Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd (No 2)

[2005] FCA 800

FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd (No 2) [2005] FCA 800

INDUSTRIAL RELATIONS – injunction to restrain torts – variation to permit industrial action – refused during currency of certified agreement

Workplace Relations Act 1996 (Cth), s 170MN

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 125 IR 449 cited
Kilpatrick Green Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (unreported, Ryan J, 28 May 1998) cited

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v CORKE INSTRUMENT ENGINEERING (AUSTRALIA) PTY LTD and SIEMENS LIMITED

VID 519 of 2005

FINKELSTEIN J
8 JUNE 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 519 of 2005

BETWEEN:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Applicant
AND:	CORKE INSTRUMENT ENGINEERING (AUSTRALIA) PTY LTD and SIEMENS LIMITED Respondents
AND BETWEEN:	SIEMENS LIMITED Cross-Claimant
AND:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, CORKE INSTRUMENT ENGINEERING (AUSTRALIA) PTY LTD and DEAN MIGHELL Cross-Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	8 JUNE 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The application be refused.

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	VID 519 of 2005

BETWEEN:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Applicant
AND:	CORKE INSTRUMENT ENGINEERING (AUSTRALIA) PTY LTD and SIEMENS LIMITED Respondents
AND BETWEEN:	SIEMENS LIMITED Cross-Claimant
AND:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, CORKE INSTRUMENT ENGINEERING (AUSTRALIA) PTY LTD and DEAN MIGHELL Cross-Respondents

JUDGE:	FINKELSTEIN J
DATE:	8 JUNE 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On Monday, 6 June 2005 I made orders restraining the cross-respondents, CEPU and Mr Mighell, from inducing or procuring Corke Instrument not to perform work under its contract with Siemens Limited at the Laverton North site. When I made those orders counsel for those cross-respondents said he wished to argue that the orders should be qualified to enable his clients to take “protected action” in accordance with s 170ML of the Workplace Relations Act 1996 (Cth). He foreshadowed that his submission would be that I could not restrain his clients from taking protected action because, by reason of s 170MT, such action is not actionable except in certain presently irrelevant circumstances. I said that I would hear counsel on Tuesday and that in the meantime he should formulate the precise form of the qualification to my orders that he would seek.

2. Argument took place on Tuesday and I reserved my decision overnight because the issues that arose during that argument are, to say the least, not easy to resolve. Part of the difficulty comes about because of the way in which the certified agreement has been drafted. The matter is further obscured because s 170MN, which is the section that may stand in the way of what counsel seeks, is itself ambiguous in several respects.

3. Put simply, s 170MN prevents a union or an employee from taking industrial action, that is action which would be protected action, while a certified agreement is in force and its nominal expiry date has not passed. The assumption behind the provision is that where parties have settled an industrial dispute by a certified agreement, they do so on the basis that they will not resort to industrial action during its currency to coerce the other side into submission.

4. The cases have established that s 170MN does not prohibit industrial action if that action is in pursuit of claims that are not specifically covered by the certified agreement. The cases include Kilpatrick Green Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (unreported, Ryan J, 28 May 1998) and Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 125 IR 449.

5. The exemption from the orders which is sought is in the following terms:

   “Nothing in these orders shall preclude the First and Third Cross Respondents from organising or engaging in protected industrial action within the meaning of and in accordance with the Workplace Relations Act 1996 (Cth), in the form of bans on the performance of all work by employees of the Second Cross Respondent on the Gas Turbine Power Station Project located at 147 Cherry Lane, Laverton North, in the State of Victoria.”

   In support of the application, the first and third cross-respondents contend that the certified agreement with Corke Instrument does not cover any conditions of employment at the Laverton North site, so that s 170MN cannot bar their proposed conduct.

6. As with many issues in this case, those raised here are far from simple.  While it may be accepted that there is no provision in the certified agreement which deals with the precise conditions of employment at the Laverton North site (an Engineering Construction Project), it is not true to say that the agreement is silent as regards those conditions.  Clause 3.2 imposes an obligation upon the parties to reach an agreement on the terms of a site agreement if they are able to do so.  The clause imposes a sanction on Corke Instrument if such agreement is not reached, namely it is not entitled to commence any work at the site. 

7. Clause 4.1 is also relevant and has been the subject of a good deal of discussion. In summary, it provides that the certified agreement covers all matters pertaining to wages and conditions and claims that could be included in a certified agreement. It states that the parties agree that up to the nominal expiry date they will not pursue any extra claims and will not seek any changes whatsoever to conditions of employment of the employees. Nor will they engage in, or seek to engage in, protected action pursuant to s 170ML in relation to any work covered by the agreement.

8. When cl 3.2 and cl 4 are read together it is at the very least arguable that the certified agreement does make provision for the conditions of work at every Engineering Construction Project, including the Laverton North site.  It does not provide for those conditions in terms.  Nevertheless, it could be said that it provides for them by requiring those conditions to be agreed in a site agreement.  This construction is supported by cl 4.1 which seems to contemplate that there will be no protected action in support of a site agreement. 

9. I readily acknowledge that a different construction is open. The intended effect of cl 3.2 might be to confine the operation of the certified agreement to work performed at every site other than an Engineering Construction Project site. On that construction, cl 4.1 has nothing to say about such projects. But the fact that there are competing interpretations which I cannot resolve on this interlocutory application and which, in any event, may require for their resolution evidence of background facts means that I should proceed on the assumption, at least for the purpose of deciding whether the orders previously made should be qualified, that it is seriously arguable that s 170MN may govern this case.

10. Nothing that I have said should be taken to imply that I have formed a view about the construction of the certified agreement.  However, because I think that it is arguable that the certified agreement “covers the field”, the well-known cases on injunctions indicate that that is sufficient for me to reject the qualification sought to be imposed on the orders.  Accordingly, I decline to accede to the application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated:             16 June 2005

Counsel for the Applicant & First Cross-Respondent:	Mr H Borenstein SC Mr D Guidolin
Solicitor for the Applicant & First Cross-Respondent:	Maurice Blackburn Cashman
Counsel for the 2nd Respondent & Cross-Claimant:	Dr C N Jessup QC Mr R P Dalton
Solicitor for the 2nd Respondent & Cross-Claimant:	Freehills
Date of Hearing:	7 June 2005
Date of Judgment:	8 June 2005