Shell Refining (Australia) Pty Ltd v Australian Workers' Un ion
[1999] VSC 297
•13 August 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 6413 of 1999
| SHELL REFINING (AUSTRALIA) PTY. LTD. AND OTHERS | Plaintiffs |
| v. | |
| AUSTRALIAN WORKERS' UNION AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 AND 11 AUGUST 1999 | |
DATE OF JUDGMENT: | 13 AUGUST 1999 | |
CASE MAY BE CITED AS: | SHELL REFINING (AUSTRALIA) PTY. LTD. & ORS. v. A.W.U. & ORS. | |
MEDIA NEUTRAL CITATION: | [1999] VSC 297 | |
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CATCHWORDS: Industrial action against non-party to an industrial dispute – Not protected action – Injunction – Workplace Relations Act 1996 (C'th.) – Sections 4, 127, 166A, 170ML and 170MT.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiffs | Mr. P.J. Jopling Q.C. with Mr. S.J. Wood | Freehill Hollingdale & Page |
| For the Defendants | Mr. E.N. Magee Q.C. with Mr. M. Bromberg | Maurice Blackburn Cashman |
HIS HONOUR:
Shell Refining (Australia) Proprietary Limited (S.R.A.P) owns and operates a refinery at Corio near Geelong, the principal activity of which is the refining and storing of a range of oil, petroleum and gas products. (The Geelong refinery). The refinery supplies approximately 50 per cent of Victoria's fuel supplies.
The Shell Company of Australia Limited (S.C.O.A.) is the prime marketing company for the Shell Australia Group of Companies. S.C.O.A. Carries on the business of selling oil, petroleum and gas products throughout Australia and various countries in the Pacific.
S.R.A.P also owns land at Lara which is connected to its refinery at Corio via a pipeline. It operates a liquid petroleum gas storage and distribution facility on the land (the Lara terminal).
S.R.A.P employs approximately 420 employees at the Geelong Refinery. Approximately 200 are refinery operators who are employed under an Enterprise Bargaining Agreement (E.B.A.) with the Australian Workers Union (A.W.U.); approximately 90 are maintenance employees who are employed under an E.B.A. Between S.R.A.P, and the A.W.U., the Automotive, Food, Metals, Engineering, Printing and Kindred Unions of Australia (A.M.W.U.) and the Communications, Electrical, Electronics, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (C.E.P.U.); and approximately 15 are laboratory employees who are employed under an E.B.A. Between S.R.A.P and the A.M.W.U.
In addition, S.R.A.P holds a number of contracts with companies which provide services, such as the maintenance cleaning and catering to the Geelong refinery. A further 80-120 staff are employed by those contractors and work at the Geelong refinery.
The principal maintenance contractor engaged by S.R.A.P. Is Danum United Joint Venture Pty Ltd (Danum). Danum employs 67 full-time and seven part-time employees to perform maintenance for S.R.A.P. The performance by those employees of their various duties is vital to the continued operation of the Geelong refinery.
Those employees are members of one or other of the three unions to which I have referred.
On the morning of Monday, 2 August 1999, members of the three unions employed by Danum, assisted by officials of the union and an official of the Construction Forestry Mining and Energy Union (C.F.M.E.U.) commenced strike action at Geelong refinery and Lara terminal.
Since that time picket lines have been in place at the main gate of the Geelong refinery, the rail area of the refinery, the refinery wharf and the Lara terminal.
As a consequence all road distribution of S.C.O.A. Products from the refinery and the terminal have ceased and except for one delivery of sodium hypochlorite to the terminal, no deliveries of products to the refinery or terminal have been permitted by those on the picket lines.
The situation has now become so critical, that unless some action is taken to stop the industrial disruption the refinery will be forced to shut down in a matter of days thereby seriously disrupting fuel supplies to Victoria and Tasmania and to the manufacturing industries in those states.
I should point out at this stage of my reasons for judgment that S.R.A.P and S.C.O.A. have done nothing whatsoever to cause the dispute. As counsel for the A.W.U., the A.M.W.U. and the C.E.P.U. freely conceded during the course of the hearing before me, at the present time there is no industrial dispute between S.R.A.P, S.C.O.A. and the unions.
The dispute is between the unions and Danum.
Apparently Danum and the unions had been negotiating for some period of time prior to 2 August, as to the terms of an enterprise bargaining agreement to be entered into by them. The discussions had not been successful, hence the industrial action.
When I asked counsel for the A.W.U., the A.M.W.U. and the C.E.P.U., why it was that if the unions dispute was with Danum, the unions were picketing S.R.A.P's refinery and terminal, his reply was that the unions were taking such action as S.R.A.P and S.C.O.A. Had employed other workers to perform the work normally carried out by employees of Danum.
