Hughes ats Mainrange Corporation Pty Limited [2009] FMCA 1025 (9 October 2009).

This decision of Federal Magistrate Lucev gives some guidance concerning legal representation in cases heard under the small claims procedures found in the Fair Work Act, 2009 (Cth).  The court said that this was the first occasion on which the right to appear by a lawyer under the small claims procedures had arisen. [2]  In particular, the provision dealing with lawyers under small claims procedures is s 548(5) and (6), which reads,

 “(5) A party to small claims proceedings may be represented in the proceedings by a lawyer only with the leave of the court. 

(6) If the court grants leave for a party to the proceedings to be represented by a lawyer, the court may, if it considers appropriate, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.”

The reason advanced as to why a lawyer ought to be permitted to represent his client in these proceedings, was to object to the jurisdiction of the court.  In that regard, the Magistrate was persuaded to permit the representation. This was because there was a pure legal issue to be determined. The court said “for better or worse” it might be assisted by a lawyer by reason of training, expertise, and assistance by way of argument and research to be provided to the court. [2]. Leave was also granted to the other side, should they so wish to be represented by a lawyer.  Further, any determination, if jurisdiction was found, to permit a lawyer to continue to appear would be determined later.

* Henry VI, Part 2, Act 4, Scene 2, 71-78 – Shakespeare.

Australian Maritime Officers Union ats Sydney Ferries Corporation, [2009] FCAFC 145 (15 October 2009).

 A unanimous decision of the Full Court of the Federal Court has upheld an appeal in relation to whether income protection provisions contained in a Workplace Agreement were prohibited content.  The Judge below found they were, and as a consequence the provision did not apply.  The provision related to the Workplace Agreement, which bound the Sydney Ferries Corporation with its Maritime Officers.  In accordance with the Agreement, Sydney Ferries agreed:

 “To insure its Maritime Officers for income protection insurance for long term illness and injury equivalent to 75% of his/her salary after a three month qualifying period commencing as soon as practicable after the lodgment of the Agreement.”  [1]. 

 Sydney Ferries did not honour the Agreement which it had made, and pleaded in its defence, that the relevant term under consideration contained “prohibited content” which could be identified by regulation (s 356(1)(f) of the Workplace Relations Act 1996).  The union appealed, and strange to relate the employer, which had been successful below, did not appear at the appeal and lamentably was not able to act as a contradictor to the Appellant’s submissions [6]-[7].

 The Full Court analysed a number of High Court decisions which related to whether or not a particular claim could sit within an industrial dispute, in that the claim needed to pertain to the relations of employer to employee.  In order to uphold the appeal, the Full Court relied upon the High Court decision of Re Manufacturing Grocers’ Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341 and relied upon what was said at 353 being:

 “For present purposes, it is sufficient to say that a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee in a way which is direct and not merely consequential for it to be an industrial matter capable of being the subject of an industrial dispute.”

 The Full Court found that:

 “A matter of considerable importance is that the agreed term provides a benefit to employees during their employment, even though it might also generate a benefit to them after employment has ceased.  No obligation is imposed on SFC (Sydney Ferries) or any immediate right created for employees, outside the period of employment.  Even a post-employment benefit would depend upon the happening of an entitling event (accident, injury or illness) during a period when a policy was enforced – that is during employment pursuant to an agreed obligation to pay the necessary premiums.”  [19].

 The Full Federal Court was at pains to note that this income protection case was not one in which they intended to lay down any general rule and each matter must depend upon its own circumstances.  [8]. The employees of the Sydney Ferries Corporation who must have one of the best jobs in the country, daily plying Sydney Harbour have had a good win.

* Thank you to Chris de Burgh.

Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 599 (12 October 2009).

A Full Bench of Fair Work Australia comprising Senior Deputy President Acton, Deputy President Hamilton and Commissioner Blair have for the first time by a Full Bench, made a determination that an employer is sufficiently interested in an application for a protected action ballot made under the Fair Work Act 2009 (the Act) and that it can be heard not only below, but also on appeal.

This case dealt with the appeal against Orders, which had been made by Senior Deputy President Drake, which she issued providing for a protected action ballot for employees of Australia Post being members of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

The CEPU had made applications pursuant to s 437 of the Act for protected action ballots to be conducted.  The Act provides for immunity for industrial action, should it be protected action after the holding of a  sanctioned  ballot.  At common law, strike action is unlawful and can be either in breach of contract (see Gapes v Commercial Bank of Australia Ltd (1980) 41 FLR 27 at 33) or a tort.  The encouragement of strike action can be a tort under the rubric of an economic tort of conspiracy, intimidation or interference with contractual relations (see generally Macken’s  Law of Employment, 6^th  Edition,Thomson Reuters, 2009, Ch 13 “Industrial Torts” and the commentary therein regarding a recent House of Lords’ trilogy of cases being Douglas v Hello! Ltd [2005] EWCA Civ 595; Mainstream Properties Ltd v Young [2007] UKHL 21; OBG Ltd v Allen [2008] 1 AC 1). 

