Electrical Trades Union of Employees Queensland & Ors v Brisbane City Council [2017] QIRC 90

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Electrical Trades Union of Employees Queensland & Others v Brisbane City Council [2017] QIRC 090 PARTIES: Electrical Trades Union of Employees Queensland (first applicant) and Construction, Forestry, Mining & Energy, Industrial Union of Employees Queensland (second applicant) and Automotive, Metals, Engineering, Printing & Kindred Industries Industrial Union of Employees, Queensland (third applicant) v Brisbane City Council (respondent) CASE NO: B/2017/41 PROCEEDING: Application for declaration and injunction DELIVERED ON: 10 October 2017 HEARING DATE: 9 October 2017 MEMBER: Deputy President D L O'Connor ORDERS : 1. Until the hearing and determination of this matter, or further order of the Commission, the respondent, by itself, its servants or agents refrain from conducting the ballot of employees in relation to the approval of the proposed bargaining instrument being EBA9. 2. This matter be adjourned to 2pm on Tuesday 17 October 2017 for directions. CATCHWORDS: INDUSTRIAL RELATIONS – INTERLOCUTARY INJUNCTION – whether ballot for employees to -- 1 of 10 -- 2 approve proposed bargaining instrument should be restrained – where alleged non-compliance with s 171 of the Industrial Relations Act 2016 – definition of "negotiating parties" – definition of "the" – whether serious question to be tired – whether balance of convenience LEGISLATION: CASES: Acts Interpretation Act 1954, s 14A Industrial Relations Act 2016, s 163, s 168, s 171, s 451, s 463, s 473, s 474 Australian Alliance Assurance Co Ltd v Attorney- General (Qld) [1916] St R Qd 135 Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane city Council [2017] QIRC 087 Maunsell v Olins [1975] AC 373 McDermott Australia Pty Ltd v Australian Workers’ Union [2011] FCA 303 Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 The King v The Licensing Justices of Nanango, Ex parte Watson [1914] St R Qd 24 Transfield Construction Pty Ltd v AFMEPKIU [2002] FCA 1413 APPEARANCES: W L Friend QC, instructed by Hall Payne Lawyers, for the applicants A Herbert, instructed by Brisbane City Legal for the respondent Reasons for Decision [1] On 7 October 2016 the Brisbane City Council Certified Agreement 2013 (EBA8) - CA/2013/68 passed its nominal expiry date. On 12 October 2016 the unions ("combined unions") who would be party to the replacement certified agreement ("EBA9"), including the applicants in this matter, wrote collectively to the respondent. In a reply dated 14 October 2016 the respondent provided the combined unions with a Notice of Intention to Commence Bargaining. From 25 October 2017 until August 2017 bargaining meetings -- 2 of 10 -- 3 occurred between the respondent and the combined unions on an almost weekly basis, with a four week break occurring over the Christmas and New Year period. [2] The Industrial Relations Act 2016 came into effect on 1 March 2017. The new Act allowed for the making of a "Scope Order" which might, in effect, cause an agreement to be divided into smaller agreements made between the employer and a smaller group of workers. There were four such applications made in late March 2017, one by each of the applicants in the current matter and an additional application filed by the Australian Workers' Union of Employees, Queensland. The Scope Order applications were heard together on 21 and 22 August and 1 September 2017. [3] On 4 September 2017 the respondent wrote to the combined unions and informed them that it would conduct a ballot for EBA9. In that letter the respondent states that the "ballot will be open for an almost 3-week period (19 September 2017 to 6 October 2017)." The letter went on: "The ballot will be conducted by an independent ballot company – Cirrena IVS." In response, and on the same day, the combined unions each separately filed a Notice of Industrial Dispute at the Industrial Registry. [4] On 5 September the respondent commenced information sessions about the proposed employee ballot for EBA9. On the same day, all parties to EBA9 attended a conference before Deputy President Bloomfield where they agreed to engage in voluntary conciliation. [5] On 6 September 2017, the respondent agreed to cease holding information sessions about the EBA9 ballot and the unions agreed to suspend protected industrial action which had been ongoing for some months. Deputy President Bloomfield held a number of conciliation conferences over the next few days. [6] On 15 September 2017 each of the Scope Order applications was dismissed by a Full Bench of this Commission. Deputy President Bloomfield recommenced voluntary conciliation on 22 September 2017. At that conciliation there was not a consensus on the terms of the agreement; the applicants were awaiting the reasons for the Full Bench's Scope Order decision; the respondent, believing that negotiations would no longer be fruitful, advised the combined unions that it would proceed to a ballot. [7] The reasons for the Full Bench's Scope Order decision were published on 27 September 2017.1 [8] On 28 September 2017 the respondent wrote to the combined unions advising them of the details of the ballot, a copy of the agreement, the subject of the ballot, was also attached. 