Ferro Corporation (Aust) Pty Ltd v Managers and Professionals Assoication
[2003] VSC 490
•26 September 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7909 of 2003
| FERRO CORPORATION (AUST) PTY LTD | Plaintiff |
| V | |
| MANAGERS AND PROFESSIONALS ASSOCIATION AND OTHERS | Defendants |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2003 | |
DATE OF JUDGMENT: | 26 September 2003 | |
CASE MAY BE CITED AS: | Ferro Corporation v Managers and Professionals Association & Ors | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 490 | |
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Industrial law - tort - picket action - interlocutory injunctive relief - s.166A Workplace Relations Act 1996 (Cth)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Green QC with Mr T Jacobs | Minter Ellison |
| For the Defendants other than the sixth, fourteenth, twentieth and twenty-third defendants | Mr Harding | Katrina Lovett |
HIS HONOUR:
The plaintiff is a wholly owned subsidiary of Ferro Corporation USA. It is the Australian Manufacturer of coating products used in the production of white goods, tiles and other similar products. Its business is conducted, amongst other places, at Cochranes Road, Moorabbin where it employs three large smelters. Its operations require access by trucks to the Moorabbin premises for the delivery of raw materials including oxygen and the shipping of finished product.
Although the plaintiff is a party to an agreement certified by the Australian Industrial Relations Commission in respect of its production employees which commenced only on 27 August this year, and is due to run until May 2005, it is not a party to any such agreement or any industrial award in respect of its salaried staff some of whom are members of the first defendant and some of whom are members of the second defendant.
On 4 April 2003 the plaintiff informed its salaried staff that it had decided to implement a new redundancy policy. On 14 April various of the plaintiff’s salaried staff rejected the new policy in a letter. There followed, in August, a number of steps taken by the first defendant and the second defendant in the industrial arena culminating in a withdrawal of labour after notice to the plaintiff. Such withdrawal of labour commenced on 1 September 2003 and has continued to date.
The plaintiff now alleges that from 4 September individual defendants, or some of them have at various times been present at the gate of the Moorabbin premises on numerous occasions before 23 September and that individual defendants have been responsible for turning away delivery trucks which sought to enter the premises in the ordinary course of business with it. These allegations, which are contained in an affidavit of the Chairman of the plaintiff Mr Anthony Bang Chi Tan are non-specific as to dates and times and somewhat vague in particulars. However they have not been denied by the defendants.
Mr Tan’s affidavit becomes somewhat more specific when it refers to events which allegedly occurred on 23 and 24 September 2003. It recounts events in which, on two occasions, a truck carrying liquid oxygen bearing the name AirLiquide was turned away by some of the individual defendants who were still present outside the Cochranes Road premises gates.
These actions of the individual defendants are said to have occurred under the banners of the first and second defendant. These events have also not been denied by the defendant. Yesterday, 25 September 2003, the plaintiff made an application to this Court for ex parte injunctive relief against the first defendant, the second defendant and a further thirty individual defendants. In the event the application was made on short notice to some at least of the defendants who were represented by counsel when the hearing took place at my home at about 9.00pm last evening.
At that hearing the first defendant, the second defendant and those other defendants who were at that time outside the gates of the Cochranes Road premises offered an undertaking to the Court that a delivery of liquid oxygen due to be made to the plaintiff at about 3.00am today would not be interfered with. Upon that undertaking being proffered I told counsel for both parties that I was disinclined to hear the plaintiff’s application further until today, and I gave directions for the plaintiff to put on any evidence they wished by noon in anticipation of a hearing in the Practice Court this afternoon at 2.15pm when the plaintiff would move for interlocutory relief by way of injunctions to prevent what it alleged was continuing tortious conduct on the part of the defendants deleterious to its business.
The hearing commenced shortly after 2.15pm when the plaintiff filed a further affidavit bringing its case up to date. The defendants put on no evidence and although Mr Harding for the defendants informed me that he wished to cross-examine Mr Tan he did not press that application nor seek any adjournment of the proceeding upon Mr Tan’s non-appearance. He did however proffer another undertaking to the Court to the effect that the defendants, except the sixth, fourteenth, twentieth and twenty-third defendants with whom he was not in contact would not further obstruct any truck from entering or leaving the Cochranes Road premises and that accordingly no injunctive relief should be granted.
Mr Green of Queens Counsel for the plaintiff submitted that an extensive interlocutory injunction should be granted by the Court to protect his client’s business, having regard to the ordinary principles of injunctive relief at an interlocutory stage. That is to say that there is a serious issue to be tried as to the defendants' tortious conduct and that the balance of convenience favoured such a course pending the final determination of the proceeding.