In that respect counsel relied upon paragraph 14 of the affidavit of Joshua Bevin Bornstein sworn 10 August 1999, which reads:
"14.The purpose of the picket is to encourage employees of Danum not to work or return to work and to encourage other workers at the premises not to perform the work ordinarily performed by employees of Danum. The First and Second Plaintiffs are engaging and have engaged other workers to perform the work ordinarily performed by employees of Danum. In addition and in furtherance of these bans on the performance of work, picketers have been encouraging drivers of vehicles delivering materials to the premises not to cross the picket line. All of these activities are intended to facilitate the bans on the performance of work by those persons who continue to perform work ordinarily performed by Danum."
Beyond that general assertion there is no evidence whatsoever that that is the case.
At all events on 4 August 1999 S.R.A.P and S.C.O.A. lodged with the Australian Industrial Relations Commission written notice of their intention to take action in tort against the A.W.U., the A.M.W.U. and the C.E.P.U. Under s.166A of the Work Place Relations Act 1996. The relevant provisions of that section reads:
"166A. Restriction on certain actions in tort.
(1)Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission:
(a)has certified in writing as mentioned in paragraph (6)(a) or (c) in respect of the conduct; or
(b)has certified in writing as mentioned in paragraph (6)(b) in relation to the person in respect of the conduct.
(6)If:
(a)after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or
(b)the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or
(c)the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct;
the Commission must immediately certify in writing to that effect."
On Saturday, 7 August 1999, Commissioner Crib granted a certificate under s.166A(6)(c). The certificate reads:
"I certify pursuant to section 166A(6)(c) of the Workplace Relations Act 1996 that this Commission has not stopped the conduct to which the notice in matter C No 36380 of 1999 refers namely the prevention and hindrance of persons and vehicles from entering and exiting the Geelong Refinery and the Lara Gas Storage Terminal. This certificate will take effect from 10.00 a.m. 7 August 1999, at which time 72 hours will have passed since the notice was given."
However, prior to issue of the certificate and at approximately 1.00 p.m. On Friday 6 August, counsel for S.R.A.P and S.C.O.A. Appeared before me in the Practice Court and sought and obtained an interim anti-suit injunction restraining the four unions in question from commencing any proceeding in the Federal Court of Australia or taking any step in any proceeding already commenced in the Federal Court preventing or which would have the effect of preventing S.R.A.P and S.C.O.A. From bringing any action in this court relating to the industrial action then taking place at or near the Geelong refinery and at or near the Lara terminal.
The application was made by S.R.A.P and S.C.O.A., to which I shall now refer as the plaintiffs, because of the fear they and their legal advisers had that if they did not take such action the four unions in question or some of them, would make a similar application for an anti-suit injunction to the Federal Court, a form of application which had been made to and granted by the Federal Court on previous occasions in the past thereby preventing the plaintiffs pursuing their rights in respect of the industrial action in this court.
As it transpired the plaintiffs fears in that regard were well founded.
I say that because at approximately 1.30 p.m. On Friday 6 August, which was approximately 15 minutes after I had made the interim order I did in the matter, the A.W.U., the A.M.W.U. and the C.E.P.U. Lodged an application in the Federal Court whereby they sought (inter alia) orders restraining the plaintiffs and I quote:
"From threatening to and/or commencing or pursuing against those unions proceedings claiming damages or injunctive relief relating to the industrial action."
On Monday morning 9 August, counsel for the three unions in question appeared before me in the Practice Court and sought an order dissolving the interim injunction I had granted on Friday.
Because the restraining order I had granted only ran to 4.00 p.m. On Tuesday 10 August 1999 and as it was clear that on that day the plaintiffs would apply for further injunctive relief against the four unions the subject of the anti-suit order I refused the application.
Later that same day the plaintiffs filed a writ in this court whereby they seek a continuation of the anti-suit injunction and other injunctive relief against the A.W.U., the A.M.W.U., the C.E.P.U. And the C.F.M.E.U. In respect of the industrial action being taken by members of those unions at or near the Geelong Refinery and the Lara terminal.
The industrial action which has persisted at those sites since 3 August has had the most serious financial consequences so far as the plaintiffs are concerned. If it is permitted to continue it will force the shut down of the Geelong refinery next week, thereby causing serious fuel shortages both in this State and in Tasmania.
The full detail of such matters is set out in the affidavits filed in the court and has not been refuted by the defendants. Nor in my opinion could it be.
Time does not permit me to detail all those matters in my reasons for judgment. I shall do no more than enumerate some of the more significant.
