FEDERAL COURT OF AUSTRALIA Murdoch University v National Tertiary Education Industry Union [2016] FCA 1151 File number: WAD 416 of 2016 Judge: GILMOUR J Date of judgment: 21 September 2016 Catchwords: INDUSTRIAL LAW – application for interlocutory injunction and publication orders – whether the balance of convenience favours the grant of injunctive relief Legislation: Fair Work Act 2009 (Cth) ss 341(2)(k), 341(2)(e) Cases cited: Iluka Resources Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 1447 Date of hearing: 16 September 2016 Registry: Western Australia Division: Fair Work National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr M J Follett Solicitor for the Applicant: Seyfarth Shaw Australia Counsel for the Respondents: Mr R Attiwill QC and Mr M Harding Solicitor for the Respondents: Maurice Blackburn Lawyers ORDERS WAD 416 of 2016 BETWEEN: MURODCH UNIVERSITY Applicant AND: NATIONAL TERTIARY EDUCATION INDUSTRY UNION First Respondent GABE GOODING Second Respondent ALEX COUSNER Third Respondent JUDGE: gilmour j DATE OF ORDER: 21 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The applicant's application for interlocutory injunctive relief be dismissed. 2. There be liberty to the parties to apply on the question of costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GILMOUR J: 1 The applicant (University) in its originating application seeks declatory relief, with penalties and associated orders against the respondents, under provisions of the Fair Work Act 2009 (Cth) (FW Act). The University also seeks interlocutory injunctive relief against the first respondent (Union) in terms of the following (proposed orders): (1) Until the hearing and determination of the originating application or further orders, the first respondent, whether by itself, its officers, servants, agents or howsoever otherwise, be restrained from making, publishing, disseminating or distributing any statement or representation to the effect that Murdoch University (or its management) in negotiations and bargaining for a new enterprise agreement (or in any new enterprise agreement): (a) does not want to (or is not required to) consult with its staff about the substance or effect of any change or whether any such change is a good or bad idea; (b) wants to (or can) forcibly transfer or redeploy staff to a lower level position any number of levels lower than their present position; (c) want to (or can) forcibly transfer or redeploy staff to a lower level position with a lower salary without salary maintenance; (d) wants to (or has) eliminated redeployment for professional staff; (e) has not agreed to any single claim made by the first respondent; (f) wants to (or can) employ all young students for as little as 37% of the normal rate for the job; (g) wants to (or can) employ all adult students for as little as 68% of the normal rate for the job; or (h) can terminate the employment of any staff member without redress, if that staff member: (i) breaches any one of more than 400 policies or procedures; or (ii) comments or reports publicly on governance, if doing so threatens the profitability of the University. 2 The interlocutory application is supported by affidavits sworn on 12 and 15 September 2016 by Robert John McPherson, an industrial relations consultant employed by the University. 3 The Union read an affidavit by Martin Braithwaite affirmed on 16 September 2016. He is a Senior State Organiser employed by the Union. 4 The application proceeds from publications made by the Union through posters, social media, website articles, e-News email and YouTube, in relation to the University's negotiation position on issues relating to a proposed enterprise agreement. I will refer to these collectively as the Publications. 5 The University alleges that the Publications contain representations which are knowingly or recklessly false or misleading about the exercise of a workplace right by the University namely its participation in the process of bargaining under the Fair Work Act 2009 (Cth) (FW Act) within the meaning of s 341(2)(k). Additionally, or in the alternative, the University asserts those alleged false or misleading representations were about the effect of the exercise of a workplace right by the University within the meaning of s 341(2)(e) of the FW Act. 6 The proposed orders are said by the University to capture the substance of representations which it alleges were made in the Publications. The Union contends that the proposed orders go further than this, aimed as they are at potential future conduct and in broader terms. 7 I will assume, for present purposes that the proposed orders do capture the substance of the representations alleged to be contained in the Publications. 8 I have considered the Publications and the representations alleged to be found within them, as well as the Union's submissions to the effect there are no representations but merely commentary and argument in the circumstances of a robust bargaining process concerning an enterprise agreement. 9 The University initially had claimed interlocutory relief which included the removal of the Publications from the several publication platforms. 10 However the Union, through its solicitors, wrote by email dated 15 September 2016 to the solicitors for the University, stating relevantly at paragraphs 4 and 5: 4. In order to avoid unnecessary litigation, costs and use of the Court's time, we confirm that the NTEU has now removed the YouTube Clip, Website Article, WorkRights Poster, Ten Things Poster and e-News Email, as those terms are defined in your client's Originating Application (collectively the Publications) from the NTEU's YouTube channel, the NTEU's websites and the NTEU WA's Facebook page. If the NTEU has inadvertently omitted to remove one of the Publications from one of its social media platforms or sites, please let us know and the NTEU will take immediate steps to rectify this. 5. Further, we are instructed that, pending the hearing and determination of the proceedings, discontinuance of the proceedings or further order of the Court, the NTEU will not further publish, disseminate or distribute the YouTube Clip, the Website Article, the WorkRights Poster, the Ten Things Poster or the e-News Email, as those terms are defined in your client's Originating Application. 