Construction, Forestry, Mining & Energy Union v Able Demolitions & Excavations Pty Ltd
[2000] FCA 1247
•25 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining and Energy Union v Able Demolitions & Excavations Pty Ltd [2000] FCA 1247
INDUSTRIAL LAW – industrial dispute – prior application made to Supreme Court of Victoria involving dispute – application to Federal Court of Australia for Union organiser to enter work site – application based on permit issued under s 285A of the Workplace Relations Act 1996 (Cth) – whether circumstances necessary for use of permit exist – whether breaches of relevant Award – whether members of Union on work site.
Workplace Relations Act 1996 (Cth): ss 285A, 285B, 285C
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v ABLE DEMOLITIONS AND EXCAVATIONS PTY LTD
V 635 of 2000GOLDBERG J
25 AUGUST 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 635 of 2000
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
ABLE DEMOLITIONS AND EXCAVATIONS PTY LTD
RespondentJUDGE:
GOLDBERG J
DATE OF ORDER:
25 AUGUST 2000
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application by the applicant for interlocutory relief as set out in the application filed 24 August 2000 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
V 635 of 2000
BETWEEN:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
ApplicantAND:
ABLE DEMOLITIONS AND EXCAVATIONS PTY LTD
Respondent
JUDGE:
GOLDBERG J
DATE:
25 AUGUST 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
HIS HONOUR:
On 24 August 2000 the applicant, Construction, Forestry, Mining and Energy Union (“the Union”) filed an application in the Court seeking the following relief:
“1.A declaration that those officers and employees of the Applicant who hold permits in force under Division 11A of the [Workplace Relations Act 1996 (Cth)] WRA have, subject to the provisions of Division 11A of the Act, a right to enter the Respondent’s premises located at the National Gallery of Victoria, St Kilda Road, Melbourne in the State of Victoria (‘the premises’) and, after entry to the premises, the right to exercise those powers provided by sections 285B and 285C of the Act.
2.A declaration that the Able Demolitions & Excavations Pty Ltd Enterprise Agreement 1994 is in force and applies to work that is being carried on by the Respondent at the premises.
3.A declaration that the Able Demolitions & Excavations Pty Ltd Certified Agreement 1998 does not apply in respect of work that is being carried on by the Respondent at the premises.
4.The imposition of penalties on the Respondent under section 285F(2) of the Act for contraventions of sections 285E(2) and 285E(4) of the WRA.
5.An injunction under section 285F(5) of the Act prohibiting the Respondent, by itself, its servants or agents, from further contravening sections 285E(2) and 285E(4) of the Act.
6.An order under section 356(b) of the WRA that any penalty or penalties be paid to the Applicant.
7.Such further or other penalty, order or relief as the Court may deem fit.”
In the application the Union sought interlocutory relief that:
“The Respondent by itself, its servants or agents, refrain from refusing or unduly delaying entry to the premises by officers and employees of the Applicant who hold permits in force under Division 11A of the [Workplace Relations Act 1996 (Cth)];
The Respondent by itself, its servants or agents, refrain from hindering or obstructing officers and employees of the Applicant in the exercise of powers under sections 285B and 285C of the [Act].”
In the course of the hearing, counsel for the Union indicated that the interlocutory relief sought was only in relation to Mr David Noonan, for reasons which will become apparent hereafter. The matter has been brought on today as a matter of substantial urgency. The Court was informed at the time the application was filed or sought to be filed yesterday that the interlocutory relief was sought as a matter of urgency as it was alleged that the respondent was in flagrant breach of a relevant award or an agreement or the Workplace Relations Act 1996 (Cth) (“the Act”).
The Union says that it and the respondent are parties to the National Building and Construction Industry Award 2000 (“the Award”), a certified agreement being the Able Demolitions and Excavations Pty Ltd Enterprise Bargaining Agreement 1994 (“the 1994 Agreement”). It also appears from the evidence that the respondent and the Australian Workers Union are parties to the Able Demolitions and Excavations Pty Ltd Certified Agreement 1998‑2001 (“the 1998 Agreement”). Clause 2.4 of the 1998 Agreement provides that it totally replaces the 1994 Agreement, although that proposition is contested by the Union.
The respondent is said to be a party to the Award as it has been until recently a member of the Victorian Employers Chamber of Commerce and Industry (“VECCI”) which is said to be a party to that Award. On 14 August 2000 the respondent gave notice to VECCI that it resigned its membership of VECCI and I was informed that that resignation would become effective fourteen days thereafter, on Monday 28 August 2000.
