FEDERAL COURT OF AUSTRALIA Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 File number(s): VID 1559 of 2018 Judge(s): WHEELAHAN J Date of judgment: 10 December 2018 Catchwords: INDUSTRIAL LAW – application for interlocutory order restraining vote for an enterprise agreement – whether misleading representations made concerning proposed agreement – whether representations made "knowingly or recklessly" – whether conduct in trade or commerce - balance of convenience – application dismissed. Legislation: Competition and Consumer Act 2010 (Cth) Schedule 2, Australian Consumer Law s 18, 232 Fair Work Act 2009 (Cth) s 180, 182(1), 185, 341, 345, 545 Federal Court of Australia Act 1976 (Cth) s 23 Superannuation Guarantee (Administration) Act 1992 (Cth) Trade Practices Act 1974 (Cth) s 52 Cases cited: Australian Securities and Investment Commission v Mariner Corporation Ltd (2015) 241 FCR 502 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 CEPU v Australian Postal Corporation [2017] FCA 1091 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v CUB Pty Ltd [2015] FCA 692 Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 Grocon Pty Ltd Enterprise Agreement (Victoria) (2003) 127 IR 13 Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 Shop Distributive & Allied Employees' Association v Karellas Investments Pty Ltd (2008) 166 FCR 562 Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505 Date of hearing: 7 December 2018 Registry: Victoria Division: Fair Work Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 61 Counsel for the Applicant: Ms F Knowles Solicitor for the Applicant: Australian Education Union Counsel for the Respondent: Mr P O'Grady QC and Mr A Pollock Solicitor for the Respondent: Lander and Rogers ORDERS VID 1559 of 2018 BETWEEN: AUSTRALIAN EDUCATION UNION Applicant AND: ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY Respondent JUDGE: WHEELAHAN J DATE OF ORDER: 10 DECEMBER 2018 THE COURT ORDERS THAT: 1. The interlocutory application be dismissed. 2. A case management hearing be fixed for Thursday 20 December at 10.15 am. 3. Costs of the interlocutory application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHEELAHAN J: introduction 1 The applicant (AEU) seeks urgent interlocutory relief in relation to a voting process for approval of an enterprise agreement which is due to close tomorrow, 11 December 2018 at 5.00pm. These reasons for judgment have necessarily been prepared within a short timeframe and should be understood accordingly. 2 The RMIT Vocational Education Workplace Agreement 2016 (2016 Agreement) covers "Vocational Education Employees" of the respondent (RMIT) who are described in Schedule 1 to the agreement (Vocational Education Employees). The 2016 Agreement does not cover academic staff, who were covered by the RMIT University Academic and Professional Staff Enterprise Agreement 2014, and are now covered by the RMIT University Enterprise Agreement 2018. The 2016 Agreement has a notional expiry date of 31 July 2018. 3 The Vocational Education Employees are currently entitled to vote to approve a new agreement that is titled "RMIT Vocational Education Workplace Agreement 2018" (Proposed Agreement). Voting is online by electronic ballot conducted by an independent service provider. Electronic voting is contemplated by s 181(3) of the Fair Work Act. Voting commenced at 9.00am on Friday 7 December 2018, and as I have said closes at 5.00pm tomorrow, 11 December 2018. Under s 182(1) of the Fair Work Act, the Proposed Agreement will be made if and when a majority of employees who cast a valid vote approve the agreement. The agreement will then be subject to the approval process under s 185 and following of the Fair Work Act. 4 The proposed agreement is expressed to cover RMIT, the National Tertiary Education Union (NTEU), the AEU, and Vocational Education Employees. RMIT has engaged in a number of meetings with the representatives of the AEU, the NTEU, and employees. The evidence is that the "RMIT NTEU Branch Committee" has recommended the Proposed Agreement to its members who are employees. 5 Section 180 of the Fair Work Act imposes obligations on employers to provide information to employees during a 7 day "access period" prior to the commencement of voting. The information includes the written text of the agreement [s 180(2)(i)], and an explanation to relevant employees in an appropriate manner of the terms of the agreement, and the effect of those terms [s 180(5)]. 6 The applicant alleges that RMIT has made representations that are misleading in an information package concerning the Proposed Agreement that it has sent to Vocational Education Employees. The subject matter of the impugned representations are superannuation entitlements, and required attendance time of Vocational Education Employees. 7 By its originating application the AEU claims that RMIT has contravened s 345(1) of the Fair Work Act and s 18 of the Australian Consumer Law. Although a number of interlocutory orders were sought in the originating application, by its written submissions and in the course of oral argument the AEU confined its claim for interlocutory relief to orders substantially as follows – That RMIT be restrained from accepting any votes on the proposed RMIT Vocational Workplace Agreement 2018 or a mandatory injunction requiring that the electronic voting system for it be disconnected. 