The picket lines established by the members of the defendants have been in place at the main gate of the Geelong refinery, the rail area of the refinery, the refinery wharf and the Lara terminal since the morning of 3 August. Since that time:
(1)All road distribution of S.C.O.A. products from the refinery and the facility have been prevented.
(2)The rail distribution of products from the refinery on 5 August was prevented.
(3)Except for one sodium hypochlorite delivery, no deliveries of products to the refinery or the terminal have been permitted. In this connection the picketers have refused entry of caustic soda and sulphuric acid to the refinery. Both are critical to the continued operation of the refinery.
(4)Hydrofluoric acid is required at the refinery to make aviation gasoline. Without it the gasoline cannot be manufactured. The acid is highly toxic and can only be stored on premises which fulfil Workcover Safety requirements. It is dangerous to leave the acid in a truck for prolonged periods or to store it at a truck depot.
A load of hydrofluoric acid which arrived by ship from Spain in an isotainer has been refused entry to the refinery. The Workcover Authority gave permission to the plaintiffs to store the acid at a temporary facility in Melbourne until 9 August. The evidence indicates that efforts are now being made to store the acid in a facility in either Port Kembla or Brisbane.
(5)The departures of two vessels from the refinery wharf were held up for two days at a loss of $26,000 per day in respect of one vessel and $24,000 a day in respect of the other.
(6)The arrival of one vessel at the wharf was delayed for one day costing S.C.O.A. approximately $20,000 in the demurrage penalties.
(7)A vessel was due to arrive at the terminal wharf yesterday. The vessel is contracted to deliver a pre-sold cargo of oil products to the United States. If there is any significant delay in meeting the delivery date, the contract could be cancelled causing S.C.O.A. a loss of $1.5 million.
(8)Many transport contractors have had to be diverted from Geelong refinery to a terminal at Newport. This is incurring additional transport costs of $15,000 a day.
(9)Because of S.C.O.A.'s inability to remove LPG from the terminal, it has been necessary to burn it as fuel in place of natural gas for the refinery process. This has resulted in an increase in operating costs of $30,000 per day.
(10)Lost revenue on the sale of LPG products is estimated to be approximately $45,000 per day.
The effects of the necessary slow down at the refinery and its ultimate shut down are referred to in paragraph 51 and following of the affidavit of John Andrew Hamilton sworn 9 August 1999. Those paragraphs read:
"51.Primarily, as a result of a lack of movement of LPG from the LPG Terminal, it has been necessary to slow down some of the refining units at the Geelong Refinery namely the catalytic cracking unit and platforming unit. This slow down commenced on Thursday 5 August 1999. Currently, the catalytic cracking unit is slowed down by 1000 tonnes per day and the platforming unit is slowed down by 600 tonnes per day. This slow down has resulted in lost income of approximately $50,000 per day.
52.Losses will significantly increase if the normal product and process material movements do not resume by 11 August 1999. In that event then the Geelong Refinery will have to commence further staged shut-down activities which will eventually result in fuel shortages and loss of sales throughout SCOA's marketing network. The current estimate for a complete shut-down of the Geelong Refinery caused by the absence of essential process materials is the week of 16 August 1999. Manufacturing losses following a complete refinery shut-down will increase to approximately $300,000 per day with marketing losses of approximately a further $400,000 per day.
53.The Geelong Refinery supplies approximately 50% of Victoria's fuel supplies. A shut-down of Geelong Refinery is likely to lead to knock on effects on the wider industry in Victoria. The impact of such a closure is likely to effect:
·up to 25% of Victorian motorists through gasoline shortages commencing in three weeks and continuing for at least a further three weeks until such time as imports can arrive.
·some manufacturing, in particular road transport distribution is likely also to be effected by the shortage of diesel. This is likely to occur in a similar time frame to that mentioned above.
·shortage of supply of some Specialties, such as the Durtex and processing oils is leading to potential impacts for some automotive component manufacturers leading to possible shut-down and stand-downs in that sector. Dutrex and processing oils are critical to these industries which rely on just-in-time deliveries."
In the face of that uncontradicted evidence and in the ordinary course of events one would have little hesitation in granting the relief sought by the plaintiffs against the unions and their members forming the picket lines at the refinery and the terminal.
But both that application and the application for a continuation of the anti-suit injunction are strongly opposed by counsel for the first three defendants that is the A.W.U., the A.M.W.U. and the C.E.P.U. and it is appropriate that I give consideration to the arguments advanced on their behalf in that regard.
