Electrolux Home Products Pty Ltd v Australian Workers' Union

[2004] HCA 40

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(Judgment by: Gummow J, Hayne J, Heydon J)

Electrolux Home Products Pty Ltd
vAustralian Workers' Union

Court:

Judges: Gleeson CJ
McHugh J

Gummow JKirby J

Hayne JCallinan J

Heydon J

Legislative References:
Workplace Relations Act 1996 (Cth) - Pt VIB; Div 2; Div 8; s 170ML; s 170LI
Industrial Relations Act 1988 (Cth) - s 4(1); Section 170MD
Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 - The Act
Workplace Relations Act 1996 - Pt VIB; s 170L; s 170NI)
Conciliation and Arbitration Act 1904 - s 4(1)

Hearing date:
Judgment date: 2 September 2004

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Judgment by:
Gummow J
Hayne J
Heydon J

The certified agreement provisions

[130] These appeals (which were heard together) concern the construction of provisions in Pt VIB (ss 170L-170NI) of the Workplace Relations Act 1996 (Cth) ("the Act") ^[143] . relating to certified agreements and the inclusion therein of what have been called "bargaining service fees". Whilst in operation (and with some qualifications), agreements certified by the Australian Industrial Relations Commission ("the AIRC") prevail over inconsistent federal awards (s 170LY), and State laws, awards and employment agreements (s 170LZ). This emphasises the importance for industrial law of the certified agreement provisions of the Act.

[131] The previous provisions made with respect to certified agreements and what then were called enterprise flexibility agreements by the Industrial Relations Act 1988 (Cth) ("the 1988 Act") were considered in the Industrial Relations Act Case ^[144] ..

[132] The principal object of the Act, stated in s 3, is the provision of "a framework for cooperative workplace relations" by, among other things:

(b)

ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and

(c)

enabling employers and employees to choose the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act.

The term "employee" includes any person whose usual occupation is that of employee (s 4(1)).

[133] Division 2 (ss 170LH-170LM) of Pt VIB deals with the requirements for applications for certification by the AIRC of agreements in writing "about matters pertaining to the relationship" between certain employees and an employer such as the appellant ("Electrolux"), which is a constitutional corporation (an expression defined in terms reflecting, but not limited to, those of s 51(xx) of the Constitution). The construction of the phrase just emphasised (which appears in s 170LI) is critical for this case.

[134] Division 3 (ss 170LN-170LS) of Pt VIB is headed "Making agreements about industrial disputes and industrial situations". The provisions of Div 3 are not of central importance for present purposes but in argument were compared with and contrasted to those of Div 2.

[135] Division 4 (ss 170LT-170LW) sets out the powers and responsibilities of the AIRC in certifying the two species of agreement. There are requirements in s 170LU(1), (2) which apply only to Div 3 agreements. Division 5 (ss 170LX-170LZ) details the effect of certified agreements. Reference has been made above to the primacy given over inconsistent awards, State and federal, and State laws and employment agreements. Division 6 (ss 170M-170MB) identifies the persons bound by certified agreements. A certified Div 2 agreement binds all persons whose employment, at any time whilst the agreement is in operation, is subject to that agreement (s 170M(1)(b)).

[136] Division 8 (ss 170MI-170NB) provides for the initiation by written notice of bargaining periods for the negotiation of proposed agreements and protects certain industrial action, taken after the giving of notice and during bargaining periods, against what otherwise would be actions lying at common law or State or Territory law. The present immunity provision (s 170MT) is in terms resembling those of s 170PM(3) of the 1988 Act. The validity of the provision was upheld in the Industrial Relations Act Case ^[145] ..

[137] On one view of the case, that to which the parties directed much of their submissions, the ultimate issue is whether the immunity in respect of protected industrial action is attracted where a bone of contention between the parties is the inclusion in a proposed Div 2 agreement of a provision which is not about matters pertaining to the relationship between employer and employee. The "bargaining service fee", to the inclusion of which Electrolux objected, is said by it to be outside the particular class of matters. However, as will appear, the issues in this litigation cannot be resolved at that level of generality. Particular attention is required to various statutory provisions, notably those identified in the declaratory relief granted by the primary judge, s 170ML and s 170NC.

