Citation: Airservices Australia v United Firefighters' Union of Australia [2011] FCA 476 Parties: AIRSERVICES AUSTRALIA v UNITED FIREFIGHTERS' UNION OF AUSTRALIA, JAMES PARKER, LAURIE MCMAHON, ANDREW MORGAN, PETER SPARKES, RODNEY FLEMING, DAVID ATTENBOROUGH, TYSON CONHEADY, SEAN CONQUIT, GEOFF DAVIES, ANTHONY DICELLO, BRENDAN FITZGERALD, MARC JANSEN, TEREAPII KORONUI, JAMES LINDSAY, STUART MACKIE, JOHN MERVIN, PAUL MILLER, DANIEL MORGAN, CHRISTOPHER PRYZGODA, STEVEN RIGBY, LEIGH SCHEPISI, ANDREW TONKIN, NATHAN PANKHURST, STEVEN ALDERSLEY and DAVID DENT File number: VID 354 of 2011 Judge: JESSUP J Date of judgment: 9 May 2011 Catchwords: PRACTICE AND PROCEDURE – Conduct by respondents arguably in contravention of statutory prohibition – Whether conduct should be restrained by interlocutory injunction – Strength of arguable case – Balance of convenience INDUSTRIAL LAW – Introduction of new roster by employer – Whether consistent with provision of enterprise agreement requiring consultation – Refusal by employees to work in accordance with new roster – Whether "industrial action" as defined in legislation – Strength of case for interlocutory injunction – Whether balance of convenience favoured restraint on refusal to work new roster Legislation: Fair Work Act 2009 (Cth) ss 19, 417, 418 and 421 Income Tax Assessment Act 1997 (Cth) Date of hearing: 9 May 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: Mr M McDonald SC with Mr T Jacobs Solicitor for the Applicant: Blake Dawson Counsel for the Respondents: Mr W Friend SC with Mr C Dowling Solicitor for the Respondents: Spicer Lawyers IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 354 of 2011 BETWEEN: AIRSERVICES AUSTRALIA Applicant AND: UNITED FIREFIGHTERS' UNION OF AUSTRALIA First Respondent JAMES PARKER Second Respondent LAURIE MCMAHON Third Respondent ANDREW MORGAN Fourth Respondent PETER SPARKES Fifth Respondent RODNEY FLEMING Sixth Respondent DAVID ATTENBOROUGH Seventh Respondent TYSON CONHEADY Eighth Respondent SEAN CONQUIT Ninth Respondent GEOFF DAVIES Tenth Respondent ANTHONY DICELLO Eleventh Respondent BRENDAN FITZGERALD Twelfth Respondent MARC JANSEN Thirteenth Respondent TEREAPII KORONUI Fourteenth Respondent JAMES LINDSAY Fifteenth Respondent STUART MACKIE Sixteenth Respondent JOHN MERVIN Seventeenth Respondent PAUL MILLER Eighteenth Respondent DANIEL MORGAN Nineteenth Respondent CHRISTOPHER PRYZGODA Twentieth Respondent STEVEN RIGBY Twenty-First Respondent LEIGH SCHEPISI Twenty-Second Respondent ANDREW TONKIN Twenty-Third Respondent NATHAN PANKHURST Twenty-Fourth Respondent STEVEN ALDERSLEY Twenty-Fifth Respondent DAVID DENT Twenty-Sixth Respondent JUDGE: JESSUP J DATE OF ORDER: 9 MAY 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant's claim for interlocutory relief be refused. 2. The applicant file and serve any further affidavit or affidavits on which it intends to rely on or before 20 May 2011. 3. The respondents file and serve any affidavit or affidavits on which they intend to rely on or before 30 May 2011. 4. The proceeding be set down for trial on a date to be fixed not before 6 June 2011, with an estimate of a maximum of three days. 5. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 354 of 2011 BETWEEN: AIRSERVICES AUSTRALIA Applicant AND: UNITED FIREFIGHTERS' UNION OF AUSTRALIA First Respondent JAMES PARKER Second Respondent LAURIE MCMAHON Third Respondent ANDREW MORGAN Fourth Respondent PETER SPARKES Fifth Respondent RODNEY FLEMING Sixth Respondent DAVID ATTENBOROUGH Seventh Respondent TYSON CONHEADY Eighth Respondent SEAN CONQUIT Ninth Respondent GEOFF DAVIES Tenth Respondent ANTHONY DICELLO Eleventh Respondent BRENDAN FITZGERALD Twelfth Respondent MARC JANSEN Thirteenth Respondent TEREAPII KORONUI Fourteenth Respondent JAMES LINDSAY Fifteenth Respondent STUART MACKIE Sixteenth Respondent JOHN MERVIN Seventeenth Respondent PAUL MILLER Eighteenth Respondent DANIEL MORGAN Nineteenth Respondent CHRISTOPHER PRYZGODA Twentieth Respondent STEVEN RIGBY Twenty-First Respondent LEIGH SCHEPISI Twenty-Second Respondent ANDREW TONKIN Twenty-Third Respondent NATHAN PANKHURST Twenty-Fourth Respondent STEVEN ALDERSLEY Twenty-Fifth Respondent DAVID DENT Twenty-Sixth Respondent JUDGE: JESSUP J DATE: 9 MAY 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Air Services Australia, is responsible for providing emergency fire and rescue services at airports in Australia, including Avalon in Victoria. There are currently 25 employees working in the applicant's aviation rescue and firefighting division at Avalon. Their terms and conditions of employment are regulated by the Fair Work Act 2009 (Cth) and by the Air Services Australia Aviation Rescue Firefighting Collective Agreement 2009-2013, a certified agreement made under previous legislation, but continued in force under the Fair Work Act. The employees are members of or eligible to be members of the first respondent, the United Firefighters Union of Australia ("the Union"). They are themselves also respondents in this proceeding, but have not appeared today. All but one of them have been served, to which extent the applicant's application for interlocutory relief is properly constituted. 