8 I received into evidence an affidavit of Michael Joseph McIver affirmed 6 December 2018 that was filed on behalf of the AEU, and an affidavit of Judith Glynne Barnesby affirmed 7 December 2018, and filed on behalf of RMIT. Background 9 On 29 November 2018, RMIT sent to employees an email concerning the Proposed Agreement that contained hyperlinks to four documents – (a) What's in your proposed Agreement? lnfographic Poster (1 page) (b) A guide to your proposed Enterprise Agreement Brochure (8 pages) (c) Detailed Explanatory Document (13 pages) (d) Proposed VE RMIT Workplace Agreement 2018 (66 pages). 10 The four documents, culminating in the Proposed Agreement, were in escalating levels of detail. 11 On 5 December 2018, RMIT sent a further email to employees which contained a hyperlink to a Supplementary Guide. The Supplementary Guide contained further information relating to the subject-matter of the AEU's claims in this proceeding, namely superannuation, and attendance time. 12 It is convenient to consider the two areas of complaint by the AEU separately. Superannuation 13 In relation to superannuation, the 2016 Agreement provided at clause 31.1 for employer superannuation contribution payments in accordance with the statutory requirements in the Superannuation Guarantee (Administration) Act 1992 (Cth) for employees who were not members of a defined-benefits scheme. The statutory requirement is 9.5%. In addition, clause 31.3 provided for three staged increases of employer contributions over the term of the agreement, so that there would be an additional 2.5% payable by 31 July 2018, making a total of 12%. However, by clause 31.5 of the 2016 Agreement, employees were provided with a one-off opportunity to opt-out of the additional superannuation contributions, and to receive the equivalent amount as salary instead. 14 Under clause 19.3 of the Proposed Agreement, employees who had elected to receive additional superannuation under the 2016 Agreement will be entitled to continue to receive superannuation of 12%. In addition, clause 19.5 of the Proposed Agreement would permit an employee to enter into a salary package arrangement with RMIT so as to increase the amount of employer superannuation contributions, and an example is given that the rate of superannuation contributions may be 17% rather than 12%. 15 Under clause 8.13 of the RMIT University Enterprise Agreement 2018, all staff covered under that agreement, who are the academic and professional staff, will be entitled to superannuation contributions at 17% from 1 July 2019. 16 In the infographic poster, which was the first document hyperlinked to RMIT's email of 29 November 2018, RMIT stated the following in relation to superannuation – Comparable super to other RMIT staff 17 The AEU claims that this statement is false and misleading, and misleading and deceptive, or likely to mislead or deceive, because the superannuation is not comparable: under the Proposed Agreement, employer superannuation contributions of 17% would be available to Vocational Education Employees only as a result of salary sacrifice. 18 The 8-page brochure which was linked to the email stated in relation to superannuation – Comparable superannuation to other RMIT staff It is important that our VE employees are provided with information that enables them to make informed choices relating to their superannuation contribution. The superable salary of VE Teachers through the proposed wage increases will rise to a level comparable to academic and professional employees under the RMIT University Enterprise Agreement. RMIT will be in contact with the relevant superannuation funds to arrange suitable times for fund representatives to speak to VE employees on campus. 19 The AEU claims that this representation is also misleading, and in particular the reference in the heading to "comparable superannuation" is incorrect, because the superannuation would only be comparable if there was a salary sacrifice. 20 In the Detailed Explanatory Document, which was the third hyperlinked document in the email of 29 November 2018, RMIT stated the following in relation to superannuation (inter alia) – From commencement of the Agreement, the University will continue to make superannuation contributions equivalent to those required by the Superannuation Guarantee Legislation (SGL) to a complying superannuation fund. Where an Employee has, prior to the commencement of this Agreement, elected to receive Additional Employer Superannuation Contributions, the Employee will be entitled to receive employer superannuation contributions at the rate of 12% (inclusive of the superannuation guarantee percentage required under the SGL from time to time). An employee may enter into a salary packaging arrangement to receive superannuation in lieu of their salary. For example, an Employee could enter into a salary packaging arrangement so that their rate of superannuation contribution is 17%. Where an Employee does not receive the Employer Superannuation Contributions, they will receive an Opt Out Payment of the difference from time to time between 12% and the superannuation guarantee percentage required by the SGL as a percentage of their salary. 