Air New Zealand v AMWU

[2001] VSC 355

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7617 of 2001

AIR NEW ZEALAND	Plaintiff
v
AMWU AND OTHERS	Defendant

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JUDGE:	Nathan J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2001
DATE OF JUDGMENT:	14 September 2001
CASE MAY BE CITED AS:	Air New Zealand v AMWU and Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 355

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Bourke	Corrs Chambers Westgarth
For the First Defendant	Ms Lester	Maurice Blackburn Cashman
For the Third Defendant	Mr P Rozen	Maurice Blackburn Cashman
For the Sixth Defendant	Mr N. Friend	Maurice Blackburn Cashman

HIS HONOUR:

1. I have an application for injunctive relief by Air New Zealand, the flag carrier for New Zealand, and an airline which is the sole owner of Ansett Australia, a domestic Australian air carrier.  Relief is sought against six unions, namely:  the AWU, AMWU, the CEEEIPPASUA (CEPU), the Australian Municipal Administrative Clerical and Services Union, known as the ASU, the Australian Licensed Aircraft Engineers and the Transport Workers. 

1. The relief sought arises out of a meeting conducted at the Melbourne Jet Base at 9 a.m. on 13 September of persons apparently employed by Ansett Australia, but also some Qantas employees, and possibly others, which determined as follows:  "That Ansett employees would continue to carry out their duties and functions to ensure the ongoing operation of the business".  The fact is that an administrator has been appointed to Ansett Airlines, and its planes and operations are now grounded, and hence the first resolution is of no effect.  Secondly, "that members would require written confirmation from the administrator that employees would have access to remove personal belongings if Ansett went into voluntary liquidation."  Thirdly, and one must assume it was members of the relevant unions, "would take action against Air New Zealand in the form of restricting products and services to the airline such that services and airline operations would be disrupted. 

1. I accept the affidavit evidence that some 300 to 400 employees attended this meeting. It was formally addressed by a delegate of the AMWU, the Assistant National Secretary of that union, the National Secretary of the AWU, an industrial officer of the ASU, and an organiser from the CEPU, and also by a delegate of the AWU.  I have no further evidence as to whether these persons attended in their capacities as union officials or consequent upon resolutions passed by the relevant unions.  But it would be churlish to ignore the fact that those persons attended the meeting at least clothed with the apparent authority of their respective unions.  I use the word "apparent" because so much would have been apparent to the employees at the meeting.  It is commonplace to observe that there are many industrial situations where the various union officials cannot control or direct the anger of the union members, and must, in fact, respond to it.  It is a nonsense to suggest that all Australian union members follow the directions or wishes of their officials or delegates. 

1. But in this case it is plain that an industrial situation of high volatility arose with the grounding of Ansett, and with the very probable consequence that thousands of its employees would not receive their full entitlements to accrued holiday pay, sick pay, long service leave and the like.  The union members must have contributed themselves to those entitlements. Consequently it is apparent that the union members would perceive that their funds and entitlements were likely to have been lost.  Any team of management would understand that in such a situation, anger and anguish by the workers so affected, would reach a high level of discontent and would result in some form of activity designed to address the situation.  Their designs may well have been wrong, and may well be economically foolish, as in this case the activities of the union members designed to harm Air New Zealand, will very probably result in lessening their chances of recovering their entitlements rather than increasing them.  But I am not here to decide the ultimate economic consequences of this activity.  I am here to deal with conduct which, it is said, improperly harms Air New Zealand in its commercial activities, which activity is the result of some sort of coordinated union response to the collapse of Ansett.  Coordinated, it is said, by the respondent unions.

