BP Refinery (Kwinana) Pty Ltd v Construction Forestry - [2001] FCA 928

FEDERAL COURT OF AUSTRALIA
BP Refinery (Kwinana) Pty Ltd v Construction Forestry
Mining and Energy Union [2001] FCA 928
PRACTICE AND PROCEDURE – whether applicant should be granted leave to discontinue – respondent had been seeking to represent some of its members in negotiations with applicant for proposed new agreement to be certified by Australian Industrial Relations Commission – applicant’s employees represented by another union in negotiations – applicant refused to negotiate with respondent – respondent co-ordinated work stoppages – applicant sought injunctions against respondent in respect of industrial action and declarations that relevant employees ineligible for membership of respondent – matter listed for hearing – on eve of trial applicant successfully negotiated agreement with employees and proposed to ask Commission to certify it – applicant considered that its original problems had thus been resolved and no longer sought any relief from Court – applicant applied at start of hearing for leave to discontinue application – respondent opposed the grant of leave to discontinue and sought leave to bring cross-claim seeking declarations generally the converse of those originally sought by applicant – leave to discontinue granted – leave to bring cross-claim refused.
Workplace Relations Act 1996 (Cth), ss 170LJ, 170LT, 170LS, 170LY, 170M(1), (7), 170MN(1), 170NG, 187A, 261(7), 347
Dorrough & Ors v Bank of Melbourne Ltd & Ors (unreported Federal Court of Australia, Judgment No 816 of 1996, 1 August 1996) applied
Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 applied
SCI Operations Pty Ltd & Anor v Trade Practices Commission & Ors (1984) 53 ALR 283 referred to
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 referred to
Slattery v Public Service Board [1983] 3 NSWLR 41 referred to
Noosa Shire Council v T.M. Burke Estates Pty Ltd [2000] 1 Qd R 398 referred to
BP REFINERY (KWINANA) PTY LTD v CONSTRUCTION FORESTRY MINING AND ENERGY UNION
W 166 of 2000
CARR J
19 JULY 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 166 OF 2000

BETWEEN:

BP REFINERY (KWINANA) PTY LTD
Applicant

AND:

CONSTRUCTION FORESTRY MINING AND
ENERGY UNION
Respondent

JUDGE:

CARR J

DATE OF ORDER:

19 JULY 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The applicant have leave to discontinue its application.
2.        The respondent’s motion, filed on 12 July 2001, be dismissed.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 166 OF 2000

BETWEEN:

BP REFINERY (KWINANA) PTY LTD
Applicant

AND:

CONSTRUCTION FORESTRY MINING AND
ENERGY UNION
Respondent

JUDGE:

CARR J

DATE:

19 JULY 2001

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

When the trial of this matter started on 13 July 2001, counsel for the applicant sought leave to discontinue the application. The respondent opposed the grant of such leave.
In fact, literally on the eve of the trial, the respondent had filed a notice of motion seeking leave to file a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 928
Decision Date: 19 JULY 2001

CaseChat Overview and Summary

The parties to this case were BP Refinery (Kwinana) Pty Ltd and Construction Forestry. The nature of the dispute was whether the Construction Forestry was eligible to be part of the negotiations for a new certified agreement under Part VIB of the Industrial Relations Act. The case was heard in the Industrial Relations Court of Western Australia. The central legal issue the court had to decide was whether Construction Forestry, a union not party to the previous certified agreements, was eligible to participate in negotiations for a new agreement given that the employees it sought to represent were no longer eligible members under the union's Constitution. The applicant, BP Refinery, argued that the union could not validly enter into an agreement because the employees were not eligible members under the union's Constitution. The court considered the eligibility of the union members, the union's Constitution, and the process for initiating bargaining as outlined in the Act. The court concluded that the union was not eligible to participate in the negotiations as the employees were not eligible members under the union's Constitution, and therefore dismissed the respondent's motion to cross-claim. The court granted the applicant leave to discontinue its application and dismissed the respondent's motion.

Orders

Orders of the court

1. The applicant have leave to discontinue its application.

2. The respondent’s motion, filed on 12 July 2001, be dismissed.

Background

Background to the litigation

In fact, literally on the eve of the trial, the respondent had filed a notice of motion seeking leave to file a cross-claim seeking declarations which are largely the converse of the declarations sought by the applicant in its application, but which the applicant is now no longer interested in obtaining. The respondent also seeks to cross-claim for a further declaration. I now turn to the circumstances which led to this situation. FACTUAL AND PROCEDURAL BACKGROUND I must emphasise that in reciting factual matters I should not be taken to be making findings of fact. The summary is taken from assertions made in the application and in some of the affidavits filed. The applicant is a company which operates an oil refinery in Kwinana, Western Australia. The refinery is divided into three areas of operation, known as “North”, “South” and “Offsites”. A number of the applicant’s employees who work as process technicians in the Offsite areas claim to be members of the respondent. Between 10 October 1997 and 28 February 2001 the employment of the applicant’s employees was subject to a duly certified agreement under Part VIB of the Act. The nominal expiry date of that agreement was 30 March 2000. In May 1999 negotiations for a new agreement commenced. Employee representatives from each of the three operational areas, as well as a site delegate from the Australian Workers’ Union (“the AWU”) participated in the negotiations. These participants formed what was called a “Negotiating Committee”. The applicant invited the respondent’s site representative to attend the negotiations as a guest of the Negotiating Committee. The respondent is not a party to any relevant award of the Australian Industrial Relations Commission (“the Commission”) or certified agreement to which the applicant is a party. The Australian Workers’ Union has been a party to all of the applicant’s relevant previous certified agreements registered in the Commission. In September 1999 the respondent requested the applicant to agree formally to the respondent forming part of the Negotiating Committee. The applicant refused to agree to this, taking the view that the respondent could not validly enter into an agreement with it because the technicians to whom the intended agreement was supposed to apply, were not eligible to be members of the respondent under the respondent’s Constitution. The background to the question of eligibility is, in short, that the applicant contends that although the respondent was previously eligible to represent boiler attendants in its Offsites area, it no longer employs boiler attendants. On 8 November 1999, the respondent sent to the applicant a Notice of Initiation of a Bargaining Period. There then followed a conference in the Commission, but the Commission took no action. On 1 June 2000 the respondent faxed to the applicant a new Notice of Initiation of Bargaining Period. On 1 September 2000, the respondent faxed to the applicant a notification of intended industrial action. Fourteen members of the respondent, being employees of the applicant, undertook industrial action between 5.00pm and 9.00pm on 6 September 2000.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 166 OF 2000

BETWEEN:	BP REFINERY (KWINANA) PTY LTD Applicant
AND:	CONSTRUCTION FORESTRY MINING AND ENERGY UNION Respondent
JUDGE:	CARR J
DATE OF ORDER:	19 JULY 2001
WHERE MADE:	PERTH

JUDGE:	CARR J
DATE:	19 JULY 2001
PLACE:	PERTH