21 Relevantly, the Detailed Explanatory Document also stated – This is a summary document that does not contain all of the detail of the Agreement. If you have any questions about this document or the operation of the Agreement, please contact the Enterprise Bargaining Team - eb@rmit.edu.au 22 In the Supplementary Guide that was issued on 5 December 2018, RMIT stated the following in relation to superannuation – Under the proposed Agreement, RMIT will make employer superannuation contributions as follows: • for those of you who elected to receive additional super contributions in lieu of salary under the current agreement, 12%. • for everyone else, in accordance with the requirements of superannuation guarantee legislation, which is currently 9.5% (and an "Opt-Out Payment" is paid). In addition, you may elect to structure your remuneration so that a greater percentage is allocated to super in accordance with the proposed Agreement's salary packaging provisions, including so that you receive 17% of your total fixed remuneration as super. The wage increases being delivered by the proposed Agreement will mean that the totc;1I fixed remuneration of a level 5 teacher will be comparable to certain academic and professional staff under the RMIT University Enterprise Agreement (see the classification levels referred to in the table below), including if you elect to receive 17% super. Unlike staff under that agreement, you will have the flexibility to structure your remuneration so as to receive 17% super or to receive a higher base salary. 23 The Guide then set out a table with some illustrative figures so as to suggest that that a "Teacher Level 5" who elected to receive 17% in superannuation received salary and superannuation at a level that was comparable to an "Academic Level B1", and a "Professional HEW 8.1". 24 Counsel for the AEU stated at the hearing that the AEU made no complaint about the contents of the Supplementary Guide in relation to the topic of superannuation, but maintained that the other representations were "still out there". Attendance time 25 In relation to attendance time, clause 37.1 of the 2016 Agreement provides (emphasis added) – Employees who undertake teaching duties are required to attend their work location for 30 hours per week for up to 42 weeks per year and are not required to attend on days when duties are not scheduled. Agreement between RMIT and the Employee is required for attendance beyond these limits. RMIT may only seek such agreement after an Employee has been employed, and then only after providing reasonable time for the Employee to gain advice and make an informed decision. 26 The emphasised words above identify the issue that is in contention, namely whether RMIT can require employees to attend their work location outside the 42 week teaching period. The AEU submitted that clause 37.1 of the 2016 Agreement had the effect that RMIT could not require Vocation Education Employees to attend their work location outside the 42 week period. On the other hand, counsel for RMIT stated to the Court that it was his client's view that clause 37.1 did not prevent RMIT from requiring an employee to work additional hours. When asked, counsel was unable to develop any argument to support his client's view, and in the absence of any reasoning to support that view, and in the face of the text of clause 37.1, I place no weight on it. 27 The evidence is that during the course of negotiations of the Proposed Agreement a representative of RMIT, Ms Barnesby, stated words to the effect that RMIT should be able to require its vocational education teachers to attend their work location beyond the "Annual Teaching Period". This was reflected in clause 47.5 of the then draft agreement which had proposed – 47.5 Outside of the Annual Teaching Period: (a) an Employee may be directed by the Employer to attend at a specified work location for the performance of their Work Hours; and (b) the Employer will not unreasonably withhold its agreement to a request by the Employee to work from one or more locations, having regard to the Employee's Workload Management Plan. 28 Ms Barnesby then offered to omit clause 47.5. However, the representative of the AEU stated that this was not a sufficient change, as the proposed enterprise agreement would still not contain a limit on attendance requirements of 42 weeks of the year and 30 hours per week. Ms Barnesby in her affidavit did not contest the evidence on this topic. 29 What is now clause 48 of the Proposed Agreement is in the following terms – 48 DETERMINATION OF WORK LOCATION 48.1 The Employer may only roster Teaching Duty Hours for an Employee in their Workload Management Plan over a maximum of 42 weeks in a calendar year- (the Annual Teaching Period). 48.2 During the Annual Teaching Period, an Employee: (a) may be directed by the Employer to attend at a specific work location for a maximum of 30 hours per week; (b) may determine the location from which they perform their duties for the remaining 8 working hours per week (the Employee-determined Location Hours); and (c) may agree to a request by RMIT to attend at a specified work location during the Employee-determined Location Hours but only if such a request is made after the Employee has been employed and the Employee is provided with reasonable time to gain advice and make an informed decision. 48.3 The Parties agree that the Employee may specify the location from which they perform their duties during the Employee-determined Location Hours but must be able to respond to work colleagues, including their line manager, during those hours. 