Fluor Global Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2001] FCA 875
•04 JULY 2001
Fluor Global Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 875
Industrial law
Fluor Global Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 875
INDUSTRIAL LAW - interlocutory injunction - threatened industrial action - form of injunction - exception for health and safety measures
Workplace Relations Act 1996 (Cth) s 4(1)
Occupational Health and Safety Act 1985 (Vic) s 26
Australian Paper Ltd v Communications etc Union (1998) 81 IR 15 at 24 mentioned
Concrete Constructions Pty Ltd v PGEU (1987) 15 FCR 64 at 77 followed
FLUOR GLOBAL SERVICES PTY LTD and ANOR v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
V 697 OF 2001
HEEREY J
4 JULY 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 697 OF 2001
BETWEEN: FLUOR GLOBAL SERVICES PTY LTD and ANOTHER ACN 081 203 732
APPLICANT
AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS RESPONDENTS
JUDGE:
HEEREY J DATE OF ORDER: 4 JULY 2001 WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. In this order "industrial action" means industrial action as defined in s 4 of the Workplace Relations Act 1996 (Cth) and does not include action taken by an employee if:
(a) the action is based on a reasonable concern by the employee about an imminent risk to his or her health and safety; and
(b) the employee does not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
2. Until the trial of the proceeding or further order the first and second respondents (and each of them), whether by themselves, their servants, agents or howsoever otherwise, are restrained from:
(a) organising, inciting or otherwise encouraging industrial action; and
(b) continuing to organise, incite or otherwise encourage industrial action; and
(c) threatening, whether conditionally or otherwise, to organise, incite or otherwise encourage industrial action.
at the Olefins site at Qenos, 471 Kororoit Creek Road, Altona in the State of Victoria.
3. Until the trial of the proceeding or further order the third to sixth respondents (and each of them), be restrained from:
(a) organising, inciting or otherwise encouraging industrial action; and
(b) threatening, whether conditionally or otherwise, to organise, incite or otherwise encourage industrial action
at the Olefins site at Qenos, 471 Kororoit Creek Road, Altona in the State of Victoria.
4. Until the trial of the proceeding or further order the third to sixth respondents (and each of them), be restrained from:
(a) engaging in industrial action; and
(b) continuing to engage in industrial action; and
(c) threatening, whether conditionally or otherwise, to engage in industrial action.
at the Olefins site at Qenos, 471 Kororoit Creek Road, Altona in the State of Victoria.
5. Until the trial of the proceeding or further order the seventh to tenth respondents (and each of them), be restrained from:
(a) organising, inciting or otherwise encouraging industrial action; and
(b) continuing to organise, incite or otherwise encourage industrial action; and
(c) threatening, whether conditionally or otherwise, to organise, incite or otherwise encourage industrial action
at the Olefins site at Qenos, 471 Kororoit Creek Road, Altona in the State of Victoria, unless the organisation, incitement, other encouragement or the continuation or threat thereof takes place in accordance with s 26 of the Occupational Health and Safety Act 1985 (Vic).
6. Until the trial of the proceeding or further order the seventh to tenth respondents (and each of them), be restrained from:
(a) engaging in industrial action; and
(b) continuing to engage in industrial action; and
(c) threatening, whether conditionally or otherwise, to engage in industrial action
at the Olefins site at Qenos, 471 Kororoit Creek Road, Altona in the State of Victoria, unless the organisation, incitement, other encouragement or the continuation or threat thereof takes place in accordance with s 26 of the Occupational Health and Safety Act 1985 (Vic).
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 697 OF 2001
BETWEEN: FLUOR GLOBAL SERVICES PTY LTD and ANOTHER ACN 081 203 732
APPLICANT
AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS RESPONDENTS
JUDGE: HEEREY J DATE: 4 JULY 2001 PLACE: MELBOURNE
REASONS FOR JUDGMENT
1 This is an application for an interlocutory injunction which seeks to restrain the first two respondents who are unions and the third to sixth respondents who are industrial representatives, and the seventh to tenth respondents who are health and safety representatives (HSRs), from what may be broadly described as industrial action.
2 The first applicant, Fluor Global Services Pty Ltd, is a contractor to the second applicant, Qenos Pty Ltd, in relation to a major maintenance and recommissioning project for a petrochemical production line at the Altona plant of Qenos. There is a history of extremely bad industrial relations between the parties, going back to last year when there was a lockout. This present application is brought on as a matter of urgency. There is some material which is conflicting and has not been tested. The respondents say, and I accept, that they have not had the opportunity to answer all the allegations made against them. I do not wish to do anything which would inflame matters further. So I want to make it clear at the outset that I am only deciding whether there are serious issues to be tried and not making any conclusive findings of fact.
3 Another unusual feature about this case is that at the moment there is no industrial action on foot and indeed none specifically threatened. However, as recently as last week there was a major dispute which is described more fully in the affidavit of Mr Gorham.
4 I think the applicants have an arguable case that last week's dispute should not be seen in isolation and is part of an ongoing and bitter history of industrial disputation which, importantly for present purposes, involves ignoring orders made by the Australian Industrial Relations Commission and rendering extensive attempts at conciliation by the Commission fruitless. The Commission has engaged in no less than nine conciliation conferences this year and in effect, not to put too fine a point on it, has given up. I do not say that in any sense of criticism.
