Amcor Packaging (Australia) Pty Ltd v AMWU
[1999] VSC 434
•29 October 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 7349 of 1999
| AMCOR PACKAGING (AUSTRALIA) PTY. LTD. | Plaintiff |
| v. | |
| AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 OCTOBER 1999 | |
DATE OF JUDGMENT: | 29 OCTOBER 1999 | |
CASE MAY BE CITED AS: | AMCOR PACKAGING (AUST.) PTY. LTD. v. AMWU | |
MEDIA NEUTRAL CITATION: | [1999] VSC 434 | |
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CATCHWORDS: Practice and Procedure – Industrial dispute – Strike action taken by employees of plaintiff contrary to their contracts of employment – Interlocutory injunction.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. J. Bourke | Clayton Utz |
| For the Defendants | Mr. S. Moore | Maurice Blackburn Cashman |
HIS HONOUR:
This is an application by Amcor Packaging (Australia) Pty Ltd, (Amcor) for an injunction restraining the Automotive, Food, Metals, Engineering, Printing and Kindred Union (AMWU) and three of its officials Finbar Dowling, Peter Gleisberg and Frank Guarino from directing, advising, authorizing and/or encouraging members of the AMWU not to perform the work which their contracts of employment with the plaintiff require them to perform, and an injunction against the AMWU requiring it to direct members of the AMWU who are employees of the plaintiff to perform work in accordance with their contracts of employment.
Amcor operates a plant at Thomastown which manufactures a range of closures or caps made from steel, plastic and aluminium for the food and beverage market. That particular business is known as Amcor Closure Systems (Australia) (ACS). Its largest customers are Coca-Cola Amatil, Carlton United Breweries, Goodwin Fielder, Bonlac Foods, J.R. Simplot and Schweppes.
ACS employs approximately 150 employees at the Thomastown plant. Other than one employee who is a member of the Construction, Forrestry, Mining and Energy Union, and management employees, all employees are members of the AMWU.
There is a current agreement in place between ACS and its employees, namely, the Containers Packaging Closure Systems Certified Agreement 1998 (the agreement). The agreement was certified by the Australian Industrial Relations Commission (the Commission) pursuant to s.170LS of the Workplace Relations Act 1996 (the Act) on 27 July 1998. It is in force until 31 March 2000.
Clause 11 of the agreement contains a dispute settlement procedure. The clause provides that while the procedure is being followed "the parties shall be committed to avoid stoppages of work, lockouts or any other bans or limitations on the performance of work".
In April 1999 ACS engaged consultants to advise it how to devise a work programme which would improve the entire operations at its base at Thomastown. The programme so devised was called "Project Change".
On 9 June 1999 senior officers of ACS made a presentation of Project Change to all employees at ACS, explaining that Project Change was necessary to ensure the long-term survival of ACS against threats from competitors, licensors and imports. At the same time the programme was explained to the defendant Dowling, who is a union organizer for the AMWU, and the defendants Gleisberg and Guarino, who are AMWU shop stewards.
In addition, various workshops were conducted by members of the consulting firm for employees at ACS.
On 27 September 1999 two senior officers of ACS met with all shop floor employees rostered for work that day for some 40 minutes and explained the findings of Project Change using a series of overhead slides to assist them to do so.
On Monday 4 October 1999 senior officers of ACS advised all employees by letter of the proposed changes to the business of ACS and faxed a notice announcing the proposed changes to the AMWU.
There was a meeting later that day between senior officers of ACS and the defendants Dowling, Gleisberg and Guarino to discuss the matter. However, after a brief discussion the meeting was adjourned to the following day.
On 5 October a meeting was held between officers of the plaintiff and the defendants Dowling, Gleisberg and Guarino.
At the meeting Dowling asked the ACS representatives to retract the announcement letters. The representatives of ACS present informed Dowling that ACS would not retract the letters but wished to consult with the AMWU over the proposals.
The three AMWU representatives then left the meeting and called a stop-work meeting at the plant.
Following the meeting the defendant Dowling advised the management of ACS that the following bans would be imposed because ACS would not retract its letter announcing Project Change:
1. No contractors or casuals would be permitted to enter the site;
2. There would be an immediate ban on employees working overtime;
3.Full-time employees would not be allowed to perform work which had been carried out previously by casuals or contractors.