2 That application relates to new arrangements for the rostering of hours of work at Avalon. Before the events which have presently become controversial, the employees worked an 18½ hour roster, pursuant to a special agreement under clause 4.3.9 of the agreement, from 5.30 am to midnight. Changed schedules for an airline using Avalon made it necessary for fire protection cover to be provided until about 1.25 am, and temporary arrangements were put in place to allow that to occur. It seems that, in practice, employees who worked until 1:25 am remained on site under conditions of recline until the arrival of the following shift in the early morning, and then left for home. However, the new airline schedules gave the applicant cause to consider that a more satisfactory permanent roster was required. 3 The Union and its members made it clear that they preferred what was described as a 24hour roster, under which there would be a shift change at 7:00 am each day. Management took that preference into account, but ultimately decided that a "10-10 roster" would be introduced, under which there would be two 10hour shifts each day, from 5:30 am to 3:30 pm and from 3:20 pm to 1:25 am. The applicant directed the employees to commence working such a roster on 27 April 2011. The employees did not comply with that direction, in what was on any view a collective position adopted under the guidance of the Union. They did not attend for work at 5:30 am and 3:20 pm each day, but changed over at 7:00 am pursuant to the roster which they preferred. 4 Taking the view that this was industrial action as defined in s 19 of the Fair Work Act, the applicant applied to Fair Work Australia for an order prohibiting that action under s 418 of the Act. In a decision made on 29 April 2011, Fair Work Australia did not rule on that matter, but came to the conclusion that industrial action as defined was threatened or probable, on the basis that the introduction of a 10-10 roster would be strongly resisted, and made an order, cl 4 of which provides as follows: 5.1 While this Order is in force, each Employee must not engage in or threaten to engage in industrial action. 5.2 Subject to the exclusions in the definition of industrial action, each Employee must, while this Order is in force, be available for work, and perform work, as required by Airservices. 5.3 The UFU and its officers, employees, delegates and members must: 5.3.1 stop, stop organising, and not organise, any industrial action by the Employees or any of them; and 5.3.2 not aid, abet, counsel, procure, induce or authorise its members or any of them or any other Employees, to engage in industrial action which would be contrary to this Order. 5.4 The UFU must immediately, upon the service of this Order on the UFU, advise the Employees that any direction, advice or authorisation by the UFU to engage in industrial action is withdrawn and that such action must immediately cease and/or not occur. This order provides the first basis for the applicant's claim in this proceeding, which is for an injunction under s 421(3) of the Fair Work Act. 5 The second basis arises under s 417(3) of the Act, in that the nominal expiry date of the certified agreement has not yet passed, and the employees' refusal to comply with the applicant's direction to work the 10-10 roster is, it is said, industrial action as defined. 6 On this interlocutory occasion the questions which arise are whether the applicant has raised a serious question to be tried at a final hearing, including the apparent strength of its prima facie case, and if so, whether the balance of convenience favours the grant of an interlocutory restraint. Counsel for the Union, who sought to have their submissions understood as being advanced also in the interests of the absent employees, as well as in its own, accepted that the court had jurisdiction to entertain an application for an interlocutory injunction in the present circumstances, and to dispose of it according to the conventional tests to which I have referred. They also accepted the formal validity of the order of Fair Work Australia and made no suggestion that such industrial action as may have occurred, or that might occur in the future, was or would be protected. Neither did I understand them to contend that the working of a roster different from that lawfully directed by management would not constitute a ban, limitation or restriction on the performance of work within the meaning of para (b) of s 19(1) of the Fair Work Act or that the omission of an employee to attend for work at a time required by the management roster would not constitute a failure or refusal by that employee to attend for work within the meaning of para (c) of that subsection. 7 The points advanced by the Union in resisting the application were the following: 1. because the 24hour roster, that preferred by the employees, had been endorsed by the employees themselves, it was as a matter of law the roster that had to be worked; 2. because there had been no consultation on the preparation of the 10-10 roster, again as a matter of law, that roster could not be introduced; 3. because a dispute had been notified under clause 3.4 of the certified agreement, work had to continue as normal while that dispute was being dealt with under the procedures prescribed in the agreement, in which circumstances the 10-10 roster could not be introduced; and 4. discretionary considerations arising with respect to the balance of convenience militated against the making of the injunction which the applicant seeks. 