1. I turn now to deal with what has actually happened to Air New Zealand.  The first matter concerns Flight 120, a Boeing 737 jet valued, I accept, at $100 million.  It has been grounded at Tullamarine.  Tugs have been placed behind the aircraft and it is unable to move.  The aircraft is consequently incapacitated.  Driving the tugs is a function of TWU members. Although there is no direct evidence that the union itself directed the tugs to be placed as a barrier, the consequence is that a very valuable asset for Air New Zealand has been brought to nothing.  This has very serious consequences in the operation of the airline.  A plane must be in the air to earn money.  If one plane is taken out of the network, others must all be displaced to fill the space, and that destabilises the entire operation.  Although I have had no direct evidence to that effect, so much is apparent as a matter of common sense.  It is a little bit like the hexagonal cells in a honeycomb:  if one cell is constructed with five sides rather than six, all the other cells become distorted.  And so this has occurred with Air New Zealand.  Secondly, I accept the evidence that members of the relevant unions, particularly the AWU, have declined to refuel Air New Zealand flights, and that, as a consequence, three flights out of Melbourne have been cancelled, which in turn has led to the cancellation of 13 other flights throughout Australia, and that 2,000 people have not merely been discommoded and their business activities disrupted, but, of course, it has consequent costs to Air New Zealand in accommodating those persons.  Perhaps most significantly, I have evidence that members of the unions, and particularly the Services Union, have not processed Air New Zealand passengers.  This means that ticketing and boarding of the flights has, apparently, been sadly compromised, if not brought to an end.  This simply denies Air New Zealand of its capacity to earn income.

1. It follows then, and I find, that the various activities I have related severely disrupt Air New Zealand in its business as an air carrier.  So severe do I consider the levels of disruption to be, that it could have the most dire consequences for that airline.  There is no direct evidence to that effect, but again it follows as a matter of common sense that if Air New Zealand falls because Ansett falls, then indeed all the members and staff of Air New Zealand could be in a parlous state.  I do not believe that I have overstated the economic consequences of the levels of disruption now in place against Air New Zealand. 

1. That being so, it does not follow that an injunction automatically ensues.  It is a requirement for the applicant establish the identity of the persons causing the upheaval.  On the evidence I have before me, and by virtue of the resolution passed, it is apparent that members of all the unions cited in the list of respondents, and particularly some of their officials ranging from a National Secretary to a delegate, determined that products and services to Air New Zealand would be interrupted and its airline operations disrupted.  Furthermore, I have some evidence as to the identity of persons who spoke in favour of the resolution, and particularly one David Ollar, who apparently said, "We will make it impossible for Air New Zealand to fly or stay in Australia";  and, further, the evidence about one Bill Shorten, who is the National Secretary of the AWU, who apparently said, "We won't let Air New Zealand return to Australia until we have had our debt repaid, until we have received all our entitlements.  The union movement will ensure Air New Zealand suffers the way we are suffering and has the losses that we are in the state we are in." 

1. I accept that there may well be justified reasons for the level of anger thus displayed. Where that anger has consequences that have led to - as I am prepared to find, a serious case for trial relating and arising from the disruption, upheaval and possible destruction of the efficient operations of Air New Zealand, then, indeed, that disruption itself becomes amenable to injunctive relief. 

1. I am satisfied that the disruption displays a level of coordination and control which is indicative of being organised at a central level.  I am not, nor has any evidence been proffered, able to say exactly who those central controllers may be.  But I am satisfied, on the basis of the resolution and of the statements I have referred to, that it certainly relates to some officials of the AWU and the CEPU.  I am mindful of the fact that the tugs are unlikely to be moved unless they are moved by TWU members, and that the officials of that union would have a degree of authority and persuasion to ensure that is done. 

1. Accordingly I propose to grant injunctive remedies in very limited form, and not in the broad ambit as has been put to me by Mr Bourke.  I will refine the terms of this injunction in consultation with counsel, but it will be along the following lines, both positive and negative:  that members of the TWU and its officials no longer impede but facilitate the departure of Flight 120 Boeing 737.  That will mean the tugs must be moved and the plane must be able to be shifted and take off. 

1. I will order that the refuelling of Air New Zealand planes by members of - and I think the refuellers are AWU members, and I think they may be even TWU members - proceed  and as required and forthwith. 

1. I will require the relevant unions, and I think it is the ASU, to proceed with the processing of Air New Zealand customers, both as to freight and persons, forthwith.

1. I shall make no other injunctive orders.

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