48.4 The Employer will not unreasonably withhold its agreement to a request by an Employee classified as a Senior Educator to work from one or more locations for 38 hours per week. If agreement cannot be reached, the employer may direct the employee to attend at a specified work location. 48.5 Other than clauses 48.2 and 48.4, this clause 48 does not apply on a pro rata basis to Part Time Employees. 30 In the infographic poster, which was the first document hyperlinked to RMIT's email of 29 November 2018, RMIT stated the following in relation to attendance time – Attendance time retained at 30 hours per week x 42 weeks per annum 31 The AEU claims that this statement is false and misleading, and misleading and deceptive, or likely to mislead or deceive, because it claims that clause 48 of the Proposed Agreement contains limits on attendance time only within the 48 week teaching period, and not outside it. 32 The 8-page brochure which was linked to the email contained the following bullet point on page 5 of the document – • Attendance time retained at 30 hours per week x 42 weeks per annum 33 The Detailed Explanatory Document stated the following in relation to attendance time – Determination of Work Location During the Annual Teaching Period (a maximum of 42 weeks in a calendar year) an Employee: • may be directed by the Employer to attend at a specified work location for a maximum of 30 hours per week; • may determine the location from which they perform their duties for the remaining 8 working hours per week (the Employee-determined Location Hours) but must be available to respond to work colleagues (including their line manager) during those hours; and • may agree to a request by RMIT to attend at a specified work location during the Employee-determined Location Hours but only if such a request is made after the Employee has been employed and the Employee is provided with a reasonable time to gain advice and make an informed decision. 34 The Supplementary Guide issued on 5 December 2018 states the following in relation to attendance times – Work Location Under the proposed Agreement, your duties will be allocated through a Workload Management Plan which must be prepared in consultation with you and must adhere to the various limitations in the agreement relating to hours of work (if you don't agree with your Workload Management Plan, there is also a new procedure for you to raise a dispute). These limitations include that, as in the current Agreement, Teaching Duty Hours may only be rostered over a maximum of 42 weeks in a calendar year. Further, during the Annual Teaching Period, you may only be required to perform duties at a specific location for up to 30 hours per week. Your Workload Management Plan may include work at a particular location outside of the 42 week period (subject to the maximum work hours - normally 1748 per year for full-time employees), if this was determined to be appropriate in consultation with you. For example, your Workload Management Plan might provide for you to attend a professional development course which you wish to undertake at any time (professional development hours have been increased from 30 to 50 per year in the proposed Agreement). 35 Counsel for the AEU submitted that the Proposed Agreement provided no limit on RMIT's power to require an employee to attend for work at a particular location outside the "Annual Teaching Period" referred to in clause 48.1. Counsel submitted that under the Proposed Agreement, employees could be required to attend for a further period of up to 8 weeks per annum, and that therefore the representation that attendance time has been "retained at 30 hours per week x 42 weeks per annum" is misleading. 36 Counsel for RMIT accepted that there were no words in clause 48 of the Proposed Agreement that provided an unqualified protection in the way that clause 37.1 of the 2016 Agreement does, although counsel said that RMIT's view, which remained unexplained to the Court, was that clause 37.1 did not provide that unqualified protection. However, counsel submitted that there was, as a matter of practicality little scope to require an employee to attend the place of work outside the 42 week Annual Teaching Period. That was because first, the Proposed Agreement provided for leave of 6 weeks. In addition, there were 11 public holidays. That left 9 other working days outside the 42 week period. Counsel relied on the new provisions relating to a Workload Management Plan which is to be agreed, and that a comparison between what was in the Proposed Agreement and the 2016 Agreement needed to be evaluated in that light. Counsel referred to the somewhat more detailed explanation about workload management plans in the Detailed Explanatory Document. I understood counsel for RMIT to accept that the negotiation of the workload management plan might lead to attendance being required outside the 42 week teaching period, and to submit that if that was not conveyed accurately in the initial explanatory material, it was conveyed accurately in the Supplementary Guide. Consideration 37 The question before me is whether the AEU has a prima facie cause of action for final relief which, when balanced with other material considerations, justifies an order on an interlocutory basis under s 545 of the Fair Work Act, or s 232 of the Australian Consumer Law, or s 23 of the Federal Court of Australia Act 1976 (Cth) having regard to the principles essayed in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. Counsel for the AEU referred me to Construction, Forestry, Mining and Energy Union v CUB Pty Ltd [2015] FCA 692 where interlocutory orders were made to prevent the declaration of the result of a ballot where it was alleged that misleading representations were made in contravention of s 345 of the Fair Work Act, but to preserve the results by placing them in a sealed envelope. 