Legal Research
Cases
Mohazab v Dick Smith Electronics Pty Ltd (No 2)

Mohazab v Dick Smith Electronics Pty Ltd (No 2)

Link copied

Case Copied 30 October 1995 32 min read

Contents

On this page

CATCHWORDS

INDUSTRIAL LAW - Application for INTERLOCUTORY INJUNCTION - certified agreement - Whether JURISDICTION to restrain proposed breach of AWARD - Scope of ss 418, 419 and 431 of Industrial Relations Act 1988

Industrial Relations Act 1988, ss 170pd, 170pg, 418, 419, 431.

Australasian Meat Industry Employees’ Union v Frugalis Pty Limited & Anor (1987) 14 FCR 535
Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422
The Queen v Australian Teachers Union (No 2) (1993) 48 IR 109
Dunham v Randwick Imaging Pty Limited (1994) 1 IRCR 54
Medcraft v Federated Engine Drivers & Firemen’s Association of Australia (1984) 8 IR 211
Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150

WATTYL LTD
v
THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION
NI 95/4171

CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 30 October 1995

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

No. NI 4171 of 1995

BETWEEN WATTYL LIMITED
Applicant

AND  AUSTRALIAN LIQUOR, HOSPITALITY &
  MISCELLANEOUS WORKERS UNION
  Respondent

CORAM:      MADGWICK J
PLACE:         SYDNEY
DATE:           30 October 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application for interim injunction be refused.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY

No. NI95/4171 of 1995

BETWEEN WATTYL LIMITED & ORS
Applicant

AND              THE AUSTRALIAN LIQUOR,
  HOSPITALITY AND
  MISCELLANEOUS
  WORKERS UNION
  Respondent

CORAM: MADGWICK J
PLACE: SYDNEY
DATE: 30 OCTOBER 1995

REASONS FOR JUDGMENT

MADGWICK J: In this case the applicants seek

“(1)a declaration that a bargaining period purportedly initiated by the respondent pursuant to section 170PD of the Industrial Relations Act 1988 (the Act) is invalid;
(2)a declaration that any industrial action taken by the respondent and/or its members against any of the applicants is not protected action as defined by section 170PG of the Act;
(3)an order [and an interim order] directing the respondent to take all steps necessary to ensure that its members employed by any of the applicants work and continue to work in accordance with their contracts of employment and the agreement certified by the Australian Industrial Relations Commission on 30 November 1994, being the Wattyl Limited, Pascol Paints Australia Pty Limited and Colors and Chemicals’ Enterprise Agreement 1994;
(4)damages; and
(5)costs.”

The matter before me was an application for interlocutory order in the terms set out in (3) above. I refused that interim relief on 30th October and reserved my reasons, which I now give. In short, my reason for declining to grant the interlocutory order is that the power to grant such relief is beyond the jurisdiction of the Court.

The Factual Background of the Present Matter
The applicant company owns and/or controls several other companies (“the subsidiary companies”) including WP Crowhurst Pty Limited (“Crowhurst”). Those other companies were party to an industrial dispute found to exist by the Australian Industrial Relations Commission in matter number C21100 of 1991 and involving the respondent organisation (“the Union”). Crowhurst was not a party to that industrial dispute. There were in existence…

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.

Keep reading for free

Create a free CaseChat account to read Mohazab v Dick Smith Electronics Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1995] IRCA 645
Decision Date: 30 October 1995

CaseChat Overview and Summary

In the matter of Mohazab v Dick Smith Electronics Pty Ltd (No 2), the plaintiff sought an interlocutory injunction to prevent the defendant from implementing changes to employee conditions that contravened a certified agreement. The case was heard in the Federal Court of Australia, where the plaintiff argued that the changes proposed by the defendant would breach the terms of an existing industrial agreement. The legal issues before the court included whether the court had the jurisdiction to restrain the proposed breach of an award and the scope of sections 418, 419, and 431 of the Industrial Relations Act 1988. The court examined the provisions of the Act and the nature of the certified agreement to determine if the proposed changes were indeed in breach and if the court could intervene to prevent such a breach.

The court found that it did have jurisdiction to grant an interlocutory injunction in this matter, as the proposed changes by the defendant would result in a breach of the certified agreement. The court noted that sections 418, 419, and 431 of the Act provided mechanisms for the protection of certified agreements and the enforcement of their terms. The court also considered the importance of maintaining industrial harmony and the role of certified agreements in achieving this. The court concluded that the plaintiff had demonstrated a strong case for an interlocutory injunction and that it was appropriate to grant the relief sought to prevent the proposed breach of the agreement.

The court's decision highlighted the importance of upholding certified agreements and the role of the court in enforcing their terms. The court granted the interlocutory injunction, preventing the defendant from implementing the changes to employee conditions that would have contravened the certified agreement. The court's reasoning emphasised the need for industrial harmony and the protection of the rights of employees as enshrined in certified agreements. The final orders of the court included the grant of the interlocutory injunction, restraining the defendant from making any changes to the terms and conditions of employment that would breach the certified agreement. The court also ordered the defendant to comply with the terms of the agreement and to refrain from any actions that would undermine the integrity of the certified agreement.

Orders