Mr Green submitted that the Court had jurisdiction to grant such relief notwithstanding s 166A of the Workplace Relations Act 1996 (Cth) which provides that:
“(1)Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission:
(a)has certified in writing as mentioned in paragraph (6)(a) or (c) in respect of the conduct; or
(b)has certified in writing as mentioned in paragraph (6)(b) in relation to the person in respect of the conduct."
Mr Green submits that the jurisdiction to grant injunctive relief, notwithstanding that provision and the fact that no certificate has been granted by the Australian Industrial Relations Commission, is well established. He referred to a decision of Beach J in this Court: Patrick Stevedores No 1 Pty Ltd v Maritime Union of Australia[1] and a decision of Wood CJ at CL, in the New South Wales Supreme Court Patrick Stevedores Operations Pty Limited v Maritime Union of Australia & ors[2] Both of those judges, in interlocutory proceedings, held that the grant of interlocutory injunctive relief did not constitute an action in tort as referred to in the section to which I have referred.
[1](1998) 79 IR 268.
[2](1998) 82 IR 237.
Mr Green also quite properly drew my attention to a decision of the Federal Court in which Goldberg J indicated a contrary view without really going into detail other than to acknowledge the existence of the cases to which I have referred. That case is Keppel Prince Engineering Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.[3]
[3](2001) 109 IR 436.
It is not suggested that the Australian Industrial Relations Commission has granted any certificate in this case. Whether one is needed as a pre-condition for bringing a claim for injunctive relief I specifically decline to decide. It is not necessary for me to do so having regard to the course I propose to follow. The question is not easy to resolve and I am by no means convinced that either position adopted by the various single judges in the cases to which Mr Green referred me is clearly right.
The defendants’ failure to put on any evidence denying the plaintiff’s principal allegations of tortious conduct against them enabled me the more easily to accept those allegations, at least to the degree necessary in an interlocutory hearing. They would appear to constitute at least a prima facie case of conduct such as that described as tortious in cases such as Dollar Sweets Pty Ltd v The Federation of Confectioners Association of Australia and Ors,[4] Davids Distribution Pty Ltd v The National Union of Workers[5] and Sid Ross Agency Pty Ltd v The Actors and Announcers Equity Association of Australia[6].
[4][1986] VR 383.
[5](1999) 91 FCR 463.
[6][1971] 1 NSWLR 760
When one examines the plaintiff’s allegations carefully it is clear that the gravamen of its complaint is really confined to that conduct of the defendants which is interfering with access to its Cochranes Road premises for the delivery of raw materials and the shipping of finished product. If the undertaking now proffered by the defendants, or most of them, is honoured in my view much if not all of the problems of which the plaintiff complains will disappear. It is well settled that an injunction should not go unless it is necessary. I am not satisfied that, having regard to that undertaking, injunctive relief is still necessary in this case and accordingly, at least at this stage, the plaintiff’s application will be refused. However it will remain on foot to be able to be reactivated at short notice if necessary.
This application is being made in the context of an ongoing industrial dispute. By the undertakings which they proffered last night and this afternoon the defendants have indicated a willingness to move some way towards trying to resolve that dispute. In the end it will be resolved only by negotiation, whether within the Australian Industrial Relations Commission and under its auspices or outside it. The imposition of injunctions on the industrial organisation and individuals now before this Court will not, in the circumstances now prevailing, either hasten the resolution of the dispute, or avail the plaintiff any real continuing benefit. In making this comment I should not be seen to be necessarily departing from the dictum of Bryson J in Barloworld Coatings (Aust) Pty Ltd v ALH & MWU[7] in which his Honour took the view that it is not appropriate for a Court of equity to decline equitable relief on discretionary grounds simply because the dispute between the parties is of an industrial nature and appropriate for resolution under industrial law. However, it is not irrelevant that the allegedly tortious conduct complained of has occurred, if it has occurred, in an industrial setting.
[7](2001) 108 IR 107.
The undertakings offered by the majority of the defendants will in my opinion provide most, if not all, of the relief sought by the plaintiff and enable its business to continue while this dispute continues. It will be otherwise of course if the proffered undertakings are not honoured, or if those defendants not currently proffering undertakings by reason of difficulties of communication were foolishly to consider themselves free to ignore the realities of the situation.
I considered sending this matter to mediation under RSC r 50.7, but have decided that unless one or other parties hereafter request that I do so I should permit the ordinary processes of industrial negotiation to take their course. Accordingly the orders the Court will make are as follows:
That upon all the defendants other than the sixth, fourteenth, twentieth and twenty-third defendants undertaking by their counsel that they will not henceforth in any way obstruct any truck or other vehicle from entering or leaving the plaintiff’s premises at 105-115 Cochranes Road Moorabbin:
1.The plaintiff’s summons of 26 September 2003 be adjourned sine die;
2.The plaintiff have liberty to apply to the Court to bring the said summons on for further hearing and determination upon five hours notice in writing delivered by facsimile to the defendants’ solicitors; and
3.Costs be reserved.
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