38 In assessing whether interlocutory relief should be granted, I consider that I should evaluate the representations made by RMIT in their totality, that is, by taking into account all the documents, including Supplementary Guide. 39 In relation to the representations as to superannuation, I have considered the submissions by the AEU that the representations in the infographic poster and the 8 page brochure are misleading because the superannuation entitlements are not "comparable" with other staff because in order to be so, there must be a salary sacrifice. However, I take account of the fact that "comparable" is a term that lacks precision, and invites the comparison that the word suggests. I consider that when the Detailed Explanatory Document is taken into account, the case for the AEU is not strong. My view that the case is not strong is reinforced when the Supplementary Guide is also taken into account: I consider that the claim for relief by reference to the representations about superannuation is weak. 40 I consider that the AEU's case that there have been misrepresentations by RMIT in relation to attendance times is a little stronger. I consider that there is a serious question to be tried as to whether the infographic poster, and the 8 page brochure are misleading by representing that attendance time has been "retained at 30 hours per week x 42 weeks per annum". I consider it arguable that the Detailed Explanatory Document does not do much to ameliorate the force of this representation. It appeared to me that RMIT's position was that the representation in these terms did not reflect the position under either clause 37.1 of the 2016 Agreement, or under the Proposed Agreement. As to clause 37.1 of the 2016 Agreement, RMIT's position was left unexplained. As to the Proposed Agreement, clause 47 introduces three types of work hours: Teaching Duty Hours; Teaching-Related Duty Hours; and Service Duty Hours. Clause 48 provides for the rostering of Teaching Duty Hours in the Workload Management Plan over a maximum of 42 weeks in a calendar year, which is referred to as "the Annual Teaching Period". On its face, it is arguable that is only in respect of the Annual Teaching Period that clause 48.2 provides that an employee may be directed to attend at a specified work location for a maximum of 30 hours per week. However, in considering whether the interlocutory relief sought by the AEU should be granted, I take account of the Supplementary Guide which states explicitly that an employee's Workload Management Plan may include work at a particular location outside of the 42 week period. Fair Work Act, s 345 41 Section 345 of the Fair Work Act provides – 345 Misrepresentations (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. Note: This subsection is a civil remedy provision (see Part 4-1). (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. 42 The term "workplace right" is given content by s 341(1) as follows – 341 Meaning of workplace right Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee—in relation to his or her employment. 43 Counsel for the AEU submitted that the employees' entitlements under the 2016 Agreement and their capacity to vote on the Proposed Agreement were "workplace rights". On the other hand, counsel for RMIT submitted that, by reference to the reasons of Mortimer J in CEPU v Australian Postal Corporation [2017] FCA 1091 there was reason to doubt whether the representations were about workplace rights, or the exercise of those rights. For the purposes of this urgent interlocutory application I consider that there is a serious question to be tried that the representations were about workplace rights, or their exercise. 44 In order to engage s 345 it must be shown that the false or misleading representation was made "knowingly or recklessly". The state of mind required by s 345(1) of the Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 329 [161]. In CEPU v Australian Postal Corporation [2017] FCA 1091 at [257] Mortimer J stated that no authorities have considered the scope or operation of the mental element in s 345. I did not hear full argument on the content of the word "recklessly" in s 345 for the purposes of this urgent application. My preferred view is that what is arguably required is proof of subjective recklessness consistent with criminal law principles: Shop, Distributive and Allied Employees' Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 at 69-70 [86]-[92] (Graham J) (upheld on appeal without consideration of this issue: (2008) 166 FCR 562). See also: Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502 at 552-6 [248]-[279]. However, it may be arguable that an objective element is imported: Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [186]-[199], but noting that Ecosway concerned "reckless" in the different legislative context of s 357(2) of the Fair Work Act, and its legislative history. 