1 Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland and Others v Brisbane city Council [2017] QIRC 087. -- 3 of 10 -- 4 [9] Information sessions about the ballot for the respondent's employees were recommenced on 3 October 2017 and were to continue until 13 October 2017. On 3 October the respondent wrote to the representative of the applicants in this matter and advised that negotiations had ceased and that the respondent would be withdrawing from any further negotiations regarding the content of the proposed agreement. [10] The applicants in this matter sought a declaration and injunction from this Commission on 5 October 2017, a hearing was set down for 9 October 2017. The application sought the following relief: a. A declaration pursuant to section 463 of the Industrial Relations Act 2016 (the Act) that the applicants are negotiating parties within the meaning of s. 171 of [the Act] for the purposes of the bargaining instrument proposed by the [respondent]. b. A declaration pursuant to section 463 of the Act that [the respondent] may not request its employees to vote on a proposed bargaining instrument that is not proposed by all of [the] negotiating parties in accordance with section 171 of the Act. c. Further [and/or] alternatively, a declaration pursuant to section 463 of the Act that [the respondent] may not request its employees to vote on a proposed bargaining instrument that misrepresents that the applicant supports or is agreeable to the terms of the proposed bargaining instrument when it is not. d. An injunction pursuant to section 474 of the Act restraining [the respondent] from requesting its employees to vote on any proposed bargaining instrument that are not proposed by all of the negotiating parties. e. Further [and/or] alternatively, an injunction pursuant to section 474 of the Act restraining [the respondent] from requesting its employees to vote on any proposed bargaining instrument that misrepresents that the applicant supports or is agreeable to the terms of the proposed bargaining instrument when it is not. f. An order, pursuant to s. 451 of the Act, that, pending the hearing and determination of this matter or further order, the respondent be restrained from taking any further steps to have the proposed bargaining instrument voted on by employees. g. Such further or other orders as the Commission considers appropriate." (Errors in original) " -- 4 of 10 -- 5 [11] It is proposed, by the respondent, that the ballot opens on 13 October 2017 and closes on 23 October 2017. [12] Counsel for the applicants, Mr Friend QC, informed this Commission that it would only be seeking an order in the form of 'f.', above, in the interim. The Granting of Interlocutory Relief [13] The principles relevant to the grant of interlocutory relief by the Commission have been well ventilated. In McDermott Australia Pty Ltd v Australian Workers’ Union the principles were set out as follows: "(a) whether there exists a prima facie case; in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief. It is to be recalled that the test does not require that the Court reach a determination that it will be more probable than not that the applicant for an injunction will succeed at trial but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and (b) whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the respondent would suffer if an injunction were granted."2 (Citations omitted) [14] Merkel J in Transfield Construction Pty Ltd v AFMEPKIU wrote: "[T]he traditional reluctance of the Court to make interlocutory mandatory orders, including ordering employees to return to work, may not apply to conduct which, prima facie, is in breach of the Act."3 (Citations omitted) [15] Mr Friend QC referred the Commission to the decision of the Full Court of the Federal Court in Samsung Electronics v Apple.4 In that case, the Full Court wrote: "As Sundberg J observed in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 at [15] (p 342), when considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the 2 McDermott Australia Pty Ltd v Australian Workers’ Union [2011] FCA 303, [24]. 3 Transfield Construction Pty Ltd v AFMEPKIU [2002] FCA 1413, [28]. 