Later that day an officer of ACS observed the defendant Gleisberg enter the plant and tell casual employees from Australian Personnel Services to get off the site and to inform contractors Ultra Filter Pty Ltd, Delromano Electrical, Barlin & Scott, AG Pasini, P & C Bartlett, Omni Engineering and Inductoheat that a ban had been placed on the use of contractors due to the company's implementation of Project Change.
The bans were duly imposed and remained in place until they were lifted on 8 October.
On 18 October the defendant Gleisberg in the presence of the defendant Guarino advised officers of ACS that the bans would be imposed again the next morning.
On 19 October the plaintiff initiated proceedings in the Commission by filing and serving an application for a certificate under s.166A of the Act and an application for an order to stop industrial action under s.127 of the Act. The applications were returnable the following day.
That evening a meeting of employees was called by the AMWU.
After the meeting the defendant Gleisberg told officers of ACS that a resolution had been passed to impose bans on casual labour, contractors and overtime and that no full-time employee would perform the work of a casual, effective at 7 a.m. On 19 October.
On 20 October 20 employees of ACS stopped work to attend a hearing before the Commission. That same day the AMWU filed and served an application in the Commission for orders to stop industrial action under s.127 of the Act.
On the application of the AMWU made that day to the Commission the proceedings then before the Commission were adjourned to 22 October 1999.
On the evening of 20 October the defendant Gleisberg in the presence of the defendant Guarino advised an officer of ACS that the bans would remain until ACS lifted its bans. Gleisberg further stated that an AMWU organizer, Steven Dargavel, and the defendant Dowling had not attended a relevant meeting because they were preparing to "kick your heads in". During the same conversation Gleisberg is said to have further stated "the managers will fall before we do".
The bans were duly reimposed and remained in place over both the 21st and 22nd of October.
On 22 October Commissioner Hingley issued the plaintiff with a certificate under s.166A of the Act authorizing the plaintiff to bring an action in tort against the AMWU and its officials and adjourned the s.127 applications to 27 October.
That day it is said that the defendant Gleisberg challenged two contractors who were at the site, telling them to get off the site as there was a ban on contractors.
On 23 October 1999 a production employee at the plant advised an officer of ACS that employees would not work with casuals. Another employee of the plaintiff advised one of its officers that day that the employees would not work overtime as there was a ban on overtime.
On the morning of 25 October 1999 Craig Johnson, who is the State Secretary of the AMWU, the AMWU organizer Dargavel and the defendants Dowling, Gleisberg and Guarino addressed a meeting of members. During the course of his address Gleisberg told the meeting that if management did not concede "we will go to the next step".
At the end of the meeting the five union representatives spoke to management. At the end of that meeting and prior to walking out of the meeting, Johnson is alleged to have said, "We'll kick the fuck out of you". Later the five union representatives informed management that they were going on strike.
Later that day the employees formed a picket line at the front and back gates of the plant. The defendants Dowling, Gleisberg and Guarino were seen to take part in the picket line.
At approximately 7 p.m. That same day members of the picket line attempted to prevent ACS's Manufacturing Manager from driving his car from the plant. Needless to say no work was performed at the plant after the meeting of employees on the morning of 25 October.
During the course of that same day the plaintiff filed its writ in this proceeding in the court.
On the following day, that is 26 October, the normal security patrol whilst engaged in preventing unauthorized access to the plant by picketers observed that the front and rear gates had padlocks placed on them by the picketers.
Since 26 October ACS's plant has been at a standstill. No production lines are in operation and no product is being produced.
As a consequence, there has been a 75 per cent loss of production of white caps, which are used as jar closures, 20 per cent loss of production of crown seals, which are used as beer bottle closures, and a 33 per cent loss of production of 28 millimetre plastic products which are used for the closure of soft drinks.
Although ACS has some limited stocks on hand it is now behind in meeting its targets for the supply of products for November.