[138] The Act since amendments made by the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 (Cth) ("the 2003 Act") now specifies as an "objectionable provision" a provision (however described) of a certified agreement that requires payment of a "bargaining services fee" (s 298Z(5)(b)). The AIRC now must refuse to certify an agreement that contains an objectionable provision (s 170LU(2A)). The AIRC is obliged to act in this way even if the application to it for certification was made before the commencement of the 2003 Act ^[146] .. However, these appeals concern declarations made by the Federal Court in respect of the Act as it stood before the 2003 Act. If the appeals are upheld, one consequence thereof may be to confirm that the changes made by the 2003 Act with respect to bargaining service fees reflected what, upon its true construction, already was the operation of the Act.

The facts

[139] Electrolux is a corporation which manufactures whitegoods under the brand names "Westinghouse", "Simpson", "Chef" and "Kelvinator". It is a party to the Email National Manufacturing Agreement 1999 ("the 1999 Agreement") which was certified by the AIRC under the provisions of Pt VIB of the Act. The first, second and third respondents ("the AWU", "the AMWU" and "the CEPU" respectively) are organisations of employees who are registered pursuant to the Act and are collectively referred to as "the Unions". They are parties to the 1999 Agreement. The individuals who are the fourth, fifth and sixth respondents are officers respectively of the CEPU, the AWU and the AMWU. The eighth respondent ("the Minister") was added as a party by order of this Court in conformity with s 471 of the Act, and made submissions in support of the appeal.

[140] The 1999 Agreement had a nominal expiry date of 30 June 2001 but, pursuant to s 170LX of the Act, did not cease to be in operation at the time of the events giving rise to this litigation. In April 2001, the parties to the 1999 Agreement commenced discussions for the conclusion of a new certified agreement and the negotiations continued until September 2001. Notices were given under s 170MI to initiate bargaining periods for the negotiation of a proposed Div 2 agreement. In the course of those negotiations, the AMWU presented a draft on its behalf and that of the other unions. The document included as cl 46, the following provisions under the heading "Bargaining Agents Fee":

46.1 The company shall advise employees prior to commencing work for the company that a 'Bargaining Agents' fee of $500.00 per annum is payable to the union.

46.2 The relevant employee to which this clause shall apply shall pay the 'Bargaining Agents fee' to the union in advance ... on a pro rata basis for any time which the employee is employed by the company. By arrangement with the union this can be done in quarterly instalments throughout the year.

46.3 The employer will, at the request of the employee to whom this clause applies, provide a direct debit facility to pay the bargaining agents fee to the union.

[141] The apparent rationale of such a fee was said in argument in this Court to include the fairness in contributions by non-union members to the Unions securing benefits which, as s 170M recognises, are enjoyed by all employees and the differential net wage receipts that otherwise would apply between those employees who pay and those who do not pay union dues. In the course of the negotiations, Electrolux made it clear that it would not negotiate about bargaining agents fees in any form.

The litigation

[142] Following the issue of notices under s 170MO of the Act of their intention to take industrial action, the Unions threatened and purported to take industrial action allegedly protected under the Act in support of their claims concerning the terms of the proposed agreement. The term "industrial action" is the subject of a detailed definition in s 4(1) of the Act but nothing immediately turns upon those details for present purposes. However, the Unions contended, and Electrolux denied, that this industrial action was protected by the provisions of Div 8. Litigation was commenced by Electrolux in the Federal Court on 17 September 2001.

[143] Section 412 of the Act confers jurisdiction on the Federal Court with respect to matters arising under the Act in relation to which applications may be made to it under that statute. The Federal Court (Merkel J) ^[147] . granted declaratory relief in similar terms against each of the Unions. The declarations referred to the industrial action by the Unions on designated dates in September 2001 and to the notices previously issued by them and declared that the action:

(a)

was not protected action within the terms of s 170ML of the [Act]; and

(b)

breached s 170NC(1) of that Act.

Section 170ML(2) classifies as "protected action" activity identified as follows:

During the bargaining period :

(a)

an organisation of employees that is a negotiating party; or

(b)

a member of such an organisation who is employed by the employer; or

(c)

an officer or employee of such an organisation acting in that capacity; or

(d)

an employee who is a negotiating party;

is entitled, for the purpose of :

(e)

supporting or advancing claims made in respect of the proposed agreement; or

(f)

responding to a lockout by the employer of employees whose employment will be subject to the agreement;

to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.

(emphasis added)

[144] The reference in s 170ML(2) to "the bargaining period" directs attention to s 170MI(1). This states:

If:

(a)

an employer; or

(b)

an organisation of employees; or

(c)

an employee acting on his or her own behalf and on behalf of other employees;

wants to negotiate an agreement under Division 2 or 3 in relation to employees who are employed in a single business or a part of a single business, the employer, organisation or employee (the initiating party ) may initiate a period (the bargaining period ) for negotiating the proposed agreement.