4 Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238. -- 5 of 10 -- 6 balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance."5 (Citations omitted) [16] The applicant argues that the bargaining instrument may only be given to employees for approval with the agreement of all of the negotiating parties. "Negotiating Party" is defined in s 168 of the Act as a person who is negotiating under Chapter 4 of the Act. Until recently there was no question about the parties' status as negotiating parties. The applicants' construction of the relevant provisions of the Act requires that all negotiating parties must propose to make the certified agreement. That construction derives from s 171(1), which is in the following terms: "171 Proposed bargaining instrument to be given to employees for approval (1) This section applies if, during negotiations under this chapter, the negotiating parties propose to— (a) Make a certified agreement…" [17] The construction adopted by the applicant is premised upon the use of the plural "negotiating parties" and the definite article "the" in s 171(1). [18] Mr Herbert on behalf of the respondent submits that "the" in s 171 of the Act is not critical and is not intended to mean "all of" the negotiating parties. Rather, in his submission, "the" allows for a more flexible reading of the provision through, effectively, reading in the words "some of". In support of that contention, the respondent made reference to the Explanatory Memorandum in relation to the Industrial Relations Bill 2016. The memorandum relevantly states: "Clause 171 sets out what must happen if during negotiation parties propose to make a certified agreement (other [than] an excluded instrument) or a bargaining award, including providing a copy or access to a copy of the proposed bargaining instrument to employees. The clause also provides that if an employee asks an employee organisation to represent him or her, the employer must give the organisation reasonable opportunity to represent the employee in negotiating with the employer."6 [19] Mr Herbert argues that the Explanatory Memorandum supports the conduct of a ballot by the respondent. It is not immediately obvious that the memorandum in relation to s171 supports such a construction. 5 Ibid 261 [67]. 6 Explanatory Memorandum, Industrial Relations Bill 2016 (Qld), 38. -- 6 of 10 -- 7 [20] The Applicant drew the Commission's attention to the following extract from the Explanatory Memorandum: "Clause 163 provides that collective bargaining, in good faith and with a view to reaching agreement is the primary basis for deciding wages and employment conditions. Further, it provides where agreement cannot be reached, that the commission can help the parties reach agreement or if not, reduce the matters in dispute, and arbitrate the matter if conciliation is not successful. This clause provides that the negotiating parties may make an agreement and apply to the commission for it to be certified, or, in certain circumstances, apply for the making of a bargaining award and the revocation of the modern award that covers the negotiation parties."7 [21] Whilst s 163 of the Act does not create any rights it does nevertheless set out the purpose of Chapter 4. Section 163 relevantly provides: "163 Purpose of chapter The purpose of this chapter is— (a) to facilitate collective bargaining by employees and employers, in good faith and with a view to reaching agreement, as the primary basis under this Act on which wages and employment conditions are decided; and (b) if the negotiating parties can not reach agreement, to provide for the commission to— (i) help the parties reach agreement or, if agreement can not be reached, reduce the matters in dispute; and (ii) arbitrate the matter if conciliation is not successful; and (c) if the negotiating parties reach agreement, to enable the parties to— (i) make an agreement and apply to the commission for the agreement to be certified; or (ii) in particular circumstances, apply to the commission for the making of a bargaining award and revocation of the modern award that covers the negotiating parties; and 7 Explanatory Memorandum, Industrial Relations Bill 2016 (Qld), 37. -- 7 of 10 -- 8 (d) to recognise the right of negotiating parties to take protected industrial action, if particular requirements are satisfied, as part of the collective bargaining process." [22] The construction adopted by the applicants appears to me to be consistent with the scheme of Chapter 4 of the Act. [23] The meaning of a word as general as "the" can only be established by considering the context in which it appears. As Lord Simon of Glaisdale said in Maunsell v Olins: "Statutory language, like all language, is capable of an almost infinite gradation of `register' - i.e., it will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc.). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances."8 [24] Further, s 14A of the Acts Interpretation Act 1954 provides: "(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation." [25] In Australian Alliance Assurance Co Ltd v Attorney-General (Qld) it was said that the: "…sections of a statute must be construed so as to make the statute a consistent and harmonious whole; and, 'if after all, it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail.'"9 (Citation omitted) [26] Mr Herbert further submitted that the applicants were not negotiating parties for the purposes of s 171. His submission was based upon the contention that nothing more could be achieved by continuing to negotiate with the applicant unions. [27] In the respondent's letter of 3 October 2017 Mr Luke Cruwys in dealing with the applicants assertions in relation to s 171 of the Act writes: 8 Maunsell v Olins [1975] AC 373, 391. 