Pilkington (Australia) Operations Ltd v Construction, Forestry, Mining and Energy Union

[2003] FCA 1587

FEDERAL COURT OF AUSTRALIA

Pilkington (Australia) Operations Ltd v Construction, Forestry, Mining & Energy Union [2003] FCA 1587

Workplace Relations Act 1996 (Cth) ss 170NC, 170NF

Australasian Meat Industry Employees’ Union v G. & K. O’Connor Pty Ltd (1999) 91 IR 356 at 361
Re Food Preservers’ Union of Australia & Anor (1988) 79 ALR 138 at 144

Pilkington (Australia) Operations Limited (ACN 006 904 052) v Construction, Forestry, Mining And Energy Union

V1119 of 2003

Construction, Forestry, Mining And Energy Union v Pilkington (Australia) Operations Limited (ACN 006 904 052)
V1128 of 2003

WEINBERG J
17 DECEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1119 OF 2003

BETWEEN:	PILKINGTON (AUSTRALIA) OPERATIONS LIMITED (ACN 006 904 052) APPLICANT
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION RESPONDENT
V 1128 OF 2003
BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT
AND:	PILKINGTON (AUSTRALIA) OPERATIONS LIMITED (ACN 006 904 052) RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	17 DECEMBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        Each application for interlocutory relief be refused.

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	V1119 OF 2003

BETWEEN:	PILKINGTON (AUSTRALIA) OPERATIONS LIMITED (ACN 006 904 052) APPLICANT
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION RESPONDENT
V 1128 OF 2003
BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT
AND:	PILKINGTON (AUSTRALIA) OPERATIONS LIMITED (ACN 006 904 052) RESPONDENT

JUDGE:	WEINBERG J
DATE:	17 DECEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There are, before the Court, two separate but related applications.  The first is brought by Pilkington (Australia) Operations Ltd (“the employer”), against the Construction, Forestry, Mining and Energy Union (“the union”).  The second is brought by the union against the employer. 

2. The employer's application is brought pursuant to s 170NC of the Workplace Relations Act 1996 (Cth) (“the Act”). The union’s application is brought pursuant to s 170NF of that Act. Put simply, the employer seeks declaratory and other relief against the union, arising out of certain industrial action presently taking place at various of the employer's premises in Victoria. The union seeks penalties and other relief against the employer for threatening to take action to coerce it into agreeing, or not agreeing, to an agreement, under Div 2 of the Act.

3. The proceedings before me involve claims for interlocutory relief. The employer claims that the union is engaged in unlawful industrial action. The union claims that the action is protected. The primary issue in the first proceeding is whether a Notice of Initiation of Bargaining Period, dated 5 November 2003, and prepared by the union, met the requirements of s 170MI of the Act. Section 170MI(2) relevantly provides as follows:

   “The bargaining period is initiated by the initiating party giving written notice to each other negotiating party.”

4. The notice prepared by the union was accompanied by a letter addressed to Mr M. Gleeson, State Manager, Pilkington Australia Ltd, 73-85 Carroll Road, South Oakleigh, 3167.  It indicated that the union intended to try:

   “… to make an agreement with Pilkington Australia Ltd, Victoria State Operations, 73-85 Carroll Road, South Oakleigh.” 

5. It is common ground that no entity of the description “Pilkington Australia Ltd, Victoria, State Operations” exists.  There is, however, a company known as Pilkington Australia Ltd.  It is separate and distinct from the employer, though plainly closely related to it.  It has common directors, a common secretary, the same business address and the same State Manager. 

6. The employer contends that the notice did not validly initiate a bargaining period because it was not given to “each other negotiating party”.  The union contends that the mistake that it made in describing the employer was of no legal significance because it was clear that the employer had in fact received written notice, albeit addressed to either the wrong, or a nonexistent, entity. 

7. A similar argument arose in Australasian Meat Industry Employees’ Union v G. and K. O’Connor Pty Ltd (1999) 91 IR 356. There Marshall J observed, at 361:

   “It is also unnecessary to deal with the submission that the notice was directed to an entity that does not exist, having been directed to the Australian Meat Industry Employees Union.  However, it appears to be a point of little merit as the notice did reach an officer of the very union the sender intended it to be sent to.”  

8. His Honour's approach to this issue seems to me, with respect, to be entirely correct. It accords with the purpose and objects of the Act. This is not bankruptcy or insolvency legislation. The Act is plainly intended to be applied in a broad and flexible manner, recognising that the provisions dealing with the initiation of bargaining powers may be invoked by lay persons who may lack an exact appreciation of the nuances of corporate designations.

9. I note that an analogous comment was made by a Full Court of this Court in Re Food Preservers’ Union of Australia & Anor (1988) 79 ALR 138 at 144 when, in a joint judgment, Northrop and Ryan JJ expressed the opinion that industrial law should be kept as simple as possible.

10. Even if there were a serious question to be tried as to the validity of the notice in initiating a bargaining period, it would not, in my opinion, be of such strength as to warrant the Court in exercising its discretion to grant interlocutory relief.  That is so, even though the balance of convenience might marginally be thought to favour the employer, at least at this stage.  Accordingly, I would refuse the employer's application for an interlocutory injunction. 

11. In the second matter, the union contends that the employer should be restrained from instituting or pursuing proceedings in this Court in relation to this dispute because it has demonstrated ulterior motives by seeking the injunctive relief that it has.  I consider the union's application to be devoid of merit.  The matters raised can equally be put in opposition to the employer’s application.  The union is not entitled to a blanket guarantee that it is currently engaged in protected action.  Whether or not its conduct is lawful can be determined if and when this matter goes to trial. 

12. It follows that I would refuse each application for interlocutory relief. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:            17 December 2003

In proceeding no V1119 of 2003:
Counsel for the Applicant:	Mr G.C. McKeown
Solicitor for the Applicant:	Australian Business Lawyers
Counsel for the Respondent:	Mr J.B. Bornstein
Solicitor for the Respondent:	Maurice Blackburn Cashman
In proceeding no V1128 of 2003:
Counsel for the Applicant:	Mr J.B. Bornstein
Solicitor for the Applicant:	Maurice Blackburn Cashman
Counsel for the Respondent:	Mr G.C. McKeown
Solicitor for the Respondent:	Australian Business Lawyers
Date of Judgment:	17 December 2003