8 As I understand it, each of the first three points advanced on behalf of the Union was said to be germane to the question of the validity and effectiveness of the applicant's direction to work the 10-10 roster, as well as to issues going to the balance of convenience. As to the first aspect, counsel submitted that, if the applicant did not have the power or ability to override the employees' choice of a 24-hour roster, or unilaterally to direct the implementation of a 10-10 roster, then that direction could not provide the basis of an argument that the employees' failure to attend for work, and to work, in accordance with such a roster would be industrial action within the meaning of s 19(1) of the Act. 9 The Union's first point arises under cl 4.3.21 of the agreement, which provides: Where two or more alternative rosters are available, including any roster developed by employees and endorsed by the Fire Station Manager in accordance with the rostering principles and requirements, the roster to be worked may be decided by the popular majority of employees at the fire station. Although it is apparent on the evidence which I have provisionally before me today that the 24-hour roster was the popular choice of the majority of employees at Avalon, on that evidence it cannot seriously be said that the 24-hour roster had been endorsed by the Fire Station Manager. In the result, the evidence is not on this point such as would have any real impact on the prima facie case that the applicant might be able otherwise to establish. 10 I take next the Union's third point. It invokes cl 3.4.5 of the certified agreement, which is listed in a series of provisions, the concern of which is to provide a process for the avoidance and settlement of disputes. Clause 3.4.5 provides: While a concern or dispute is being dealt with, work will continue as normal save for any bona fide safety concerns. The point arises because, after the applicant's direction to work the 10-10 roster had been communicated to the employees, a notification of dispute under the relevant provisions was made. The Union says that, that notification having been given, work was required to continue as normal, which meant that management had to accept the 24-hour roster under which the employees were then, at their own choice, working. In my opinion, however, the operation of this very general provision would not be a satisfactory basis upon which to withhold such interlocutory relief as may otherwise be the applicant's entitlement. Subject, of course, to such balance of convenience and other discretionary considerations as arise, if the applicant has otherwise established a title to an interlocutory injunction, I am not persuaded that the very broad provisions of cl 3.4.5 are sufficient to stand in the way of such a specific entitlement. 11 I turn then to the second of the four points referred to previously, which arises under cl 4.3.19 of the agreement. That is part of a series of provisions which are concerned with the question of rostering, from which it is evident that the parties to the agreement regarded the matter of rostering, and the principles under which it should be conducted, as of significant importance. Clause 4.3.19 provides as follows: All rosters will be formulated in accordance with the rostering provisions in this Agreement, and will be prepared in consultation with you and the fire station's elected representative. If I may so observe, much like the Income Tax Assessment Act 1997 (Cth), the "you" referred to in this clause appears to be the person covered by the provisions of the agreement, namely, the employee working under the agreement. On the evidence which has been placed before the court, it appears that there was consultation with the employees and their representatives on the subject of the need for a new roster, and also on the employees' own proposal for a 24hour roster. It also appears that the introduction of the 10-10 roster was not done lightly, and was the subject of some serious consideration at management level. There are also passing references in the correspondence to the 10-10 roster having been given some consideration on the Union side, as it were. However, on this material, I do not think it would be justified to say that the new 10-10 roster had been prepared in consultation with the employees or their elected representatives. 12 I make that observation, of course, in a provisional way as is required by the occasion upon which it is made. It may well be that, at trial, the applicant will be able to demonstrate that the actual preparation of the 10-10 roster, as distinct from the idea that rosters might be based upon two 10-hour shifts, was done in consultation with the employees and their representatives. However, the evidence which is before me at the moment suggests otherwise. I would not go to the extent of saying that my provisional conclusion under cl 4.3.19 is of sufficient strength to undermine the seriously arguable case which I consider the applicant otherwise has. However, as the applicant itself accepts, in making the discretionary judgment which is required on this kind of application, the strength and generally the characteristics of its case on the merits continue to be relevant considerations, notwithstanding that the view be taken that a seriously arguable case has been established. 13 The significance of cl 4.3.19 in the case advanced on behalf of the Union is twofold. It is said, first, that because they were not prepared in consultation with the employees and the elected representatives, the rosters could not provide the basis of a valid or legal direction that they be worked, such as was given on 27 April 2011; and secondly, in any event, it is said that the absence of consultation should be taken into account as part of the discretionary considerations. As to the first, I am, of course, in no position to go further than to note that the Union's case will proceed along those lines, and I would not want anything that I say on this occasion to be taken as foreshadowing how that case might be resolved. However, for the purposes of today's application, I would be prepared to say that the point is a serious one which warrants consideration at trial. It is not so self-evidently correct as to destroy the applicant's prima facie case but, on the other hand, neither is it so self-evidently frail that it can be dismissed with little consideration. 