The respondent is currently engaged in demolition work at the National Gallery of Victoria site in St Kilda Road (“the Gallery site”). It entered into a contract in relation to that demolition work on 26 July 2000 and has commenced demolition work on site. The respondent says that the 1998 Agreement covers the work being performed on this site by its employees. The respondent says that the majority of its twelve members on site are members of the Australian Workers Union. Mr Victor Campisi, the respondent’s project manager on site, said that to the best of his knowledge no employee of the respondent at the site is a member of the Union. This is contested by the Union. Mr Noonan, vice‑president of the Victorian Branch of the Union and an organiser of the Union, says that Mr Campisi and three other employees are recorded as members of the Union in its membership system.
On 10 August 2000, members of the Union came to the Gallery site and entered it by smashing the front glass doors. Officers of the Union were either present at the time or shortly thereafter. The members of the Union had used oxy‑acetylene equipment to cut through a roller shutter door and about 300 to 400 persons gathered in the foyer area of the Gallery site at some time around or shortly after 7.00 am to 7.30 am. They were addressed by the secretary of the construction and general division of the Victorian Branch of the Union and in the course of the morning, the president of that branch told the employees of the respondent that they either joined the Union or they, referring to the Union, would keep picketing the site every day until they did so. The secretary said that they had closed down the site and would keep it closed until the respondent did a deal with the Union. Later in the morning, the secretary proposed a roster to stay on site and at that point of time most of the members of the Union who were on site left, leaving about fifty persons on site. This occurred around twelve noon.
Whilst the members of the Union were on site, a substantial amount of damage was done to the site. In an affidavit relied upon in earlier Supreme Court proceedings, which has been tendered before this Court, Mr Campisi said that while the members of the Union were on site a considerable amount of damage had been done. That damage included damage to the pedestrian roller door at Sturt Street, damage to the loading dock roller door at Sturt Street, smashing the glass doors at the garden entrance, smashing the glass doors at the St Kilda Road entry; some tools and equipment were stolen; approximately thirty to forty fire extinguishers were discharged; fire hydrants were damaged and floors were flooded. A particular incident involved a bobcat which was driven into a wall damaging a water riser.
Shortly afterwards the respondent made an application to the Supreme Court and came before Beach J sitting in the Practice Court. Around 3.00 pm, his Honour granted immediate injunctive relief. I was told in the course of the hearing that the Union had been given some hours’ notice of that application but it did not appear, nor was it represented before Beach J. On that day, upon Able Demolitions and Excavations Pty Ltd, the plaintiff in that proceeding, giving the usual undertaking as to damages, Beach J ordered that until the hearing and determination of the proceeding or until further order the Union and the second defendant in that proceeding, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, whether by themselves or their servants, officers, delegates, agents or howsoever be restrained from:
“(a)remaining on, entering or re‑entering the National Gallery of Victoria, St Kilda Road Melbourne (‘the Gallery Site’);
(b)abusing, threatening, besetting, harassing or intimidating any person entering or leaving or about to enter or leave or who has entered or left the Gallery Site;
(c)preventing, hindering or interfering with free access to and free egress from the Gallery Site;
(d)abusing, threatening, besetting, harassing or intimidating any person who is at the Gallery Site;
(e)committing or doing any act which interferes with or denies the plaintiff’s right to quiet and lawful enjoyment, use and occupation of the Gallery Site;
(f)inducing, procuring, advising or persuading any person not to enter or not to leave the Gallery Site or attempting to induce, procure, advise or so persuade;
(g)abusing, threatening, besetting, harassing or intimidating any person who is on or in the vicinity of the Gallery Site;
(h)throwing any article into or out of the Gallery Site or at any person in the Gallery Site or in the vicinity of the Gallery Site;
(i)damaging, tampering with or interfering with any fence, gate, door, window, lock, post or other property at the Gallery Site or attempting to do so.
(j)damaging, tampering with or interfering with any telephone, electricity lines on or in the vicinity of the Gallery Site which lines provide services to the Gallery Site;
(k)damaging, tampering with or interfering with or impeding any vehicles, or the contents or load of any vehicle, entering or leaving or about to enter or leave or which has entered or left the Gallery Site or attempting to so damage, tamper with, interfere with or impede;
(l)injuring or assaulting any person entering or leaving, or about to enter or leave or who has entered or left the Gallery Site;
(m)causing, inducing, procuring or advising any person to do or attempt to do any of the acts or things described in any one of the above sub‑paragraphs (a)-(l) inclusive.”
