Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

Emwest Products Pty Ltd commenced proceedings against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union seeking relief from alleged contraventions of s 170MN of the Workplace Relations Act 1996 (Cth). The 1997 agreement between Emwest and the Union had expired and a new certified agreement, the 2000 agreement, was in force. The Union had taken industrial action in contravention of s 170MN(1) which prohibits a union from engaging in industrial action for the purpose of supporting or advancing claims against the employer in respect of the employee’s employment from the time when the agreement comes into operation until its nominal expiry date. The Union argued that it had not contravened s 170MN because it had been engaged in a protected bargaining process when the industrial action took place. The court had to determine whether the Union’s industrial action was protected by s 170CD of the Act.

The court found that the Union’s industrial action was not protected by s 170CD because it occurred after the nominal expiry date of the 1997 agreement and before the 2000 agreement came into operation. The court noted that s 170CD provides for a protected bargaining period during which industrial action is permitted in support of a proposed certified agreement. However, this period ends when the agreement comes into operation. The 2000 agreement had not yet come into operation when the industrial action took place, and therefore the Union’s action was not protected. The court also found that the Union’s argument that it had been engaged in a protected bargaining process was not supported by the evidence. The court concluded that the Union had contravened s 170MN(1) and was therefore liable for penalties and an injunction.

The application was dismissed with costs. The court ordered that the Union pay Emwest’s costs of the proceedings on an indemnity basis. The court also ordered that the Union refrain from taking any further industrial action in contravention of s 170MN(1) and that it comply with any orders made by the Fair Work Commission in relation to the contraventions.