14 If the Union's case is wellfounded, it might have the result that the employees' failure or refusal to work the 10-10 roster was not industrial action under s 19 of the Act. If it was not, it would follow that it cannot be the subject of orders made under s 417(3) of the Act, and that it would not constitute a contravention of the order made by Fair Work Australia on 29 April 2011. It is to be recalled that that order did not specifically identify what was thereby enjoined, but rather picked up the definition of industrial action in the Act. 15 In its argumentative case before me today, the applicant has stressed the importance of the carefully regulated scheme of the Act, which is that, parties may take industrial action for the purpose of bargaining and as a means of establishing the terms and conditions under which employees will be employed. I accept that that is a significant feature of the Act. I accept also what the applicant says, that the provisions of the Act which proscribe industrial action during the currency of an agreement, particularly in circumstances where Fair Work Australia has had a hearing and has made a determination under s 418, strongly imply a system under which industrial action of the kind referred to in ss 417 and 421 should not be taken. Indeed, the provisions under which I am being asked to exercise jurisdiction are clearly beneficial ones and should be given their full effect. 16 The difficulty with the position thus taken on an interlocutory occasion, however, is that each of those submissions proceeds from the proposition that the actual conduct now sought to be restrained is industrial action as defined in the Act, since it is only such industrial action which the Act has chosen to proscribe in support of the industrial relations system which it regulates. In the circumstances, I consider that these submissions made on behalf of the applicant, although powerful in a general sense, ultimately beg the question where the Union's very point is that what is taking place is not industrial action. 17 On the balance of convenience, the considerations to which I have just referred were the main ones advanced on behalf of the applicant. It was not suggested that there would be any compromise in the standard of work or of fire services provided at Avalon if the injunction were not granted. It was not suggested that anyone would work less or, other than in relation to the rostering hours themselves, work differently if an interlocutory injunction were not granted. It was not suggested that there would be any difference in the remuneration to which employees would be entitled if the interlocutory injunction were not granted, and I did not hear the applicant to say that it would be prejudiced or disadvantaged in any financial or other material sense by the absence of a restraint in the terms that it seeks. 18 The thrust of the applicant's case was to stress the importance of unions and their members complying with agreements which they have made and foreswearing the taking of industrial action during the currency of those agreements, and the significance of unions observing orders made by Fair Work Australia. Nothing I say should be taken as depreciating the importance of those considerations at the general level but, as I have said, there seems to be a very real question in this case as to whether the conduct presently engaged in by the employees, who are represented by the Union, is industrial action at all. 19 As against the considerations advanced on behalf of the applicant, the Union has drawn my attention to what appear to be some important detriments which its members would suffer if they were forced to change the pattern under which they work for the short term. My attention has been drawn to affidavit material, including written statements exhibited to the affidavits, under which some of the employees – by no means all of them (and I do not believe even the majority of them) – have referred to the reorganisation that would be required in their domestic arrangements and, in some instances, to the quite substantial inconvenience which would be visited upon them, if they were required to change the times at which they attend for work, and to change the number of times at which they will be required to travel to work in order to perform their normal rostered shifts. 20 Although the applicant has expressed a willingness to make the usual undertaking as to damages, I do not really think that the kind of personal detriments to which the Union has drawn attention are such as could satisfactorily be addressed by such an undertaking. In short, I think those are factors which are proper to be taken into account on one side of the ledger and, for reasons I have outlined, I cannot perceive any practical disadvantage in allowing the situation to remain as it presently is for the short period that will elapse between now and the time when the court will have an opportunity to hear the application at a final hearing. 21 For those reasons, I propose to dismiss the application for an interlocutory injunction. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 27 May 2011