At the same time, his Honour adjourned the further hearing of the summons for interlocutory relief to Thursday 17 August 2000. On that day there was no appearance by the Union or on its behalf before Beach J and the injunctions were continued. On 21 August 2000, a deputy industrial registrar of the Australian Industrial Relations Commission issued a permit to Mr David Noonan, an employee of the Union, pursuant to, or for the purposes of, s 285A(1) of the Act. That permit recited, omitting formal parts:
“The holder of this permit is entitled, while the permit is in force, to exercise the powers and functions given to the holder of this permit by Division 11A of Part IX of the Workplace Relations Act 1966.
The permit remains in force for 3 years from and including the date of this permit, unless, before the end of that period, it is revoked or the person named in the permit ceases to be an officer or employee of the organisation or branch named in the permit, whichever occurs first.”
On the same day, Mr Noonan had a letter delivered to the respondent in the following terms, omitting formal parts:
“Re Right of Entry, National Gallery of Victoria site, St Kilda Road, Melbourne.
I wish to inform you that I am an officer of the Construction, Forestry, Mining and Energy Union (‘the CFMEU’) and the holder of a current permit issued pursuant to section 285A of the Workplace Relations Act 1996 (‘the Act’).
The purpose of this letter is to give you notice pursuant to section 285D(2) of the Act of my intention to enter the above premises at 10.00 am on Wednesday 23 August 2000 and to exercise powers upon entry to the premises as provided by sections 285B and 285C of the Act. Upon my attendance at the premises at the above time, I will present to you my permit in compliance with section 285D(1) of the Act.The purpose of my entry to the premises and the exercise of powers as provided by sections 285B and 285C of the Act is to hold discussions with employees and to investigate suspected breaches of the National Building and Construction Industry Award 2000 and the Able Demolitions and Excavations Pty Ltd Enterprise Bargaining Agreement 1994, instruments which are in force and which bind the CFMEU.”
On the next day, 22 August 2000, the respondent's solicitors wrote to Mr Noonan and to the Union’s solicitors. The letter to Mr Noonan was in the following terms, omitting formal parts:
“Re Able Demolitions and Excavations Request for Right of Entry.
As you know, we act for Able Demolitions and Excavations Pty Ltd (‘Able’).
They have provided us with a copy of your letter delivered by hand on 21 August 2000 seeking to exercise rights of entry to the National Gallery site.
We are instructed to reply to you on behalf of Able.
As we understand it, you have no right to enter the premises under s. 285B because no members of the CFMEU currently work at the Gallery site – see s. 285B(2).
Further, as we understand it, you have no right to enter the premises under s 285C because there is no Award to which CFMEU is a party which applies to the work being carried on by Able employees. We are instructed that Able is not a respondent to the National Building and Construction Industry Award 2000.
If you have any information which is contrary to this position, please provide it to us, so that we can assist Able to determine its legal obligations in respect of your request.
In the meantime, we take it that you will not endeavour to enter the premises at the Gallery site. If you do so, you will be refused entry on the basis that you have no right to enter the premises.”
The letter to the union’s solicitors enclosed a copy of the letter which had been sent to Mr Noonan and also stated the following:
“Any attendance by Mr Noonan at the Gallery site at 10.00 am tomorrow would appear to be in breach of Justice Beach’s orders of 10 and 17 August 2000. Paragraph 8 of the affidavit of Mr Borgeest, attests, on the basis of information from Mr Noonan, that Mr Noonan and other officers of the first defendant “desire to ensure that they engage in only lawful conduct and are not seen to be in breach, even arguably, of the court's order”. In the face of this “desire” it would be inappropriate for Mr Noonan to attend the Gallery site at 10.00 am tomorrow 23 August 2000.
Please confirm by return facsimile that Mr Noonan will not be attending the Gallery site.
In the meantime, we will seek instructions from our client in relation to the proposed variation to Justice Beach’s order.”
The reference to Mr Borgeest’s affidavit and the variation to Beach J’s order was a reference to the fact that on that day, 22 August 2000, the Union had issued a summons out of the Supreme Court, returnable before Beach J on 24 August 2000, seeking a variation to the orders made on 10 and 17 August 2000. In the events which occurred, Mr Noonan did not seek to exercise his claimed right of entry at that point of time and the solicitors for the respondent were notified accordingly.
