WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00166

DELIVERED : THURSDAY, 6 MARCH 2014

FILE NO. : M 188 OF 2013

 APPLICANT

AND

Director General Department of Transport

RESPONDENT

Catchwords : Alleged breach of clause 36(6) of the Public Service Award 1992; Application pursuant to sections 83(5) and 83(7) of the Industrial Relations Act 1979 seeking an interim order preventing contravention of the Public Service Award 1992.

Legislation : Industrial Relations Act 1979, sections 83(1), 83(5), 83(7), 80E and 80I

Public Sector Management Act 1994, sections 78, 80, 81, 82A

Instruments  : Public Service Award 1992, clause 36

Cases referred to

in Judgment : Ruth Mary Hart-Roach v Neil Cady and Jewell House (YMCA) [2011] WASC 90

Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425

Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464

Commissioner of Fair Trading v Holz [2005] WASC 202

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

Films Rover International Ltd v Cannon Film Sales Ltd [1987]      1 WALR 670

Madaffari and Anor v Labenai Nominees Pty Ltd [2002] WASC 67

Castlemaine Tooheys Ltd v The State of South Australia         [1986] HCA 58; (1986) 161 CLR 148

Result : Application granted; Order made

Representation

Applicant : Mr D Wayda appeared as agent for the Applicant

Respondent : Mr S Barrett appeared as agent for the Respondent

REASONS FOR DECISION

Background

1         On 20 December 2013 The Civil Service Association of Western Australia Incorporated (CSA) lodged its Claim in this  matter alleging that the Director General of the Department of Transport (DoT) had failed to comply with Clause 36(6), of the Public Service Award 1992 (the Award).  The allegation is denied.

2         Clause 36(6) of the Award provides:

“The employer recognises that it is paramount that union representatives in the workplace are not threatened or disadvantaged in any way as a result of their role as a union representative.”  

3         The DoT employs Anthony Bodinner as a motor vehicle assessor.  Mr Bodinner is a member of the CSA and at all material times was the CSA’s delegate at the DoT’s workplace.

4         For most of 2013 the CSA was involved in a campaign against outsourcing of service delivery arrangements managed by the DoT. Between 5 and 7 November 2013, Mr Bodinner and other staff members at the DoT’s workplace received a series of emails from management concerning the suspension of a DoT client.  The client had been suspended from conducting vehicle inspections.  It is not in dispute that soon after having received those emails Mr Bodinner sent copies of them to the CSA.  He did so as a union delegate in order to assist the CSA in its campaign.  The CSA then sent those emails to the The West Australian newspaper. The emails then became the subject of a newspaper article published on 16 November 2013. The DoT contends that the emails sent by Mr Bodinner were confidential.  The CSA denies their confidentiality.

5         On 22 November 2013, the Director General of the DoT alleged that Mr Bodinner had committed a breach of discipline by disclosing confidential information to the CSA. On 12 December 2013 the CSA, on behalf of Mr Bodinner, disputed that assertion and claimed the protection of clause 36(6) of the Award.

6         On 16 December 2013 the Director General of the DoT advised Mr Bodinner that he had appointed a person to conduct an investigation under Part 5, Division 3 of the Public Sector Management Act 1994 (the “PSM Act”) to inquire into whether Mr Bodinner had committed an act or acts of misconduct.

7         On 12 February 2014 the Director General of the DoT wrote to Mr Bodinner to inform him that the investigator had concluded his investigation and that it had been found that breaches of discipline had occurred.  The identified breaches were: 

1. the disclosure of confidential information to the CSA on two occasions on 8 November 2013; and
2. the publication on Saturday, 16 November 2013 of an article in The West Australian newspaper. 

8         In the same letter, he informed Mr Bodinner that he intended to take disciplinary action against him only in respect to the disclosure of confidential information.  Mr Bodinner was advised that subject to any submissions that might be made by 26 February 2014, the following outcome would eventuate:

“(a) Improvement action (one on one training); and

  (b) A reprimand.”

9         At the commencement of the hearing of this Application I was informed that the Director General of the DoT had extended the deadline for submissions until after the determination of this Application.

The Application

10      The CSA asserts that because Mr Bodinner acted as a union representative he is now subject to the DoT’s disciplinary proceedings which threatens his job security and causes him disadvantage. The CSA’s Claim is made under section 83(1) of the Industrial Relations Act 1979 (the IR Act) for the enforcement of Clause 36(6) of the Award.

11      Section 83(7) of the IR Act provides:

“An interim order may be made under subsection (5) pending final determination of an application under subsection (1).”

12      Relevantly, section 83(5) of the IR Act provides:

“If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in sub section (4) the industrial magistrate’s court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.”

13      On 11 February 2014, the CSA, pursuant to section 83(7) of the IR Act, made an Application for the following interim order:

“that the Respondent cease  all disciplinary processes against Mr A Bodinner in relation to clause 36 of the Public Service Award pending determination of the Originating Claim...”

14      The Application is supported by affidavits made by employees of the CSA.  Warwick Douglas Claydon affirmed his affidavit on 6 February 2014 and both Michelle Julie Sheehy and Michael Patrick Suter, respectively, affirmed theirs on 20 February 2014.

15      The Director General of the DoT has not lodged any affidavit evidence in opposition to the Application.  Rather he has annexed three groups of documents to his “Form 8.1 - Case Outline/Further and Better Particulars of Case Outline” which was lodged 24 February 2014.  The documents annexed to the Form 8.1 are entitled “Exhibits” and comprise copies of the DoT’s Code of Conduct, an Internet & E-mail Access Application Form purportedly signed by Mr Bodinner, three Confidentiality Undertakings, two purportedly signed by Mr Bodinner and the other unsigned and a letter dated 12 February 2014 detailing the outcome of the disciplinary investigation. None of those documents have been verified under oath or affirmation, and accordingly attract little weight.