11 Senior counsel for the Union also informed the Court that: The Union will take reasonable steps to request any others to remove the impugned statements. So to the extent that there are other republications there that we're aware of, we will reasonably request that they be removed. The Union will not republish the same words, the subject matter of the allegations in these proceedings, in other forums. The letter that was written to my learned friends said that it will not republish the poster and the YouTube clip, but we will not use the same words in any other forum. … The next matter which I wish to inform your Honour is that the Union is reviewing the impugned statements and has listened very carefully to the observations that your Honour has made during the course of this morning's hearing. In that regard, your Honour, for the purpose of really ensuring that all parties now really get on with the bargaining, I can tell your Honour that the Union is prepared not to continue to publicly defend the impugned statements, but that would really be on the condition, your Honour, that the applicant didn't continue publicly to assert that they were false and misleading outside the courtroom. So that all parties really just got on with the bargaining and didn't continue to look to the past to say whether things were false or not. That would say nothing about what, if this proceeding continued, obviously the parties could continue to assert their rights in these proceedings. 12 I took this to be a statement to the Court on behalf of the Union which included that the substance of the impugned statements would not be repeated. 13 I said to the parties counsel the following: HIS HONOUR: I have understood, and I will be quite plain, and I'm sure if I put it incorrectly that I will be corrected by Mr Attiwill, that his clients are under no misapprehension other than that if the substance of what is set out in the publications that have been taken down from social media and taken down – where the posters have been taken down, that if the substance of those statements – we will call them statements for the moment – are repeated, then there will be potentially serious ramifications. Now, that's as I've understood the position, as I understand Mr Attiwill understands it, and in turn his clients. Now, if I've got that wrong, then someone should tell me. 14 Neither party disagreed with this summary of the effect of what had been said in this respect on behalf of the Union. Serious issues to be tried 15 The Union accepts that there are serious issues to be tried but submits that the University's case is a weak one. I do not accept this. I do not on the material before me consider this is a fair characterisation of the University's case. It is unnecessary for me, for reasons I will explain, to descend into the particulars of why I reject this submission. This is because I am persuaded that the balance of convenience does not favour the grant of injunctive relief in terms of the proposed orders even accepting that the University's case is not a weak one. Balance of convenience 16 Whilst no undertaking not to republish the Publications or the substance of the impugned alleged representations has been given to the Court, an undertaking has been given by the Union to the University as set out in paragraph 5 of its solicitor's letter of 15 September 2016, set out above as amplified in the statements made on its behalf through senior counsel to the Court. 17 Plainly, any breach of this inter partes undertaking as expanded upon before the Court would carry potentially serious consequences for the Union and any of its agents, or employees, involved in such breach. This is a salutary foundation to expect that such statements, be they representations or otherwise, will not be repeated. 18 There is no barrier to the University communicating to its staff its position concerning the negotiations toward an enterprise agreement. This can be done across multiple platforms. Its ability to do so is a strong counter to what it asserts to be the false or misleading representations already made. It is able to do this without engaging in an extra curial debate or contest as to the particular issues in this proceeding. It can simply and clearly present its position, variously, on matters the subject of its negotiations with the Union. 19 Moreover, if it considers that the Union has further engaged in contravening conduct it can again approach the Court. 20 The University's concerns that its staff has been poisoned against it, which might adversely affect it in the result of a protected action ballot likely to take place later this month, is more imagined than real. Other interlocutory relief 21 The University also sought an injunction in terms that: (1) On or before 12.00pm on 19 September 2016, the first respondent publish on each of the places on its website (http://www.nteu.org.au), its WA Division website (http://www.nteu.org.au/wa) its facebook page (https://www.facebook.com/WADIVISION) and any other websites or social media sites or platforms controlled by it from where a Publication has been removed by it and in the place of that removed Publication, the following statement: The NTEU had originally published in this location a publication about the bargaining position of Murdoch University (or its management) or the effect of the claims made by Murdoch University (or its management) in bargaining with its employees and their representative (the NTEU), which contained information that Murdoch University alleged to be inaccurate, incomplete and/or misleading. In consequence of those allegations, the NTEU has removed the publication. This statement is being made pursuant to and in compliance with an order of the Federal Court of Australia made on 16 September 2016. 22 I would not make such an order in the circumstances. The Union takes issue with almost every aspect of the University's claims and in particular that anything published by the Union was knowingly or recklessly false or misleading. Indeed the Union submits that, objectively, none of the impugned statements or, as the University would have it, representations, were false or misleading. The statement sought would have a tendency to imply that the Union has admitted that the information published was, in fact, inaccurate, incomplete and/or misleading and that in consequence of that the Court required the statement to be made. Such would clearly be itself misleading and would damage the Union's standing in the eyes of the employees they represent, without the benefit of a full trial: Iluka Resources Limited v Construction, Forestry, Mining and Energy Union [2011] FCA 1447 at [30]. Orders 23 The interlocutory application for injunctive relief will be dismissed. I will give the parties liberty to apply within 7 days on the question of costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 21 September 2016