On 24 August 2000, Beach J made orders by consent in the proceeding whereby he varied par 1(a) of his earlier order of 10 August 2000, as continued on 17 August 2000, by deleting sub‑par (a) of par 1 of that order and inserting the following:
“(a) Except for a person to whom a permit has been issued under Part IX Division 11A of the Workplace Relations Act 1996 (‘Division 11A’) exercising his or her rights and complying with his or her obligations in accordance with Division 11A, remaining on, entering or re‑entering the National Gallery of Victoria, St Kilda Road, Melbourne (‘the Gallery Site’)”.
He also made an order as to costs which is not relevant for present purposes.
In the course of argument this morning, I raised with senior counsel for the Union the issue of the urgency raised or the urgency which had generated the request for the urgent hearing before the Court. As I understood the submission it was put that unless Mr Noonan was given access to the site, the Union would not have available hereafter evidence which might support an application for penalties for contraventions of the Act. It was said that the work on site was to be completed in the short term and was expected to be completed within six weeks.
At the present time, notwithstanding what had been said to the Court earlier when an urgent hearing was sought, there has not been placed before the Court evidence of any contraventions of any agreement or award or the Act by the respondent other than what is asserted to be a contravention of s 285E(2) and s 285E(4) of the Act which relate to the opportunity to obtain access to the site, and I will refer to this issue shortly. The highest the evidence goes is that Mr Borgeest said in par 11 of his affidavit affirmed on 23 August 2000 and filed on 24 August 2000:
“I am informed by officers of the Applicant, including Mr David Noonan, that they suspect that the Respondent has and continues to breach various provisions of the Award and the 1994 Agreement in respect of the terms and conditions applicable to its employees located at the Gallery site. These provisions include:
(a)Annual Leave (clause 24 of the 1994 Agreement, Clause 32 of the Award).
(b)Sick Leave (Clause 24 of the 1994 Agreement, Clause 33.1.1 of the Award).
(c) Public Holidays (Clause 36 of the Award).
(d)Rostered Days Off (Clause 9 of the Agreement, Clause 27.2 of the Award).
(e)Limits of Employment of Casual Employees (Clause 13.2.2 of the Award).
(f) Disability Allowance (Clause 22 of the Agreement).
I am further informed by officers of the Applicant that they wish to hold discussions with the employees of the Respondent working at the Gallery site who are or are eligible to be members of the Applicant.”
Mr Noonan, in an affidavit filed in the course of the hearing this morning, said that he had read Mr Borgeest’s affidavit and from his own knowledge and information and belief, the matters deposed to in those affidavits were true and correct. I take it from that affidavit that Mr Noonan was saying that he suspected the matters referred to in par 11 of Mr Borgeest’s affidavit.
In par 15 of Mr Borgeest’s affidavit, he says:
“I am informed by officers of the Applicant including David Noonan that they urgently wish to exercise their rights provided by sections 285B and 285C of the Act in respect of the Gallery site. I accordingly request the Court grant the interlocutory and interim relief set out in the Application with which this affidavit is filed.”
The relevance of Mr Noonan’s suspicion to which I have referred is that it gives him the opportunity to take advantage of s 285B and s 285C of the Act. Section 285B of the Act provides:
“(1) This section applies if a person who holds a permit in force under this Division suspects that a breach has occurred, or is occurring, of:
(a) this Act; or
(b)an award, an order of the Commission, or a certified agreement, that is in force and binds the organisation of which the person is an officer or employee.
(2) For the purpose of investigating the suspected breach, the person may enter, during working hours, any premises where employees work who are members of the organisation of which the person is an officer or employee.
(3) After entering the premises, the person may, for the purpose of investigating the suspected breach:
(a)require the employer of the employees to allow the person, during working hours, to inspect and, if the person wishes, to make copies of any of the following that are kept by the employer on the premises and are relevant to the suspected breach:
(i) any time sheets; or
(ii) any pay sheets; or
(iii)any other documents, other than an AWA, an ancillary document or a document that shows some or all of the content of an AWA or of an ancillary document; and
(b)during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach; and
(c) during working hours, interview any employees who are:
(i)members of the organisation of which the person is an officer or employee; or
(ii) eligible to become members of that organisation;
about the suspected breach.
(4) For the purpose of investigating the suspected breach, the person may (regardless of whether the person exercises powers under subsection (2) or (3)) require the employer of the employees mentioned in subsection (2):
(a)to produce documents of the kind mentioned in any of subparagraphs (3)(a)(i) to (iii) at the premises at which the employees work or at some other agreed place; and
(b)if the documents are to be produced at the premises at which the employees work – to allow the person, during working hours, to enter the premises and:
(i) inspect the documents; and
(ii)if the person wishes to do so – make copies of the documents; and
(c)if the documents are to be produced at some other place – to allow the person, at an agreed time, to inspect the documents at that place and, if the person wishes to do so, to make copies of them.