5 Further, the material produced by the applicant raises an arguable case that alleged health and safety issues raised are not genuine and that no bona fide attempts have been made by the respondents to resolve them in accordance with the agreed procedures. I think that the applicants have established that there is a triable issue as to a real threat of continuing industrial action and that their fear of this happening is not far fetched or unduly sensitive.
6 There are issues as to the responsibility of the different classes of respondents. Firstly, as to the two unions, I accept the argument of counsel for the applicants that there is a serious issue to be tried whether the actions of which the applicants complain were carried out with the implicit authority of the unions. In particular, there seems to be an arguable case that Mr Dundon has operated as a de facto representative of the unions. The industrial representative respondents and the HSR respondents have acted as a bloc in dealings with the first applicant. There is authority that in given circumstances shop stewards or other officials of that kind can make a union responsible for their actions: see Concrete Constructions Pty Ltd v PGEU (1987) 15 FCR 64 at 77.
7 Turning to the balance of convenience, there is evidence of very substantial losses being suffered as a direct loss. These are more the matter of the second respondent because under the contract between it and the first respondent it is the former which has to bear any cost overrun. Likewise, the first applicant has suffered a major interruption to its efficient carrying on of its business.
8 Reference was made to the caution that needs to be exercised in granting an injunction against the taking of industrial action: Australian Paper Ltd v Communications, Electrical, Electronic, Energy and Allied Services Union (1998) 81 IR 15 at 24. However, as I have already mentioned, that argument does not carry so much force in the present case where there is a record of very extensive attempts by the Commission to resolve matters which have for all practical purposes been ignored by the respondents.
9 Then it is said that an interlocutory injunction would, practically speaking, be a final determination of the dispute, given that the project is scheduled to be completed in mid-August. In the light of the interruptions up until now, if there were no injunction that target date might turn out to be optimistic anyway. But more importantly, I think, the modern approach does not see this as a conclusive argument against the grant of an interlocutory injunction. If it were so, defendants could engage in plainly unlawful conduct causing irremediable damage simply because the plaintiff had the misfortune of having a project which was due to finish in a shorter time than could accommodate the full hearing of a trial of the action.
10 The discretionary consideration that has caused me the most concern is the question of how the undoubted need to protect genuine action in pursuit of health and safety issues can be carved out of the reach of the injunction. Moreover, this separation needs to be done in a way which is as clear as possible to those subject to the injunction. Also I accept that the present plant is one where health and safety issues are particularly important and that situations could arise where action needs to be taken quickly.
11 The definition of "industrial action" in s 4(1) of the Workplace Relations Act 1996 (Cth) excludes:
"(g) action by an employee if:(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform."
12 The order made by the Commission on 8 June 2001 dealt with the matter slightly differently. Paragraph 4 of that order provided:
"This order shall not apply to any action taken by a person to whom this order applies if such action was based on a reasonable concern by the person about an imminent risk to the health and safety of themselves or others and the relevant site procedures for dealing with disputes concerning occupational health and safety had been fully complied with."
13 This exclusion is wider than the statutory exclusion in that it refers to threats not only to the particular employee himself or herself, but to others. However, it is narrower in that it requires relevant site procedures to have been fully complied with.
14 Then there is the Occupational Health and Safety Act 1985 (Vic). Section 26 provides:
"(1) If any issue concerning health and safety arises at a workplace,(a) the employer or the employer's representative, and
(b) the health and safety representative for the designated work group in relation to which the issue has arisen, or if there is no such representative, the employees in that group
shall attempt to resolve the issue in accordance with the relevant agreed procedure, or if there is no such procedure, the relevant prescribed procedure.
(2) Where the issue concerns work which involves a threat to the health and safety of any person and
(a) the threat is immediate and
(b) given the nature of the threat and degree of risk it is not appropriate to adopt the process as set out in subsection (1) - the employer and the health and safety representative for the designated work group in relation to which the issue has arisen may, after consultation direct, or if the consultation does not lead to agreement between them, either of them may direct that the work shall cease.
(3) During any period during which any work has ceased pursuant to subsection (2) the employer may assign the employee or employees to suitable alternative work."
15 This section applies specifically to the HSR seventh to the tenth respondents. Nevertheless subs (3) should not be overlooked. This has the effect that a unilateral direction that work will cease under subs (2) does not confer a right on all employees to walk off the site.
16 In the event, I think the practical solution is that the injunction should be framed in such a way that special provision is made for the seventh to tenth respondents so that their freedom of action under s 26(2) is preserved. I will give leave to the parties to mention an appropriate form of order this afternoon.
17 Subject to that I will make an order for interlocutory relief in terms of par 1, par 2 of the application, except for the concluding paragraphs of that. Paragraph 3 will be in terms of the application except that (c)(2) will read:
"The employee does not unreasonably fail to comply with a direction of the first applicant to perform other available work whether at the same or another workplace that is safe and appropriate for the employee to perform."
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.
Associate:
Dated: 11 July 2001
#DATE 04:07:2001
Counsel for the Applicants: S Wood Solicitor for the Applicants: Freehills Counsel for the Respondents: M Richards Solicitor for the Respondents: Maurice Blackburn Cashman Date of Hearing: 4 July 2001 Date of Judgment: 4 July 2001
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