Australian Workers Union v A.B.B. Power Generation Pty Ltd

[1997] FCA 1239

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - Application for interim relief - Allegation that respondent refused employment on the basis of membership of a Union - Whether evidence establishes a serious issue to be tried - Whether balance of convenience favours grant or refusal of relief - Whether interim orders will grant the applicant the major relief that it seeks as final relief - Adequacy of compensation

Workplace Relations Act 1996 (Cth) s 298K(1) and s 298L(1)

AUSTRALIAN WORKERS UNION V A.B.B. POWER GENERATION PTY LTD
VG 419 OF 1997

JUDGE:        NORTH J
PLACE:        MELBOURNE
DATE:          19 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 419  of   1997

BETWEEN:	AUSTRALIAN WORKERS UNION APPLICANT
AND:	A.B.B. POWER GENERATION PTY LTD RESPONDENT
JUDGE(S):		NORTH J
DATE OF ORDER:		19 AUGUST 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The application for interim relief is dismissed

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 419 of 1997

BETWEEN:	AUSTRALIAN WORKERS UNION APPLICANT
AND:	A.B.B. POWER GENERATION LTD RESPONDENT

JUDGE(S):	NORTH J
DATE:	19 AUGUST 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: This is an application by the Australian Workers Union (AWU) brought on behalf of Mr Bucci and Mr Furney. The application seeks interim orders requiring the respondent, A.B.B. Power Generation Pty Ltd, to employ Mr Bucci and Mr Furney as riggers. The respondent holds the contract for rebuilding the unit 7 turbine at the Hazelwood Power Station. The applicant alleges that, in breach of s 298K(1) and s 298L(1) of the Workplace Relations Act 1996 (Cth), the respondent refused to employ Mr Bucci and Mr Furney because they were members of the AWU.

On 25 June 1997, Mr Furney was told by Mr Tom Sterric, a supervisor to be employed by the respondent, that Mr Furney had a job with the respondent for about six months, starting on 30 June 1997. On 2 July 1997, when he had not heard further, Mr Furney rang Mr Sterric. His affidavit then states:

“Sterric said don’t worry, just sit tight. I asked if there was union trouble because I had heard that A.B.B. had refused to employ men who were members of the AWU. Sterric agreed that there had been union trouble, and said that I should join the Construction, Forestry and Mining Employees Union and wait for a phone call.”

Mr Bucci was told, on 24 June 1997, that Mr Arthur Bell and Mr Arthur Kitwood, from the respondent, had agreed that he would start work for the respondent on 30 June 1997. Mr Kitwood rang Mr Bucci on 25 June and asked him to confirm a 30 June start. On 27 June, Mr Bell rang and said that Mr Bucci could not start as he was not a financial member of the Construction, Forestry and Mining Employees Union (CFMEU). Mr Bucci told Mr Bell that this was not the case, as he had paid his dues that morning. Mr Bucci met Mr Bell on site on the same day and repeated that he was a financial member of the CFMEU.

Mr Bucci summarises his view of these events as follows:

“I believe that A.B.B. are refusing to employ me because of my membership of the AWU, and that they were using the pretext of my short term lack of financial status with the CFMEU as an excuse.”

In my view, the evidence establishes a serious issue to be tried that both Mr Bucci and Mr Furney were refused employment because they were members of the AWU. This is, of course, a preliminary view based upon the evidence at this interim stage of the proceedings. It is difficult to assess the strength of the applicant’s case. Suffice it to say that there are suggestions in the evidence that Mr Bucci and Mr Furney may have become caught up in a competition between the AWU and the CFMEU for coverage at the site, rather than in a case of discrimination conducted by the respondent for some other reason.

I will now consider whether the balance of convenience favours the grant or refusal of relief. Mr Bucci and Mr Furney are both looking for work but have not found work so far. Their primary detriment is the financial effect of being without a job, although it is also suggested that they are less able to get further work while unemployed. Both have some financial resources to meet everyday living expenses. Had they been employed by the respondent, their employment would have lasted from 30 June 1997 to some time between early September and late December, that is, a period of between two and fourteen weeks from the date of this hearing.  Thus, on one view, the period of any injunction might be as short as two weeks. The respondent does not have any vacancies for riggers. Indeed, it contemplates laying off some riggers within a couple of weeks. To engage Mr Bucci and Mr Furney would require it to lay off others or to engage Mr Bucci and Mr Furney as supernumeraries. If Mr Bucci and Mr Furney are engaged now and the trial of the action does not occur until after November or December, which is almost certain, the period of employment will end before the hearing and the interim orders will grant the applicant the major relief it seeks as final relief.

As with many such cases, the convenience of the parties is finely balanced. In the end, two factors induce me to refuse the injunction. One is that Mr Furney and Mr Bucci have an adequate remedy in compensation, and the other is that the grant of interim relief will, in practical effect, deprive the respondent of the opportunity of a hearing of the substance of the case.  Consequently, the application is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:            21 October 1997

Counsel for the Applicant:	Mr W. Friend
Solicitor for the Applicant:	Maurice Blackburn & Co
Counsel for the Respondent:	Dr C. Jessup QC and Mr F. Parry
Solicitor for the Respondent:	Cutler Hughes & Harris
Date of Hearing:	19 August 1997
Date of Judgment:	19 August 1997