(5) In this section:
‘ancillary document’ has the same meaning as it has in Part VID.”
Section 285C of the Act provides:
“(1) A person who holds a permit in force under this Division may enter premises in which:
(a)work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee; and
(b)employees who are members, or eligible to become members, or eligible to become members, of that organisation work;
for the purposes of holding discussions with any of those employees who wish to participate in those discussions.
(2) The person may only enter the premises during working hours and may only hold the discussions during the employees’ meal-time or other breaks.”
It is apparent from these sections that Mr Noonan only has the right, subject to all other things being equal, to take advantage of the provisions of s 285B and s 285C if he suspects a breach is occurring of an award or an agreement which binds the Union.
The Union complains that the work at the Gallery site is not covered by the 1998 Agreement. In support of that assertion the Union referred to some radio and newspaper statements attributed to Mr Shorten, a representative of the Australian Workers Union, who says that the work is not covered by the 1998 Agreement.
The Union also submitted that although cl 2.4 of the 1998 Agreement says that it supersedes the 1994 Agreement as a matter of law that is not the position. The Union relied upon Telstra Corporation Ltd v MacBean [2000] FCA 437. These are matters which are inappropriate for me to deal with at this stage of an urgent application. I also note that there is an issue as to the scope and area of operation of the 1998 Agreement because cl 2.2 provides that:
“This Agreement shall apply to heavy industrial & civil demolition and associated works throughout Australia.”
Senior counsel for the Union submitted that civil demolition was not a term which was appropriate to describe the work that was being carried on at the Gallery site. Again, in an application of this nature, that is an urgent application brought on for hearing at short notice, these are not matters to which I can give full consideration to or resolve and I have not had the opportunity, nor is there sufficient or appropriate evidence before me, to determine those issues.
It is not clear to me why it is said that the matter is so urgent that it has to be dealt with today. As I understand the submission, the Union said that unless it obtained an order before Monday 28 August 2000 it would not be able to inspect the respondent’s records and the work carried out at the Gallery site as allowed by s 285B(3) of the Act. There is no suggestion that those records will be destroyed or otherwise concealed.
Indeed, the respondent has an obligation under a number of regulations made under the Act, the Workplace Relations Regulations, to keep and to maintain a number of records in accordance with Pt IXA of those Regulations. Regulation 131A(1) provides:
“Subject to sub regulation (1A), an employer who employs an employee under an award, a certified agreement, an AWA or an old IR agreement, must make, or cause to be made, a record in accordance with this Part.”
One then finds in further regulations in Pt IXA specific regulations dealing with records that must be kept. For example, Reg 131B(1) provides:
“A record that relates to an employee employed under an award, a certified agreement or an old IR agreement must be in a condition that allows an inspector to determine whether the conditions of that award, certified agreement or old IR agreement are being complied with in relation to the employee.”
Regulation 131D contains a number of provisions that require the employer to maintain records which contain detailed particulars of employees, their classifications and other associated matters. Regulation 131E relates to overtime records and reg 131F relates to the keeping of records relating to the remuneration of employees.
It seems to me therefore that the records, to which Mr Noonan and the Union through him are seeking to have access, are records which will remain after Monday 28 August 2000, irrespective of the fact that the respondent will no longer be bound by the Award to which I have referred. The concern of the respondent is that once the withdrawal of the respondent from being bound by the provisions of the Award occurs, the provisions of s 285B(1)(b) either will not apply or will be diminished. It is said that there will no longer be a situation where breaches of that Award by the respondent may be continuing as the respondent is not bound by the Award.
However, insofar as there may have been breaches of that Award which occurred on or prior today, or on or prior to Monday 28 August 2000 the existence or proof of those breaches or contraventions of the Award will not be affected by the withdrawal or resignation of the respondent from VECCI.
As I have noted earlier, the application which has been filed before the Court seeks injunctive relief under s 285F(5) of the Act prohibiting the respondent from further contravening s 285E(2) and s 285E(4). That is the ultimate injunctive relief which is sought. The imposition of penalties for contraventions of those sections and declaratory relief which are also sought are, in effect, ancillary to the claimed existence of the rights of Mr Noonan under s 285E(2) and s 285E(4). In other words, when this proceeding is finally heard, the issue which the Court will have to resolve is not whether there has been a breach of any award or any agreement but rather whether there has been a contravention of the provisions of s 285E(2) and s 285E(4).