[145] Section 170NC, the other provision to which the declarations were directed, comprises the whole of Div 9 of Pt VIB. The Division is headed "Prohibition of coercion in relation to agreements". Section 170NC(1), the primary provision, does not apply to protected action within the meaning of Div 8. Subsection (2) of s 170NC so provides. Accordingly, if the Unions be correct that the industrial action was for the purpose of advancing their claims made in respect of the proposed Div 2 agreement, within the meaning of s 170ML(2)(e), then s 170NC could have no application.

[146] Subsections (1) and (2) of s 170NC state:

(1)

A person must not:

(a)

take or threaten to take any industrial action or other action; or

(b)

refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(c)

making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

(d)

approving any of the things mentioned in paragraph (c).

(2)

Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).

Section 170NC is a "penalty provision" for the enforcement provisions of Div 10 (ss 170ND-170NH), but contravention of s 170NC is not an offence (s 170NF(1)). An injunction may be granted to restrain contravention of a penalty provision (s 170NG). No relief was given by Merkel J under Div 10; rather, reliance was placed upon the declaratory remedy provided by the general terms of s 21 of the Federal Court of Australia Act 1976 (Cth).

The Full Court

[147] The declarations made by Merkel J were set aside by the Full Court of the Federal Court (Wilcox, Branson and Marshall JJ) ^[148] .. The Full Court had before it three appeals, the principal appellant in each of which was respectively the AWU, the AMWU and the CEPU. Electrolux then took, by special leave, three appeals to this Court, seeking the reinstatement of the relief granted by Merkel J.

[148] The Full Court doubted, but did not find it necessary to decide, the correctness of two propositions advanced by Electrolux. These their Honours identified as follows ^[149] .:

[F]irst, that each individual term of an agreement presented to the [AIRC] for certification must concern matters pertaining to the relationship between the employer and the employer's employees from time to time; and, second, that a term along the lines of the [Unions'] bargaining fee claim would not concern such a matter.

The Full Court decided that, even if Electrolux be correct in these respects, the industrial action necessarily was protected by s 170ML(2). This was because, in terms of that subsection, the action was "for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement". The reasoning of the Full Court may be seen in two passages. The first is ^[150] .:

Electrolux does not suggest the industrial action organised by the Unions in September 2001 was organised otherwise than for the support or advancement of the claims they were making against the company, including the bargaining fee claim. And Electrolux accepts that all the claims were genuinely made, in the sense that the Unions genuinely wished the substance of these claims to be included, in some form or other, in one or more certified agreements with the company. That being so, it seems to us the purpose of the industrial action clearly fell within the terms of par (e) of s 170ML(2); it does not matter whether or not the insertion of a provision along the lines of the bargaining fee claim would give rise to a certification difficulty under s 170LI(1).

The reference to "a certification difficulty under s 170LI(1)", as will appear, indicates misunderstanding of the interrelation between the provisions mentioned. The above passage was preceded by the other passage ^[151] .:

Provided the claims are genuinely made, it does not matter that others may think them unrealistic. In the industrial relations area, as in other spheres of life, extravagant claims are often made. Mostly, an extravagant claim is unsuccessful; but sometimes it is conceded, perhaps in a modified form.

There are sound policy reasons for reading par (e) literally. Fundamental to Pt VIB of the Act is the notion that, within strict and objectively definable limits, organisations, employees and employers are entitled to engage in industrial warfare

(emphasis added)

The scope and purpose of Pt VIB

[149] The reference by the Full Court to engagement in industrial warfare is to be deprecated. Insofar as Pt VIB (particularly Div 3) is supported by the power conferred by s 51(xxxv) of the Constitution, the constitutional purpose in terms is the prevention and settlement of certain industrial disputes by means of conciliation and arbitration. The power with respect to trading and financial corporations (important for Div 2 agreements) is differently cast. But the evident purpose of Pt VIB as a whole is to further the objective stated in s 3 of the Act of providing "a framework for cooperative workplace relations" by enabling employers and employees "to choose the most appropriate form of agreement for their particular circumstances".