The decision at first instance had permitted Australia Post to be heard in relation to one aspect of s 437, that is whether the CEPU had been or was still genuinely trying to reach an agreement with Australia Post.  However, the employer was not permitted to be heard in relation to other matters (at [20]).  The Full Bench said that as a matter of natural justice or procedural fairness, Australia Post, as an employer, had a right to be heard, not only with respect to the matter in which it was permitted to be heard, but also, whether the applications were lawfully made under s 437 of the Act (at [21]). The real issue in relation to the proceedings before the Tribunal was the CEPU’s claim in relation to the use of contractors (at [51]). 

Permitted matters under the Act dealt with the employer/employee relationship.  The Full Bench referred to the decision of Justice French in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2004) 138 IR 362 at [109] in which it was held that a claim about contractors, either restricting or qualifying the employer’s right to use them, were not matters pertaining to the employment relationship. As a consequence, a jurisdictional prerequisite for the approval of a protected action ballot under s 437 had to be one pertaining to the employer/employee relationship.  Accordingly, the decision below was in error and was quashed (at [61]).

Further, given the authority in the Wesfarmers case, the Full Bench found that the CEPU could not have reasonably believed the claim in respect of contractors, which it had been pursuing, was a statutorily permitted matter, and consequently the CEPU could not therefore be genuinely trying to reach an agreement.

This case provides an important direction for applications such as this and allows the employer to be involved by way of submissions and if necessary, evidence concerning such ballots seeking protected action for industrial disputes.

*Night Mail by W.H. Auden

Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120 (10 September 2009)

A Full Court of the Federal Court comprising Goldberg, Jacobson and Tracey JJ has overturned a decision of a single Federal Court Judge on the question of the appropriate penalties to be imposed upon a union and a number of its officers in relation to coercive conduct done contrary to the Building and Construction Industry Improvement Act 2005 and the Workplace Relations Act 1996.

The purpose of the contravened sections of the two Acts, was to prevent coercive conduct intended to prejudice employees and employers who elected to have their relationship regulated by industrial instruments of their choosing.  The union sought to prevent employees engaged under Australian Workplace Agreements (AWAs) from working on a site on which some of its members were employed.  It was not prepared to encounter such a possibility and was prepared to, and did, resort to unlawful coercive conduct to prevent it (at [90]).

The unions and three of its officers who were charged with breaches of ss 43 and 45 of the Building and Construction Industry Improvement Act and s 298P(3)(a) of the Workplace Relations Act, pleaded guilty, and the determination for the primary Judge was the assessment of penalty.  The Full Court found that the discretion of the Trial Judge miscarried in a number of regards so as to satisfy the well known test stated in House v The King (1936) 55 CLR 499.  The union and its organisers had successfully attempted to have a construction company no longer to use the services of a sub-contractor who had employed its workers under an AWA.  The construction company had earlier pleaded guilty and had been fined in relation to its role in terminating its relationship with the sub-contractor.

This case provides an excellent explanation as to the factors relevant in considering penalties to be imposed upon coercive industrial action contrary to the relevant industrial legislation.  The trial judge had erred in assessing the penalties in relation to what was thought to be one unlawful act, whereas the Full Court found that many unlawful acts had to be considered in relation to the entire course of conduct.  Secondly, the trial judge had failed to have regard to the full history of previous contraventions by the union in relation to similar legislative provisions.  The trial judge had erred in relation to contrition, and in fact the Full Court found that the union had expressed no contrition for its conduct (at [94]).  The trial judge had assessed the seriousness of the offence by the union as less serious than the behaviour of the construction company.  In that regard, the Full Court seriously diverged in its opinion from that of the trial judge.  It did not accept that the construction company’s conduct was as serious as the union’s, much less that it was more serious.  The Full Court found that the construction company’s behaviour would not have occurred, had not the union been the moving party and had not its conduct negated the choice of the construction company (at [77]). 

Also rejected was a submission that the officials were merely pursuing and conducting themselves in accordance with the union policy.  In that regard, the following was said (at [85]):

“A union is free to adopt any policy which its elected officials and members considered to be appropriate from time to time.  The union is also free to pursue and implement such policies by lawful means.  What is not permissible is the pursuit of policy objectives by means, which are unlawful.  If officials or members of a union act unlawfully, it cannot be asserted in mitigation, that the persons concerned were seeking to achieve ends, which the union wished to pursue.  The end does not justify the means.”

In increasing the fine against the union, the Court had regard to the principle of parity in relation to the sentence imposed upon the construction company.  In allowing the appeal in part, the Full Court increased the fine against the union from $18,000 to $50,000.  In relation to the individual respondents, the trial judge’s orders were set aside and significantly increased penalties were imposed upon each of the officials. 

