National Union of Workers v Davids Distribution Pty Ltd

[1998] FCA 1258

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 382  of   1998

BETWEEN	NATIONAL UNION OF WORKERS APPLICANT
AND:	DAVID DISTRIBUTIONS PTY LTD RESPONDENT
JUDGE(S):		NORTH J
DATE OF ORDER:		26/08/98
WHERE MADE:		MELBOURNE

Upon the applicant by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the court directs –

And upon the applicant by its counsel further undertaking that, from 3 pm on Friday, 28 August 1998, it will not engage in any industrial action relating to the negotiations with the respondent concerning an enterprise agreement –

In this undertaking “industrial action” does not include any action by an employee if:

(a)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(b)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.

And upon the applicant by its counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor, on account of the participation or non‑participation in industrial action or on account of the performance or non‑performance of any work during the period between 8 July 1998 and 28 August 1998 –

And upon the applicant by its counsel further undertaking to enter into an agreed process of discussion with the respondent as to the circumstances of the purported termination of each of the 52 employees with a view to narrowing the differences between the parties on this issue –

THE COURT ORDERS THAT:

1. Until 4 pm on 9 September 1998, the respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, treat all persons employed by it on 8 July 1998 as employees of the respondent with continuity of service, save and except for the purpose of the payment of wages;

1. Until 4 pm on 9 September 1998, the respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, be restrained from taking all and any steps to give effect to any purported termination of employment effected on or after 8 July 1998, or to give effect to any threat of termination made on or after 8 July 1998;

1. The further hearing of this application is adjourned until 10.15 am on 9 September 1998, to consider the extension of the above orders beyond 9 September 1998 and for directions.

1. Liberty to apply on very short notice.

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	VG 382 of 1998

BETWEEN	NATIONAL UNION OF WORKERS APPLICANT
AND:	DAVID DISTRIBUTIONS PTY LTD RESPONDENT

JUDGE(S):	NORTH J
DATE:	26/08/98
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

I am most indebted to counsel for their cooperation in the course of this interlocutory application and, indeed, the cooperation of the clients of both sides.  The course of the hearing has involved considerable movement of both parties from positions which were entrenched and influenced by many months of difficult disputation.  I think it is a great credit to both sides that, with that background, they have been able to move closer in the course of today to narrow the gap between them to almost nothing.  What remains between them is only, I think, one question and that is whether the 52 or thereabouts employees whom the respondent has allegedly terminated in the last two months should return to work in the next fortnight pending further discussions about their activities which led up to their termination.  As I say, this, it seems to me, is now the only real issue between the parties.

Mr Rothman, who appears on behalf of the applicant, says that the balance of convenience favours the making of orders. He contends that the only impediment to the making of orders is the, as yet, unproved assertion by the respondent that the return of the 52 would be difficult and lead to acrimony in a workforce in which some 80 out of 300 at Blacktown did not take industrial action together with the remaining workforce.  He rightly points to the fact that allegations against the 52 were raised from the bar table on 17 August and have not, despite the adjournment, been the subject of any further evidence.  He also, I think with considerable force, refers to the fact that the respondent has indicated, subject to conditions, an agreement to recommence work with the entire workforce, which includes some persons who engaged in the same acts on the picket line as did the 52 against whom the respondent has a present resistance.

Mr Murphy, who appears on behalf of the respondent, contended that there was no inconvenience in deferring the decision to make orders about reinstatement for an interim period until the process of negotiation about the individual circumstances of each of the 52 had been completed.  In the period that those discussions would occur, the 52 would be paid at the same rate as they would have received had they worked.  They would not be called upon to work in that period and, therefore, it could not be said that they suffer any inconvenience.  Mr Murphy's only explanation for the failure of the respondent to adduce evidence about its primary contention concerning balance of convenience, namely, the possible acrimony between those of the workforce who took strike action and those who did not, was that the matter is self evident.  That is to say, that the existence of acrimony in those circumstances is self evident.  I am unable to agree with the self evidence of that factor, see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626 at 638.

Nonetheless, in my view, the situation is finely balanced.  I think a matter of great importance is for the Court to make orders that have a greater, rather than lesser, chance of seeing the parties resolve the outstanding issues between them.  The union has offered very fulsome undertakings which would allow a return to work, with significant safeguards against the difficulties which Mr Murphy has foreshadowed. In particular, it has proffered an undertaking on behalf of the organisation and its members that there would be no action of retaliation or victimisation against employees who did not take industrial action and, further, has offered to enter into a process to discuss the individual circumstances of each of the 52.

This latter undertaking arose from my observation that, from the evidence before me, there seems a real likelihood that some of the behaviour seen by the respondent in the context of the heat of the dispute might, upon sober reflection, be regarded differently and as deserving now of some understanding and consequent reduction in resistance to the continuation of employment of those particular persons.  Although, as I have said, the question of balance of convenience is finely balanced, bearing in mind the undertakings proffered by the union, and bearing in mind the lack of any real explanation of the failure to adduce evidence of the potential risk of a return to work by the 52, it is my view that the time has come when the Court should make the orders sought by the applicant. 

These will be made on the basis of the undertakings proffered by the applicant but will be made for a period of two weeks.  The application for interlocutory relief will be adjourned until 10.15 am on 9 September 1998 and, on that occasion, the respondent will have an opportunity to address any further evidence on the question of the undesirability of the continuation of the orders.  Furthermore, in the meantime, and out of a consideration of the respondent's fears in this respect, I will reserve liberty to the respondent to apply on very short notice, by which I mean that the matter can be reconvened within an hour or hours of notification. 

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:            23 September 1998

Counsel for the Applicant:	Mr S C Rothman
Solicitor for the Applicant:	Ryan Carlisle & Thomas
Counsel for the Respondent:	Mr J Murphy
Solicitor for the Respondent:	Middleton Moore & Bevins
Date of Hearing:	26 August 1998
Date of Judgment:	26 August 1998