National Union of Workers v Coles CDC Eastern Creek Pty Ltd

[2008] FCA 1444

FEDERAL COURT OF AUSTRALIA

National Union of Workers v Coles CDC Eastern Creek Pty Ltd [2008] FCA 1444

Workplace Relations Act 1996 (Cth) s 322, s 328

NATIONAL UNION OF WORKERS v COLES CDC EASTERN CREEK PTY LTD, VERSACOLD LOGISTICS LIMITED, THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, NEW SOUTH WALES BRANCH, THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
NSD 1480 OF 2008

BUCHANAN J
17 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1480 OF 2008

BETWEEN:

NATIONAL UNION OF WORKERS
First Applicant

KARYN MESSER
Second Applicant

AND:

COLES CDC EASTERN CREEK PTY LTD
First Respondent

VERSACOLD LOGISTICS LIMITED
Second Respondent

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, NEW SOUTH WALES BRANCH
Third Respondent

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
Fourth Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	17 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the Applicants to file the Application and supporting affidavit of Anthony O’Donnell, sworn 17 September 2008, in Court.

2.The time by which the Application is to be served on the 1^st to 3^rd Respondents be abridged to 1.00pm on Thursday, 18 September 2008.

3.The time by which the Application is to be served on the 4^th Respondent be abridged to 5.00pm on Thursday, 18 September 2008.

4.The matter be listed for hearing of the interlocutory application before the Duty Judge at 10.15am on Friday, 19 September 2008.

5.Liberty to apply on 24 hours’ notice.

THE COURT NOTES THAT:

1.The Applicants will endeavour to serve a facsimile copy of the application, supporting Affidavit (without annexures) and these Orders by 8pm on 17 September 2008.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1480 OF 2008

BETWEEN:

NATIONAL UNION OF WORKERS
First Applicant

KARYN MESSER
Second Applicant

AND:

COLES CDC EASTERN CREEK PTY LTD
First Respondent

VERSACOLD LOGISTICS LIMITED
Second Respondent

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, NEW SOUTH WALES BRANCH
Third Respondent

THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION
Fourth Respondent

JUDGE:	BUCHANAN J
DATE:	17 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. I have today granted leave to file in court an application seeking relief under the Workplace Relations Act 1996 (Cth) (‘the Act’), together with a supporting affidavit of Anthony O’Donnell. The matters to be dealt with in the application concern a proposal to place before employees at a number of sites a union collective agreement, within the meaning of s 328 of the Act for approval. The agreement which is proposed is to be considered at a ballot to be conducted by the fourth respondent on 23 September 2008. It is proposed that the third respondent but not the fourth respondent be a party to it and that it be entitled the Versacold Logistics Limited (New South Wales) Union Collective Agreement 2008. One feature of the agreement is that it is proposed to apply to employees at four different sites.

2. Part A of the agreement will apply to employees at distribution centres at Arndell Park and Girraween.  Part B will apply to employees at a distribution centre at Minto and Part C will apply to employees at a distribution centre at Eastern Creek.  The applicant’s interest is with respect to employees proposed to be covered by Part C.  Mr O’Donnell’s affidavit states that at an earlier point in time a proposed agreement which closely resembles Part C of the proposed agreement was put to and rejected by a substantial majority of employees at the Eastern Creek distribution centre.

3. He states that the voting arrangements now proposed whereby three different parts are incorporated in a proposed single agreement will have the effect that a total of 420 employees will vote on whether the agreement should be approved, whereas I was told that the number of employees who will be affected by Part C of the agreement is about 143.  The effect appears to be that the employees at Eastern Creek will be outnumbered in a ratio of about 2:1.  I was told but have not yet had any opportunity to examine the matter in detail, that there are substantial differences between Part C of the agreement and the other parts. 

4. Whether the matters which I have so far mentioned raise any basis for relief under the Act it is too early to say. Under s 328 of the Act a union collective agreement may be made in writing with respect to employees in a single business. The term “single business” is defined in s 322 of the Act in a way that may mean that it applies to the whole of the arrangements to be covered by the proposed agreement. No doubt that is the belief of those who drafted the agreement and who wish to place it before the workforce for approval. The contrary is not suggested, I do not think, but that is a question which may receive further attention if necessary.

5. At the present time all that needs to be resolved is a timetable to bring the matter back before the court to consider an application for urgent interlocutory relief.  The ballot is proposed to be conducted on Tuesday, 23 September 2008.  In the circumstances which have been so far disclosed I am prepared to make the orders which the applicant has sought today, including orders for a substantial abridgment of time in which to serve the application and supporting affidavit and to list the matter before me as duty judge on Friday, 19 September 2008, to give further consideration to the question of whether, and if so in what form, urgent interim interlocutory relief should be granted.

6. That is not to say a case has yet been made out for the grant of such relief.  That is a question which requires further examination.  In particular, as I understand the issue at the moment, it will be necessary to identify some reason to suppose that the remedies which are available to the applicant in due course, including the power of the Court to declare void any agreement which is made in contravention of the provisions which are relied upon, will be an insufficient remedy once the issues between the parties have been able to be ventilated in the normal manner. 

7. I make the orders sought in the short minutes of order provided by Mr Joseph this afternoon, as amended by me in discussion with him. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        19 September 2008

Counsel for the First and Second Applicants:	Mr A Joseph
Solicitor for the First and Second Applicants:	Slater & Gordon

Date of Hearing:	17 September 2008
Date of Judgment:	17 September 2008