[150] It is to that end that Div 8 specifies the steps necessary for the initiation of a bargaining period for the negotiation of a Div 2 or Div 3 agreement, and confers certain legal immunity on protected action during the bargaining period. The legislatively favoured objective of a certified agreement has been taken by the Parliament to justify the conferral of the immunity at the expense of loss or injury suffered by parties to the negotiation in the bargaining period and third parties.

Construction of s 170ML

[151] With these matters in mind, it is convenient to turn to the first declaration made by the primary judge, that the industrial action by the Unions was not protected action within the terms of s 170ML. Paragraph (e) of s 170ML(2) identifies the purpose of advancing or supporting particular claims, namely those made "in respect of" what is "the proposed agreement". Claims made for the inclusion of particular terms therein are made "in respect of" the proposed agreement. But what is conveyed by the phrase "the proposed agreement"?

[152] The "proposed agreement" is identified in s 170MI(1) as that which the initiating party, in this case the Unions, "wants to negotiate", being "an agreement under Div 2 or 3". What then for the present case is indicated by the phrase "an agreement under Div 2"? The term "under" is employed in the sense of meeting the specifications laid down in Div 2. That usage is consistent with the terms of the first provision in Div 2, s 170LH. That states:

This Division sets out requirements that must be satisfied for applications to be made to the [AIRC] to certify certain agreements between employers who are constitutional corporations or the Commonwealth and:

(a)

organisations of employees; or

(b)

employees.

The requirements are those to be met for a certification application to the AIRC. If the application be in order then the exercise by the AIRC of its power (or duty) of certification of a Div 2 agreement, which is provided in Div 4 (ss 170LT-170LW), is enlivened. It is true that one of the provisions in Div 4, namely s 170LV, empowers the AIRC to certify an agreement in respect of which it has grounds to refuse certification if undertakings are accepted as to the operation of the agreement. But otherwise the power or duty of certification may be exercised only if the requirements of s 170LT are met. That section specifies two matters which the agreement must include. One is procedures for the promotion and settlement of disputes about matters arising under the agreement (s 170LT(8)). The other (in s 170LT(10)) is the specification of a nominal expiry date for s 170LX(2).

[153] The AIRC is obliged to refuse certification if the agreement contains certain provisions. The proscribed categories include provisions permitting or requiring conduct that would contravene, in some respects, Pt XA (dealing with freedom of association) (s 170LU(2A)), and provisions discriminating in certain respects against an employee whose employment will be subject to the agreement (s 170LU(5), (6)). Section 170LU thus distinguishes between the agreement as a whole, which may or may not be certified, and particular provisions thereof. It is drafted in a way which is in contrast with s 170LI, the critical provision for this case. The text of s 170LI is set out below.

[154] What is of further importance is that these requirements of inclusion and exclusion of provisions for the discharge by the AIRC of its certification function are with respect to subject-matters which pertain to the relationship between employer and employee. Those provisions answer the jurisdictional requirements of s 170LI as to the nature of the agreement put before the AIRC. But that is not the end of the matter because the provisions are then to be dealt with by the AIRC as the Act requires. If provisions are included but objectionable, then an agreement with those provisions may not be certified. Its efficacy will be no more than that given it by the general law ^[152] ..

[155] The exercise by the AIRC of its authority under Div 4 to certify is conditioned upon satisfaction of s 170LI. That appears from the terms of s 170LI(1). This states:

For an application to be made to the [AIRC] under this Division, there must be an agreement, in writing, about matters pertaining to the relationship between:

(a)

an employer who is a constitutional corporation or the Commonwealth; and

(b)

all persons who, at any time when the agreement is in operation, are employed in a single business, or a part of a single business, of the employer and whose employment is subject to the agreement.

The phrase "about matters pertaining to the relationship between" also appears in s 5AA(2), (3). These give additional operation to Div 2 in circumstances reflecting legislative reliance on the Territories power (s 5AA(2)), and the commerce power and the Territories power (s 5AA(3)).

[156] In the present case, "the proposed agreement" identified in s 170ML(2) is not simply that which the Unions wished to negotiate. There must be an agreement which would, as indicated in s 170LH, satisfy the requirements for the making of an application to the AIRC for certification. Those requirements, to attract the jurisdiction or authority of the AIRC, include the nature of the agreement mandated by s 170LI(1). Hence the critical nature for this case of the phrase "about matters pertaining to the relationship" between Electrolux and its employees whose employment is subject to the proferred agreement.

