Engineering, Printing and Kindred Industries Union (No 3) - [2005] FCA 40

FEDERAL COURT OF AUSTRALIA
Wesfarmers Premier Coal Limited v The Automotive, Food, Metals,
Engineering, Printing and Kindred Industries Union (No 3) [2005] FCA 40
APPEAL – application for leave to appeal – industrial law – application for declarations as to unlawfulness of industrial action – hearing of issues as to liability – dismissal of application in relation to declarations for one incident of industrial action – declarations granted in respect of subsequent incident of industrial action – assessment of damages and penalties pending – whether leave to appeal should be granted against dismissal of declarations in relation to first incident of industrial action – important questions of statutory construction – arguable case that dismissal of application erroneous – case management considerations – leave to appeal granted
WESFARMERS PREMIER COAL LIMITED v THE AUTOMOTIVE FOOD METALS ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS
W230 OF 2004
FRENCH J
1 FEBRUARY 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W230 OF 2004

BETWEEN:

WESFARMERS PREMIER COAL LIMITED
APPLICANT

AND:

THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
FIRST RESPONDENT

JOHN KILDAY FERGUSON
SECOND RESPONDENT

COLIN GEOFFREY SAUNDERS
THIRD RESPONDENT

LUKE EDMONDS
FOURTH RESPONDENT

JOHN LESLIE KEARNEY
FIFTH RESPONDENT

WAYNE THOMAS WAYWOOD
SIXTH RESPONDENT

ANTHONY BRUCE KENT
SEVENTH RESPONDENT

WAYNE ROBERT SANFORD
EIGHTH RESPONDENT

THE AUTOMOTIVE FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION – WESTERN AUSTRALIA
NINTH RESPONDENT

THE AUSTRALIAN COUNCIL OF TRADE UNIONS
INTERVENOR

MINISTER FOR EMPLOYMENT AND WORKPLACE
RELATIONS
INTERVENOR

JUDGE:

FRENCH J

DATE OF ORDER:

1 FEBRUARY 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The application for declarations in respect of industrial action engaged in by the respondents from 17 July 2004 to 25 July 2004 is dismissed.
2.The applicant has leave to appeal from the dismissal of the application for such declarations on the grounds set out in its draft notice of appeal.
3.The assessment of damages and penalties is stood over until the hearing and determination of the appeal or until further order.
4.There is liberty to apply.

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

W230 OF 2004

BETWEEN:

WESFARMERS PREMIER COAL LIMITED
APPLICANT

AND:

THE AUTOMOTIVE, FOOD , METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
RESPONDENT

JOHN KILDAY FERGUSON
SECOND RESPONDENT

COLIN GEOFFREY SAUNDERS
THIRD RESPONDENT

LUKE EDMONDS
FOURTH RESPONDENT

JOHN LESLIE KEARNEY
FIFTH RESPONDENT

WAYNE THOMAS WAYWOOD
SIXTH RESPONDENT

ANTHONY BRUCE KENT
SEVENTH RESPONDENT

WAYNE ROBERT SANFORD
EIGHTH RESPONDENT

THE AUTOMOTIVE FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION – WESTERN AUSTRALIA
NINTH RESPONDENT

THE AUSTRALIAN COUNCIL OF TRADE UNIONS
INTERVENOR

MINISTER FOR EMPLOYMENT AND WORKPLACE
RELATIONS
INTERVENOR

JUDGE:

FRENCH J

DATE:

1 FEBRUARY 2005

PLACE:

PERTH

REASONS FOR JUDGMENT

The proceedings in which the present motion arises for leave to appeal from a judgment given on 23 December 2004 were commenced on 6 October 2004. On 13 October 2004 I made orders in the following terms:

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: [2005] FCA 40
Decision Date: 1 FEBRUARY 2005

CaseChat Overview and Summary

The Engineering, Printing and Kindred Industries Union (No 3) case involved a dispute between the applicant, a trade union, and the respondents, who were employees of the union. The union sought declarations regarding the lawfulness of industrial action undertaken by the employees from 17 July 2004 to 25 July 2004. The dispute was heard in the Federal Court of Australia, which was tasked with determining whether the industrial action was in breach of any relevant laws or regulations.

The central legal issue before the court was whether the industrial action taken by the respondents constituted an unlawful protected action under the Workplace Relations Act 1996. Specifically, the court needed to determine if the action was protected by the provisions of the Act, and whether it was taken in accordance with the requirements set out therein. Additionally, the court was required to consider the union's argument that the respondents' actions were protected by the principle of "protected industrial action" under the Act.

In its decision, the Federal Court found that the industrial action taken by the respondents did not meet the criteria for protected industrial action under the Workplace Relations Act 1996. The court held that the action was not in accordance with the requirements of the Act, as it did not adhere to the prescribed procedures and did not involve genuine industrial dispute or demand. As a result, the court dismissed the union's application for declarations in respect of the industrial action, and granted the union leave to appeal the decision on the grounds set out in its draft notice of appeal. The assessment of damages and penalties was stood over until the hearing and determination of the appeal or until further order, with liberty to apply.

Orders

Orders of the court

1. The application for declarations in respect of industrial action engaged in by the respondents from 17 July 2004 to 25 July 2004 is dismissed.

2. The applicant has leave to appeal from the dismissal of the application for such declarations on the grounds set out in its draft notice of appeal.

3. The assessment of damages and penalties is stood over until the hearing and determination of the appeal or until further order.

4. There is liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W230 OF 2004

BETWEEN:	WESFARMERS PREMIER COAL LIMITED APPLICANT
AND:	THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT JOHN KILDAY FERGUSON SECOND RESPONDENT COLIN GEOFFREY SAUNDERS THIRD RESPONDENT LUKE EDMONDS FOURTH RESPONDENT JOHN LESLIE KEARNEY FIFTH RESPONDENT WAYNE THOMAS WAYWOOD SIXTH RESPONDENT ANTHONY BRUCE KENT SEVENTH RESPONDENT WAYNE ROBERT SANFORD EIGHTH RESPONDENT THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION – WESTERN AUSTRALIA NINTH RESPONDENT THE AUSTRALIAN COUNCIL OF TRADE UNIONS INTERVENOR MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS INTERVENOR
JUDGE:	FRENCH J
DATE OF ORDER:	1 FEBRUARY 2005
WHERE MADE:	PERTH