45 There is obviously no direct evidence before me to suggest on a prima facie basis that RMIT made the representations "knowingly or recklessly" as to their falsity or misleading nature. Counsel for the AEU relied on the history of the negotiations for the Proposed Agreement and the correspondence between the parties as supporting a submission that the representations were reckless. But for the reasons referred to above, the mental element required by s 345 must focus on a state of mind of some person responsible for the representations, and carelessness or oversight in drafting the material are not the criteria. 46 In relation to the representations about superannuation, I am not satisfied that there is a prima facie case in relation to the required mental element. This is because of the elasticity of the term "comparable", and because of the content of the Detailed Explanatory Document in relation to superannuation, which document militates against any finding that any false or misleading representations were made in the shorter documents with the requisite mental element required to engage s 345 of the Act. In relation to the representations about attendance times, I have doubt as to whether the evidence could arguably support an inference that the impugned representations were made with the requisite mental element, and on the evidence before me, I consider the AEU's case in relation to the mental element required by s 345 to be speculative. Trade or commerce 47 In relation to the claim for contravention of s 18 of the Australian Consumer Law, a central issue that arises is whether the provision of an explanation of terms of the Proposed Agreement ostensibly pursuant to a statutory obligation under s 180(5) of the Fair Work Act can be characterised as conduct of RMIT "in trade or commerce". In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604 Mason CJ, Deane, Dawson and Gaudron JJ stated, in relation to s 52 of the Trade Practices Act 1974 (Cth) – … What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. … 48 In relation to the circumstances of Concrete Constructions, their Honours stated at p 604-5 – The alleged misleading or deceptive conduct of the Company's foreman in the present case consisted of an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building. It follows from what has been said above that that conduct was not, for relevant purposes, conduct "in trade or commerce" and would not, if established, constitute a contravention of s 52 of the Act. … 49 A number of decisions of this Court have considered whether s 18 of the Australian Consumer Law (or its predecessor) may be invoked in relation to conduct pertaining to employment relationships. Many of those decisions were identified by Buchanan J in Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505 at 538-541 [180]-[196]. The cases identified by Buchanan J concerned conduct relating to common law employment rights and obligations arising under contract, rather than conduct of an employer within the statutory framework of the Fair Work Act. After referring to Concrete Constructions, Buchanan J stated at 539 [186] – In my respectful view, it is clear from the earlier part of the judgment that matters arising within an existing employment relationship are unlikely to meet the requirements for the engagement of s 52. 50 However, White J at 565 [347] preferred not to express a concluded view on these issues – I would prefer to reserve to an occasion when it is necessary to do so consideration of the question of whether an employer's statements made to a prospective employee in relation to contemplated employment, or to an existing employee with a view to retaining the services of that employee, may be "conduct which is … an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character" (Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603). I would not wish presently to preclude the possibility that an employer's statements of those kinds may be characterised differently from statements made by an employer in the context of an existing employment relationship concerning the place, manner or circumstances of an employee's work, which are generally thought not to have a commercial character. 51 I was not referred to any authority in which s 18 of the Australian Consumer Law has been held to apply to representations made by an employer to existing employees concerning their workplace rights or their exercise, or concerning the effect of the terms of a proposed enterprise agreement. It might be said that the Fair Work Act proceeds on the premise that the Australian Consumer Law would not generally apply, because s 180(4C) provides that the employer must not knowingly or recklessly make a false or misleading representation in a document required under s 179A of the Act, relating to disclosure of a benefit, and s 345 of the Act makes provision for false or misleading statements about workplace rights. 