"Matters pertaining"

[157] This phrase has a long history in the industrial relations law of this country, and in the decisions of this Court, including Australian Tramway Employés Assn v Prahan and Malvern Tramway Trust ^[153] .; R v Portus ; Ex parte ANZ Banking Group Ltd ^[154] .; and Re Alcan Australia Ltd ; Ex parte Federation of Industrial, Manufacturing and Engineering Employees ^[155] .. All of these decisions predate the enactment of Pt VIB of the Act.

[158] It is true that the definition of "Industrial matters" in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the 1904 Act"), which stated that the defined term:

means all matters pertaining to the relations of employers and employees,

was a cognate definition to that of "Industrial dispute" and this was so drawn as to reflect reliance by the Parliament on the head of power in s 51(xxxv) of the Constitution. The provisions of Pt VIB respecting Div 2 agreements are not so based. However, in the judgment of the whole Court in Alcan, their Honours said ^[156] .:

The question is not one involving s 51(xxxv); it is simply a question of the meaning of the definition of 'industrial dispute' in s 4(1). And although there are some minor differences between that definition and the relevant definitions previously found in [the 1904 Act], the requisite nature of the subject matter of a dispute remains precisely the same, namely, that it pertain to the employment relationship involving employers, as such, and employees, as such.

[159] Earlier, in Portus, the Court had held that a demand by a union that an employer make deductions and payments from salaries due and payable to its employees in accordance with authorities provided by them did not affect the industrial relationship of employers and employees. Walsh J said ^[157] .:

The payment of subscriptions is a matter pertaining to the relationship between the employees and their union. In my opinion it is not a matter with which the employer, as such, has any concern and it does not become an 'industrial matter' merely because the association makes a demand upon the employers to which they are not willing to accede.

Stephen J, after observing that the present demand was sought to be attached to the regular cycles of work and payment therefor, continued ^[158] .:

If, in the existing circumstances of employment, it was demanded of the employer that it accept back from employees a part of the remuneration paid, retain it for a period of time and then pay it over to a third party, the association, such a demand would be seeking to create a new, distinct relationship between the employer and its employees, having no connexion with the pre-existing employer-employee relationship. The fact that the present demand is made to operate at a slightly earlier stage, before salary is in fact paid over to employees, thereby obviating one step in the imaginary demand I have postulated, that of the acceptance of money back from employees, does not appear to me to convert a transaction foreign to the relationship of employer and employee into one which pertains to that relationship.

[160] In Alcan, the Court held that a demand made by a union that an employer deduct union dues from the wages of its employees and remit the deductions to the union did not pertain to the relationship between employer and employees. The Court emphasised ^[159] . that a dispute as to the deduction of union dues pertained to a relationship involving "employees as union members and not at all as employees".

[161] That reasoning is applicable to the phrase "about matters pertaining to the relationship between" the employers and employees identified in s 170LI. Moreover, there are the powerful considerations which were adverted to in Alcan when dealing with the significance to be attached to Portus in the light of supervening legislation and judicial decisions. Their Honours in Alcan referred to two matters telling against reconsideration of Portus as follows ^[160] .:

The first is that the principle on which it proceeds, namely, that for a matter to 'pertain to the relations of employers and employees' it must affect them in their capacity as such, has been accepted as correct in a number of subsequent cases ^[161] ., with no question ever arising as to whether the principle was correctly applied in the case. The second is that Parliament re-enacted, in s 4(1) of the [1988] Act, words which are almost identical with those considered in R v Portus.

[162] The phrase "about matters pertaining to the relationship" appears not only in s 170LI and with respect to Div 2 agreements. The provisions respecting Div 3 agreements (in particular s 170LN) draw in the definition of "industrial dispute" in s 4(1). This still contains the phrase "about matters pertaining to the relationship between employers and employees". The inference that, in this respect, Div 2 and Div 3 share a basic precept is very strong, and the weight of authority construing the definition of industrial dispute is considerable. The field of industrial relations legislation in Australia is not one where the Parliament may readily be taken to have legislated without awareness of the interpretation placed by this Court on pivotal definitions ^[162] .. Nor can it be said that to apply to the terms of Div 2 (and Div 3) the reasoning in Portus and Alcan is merely to perpetuate an erroneous construction ^[163] ..

[163] Finally, the phrase in question contains no words of severance to permit a distributive operation. The text does not read "including or containing matters pertaining". Yet, to succeed, the submissions for the Unions must have it so and displace the qualifier "about" by such an explanation. The word "about" by itself does not perform that work.