Since 25 October 1999 courier vans have been prevented from entering the site to pick up deliveries; Australia Post has refused to deliver mail because of the picket; four smoke bombs have been thrown over the fence; a picketer has been observed carrying what appeared to be an air rifle; and a security guard driving from the plant has been intimidated by a member of the picket line who drove his car directly towards the security guard's car from the opposite direction.
So far the plaintiff has incurred additional expenditure of approximately $370,000 for the transport and cartage of alternative closures to Australia from overseas. If the strike does not cease double that amount will be required to be spent in obtaining further closures from overseas during the next month or so.
But of more significance, so the plaintiff contends, is that something in the order of $10 million worth of supply contracts it has with its customers will be placed in jeopardy and its reputation irreparably damaged.
The details of such matters are spelled out in the affidavit material filed on behalf of the plaintiff. Because the urgency of this matter is such, I shall not take the time to detail them in my reasons for judgment.
The plaintiff's application for injunctive relief originally came before me on 27 October. However, on the application of the defendants I adjourned the application until today to enable them to file answering affidavits if they were minded to do so.
However, in the final analysis the defendants have only placed before the court one affidavit sworn on their behalf by their solicitor.
In that affidavit a number of allegations are made on behalf of the defendants based upon the instructions given to the defendants' solicitor by or on behalf of those defendants.
The bulk of those allegations have been refuted by the plaintiff's solicitor in an affidavit handed to me in court this morning.
The only other matter of significance so far as the background to this application is concerned is that on 28 October members of the AMWU employed at the plaintiff's sites at Dandenong, Kyabram and Brooklyn went on strike in support of the workers at Thomastown.
The arguments advanced by counsel for the defendants in opposition to the plaintiff's application may be summarised as follows:
1.There is no serious issue to be tried in the proceeding because the plaintiff has failed to establish that the defendants have induced any employees of the plaintiff to engage in the present strike action.
2. The strike action is not unlawful.
3. The picket line is a peaceful picket line and is therefore not illegal.
4.The balance of convenience does not favour the plaintiff. That argument is based upon the following contentions:
(a)the plaintiff is itself in breach of the certified agreement because by its proposals, including its proposals that those employees who wish to take redundancy packets may do so, it is seeking to change its employees existing conditions of employment;
(b)section 127 proceedings are presently part heard before the Commission. The hearing will resume on Monday. It is inappropriate for this court to intervene in this matter whilst such proceedings are on foot;
(c)if the plaintiff succeeds in the proceeding damages will be an adequate remedy.
Finally, counsel for the defendants contends that if any injunctive relief is to be granted in the plaintiff's favour, it should not be granted against the third and fourth defendants because they are shop stewards. Further, if it is to be granted, it should operate only in relation to the Thomastown plant.
The whole tenor of the defendants' counsel's submissions is that the strike action taken by the plaintiff's employees is justified and that it would be inappropriate therefore to grant the injunctive relief sought.
In that regard I am mindful of the observations of Brooking, J. As he then was, in Ansett Transport Industries (Operations) Pty Ltd & Ors v. Australian Federation of Air Pilots & Ors (1991) 1 V.R. 637.
At p.673 His Honour said:
"Then the submission goes on to assert that even before August the airlines were 'spoiling for a fight' and that they and the defendants were in a 'traditional wage bargaining situation' and that the defendants were justified in using the weapons which they had and that their response was no more than 'fair and reasonable'. Once again, I cannot help wondering whether the law recognizes a defence which requires the court to form a judgment on questions of this kind. If it matters, and again I am not applying any legal test but making a value judgment, I do not think the giving of the 9 to 5 directive was 'fair and reasonable'. I answer these questions with reluctance and only because the defendants have invited me to. Reminding myself of Lord Templeman's words in Miles v. Wakefield Metropolitan District Council [1987] A.C. 539, at pp.558-9: 'The courts are not competent to determine and are not concerned to determine whether a strike or other form of industrial action is justified or malicious, wise or foolish, provoked or exploited, beneficial or damaging; history has proved that any such determination is speculative and liable to be unsound'."
I respectively agree with both His Honour's and Lord Templeman's observations.
I turn now to deal with the specific arguments advanced on behalf of the defendants. I shall deal with them in the order in which I have enumerated them.