The Union contends that Mr Noonan is entitled to enter the Gallery site under s 285E(2). That entitlement is challenged by the respondent. If I were to grant the interlocutory relief sought, save for the issue of the imposition of penalties, that would be the equivalent of granting final relief in this proceeding on the substantive issue which has been brought before the Court. If Mr Noonan was allowed to be given access to the premises there would no longer be any need for the declaration sought in pars 1 to 3 of the application, nor would there be any need for the final injunction sought in par 5.
The authorities establish that in an urgent interlocutory application, a Court should only grant such relief if in effect irreparable harm might occur, and certainly in circumstances where a strong case is made out for the relief: see Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, Cayne v Global Natural Resources PLC (1984) 1 All ER 225. It is appropriate in these circumstances to consider the strength of the Union’s case
Under Beach J’s order, Mr Noonan is now not inhibited from exercising his rights under the relevant provisions of the Act. What is contested in this proceeding is whether I should grant interlocutory relief which substantially resolves the substantive issue before the Court when the issue before the Court is a challenge to Mr Noonan’s rights under s 285B and s 285C of the Act. There is a contested issue as to whether there are employees of the respondent who are members of the union working on site. Mr Campisi denies there are any such employees. Mr Noonan asserts that records, which have not been produced to the Court, disclose that there are such employees.
As I noted earlier, after 28 August 2000 passes, such evidence as is on the premises in relation to the documents to which Mr Noonan claims access will still be available. Those documents are set out in s 285B(3)(a) of the Act. When I look at the suspicion which Mr Noonan has, it relates to breaches of provisions of the Award and the 1994 Agreement which relate to matters of annual leave, sick leave, public holidays, rostered days off, limits of employment of casual employees and disability allowance. It seems to me that those are matters which would be the subject of consideration in the documentation required to be kept by the respondent. It was submitted on behalf of the Union that Mr Noonan also needed, in the terms of s 285B(3)(d), during working hours, to inspect or view the work on site. There was no evidence as to why that was so and on the material before me, I am not satisfied that that is a matter which weighs significantly in the balance at the present time.
The matter which I have to determine now is whether there is, in terms of determining whether there is a serious question to be tried, a strong case that the respondent is contravening s 285E(2) and s 285E(4) of the Act. On the material before me, having regard to the matters to which I have referred, I am not satisfied that there is such a case made out. If I am wrong in that respect, it seems to me that I should take into account, this being an urgent application for interlocutory relief, whether or not there will be irreparable harm suffered by the Union if I do not grant the relief sought. I am not satisfied, for the reasons to which I have already referred, that there will be such irreparable harm. The records will remain after Monday and it does not appear to me that the Union will lose something in the sense that it will not be able to continue by means available to it to take proceedings against the respondent to obtain access to those records if it wishes to do so.
If I am wrong in those respects, I also consider in the particular circumstances of this case that the balance of convenience is not in favour of the granting of such relief. Indeed, I am satisfied on the material before me that the balance of convenience in relation to this particular site is in favour of not granting the injunctive relief but rather preserving the situation as it presently exists. It was submitted by senior counsel for the Union that what had occurred on 10 August 2000 was irrelevant in relation to the exercise of Mr Noonan’s rights under s 285B and s 285C of the Act. It is true that Beach J varied the orders which he had made on 24 August 2000, to enable Mr Noonan to exercise such rights as might be available to him, but I also take into account evidence that was given in the affidavits filed in the Supreme Court proceeding, which were before me, that the respondent is working to a very tight timetable.
What occurred in relation to the actions of members of the Union on the site in the past was very disruptive. After the injunctions were granted there have been no further incursions onto the site. Senior counsel for the Union submitted that there was no suggestion that Mr Noonan was going to do anything other than exercise the rights which he was entitled to exercise, so it was contended, under the Act. That may be so but having regard to the circumstances which have occurred and the issues which have arisen in relation to the site, at the present time I am not satisfied that the balance of convenience dictates or warrants the exercise of my discretion to grant the relief which is sought. For all these reasons, I dismiss the application for interlocutory relief.
I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate:
Dated: 25 August 2000
Counsel for the Applicant: Mr S Rothman SC with Mr S Moore Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr N Green QC with Mr R Millar Solicitor for the Respondent: Minter Ellison Date of Hearing: 25 August 2000 Date of Judgment: 25 August 2000
0
2
0