16      The Director General of the DoT opposes the grant of the interim order sought by contending that the Industrial Magistrates Court (WA) (the Court) lacks jurisdiction to stop the PSM Act disciplinary proceeding currently under way.  He says section 80E of the IR Act provides the Public Service Arbitrator exclusive jurisdiction to enquire into and deal with any matter relating to a government officer.  That stance is in line with his response lodged on 8 January 2014, wherein it is submitted that the Claim is brought for the improper purpose of subverting the conduct of the investigation.

Determination

17      Dealing firstly with the jurisdictional issue, I observe that the disciplinary action taking place is an administrative proceeding.  It is being conducted pursuant to sections 81 and 82A of the PSM Act.  Neither the Public Service Arbitrator nor the Public Service Appeal Board has any function in the process.  They have not been called upon to judicially consider or determine Mr Bodinner’s alleged misconduct.

18      In bringing this Application the CSA is not asking the Court to intervene in order to stop judicial proceedings.  Rather, it is asking the Court to prevent an act (the disciplinary proceedings) which, by their very nature, may constitute a breach of Clause 36(6) of the Award.  The Application is aimed at preventing such a breach. I note that neither the Public Service Arbitrator nor the Public Service Appeal Board has jurisdiction to consider and determine the issue of whether an award has been breached, nor are they empowered to prevent a breach. 

19      Sections 83(5) and 83(7) of the IR Act specifically empower the Court to prevent a breach of an award.  That includes the stopping of any administrative action that might be in breach of an award.

Principles of Interim Injunction

20      This Application is in the nature of an application for an interim injunction.  The same principles that apply to the making of interim injunctions, apply in this matter.

21      The principles governing the consideration of this type of application were succinctly set out by His Honour Commissioner Sleight in Ruth Mary Hart-Roach v Neil Cady and Jewell House (YMCA) [2011] WASC 90 (paragraphs 11-15).  I repeat His Honour’s observations:

“11 To obtain an interim injunction, the applicant must establish that there is a serious issue to be tried and that the balance of convenient (sic) favours the applicant:  Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425.

12 The likely success of the applicant at trial is a relevant factor as to whether there is (sic) serious question to be tried and whether the balance of convenience favours granting the injunction:  Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464, 472.

13 In Commissioner for Fair Trading v Holz [2005] WASC 202 Le Miere J stated as follows:

‘The court must be satisfied that there is a serious question to be tried.  If there is a serious question to be tried then the court must consider the balance of convenience.  Once the court is satisfied that there is a serious question to be tried, the strength or weakness of the plaintiff’s case may become a relevant factor touching on the balance of convenience or the exercise of discretion [15].’

14 The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial:  Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [11]; Films Rover International Ltd v  Canon Film Sales Ltd [1987] 1 WLR 670; Madaffari v Labenai Nominees Pty Ltd [2002] WASC 67 (14).

15 It is relevant to consider whether an award of damages will be an adequate remedy.  Normally it must be shown that irreparable injury will be suffered if an injunction is not granted and will not be adequately compensated unless an injunction is granted:  Castlemaine Tooheys Ltd v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148, 153 (Mason ACJ).”

22      The Originating Claim and the affidavits lodged in support of this Application reveal that there are serious matters to be tried.  From the available evidence it appears that Mr Bodinner was at all material times a union delegate.  It is contended that his acts of sending the client emails was done in furtherance of the objectives expressed in Clause 36(1) of the Award, and in particular “representing members’ interests in the workplace”.  The CSA says that there was nothing impermissible in what he did and that the emails that were sent were not subject to confidentiality.  The affidavits affirmed by Mr Claydon, Miss Sheehy and Mr Suter support those contentions.

23      Whether or not Mr Bodinner’s actions were impermissible is likely to depend on whether the emails sent were confidential.  The CSA’s position is that for the documents to be confidential or limited to a particular audience they must expressly say so on their face.  The emails on their face (see Exhibit H of Mr Claydon’s affidavit) do not appear to indicate that.  In my view the CSA’s contention is certainly arguable. It follows that if Mr Bodinner’s acts were permissible, then the disciplinary action taken against him because he sent the emails to the CSA, in his capacity as union delegate, is arguably in breach of the Award.

24      It appears that there are serious issues of fact and/or law to be tried.  The prevention of a potential breach of the Award is a matter of paramount importance. In those circumstances the balance of convenience falls in favour of the CSA. If the Application were not granted there is potential for Clause 36(6) of the Award to be breached.  If the Director General is permitted to reprimand Mr Bodinner and take improvement action against him, it may well affect his reputation and standing at the workplace, even if the reprimand were later to be withdrawn.  Clearly, any improvement action taken cannot be undone.  If the Director General carries out intended disciplinary outcomes, but is later found to have acted inappropriately, there is little that can be done to rectify the situation.  The award of damages is not open. On the other hand, there will be no detriment to the Respondent.  The Respondent does not face irreversible consequences.  If the Respondent’s contentions are found to be correct, then at worst, there will simply be a delay in the implementation of the proposed disciplinary outcomes.

25      In those circumstances it is appropriate to grant the Application.  I propose that the following order be made:

Until further order of this Court, the Respondent shall not take any further steps in the disciplinary proceedings (which have been commenced pursuant to section 81 of the Public Sector Management Act 1994) against Mr Anthony Bodinner.

G. CICCHINI

INDUSTRIAL MAGISTRATE