1. In my opinion there is ample evidence before the court to establish a prima facie case that the defendants have induced the employees of the plaintiff to break their employment contracts, and by their behaviour are causing the plaintiff to breach its contracts with its customers. At the least there are serious issues to be tried concerning such matters.
2. In my opinion it is strongly arguable that in taking the strike action the defendants and the first defendant's members have, they are in breach of the provisions of s.170MN of the Act and that their actions in that regard therefore are unlawful.
In that connection I do not consider that the decision of Cooper, J. In Thiess Contractors Pty Ltd v. Construction, Forrestry, Mining & Energy Union (unreported 13 April 1999) is a correct statement of the law in regard to the matter. I am reinforced in that view by the doubts expressed by the Full Court of the Federal Court as to the accuracy of His Honour's findings when on appeal (unreported 17 August 1999).
3. On the evidence before me it is arguable that the picket line is not a peaceful picket line and that those members of the union taking part in it have been guilty of harassment, intimidation, obstruction and other unlawful actions designed to prevent third parties entering or leaving the site.
4. (a) Even if the plaintiff is in breach of the certified agreement, and I am by no means persuaded that it is, that is no justification for the strike action in question. The remedy for the first defendant is to take appropriate action before the Commission in relation to the matter.
(b) The fact that the s.127 applications are presently part heard before the Commission has no bearing on the matter. That much is clear from the decision of the Court of Appeal of this court in National Workforce Pty Ltd v. Australian Manufacturing Workers Union (1998) 3 V.R. 265, see in particular at p.278 and following.
(c) In my opinion damages would not be an adequate remedy for the plaintiff. It would be almost impossible to accurately assess the value of its loss of reputation if the strike action was permitted to continue.
All in all I consider the balance of convenience in this case is heavily in favour of the plaintiff.
As to the terms of the order, I see no sound basis for limiting them to the first and second-named defendants, or for limiting them to the site at Thomastown. It is quite clear from what has already occurred that if injunctive relief is not granted to the plaintiff the strike action will spread to other of its sites.
An appropriate undertaking as to damages having been given by counsel for the plaintiff, I make the following orders in the matter.
I order that:
1. Until the hearing and determination of this proceeding or until further order, the defendants and in the case of the first defendant, whether by its officers, delegates, servants, agents or howsoever otherwise, be restrained from directing, advising, authorizing and/or encouraging members of the first defendant not to perform the work which their contracts of employment with the plaintiff require them to perform.
2. Without limiting the generality of paragraph 1 of this order, until the hearing and determination of this proceeding or until further order the defendants and in the case of the first defendant, whether by its officers, delegates, servants, agents or howsoever otherwise, be restrained from directing, advising, authorizing and/or encouraging members of the first defendant to place bans or other forms of limitations or impediment, including any forms of obstruction, harassment, threats or intimidation on (a) the engagement by the plaintiff of casual staff; (b) the engagement by the plaintiff of contractors; (c) the first defendant's members employed by the plaintiff working reasonable amounts of overtime when requested by the plaintiff; (d) the entry or exit of persons; including employees or contractors in and from the plaintiff's premises at 49 Temple Drive, Thomastown, Victoria (the plant); (e) the entry or exit of product and goods in and from the plant.
3. By 2 p.m. On 1 November 1999, or as soon thereafter as reasonably practical, the first defendant whether by its officers, delegates, servants, agents or howsoever otherwise, forward by prepaid post a notice to each of its members employed by the plaintiff at the plant and place such notice on employee notice boards at the plant, such notice to be signed by an authorized officer of the first defendant and to contain a direction to the first defendant's members to cease industrial action and to perform the work that their contracts of employment require them to perform.
4. By 2 p.m. On 1 November 1999, or as soon thereafter as is reasonably practical, the first defendant forward by facsimile transmission a copy of the above notice to the plaintiff's solicitors.
5. Service of this order on all defendants is permitted by facsimile transmission to the State Office (AMWU Division) of the first defendant, 4th floor, 440 Elizabeth Street, Melbourne, Victoria 3000, facsimile (9230-5887).
6. I reserve the costs of this application.
7. I reserve to the parties liberty to apply.
8. I direct that this order be prepared by the solicitor's for the plaintiff and brought to me for authentication.
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