Conclusions respecting s 170ML

[164] The chain of provisions in Pt VIB, from the phrase "wants to negotiate an agreement under Div 2" in s 170MI(1) to the requirements of Div 2 (in s 170LH and s 170LI) for the making of certification applications to the AIRC, produces the result that the protected action afforded by s 170ML will not exist where the agreement the initiating party seeks to negotiate is not of a nature that meets the criterion in s 170LI that it be about matters pertaining to the relationship between employer and employees. The reference by the Full Court ^[164] . to "a certification difficulty under s 170LI(1)" as something beside the point thus misconceived the point.

[165] The reasoning why, on that footing, the proposed agreement in question here failed that criterion appears sufficiently in the following passage in the judgment of Merkel J ^[165] .:

The claim [in respect of the bargaining agents fee], implicitly if not explicitly, is that Electrolux is to act as the [Unions'] agent in entering into a contract with new employees which requires the employees, who are not union members, to employ the [U]nions as their bargaining agent to reflect the [U]nions' service in negotiating agreements with Electrolux under the Act.

The relationship between the employer and the employee that would be created were the claim acceded to is, essentially, one of agency; Electrolux is to contract with its employees on behalf of the relevant union, as its agent. The agency so created is for the benefit of the union, rather than for the benefit of the employee upon whom the contractual liability is to be involuntarily imposed. The resulting involuntary 'bargaining' agency is, as a matter of substance, if not form, a 'no free ride for non-unionists' claim, rather than one by which the union is undertaking its traditional role of representing the interests of union members in respect of the terms of employment of employees. Although the claim was argued as if it were a claim for future services, it may also be characterised as a claim for payment for the [U]nions' services in securing the new employee's terms and conditions of employment in the proposed certified agreement, notwithstanding that the new employee will only have commenced employment after the date of the agreement.

(original emphasis)

[166] It follows that the declaration as to contravention of s 170ML was properly made.

Conclusions respecting s 170NC

[167] There remains for consideration the declaration respecting s 170NC(1). The denial to the industrial action in question of the character of protected actions under s 170ML(2) removes the barrier to the operation of the section imposed by s 170NC(2). But, that being allowed, was there a contravention of the terms of s 170NC(1)?

[168] In that respect, the Full Court gave to this provision a construction which it said supported the reading of s 170ML(2) urged by the Unions. Their Honours said ^[166] .:

Section 170NC points up the undesirability of narrowly reading s 170ML(2). We think counsel for [the Unions] are correct in submitting that, on their opponent's argument, there would be a lacuna in the operation of this section. If the making of a claim about a matter that did not pertain to the employment relationship was enough to take a proposed agreement outside the description 'an agreement under Division 2', coercive action in support of such a claim, that was undertaken outside a formal bargaining period, or without a valid s 170MO(2) notice, would not be a contravention of a 'penalty provision'. It would not attract a penalty under s 170NF or injunctive relief under s 170NG.

[169] There is no lacuna of the nature identified by the Full Court. Section 170NC(1) falls into two parts. The first forbids the taking or threatening to take action, whether industrial action or otherwise, and forbids the refraining or threatening to refrain from taking any action. The second part is governed by the phrase "with intent"; the text, as a whole, identifies the mental element with which the person takes or refrains from the action indicated in the first part of the subsection. In the Federal Court, differing views have been expressed as to what is involved in proving the presence of the necessary intent for s 170NC ^[167] ., but it is unnecessary for this appeal to discuss them.

[170] An intention to coerce another to agree (or not to agree) to the making of what the actor regards as an agreement of the nature required by s 170LI for an application for certification of a Div 2 agreement will meet the criterion specified in the second part of s 170NC(1). If the action identified in the first part of that provision meets the requirements for it to be protected action for Div 8, then s 170NC(2) takes the action outside s 170NC(1).

[171] If the action not be protected action, because, for example, of failure to comply with the notice provisions, then s 170NC(1) may apply even though the proposed agreement is otherwise of the nature required for Div 2 agreements by s 170LI. If the proposed agreement, as is this case, does not have that requisite nature, then s 170NC(1) may apply, if there be the necessary intent described above. The declaration respecting contravention of this provision was properly made.

Orders

[172] The appeals should be allowed, the orders made by the Full Court of the Federal Court on 21 June 2002 set aside and in place thereof it should be ordered that each of the appeals to the Full Court Nos S 6/2002, S 11/2002 and N18/2002 be dismissed. There should be no order for costs in this Court or the Full Court.