9 Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R Qd 135, 161, citing The King v The Licensing Justices of Nanango, Ex parte Watson [1914] St R Qd 24, 33. -- 8 of 10 -- 9 "Your letter also asserts that a ballot cannot be held now as your clients do not agree to the current form of the agreement. Your clients refused to participate properly or genuinely in the negotiation process facilitated by the QIRC, and have indicated that they want no part of an agreement in its current form. Council has no intention of departing from the terms of that negotiated instrument, and is of the view that there is no point or purpose to any further discussions or negotiations with each of your clients. Accordingly, Council now formally withdraws from any further negotiations with each of your clients, and will not engage further with either of your clients as to the content of the proposed agreement, until further notice. As such Council considers that your clients are not 'negotiating parties' within the defined meaning of that term in the Act, and that s171 does not apply to your clients so as to permit them to frustrate the ballot process presently underway." [28] It is questionable whether the respondent can unilaterally determine whether a party is or is not a "negotiating party" for the purposes of the Act. [29] The material before the Commission suggests that the applicants were, at the commencement of the ballot process, negotiating parties. It was not until 3 October 2017 that the respondent purportedly gave notice to the applicants that they no longer intended to negotiate with them in relation to the proposed bargaining instrument. [30] The applicants submitted that the respondent must negotiate with the applicant unions and cannot exclude them from the process. Reference was made to the Minister's Second Reading Speech in which she said: "Our bill's collective bargaining model supports the primacy of collective bargaining and the right to be represented in bargaining and has been drafted to ensure that the collective representation through an industrial organisation cannot be sidestepped."10 [31] The submission of the applicants, if correct, would mean that s 171 of the Act has not been complied with and any purported reliance on that provision to seek approval of the employees of the bargaining instrument by way of ballot would not be permitted by the Act. [32] In my view, the applicants have established a serious question to be tried. 10 Queensland, Parliamentary Debates, Legislative Assembly, 30 November 2016, 4771 (Grace Grace). -- 9 of 10 -- 10 Balance of Convenience [33] The applicants submit that should the ballot proceed on 13 October 2017, they will be put to significant trouble and cost in order to mount a "No" campaign against the proposed bargaining instrument and if they are correct in their interpretation of s 171 then those resources will have been wasted and the process recommenced. [34] The proposed bargaining instrument identifies the applicants in Schedule 1 as the unions who may be a party to the proposed agreement. It was argued that the terms of the bargaining instrument are such as to potentially confuse or mislead employees to consider that the applicant parties support or agree to the terms of the proposed bargaining instrument. [35] In relation to the prejudice to the respondent, Mr Herbert made a number of submissions, most of which were not supported by any evidence. It is possible to glean from the correspondence of the respondent that they have engaged the services of Cirrena IVS, an independent provider to undertake the ballot. However, there is no evidence before the Commission to demonstrate that the failure to conduct the ballot as proposed would incur significant cost. Indeed, the ballot has been delayed before with no demonstrated prejudice to the respondent. Whilst one could assume that there is likely to be some cost associated with the ballot, the affidavit of Luke Cruwys filed on behalf of the respondent makes no reference to any prejudice that would be suffered by the respondent. [36] Whilst it is accepted that if the injunction is granted there will be some delay, the nature of the matter is such that the ultimate determination is essentially one of statutory interpretation with no disputed facts. In those circumstances it can be reasonably anticipated that the matter can be set down for hearing and determined in a relatively short period of time. [37] I have concluded that the balance of convenience favours the applicants. Conclusion [38] The relevant strength of the applicants' case and the lack of any demonstrated prejudice to the respondent does, in my view, justify the granting of the injunction. Accordingly, I make the following orders: 1. Until the hearing and determination of this matter, or further order of the Commission, the respondent, by itself, its servants or agents refrain from conducting the ballot of employees in relation to the approval of the proposed bargaining instrument being EBA9; and 2. This matter be adjourned to 2pm on Tuesday 17 October 2017 for directions. -- 10 of 10 --