AWU v Shell Refining (Australia) Pty Ltd

[1999] FCA 1201

FEDERAL COURT OF AUSTRALIA

AWU v Shell Refining (Australia) Pty Ltd [1999] FCA 1201

AUSTRALIAN WORKERS UNION and AUTOMATED FOOD METALS ENGINEERING PRINTING & KINDRED INDUSTRIES UNION and COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION

-v-  SHELL REFINING (AUSTRALIA) PTY LTD and THE SHELL CO OF AUSTRALIA LTD and CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

V471 of 1999

RYAN J
MELBOURNE
18 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIADISTRICT REGISTRY

V 471 OF 1999

BETWEEN:

AUSTRALIAN WORKERS UNION
First Appellant

and
AUTOMATED FOOD METALS ENGINEERING PRINTING & KINDRED INDUSTRIES UNION
Second Appellant

and
COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION
Third Appellant

AND:

SHELL REFINING (AUSTRALIA) PTY LTD
First Respondent

and
THE SHELL CO OF AUSTRALIA LTD
Second Respondent

and
CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Third Respondent

JUDGE:

RYAN J

DATE OF ORDER:

18 AUGUST 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS:

1.That the appellants file and serve, by 5.00 pm on 19 August 1999, a proposed list of the contents of an appeal book.

2.That the proposed list of the contents of the appeal book be settled by a registrar of the Court at 2.15 pm on 20 August 1999.

3.That the appellants prepare, file and serve copies of the appeal book in accordance with the rules of the Court and any applicable practice directions by 5.00 pm on 24 August 1999.

4.That the appellants file and serve, by 5.00 pm on 24 August 1999, a written outline of their submissions in support of the appeal.

5.That the respondents file and serve, by 5.00 pm on 26 August 1999, any notice of objection which they wish to take to the competency of the appeal and any motion for a stay or deferral of the appeal or any other discretionary relief which they intend to seek from the Full Court constituted to hear the appeal, together with any affidavit or affidavits in support of such notice of objection to competency or motion for other relief.

6.That the appeal be listed for hearing in Melbourne by a Full Court not before 27 August 1999, with such expedition as the Court can accord it.

7.That the respondents file and serve, within 36 hours of the time fixed for commencement of the hearing of the appeal, written outlines of their submissions in opposition to the appeal.

8.That the costs of all parties of this day be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIADISTRICT REGISTRY	V 471 OF 1999

BETWEEN:

AUSTRALIAN WORKERS UNION
First Appellant

and
AUTOMATIVE, FOOD, METALS, ENGINEERING PRINTING & KINDRED INDUSTRIES UNION
Second Appellant

and
COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION
Third Appellant

AND:

SHELL REFINING (AUSTRALIA) PTY LTD
First Respondent

THE SHELL CO OF AUSTRALIA LTD
Second Respondent

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
Third Respondent

JUDGE:	RYAN J
DATE:	18 AUGUST 1999
PLACE:	MELBOURNE

EX-TEMPORE REASONS FOR JUDGMENT

1. There has been filed in this Court today a notice of appeal by the Australian Workers Union ("the AWU"), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia ("the AFMEPKIU"), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia ("the CEEEIPP & ASU"), against certain judgments of Beach J given in the Supreme Court of Victoria on 6 August, 9 August and 13 August 1999.

2. It is asserted on behalf of the appellants that that appeal is brought pursuant to s 422 of the Workplace Relations Act 1996 ("the Act") which provides, as far as is relevant:

   "(1)An appeal lies to the court from the judgment of a court of a state or territory in a matter arising under this act.

   (2)It is not necessary to obtain the leave of the court or the court appealed from in relation to an appeal under subsection (1)."

3. There is also before the Court, filed today, on behalf of the appellants, a motion on notice, seeking:

   "(1)That pursuant to Order 52 rule 37(1) of the Rules of this Court, the hearing of the appeal be expedited.

   (2)That the time for the settlement of the appeal papers, the filing and service of written submissions and any other necessary procedural steps be abridged.

   (3)       That the appeal be listed for hearing on the first available date.

   (4)       Such further or other orders as to the court seem appropriate."

4. It has been submitted on behalf of the appellants that the resolution of the appeal is a matter of some urgency because the interlocutory orders made by Beach J have impinged on industrial action being taken by the appellants against the employer of certain of their members, a labour hire company called Danum United Joint Venture Pty Ltd ("Danum"). That industrial action, it is asserted, is protected industrial action within the meaning of the Act. It is contended that the orders made at first instance preclude the appellants and their officers and employees from providing assistance, support and advice to the employees of Danum in implementing what is said to be protected industrial action.

5. Mr McDonald, who appeared with Mr Wood for the first and second respondents, pointed out that the notice of motion had been served only some two hours before it came on for hearing this afternoon and he invited the Court to adjourn the motion until next Friday, to enable his clients to consider their position, and, if so advised to put on material opposing the relief sought by the motion.  He pointed to matters which, in my view, go more to the competency of the appeal than to the question of whether the hearing of the appeal should be expedited.

6. Among those matters was a recent decision of a Full Court of this Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 (unreported, 13 August 1999), in which, as Mr McDonald pointed out, it was held that the picketing action there discussed was not industrial action within the meaning of the Act and accordingly, as I understand it, was not protected industrial action.

7. Mr McDonald also suggested that the appellants are alleged to have engaged in conduct since Beach J made his orders at first instance which might amount to a contempt of the Supreme Court.  However, that, I consider, is not a matter which should weigh with this Court as presently constituted in deciding whether or not to expedite the hearing of the appeal.  Rather, it is a matter which can be addressed to the Full Court constituted to hear the appeal, either in support of a stay of the hearing of the appeal or some other relief as the respondents to the appeal may be advised. 

8. Accordingly, I am not disposed to adjourn the motion for expedition.  I take that course without prejudice to the rights of the respondents to object to the competency of the appeal, or to seek a stay or deferral of the hearing of the appeal as they may be advised and on such material as they consider appropriate.  However, I shall give directions framed to permit the commencement of the settling of the appeal papers and the appointment of a date for hearing the appeal as soon as the resources of the Court and the other business of the Court reasonably permit.  

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN.

Associate:

Dated:             18 August 1999

Counsel for the Appellants:	Mr M Bromberg with Mr P C Rozen
Solicitor for the Appellants:	Maurice Blackburn & Co
Counsel for the First and Second Respondents:	Mr M P McDonald with Mr S Wood
Solicitor for the First and Second Respondents:	Freehill Hollingdale & Page
Counsel for the Third Respondent:	Mr T Borgeest
Solicitor for Third Respondent:	Slater & Gordon
Date of Hearing:	18 August 1999
Date of Judgment:	18 August 1999