Auspine Ltd v Construction, Forestry, Mining and Energy Union

[2000] FCA 500

FEDERAL COURT OF AUSTRALIA

Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 500

AUSPINE LIMITED (ACN 004 289 730) v
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION,
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA,
AUSTRALIAN MANUFACTURING WORKERS UNION
AND
PAUL MARTINELLA AND OTHERS

S 24 OF 2000

MANSFIELD J
31 MARCH 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 24 OF 2000

BETWEEN:

AUSPINE LIMITED
(ACN 004 289 730)
Applicant

AND:

THE CONSTRUCTION, FORESTRY, MINING AND
ENERGY UNION
First Respondent

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second Respondent

AUSTRALIAN MANUFACTURING WORKERS UNION
Third Respondent

PAUL MARTINELLA AND OTHERS
Fourth Respondents

JUDGE:	MANSFIELD J
DATE:	31 MARCH 2000
PLACE:	ADELAIDE

REASONS FOR DECISION

1. Bearing in mind that there is an interlocutory injunction hearing now listed on Tuesday next, 4 April 2000, I think it is better to say little on this application for an interim injunction.

2. There are two matters which, it has been argued, give rise to serious questions to be tried.  The first is that the conduct of the respondents, in so far as it constitutes picketing, is unrelated to the performance or non-performance of their particular work, and so is not protected action under the Workplace Relations Act 1996 (Cth) (“the Act”). The second is that, in light of the terms of the notices of intended industrial action given on 16 March 2000, the action of picketing, does not constitute “protected action” under the Act because it was not sufficiently identified in those notices. I am satisfied that there is an arguable question to be tried on each of those matters.

3. I have, however, had the benefit only of the material upon which the applicant has relied, and of submissions from the applicant, so I do not want to be taken as having decided that question for the purposes of the interlocutory hearing next week.

4. There remains, then, the question of the balance of convenience.  In my view, the test where there is an interim injunction sought ex parte primarily involves the usual considerations of the interests of justice, but the interests of justice having regard to the nature of the application and the fact that the respondents have not had an opportunity to be heard in respect of it.

5. So far as I can presently see, the effect of the orders, if granted, upon the respondents would simply preclude them from obstructing the passage of vehicles or persons into and out of the Tarpeena plant of the applicant. They would not otherwise oblige them in any way to desist from the industrial action upon which they are engaged (and I use the term “industrial action” in a lay sense rather than the technical sense in which it is used in the Act). I do not think there is great hardship suffered by those persons in that respect, other than the fact that the way in which they choose to exercise what they may claim to be their rights to engage in industrial action will have been impaired for the period of time that I may be asked to grant the interim injunction.

6. On the other hand, I am not satisfied that the interests of justice strongly demand the making of the orders now sought in favour of the applicant.  I have considered the effect upon other persons than the applicant, in particular certain of its employees, both at Tarpeena and at its other two plants referred to in the affidavit of Mr Praolini filed today.  I have also considered the interests of the Tarpeena community, to which he has made reference in that affidavit.  I have also had regard to the interests of the applicant as they are described in that affidavit, and in the earlier affidavit of Mr Jakab where he, too, relying upon information essentially provided by Ms Praolini, quantifies the amount of the loss which is being suffered.

7. In each of those pieces of information the loss which is being suffered and the consequences which are being experienced, both by the applicant and by others, and the possible consequences, are attributed to “the current industrial dispute”.  The present orders do not seek to bring an end to the current industrial dispute or the actions of the respondents in furtherance of it, other than the action of picketing.  I am not satisfied that the orders sought - principally that in par 1 of the minutes of order which have been handed to me - would alleviate those consequences in any significant respect.  It may do so, but I do not think that the material presently before me enables me to form the view with any confidence that the orders which are sought are likely to do so or, if they do, the extent to which they will do so.

8. I do not know whether the loss to the applicant, asserted to be in excess of $100,000 per day because of the current industrial dispute, would be reduced totally or by 5 per cent or by 50 per cent in the next day or two if the interim orders as sought were granted.  I do not know what difference the orders sought would make to the prospects of continued work being available for those employees of the applicant at Tarpeena or at Kalangadoo or Portland.  Nor do I know what effect the orders, if made, would have upon the interests of the community in Tarpeena.

9. Accordingly, at present I am not satisfied on the balance of convenience, but bearing in mind the sort of considerations which are particularly relevant to the granting of an interim injunction, that I should make the orders sought.  I appreciate that the loss alleged is a significant one but, as I have said, it is a loss which is attributed to the current industrial dispute, rather than the particular conduct which presently is sought to be the subject of the injunction.

10. It may be that I have misapprehended the material before me, or it may be that further material may explain the information before me in a way which clarifies the picture.  I do not want the applicant to understand that I will necessarily form the same view of the matter at the hearing of the interlocutory application, although in the light of my observations I would expect the applicant to file some additional material to clarify what presently I see as an ambiguity or lack of specificity in the material presently before me.

11. For those reasons, I presently decline to grant the interim order which is sought.

12. I will adjourn the application now until 9.15 am on Tuesday next.  I will give leave to the applicant to file and serve as soon as possible such further affidavits as it may be advised in the light of these observations, and of course in respect of any material which it wishes to file and serve in response to the affidavit of Peter Norman Johnston filed in Court by the second respondent today, by leave, but which affidavit I have not considered for the purposes of this application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             17 April 2000

Counsel for the Applicant:	Ms R Layton QC with her Mr R Manuel
Solicitors for the Applicant:	Manuel Fuller Merrigan
Counsel for the Respondents:	Mr J Rau
Solicitors for the Respondents:	Duncan Basheer Hannon
Date of Hearing:	31 March 2000
Date of Decision:	31 March 2000