Australasian Meat Industry Employees' Union v ICM Farm Products Australia Pty Ltd

[1998] FCA 175

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 51 of 1998

BETWEEN:	AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Applicant
AND:	ICM FARM PRODUCTS AUSTRALIA PTY LTD ACN 007 298 606 Respondent

JUDGE:	RYAN J
DATE:	23 FEBRUARY 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

The principal question raised by this application is whether a lockout initiated by the respondent to commence on 5 February 1998 has the character of “protected industrial action” within the meaning of Division 8 of Part VIB of the Workplace Relations Act 1996. For the applicant it has been argued that, because the respondent employer had commenced on 4 February 1996 a refurbishment of its abattoir, it is not entitled to conduct a lockout as contemplated by s 170ML of the Workplace Relations Act.  The argument is founded on sub-s  (4) of that section which provides:

The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.

In the present case, it was said, the employer is not preventing employees from performing work because, by reason of the refurbishment, there is no work to perform. In my view that argument, which requires an employer to maintain during the period of a lockout the facility for employees to perform their normal work, involves reading more into s 170ML than the language of that section in its ordinary English meaning can bear.

I do not find any support for the construction for which the applicant contended in the judgment of Marshall J in Lennie v Hawkes and Butterworth (unreported, 4 October 1996).  that was a case where the employer accepted the benefit of the performance of work during the period of what was claimed to be a lockout and the employer was characterised by his Honour as having received the benefit of a “windfall gain”.  There is no suggestion here that the employer has accepted the benefit of any work since the lockout commenced.  Nor has it been suggested that the lockout was instigated without proper notice or otherwise without complying with the Act.

I am not persuaded that the concept of “lockout” is to be read down in the way contended for by the applicants.  I consider that the concept enshrined in the Act extends to the withholding of any useful work for which the employer would, if the work were performed, be obliged to pay remuneration.

In these circumstances I am unable to find that the application for interlocutory relief raises a serious question to be tried.  The application for interlocutory relief will accordingly be refused.  I shall adjourn the application for further directions on a date which shall be fixed in consultation with the solicitors for the parties.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            23 February 1998

Counsel for the Applicant:	Mr E White
Solicitors for the Applicant:	Gill, Kane & Brophy
Counsel for the Respondent:	Mr N Green
Solicitors for the Respondent:	Minter Ellison
Date of Hearing:	23 February 1998
Date of Judgment:	23 February 1998