Pacific National (NSW) Pty Limited v Australian Rail, Tram and Bus Industry Union

[2005] FCA 1740

FEDERAL COURT OF AUSTRALIA

Pacific National (NSW) Pty Limited v Australian Rail, Tram & Bus Industry Union [2005] FCA 1740

PACIFIC NATIONAL (NSW) PTY LIMITED and PACIFIC NATIONAL (ACT) PTY LIMITED v AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION

NSD 1613 of 2005

MADGWICK J
8 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 OF 2005

BETWEEN:	PACIFIC NATIONAL (NSW) PTY LIMITED FIRST APPLICANT
PACIFIC NATIONAL (ACT) PTY LIMITED SECOND APPLICANT
AND:	AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This judgment is given in circumstances of urgency.  It seems to me that there is an arguable case that by its latest effort not to fall foul of any provision in the Workplace Relations Act 1996 (Cth) (‘the Act’) that might invalidate industrial action, probably made necessary by the rejection of some key claims by the applicant employer, the union, in setting up an unduly short period for the employer to respond to its latest revised demands has not genuinely tried to reach agreement with the employer, contrary to s 170MP of the Act. I hasten to say that I make no positive finding to that effect, merely that there is a seriously triable issue in relation to that matter.

2. The union’s explanation for what has occurred, namely that its redraft of the proposed new certified agreement is principally motivated by its desire not to be caught by any of the technical hurdles set up by the Act to organisations and employers reaching certifiable agreements, and that the employer, by its conduct, has in effect waived any of the rights it would ordinarily have to a full and quiet opportunity to consider the revised claims is also fairly triable.

3. Nevertheless, there is a fairly triable issue raised by the applicant. It appears to me that the balance of convenience is best served by prohibiting the union from engaging in the planned action before the expiry of seven days (calculated to the probable hour of receipt by the employer of the union’s revised demands) and I will so order.

4. I will hear the parties on the terms of the order.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             1 December 2005

Counsel for the Applicant:	Mr R Goot SC and Mr S Gardiner
Solicitor for the Applicant:	Freehills
Counsel for the Respondent:	Mr J W Nolan
Solicitor for the Respondent:	Slater and Gordon
Date of Hearing:	8 November 2005
Date of Judgment:	8 November 2005