In conclusion, the Full Court stated that it agreed with the judge’s conclusions in relation to specific and general deterrence, being significant considerations when fixing penalties for contraventions of such statutory provisions.  The Full Court stated, “Penalties will serve as deterrent only if they are fixed at a meaningful level” (at [89]). When one considers the size of these penalties, it is little wonder that there are a number of unions seeking to have the Building and Construction Industry Improvement Act rescinded and the powers of the Inspectors of the Australian Building and Construction Commission removed.

Construction, Forestry, Mining and Energy Union (NSW Branch) and Macquarie Generation [2009] NSWIRComm160 (30th September 2009)

The Full Bench of the Industrial Relations Commission of NSW comprising Walton J, Vice-President; Sams DP, Stanton C, has handed down a statement setting out the resolution of a lengthy, complex industrial dispute by the IRC using what has become colloquially known as the “BlueScope Model”. The BlueScope Model had its origins in proceedings some years ago which were successful in settling a lengthy industrial dispute in the Steel Industry. (See Re Notification under s.130 by the Minister for Industrial Relations of a Dispute between BHP Billiton and the Australian Workers’ Union (NSW) & Ors Re Proposed Strike Action. [2002] NSWIRComm 378). Justice Walton who conducted that case identified that the BlueScope process requires the agreement of the parties to step outside the normal conciliation and arbitration provisions of the Industrial Relations Act (NSW). It requires the parties to have the industrial dispute adjudicated within the context of the conciliation proceedings at the conclusion of which, should an agreement not be reached, a recommendation will be made by the Bench which will be binding. In doing so, the Commission will take into account concessions made during the conciliation process. It will also take into account the evidence called by parties within the conciliation process and their submissions both written and oral. In the BHP case, Justice Walton set out the procedure in paragraphs [11] through to [20] inclusive. Over a period, the process has been refined. In particular, in Operational Ambulance Officers (State) Award & Ors [2008] NSWIRComm 168 (12 September 2008), the Full Bench said this about it:

“[9] The process, in the strict sense, is evidence based. As the parties in these matters have experienced first hand, the process requires a rigorous and robust examination of the issues raised in the proceedings. The resolution of issues in a sequential fashion by agreement or by the giving of an ex tempore Recommendation by the Commission, is an intensive process with the Commission’s consideration of a particular matter being sharply focussed (and sometimes involving an inquisitional aspect), but subject always to the evidence or relevant concessions made by the parties. It is no less a rigorous analytical process than the traditional courtroom based public processes which have guided the Commission and the parties over the years, albeit there is a significantly different methodology employed. That approach is not designed to displace such processes, but represents an alternative methodology which may be employed in suitable cases within the scope of the Commission’s conciliation and arbitration powers.”

The process in the CFMEU v. Macquarie Generation case involved a considerable amount of interaction between the members of the Bench, the advocates and those who supported them. The Commission called for a bundle of documents to be prepared by the parties being all documents which the parties respectively and jointly believed to be important. This particular case which started out as a training dispute in the power generation industry, had followed the normal processes before the Commission of conciliation and arbitration, decision and then an appeal. That process had taken over two years. The appeal itself, whichever way it went, would not have resolved the underlying industrial dispute. It was the underlying industrial dispute which became a part of the BlueScope process which took only about eight weeks from start to finish.

The documents were filed some days before the case, somewhat akin to an appeal book. It was apparent that the Bench had clearly read the papers closely and challenged the advocates in relation to aspects of the material. The Bench refused to let the parties go off on irrelevant matters and continually brought them back to the real issues. Matters tangential to the dispute were disposed of and the parties were forced to focus upon not only what divided them but also how to improve the overall industrial regulation at the two power stations run by Macquarie Generation.

The result was an entirely new classification structure combining the work of a number of different classifications. Previously, the work of the different classifications was subject to demarcation lines. The outcome provided for higher earnings and a significantly enhanced training and career path opportunities for a broader group of employees. The new career structure abolishes the demarcations of the past and will provide more interesting work for this group together with benefits to the employer in being able to utilise trained, available staff without reference to ancient demarcation limits.

The BlueScope Model has been used successfully in a number of cases in addition to the ones mentioned above such as New South Wales Health Professionals (State) Award [2007] NSWIRComm 300; Crown Employees (NSW Fire Brigades Permanent Fighting Staff) Award [2008] NSWIRComm 174 and Crown Employees (Public Sector – Salaries 2008) Award [2008] NSWIRComm 193.

The case proves the on-going effectiveness and relevance of the NSW Industrial Relations Commission. This is despite the body blow dealt to the Commission by the WorkChoices legislation and its push for a unitary industrial relations system. There is a profound degree of experience within the NSW Industrial Relations Commission of New South Wales for resolution of such disputes. Its processes are less complicated than the federal system and its personnel have a deeper historical connection to a range of important industries. The success of the BlueScope Model as used here suggests there is a lot of life left at 47 Bridge Street. The Phoenix rises.