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

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:

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.
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.
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.
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

CaseChat Overview and Summary

In the matter of Pacific National (NSW) Pty Limited v Australian Rail, Tram and Bus Industry Union, the Federal Court of Australia was called upon to adjudicate on an urgent application filed by Pacific National (NSW) Pty Limited and Pacific National (ACT) Pty Limited against the Australian Rail, Tram and Bus Industry Union. The applicants sought an injunction to prevent the union from engaging in industrial action, arguing that the union had not genuinely attempted to reach an agreement with the employer in accordance with the requirements of the Workplace Relations Act 1996. The union's latest demands were made under an unduly short timeframe, which the applicants contended was not conducive to a genuine negotiation process. The union, on the other hand, argued that its actions were primarily driven by a desire to avoid falling foul of the technical provisions of the Act that could invalidate industrial action, and that the employer had effectively waived its rights to a full and quiet opportunity to consider the revised claims.

The legal issues before the court encompassed whether the union had genuinely attempted to reach an agreement with the employer, as mandated by section 170MP of the Workplace Relations Act 1996. Additionally, the court needed to determine whether the union's explanation for its actions, which focused on avoiding the technical hurdles of the Act, was a triable matter. The applicants also contended that the balance of convenience favoured an injunction to halt the industrial action until the employer had a reasonable period to respond to the union's demands.

In delivering the judgment, Justice Madgwick acknowledged the presence of a seriously triable issue regarding whether the union had genuinely attempted to reach an agreement with the employer. The union's explanation for setting an unduly short timeframe for the employer to respond to its demands was also deemed fairly triable. However, the court found that the balance of convenience favoured prohibiting the union from engaging in the planned action until the employer had seven days to consider the union's revised demands. Consequently, Justice Madgwick ordered an injunction to this effect, pending further hearings on the terms of the order.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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