52 The application for interim relief was heard as a matter of urgency, and necessarily there has not been full argument on the question whether the conduct of RMIT in making the representations was in trade or commerce. Further, these reasons have been prepared under time constraints which have not permitted full consideration of the question. In these circumstances, I am not persuaded, and I have doubt that that the impugned representations made by RMIT in the course of providing existing employees with explanations as to the terms of the Proposed Agreement pursuant to an obligation to do so under s 180(5) of the Fair Work Act are to be characterised as conduct in the course of trade or commerce for the purposes of s 18 of the Australian Consumer Law. I take that doubt into account in evaluating the balance of convenience. Approval by the Fair Work Commission 53 Counsel for RMIT relied on the provisions of the Fair Work Act regulating approval of the Proposed Agreement as a reason for not making the interlocutory orders sought. In particular, RMIT relied on s 186 of the Act which requires the Fair Work Commission to be satisfied that the agreement has been "genuinely agreed" to by the employees covered by the agreement. The term "genuinely agreed" is given content by s 188 of the Act, which requires satisfaction that the employer has complied with the pre-approval steps in s 180(5) of the Act. In turn, that directs attention to whether (inter alia) "all reasonable steps" have been taken by an employer to ensure that the terms of the Proposed Agreement, and the effect of those terms, are explained, and that the explanation is provided in an appropriate manner. RMIT argued, in substance, that if there were any material misrepresentations by RMIT in its explanations of the terms of the Proposed Agreement, then this might be taken into account by the Commission in considering whether s 180(5) of the Act had been complied with. Counsel for RMIT cited a decision of Ross VP (as his Honour then was) in Grocon Pty Ltd Enterprise Agreement (Victoria) (2003) 127 IR 13 at 20-21 [46]-[53]. I agree that Grocon supports the idea that any material misrepresentations in an employer's explanation of the terms of a proposed enterprise agreement might be taken into account by the Commission in determining whether voting on the agreement was properly informed, and that this may bear upon whether the Commission approves the agreement. 54 Counsel for the AEU pointed to the different statutory framework through which the arguments would have to be run at the Commission, and also suggested that if the arguments were left to that stage, it might be productive of further delay if the arguments were accepted and the Commission did not approve the Proposed Agreement. Balance of convenience 55 Counsel for the AEU submitted that the balance of convenience favoured the interlocutory order sought. Counsel submitted that if voting proceeded, voting might take place on the basis that employees are confused about their entitlements, and vote on a false premise. Any prejudice thereby suffered could not be remedied by a compensation order. 56 In addition to arguments about the strength of the AEU's case for final relief, counsel for RMIT pointed to other factors, the principal one being that having regard to the time of year, and the fact that staff will shortly be on leave, it would not be practicable to have another vote until after Australia Day in the new year, and that this will lead to delay in the Proposed Agreement commencing, assuming it is accepted. There is also the prospect that if the vote does not proceed, the employees will not commence to receive increased remuneration from the first pay period after 1 February 2019, which is a term of clause 17 of the Proposed Agreement. conclusions 57 The application for interlocutory orders was well argued by counsel for the AEU. However, for a combination of reasons I am not persuaded to make the interlocutory orders that are sought. 58 In relation to the representations about superannuation entitlements, for the reasons referred to at [39] above I am not satisfied that there is a good prima facie case. In relation to the representations about attendance times, I consider that the Supplementary Guide, which was issued before voting commenced, goes a considerable way towards ameliorating any misleading statements in the explanatory material. 59 Looking at the question of final relief overall, the above considerations must be evaluated together with the doubts that I have about whether the evidence supports an arguable case as to the mental element required by s 345 of the Fair Work Act, and the doubts that I have expressed as to whether the conduct of RMIT was in trade or commerce for the purposes of s 18 of the Australian Consumer Law. Such difficulties do not arise if the representations are relied upon by the AEU before the Fair Work Commission to support an argument that the Proposed Agreement should not be approved. I take account of the Commission's ability to evaluate the explanatory material in its consideration of whether to approve the Proposed Agreement. 60 I also take account of the fact that the AEU has had an opportunity to communicate to its members any concerns it has about the Proposed Agreement, and indeed I was informed that the AEU is conducting a "No" campaign. I also take into account that any order of the Court terminating the voting process may have the effect that payments of increased remuneration to employees may not occur from February 2019, as contemplated by clause 17 of the Proposed Agreement. 61 An order of the Court which is tantamount to requiring that voting be terminated has a mandatory element to it. While a vote could be conducted again in the new year, I am not persuaded in all the circumstances that I have identified above that, after evaluating the balance of convenience, such an order should be made. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan. Associate: Dated: 10 December 2018