I should point out that although the fourth defendant, the C.F.M.E.U. has been served with the appropriate documentation, until today it had not entered an appearance to the proceeding and was not represented at the hearing of the application. For the sake of brevity, however, I shall simply refer hereafter to the three unions which were represented before me as the defendants.
I should deal first with the defendants contention that I should refuse the plaintiffs application for a continuation of the anti-suit injunction.
The basic proposition advanced in support of that contention is that as there is now a proceeding on foot in the Federal Court which will require that court to determine, amongst other things, whether the defendants industrial action is protected by s.170ML of the Act and will require that court to give consideration to the provisions of s.170MT and s.170MU of the Act, it is inappropriate that this court should consider the matter. In other words, the entirety of the controversy between the parties should be dealt with by the Federal Court it being the specialist tribunal established to deal with such disputes.
In making their submissions to me on both Monday, 9 August, and Wednesday, 11 August, counsel for the defendants were highly critical of the plaintiffs behaviour in making the ex parte application they did on Friday, 6 August for the interim anti-suit injunction. The clear inference to be drawn from certain remarks they made was that such behaviour in the context of an industrial dispute was totally inappropriate.
I am unable to share that view.
If the fact is, and the evidence before me satisfies me that it is, that unions involved in industrial disputes regularly seek and obtain anti-suit orders in the Federal Court, designed to prevent employers pursuing their legitimate common law rights in this court, then why should not an employer which wishes to pursue its rights in this court adopt a similar tactic.
At the time the plaintiffs made their original application to me there were no proceedings on foot in the Federal Court involving it, that did not occur until after I had made the orders in question.
And if I may say so, the proceeding now on foot in the Federal Court has about it something contrived so far as the plaintiffs involvement in it is concerned.
In the first place there is an application for a declaration that the s.166A certificate to which I earlier referred is null and void and of no effect. In the second place there is an application for the imposition of penalties upon the plaintiffs for a contravention of s.170NC of the Act. Section 170NC so far as is relevant, reads:
"(1) A person must not:
(a)take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c)making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).
(2)Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
(3)An employer must not coerce, or attempt to coerce, an employee of the employer:
(a)not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or
(b)to withdraw such a request."
Insofar as the s.166A certificate is concerned, it is said that that is null and void because at the time the certificate was issued the plaintiffs did not intend to bring an action in tort against the defendants. In that respect the defendants rely on sub-s.(3) of s.166A which reads:
"(3)A person who wants to bring an action in tort in respect of conduct to which subsection (1) applies may give written notice to a member of the Commission or a Registrar stating that the person wants to bring the action."
I do not accept that that is the situation.
In my opinion it is clear that at the time the plaintiffs lodged their written notice pursuant to s.166A(3) the plaintiffs intended to bring action in tort against the defendants at some time. The fact that they may not have intended to take such action at the very moment the Commission gave its certificate is not to the point.
The claim of coercion is dealt with in paragraph 17 and 18 of the affidavit of Joshua Bevin Bornstein, sworn 6 August 1999 and filed in support of the defendants' application to the Federal Court. The paragraphs read:
"17.In other proceedings before the Commission on 4 August 1999, the First Respondent has threatened to institute legal proceedings. Now shown to me and marked "JBB 2" is a copy of Submissions put to the Commission on 4 August 1999 on behalf of the First Respondent.
18.Each of the Respondents has used and is using the threat of legal proceedings against each of the Applicants to coerce the employees of the First Respondent and each of the Applicants to agree to a certified agreement in terms proposed by the First Respondent."
The passage relied upon in exhibit JBB2 appears as an entry in the submissions alongside the date 22 July 1999. The entry reads,
"22 July 1999 D-U advised unions that the Tender Documents had been released and referred unions to the position on Certified Agreement and Wage Rates.
Any new contractor coming on site must have a registered EBA prior to commencing work on site.
Shell will only pay market competitive rates. Should the contractor and unions agree on an increase that is greater than industry standards/average then the contractor will be liable for the difference."
It would be an extraordinary state of affairs if a head contractor who said to one of his contractors, "If you pay more than market competitive rates to your employees I am not going to pay the extra," he would thereby leave himself open to an allegation that in pointing that fact out to the contractor, he was guilty of coercing the contractor and/or his employees into entering into an enterprise bargaining agreement.
In my opinion it is arguable that the plaintiffs could not seek the injunctive relief they now seek in this court from the Federal Court. I say that primarily because they are not involved in the dispute between the defendant and Danum and are not parties to that dispute.
A further argument advanced on behalf of the defendants is that the plaintiffs could have made an application to the Federal Court for appropriate injunctive relief pursuant to the provisions of s.127 of the Act and for that reason this court should not deal with the matter but allow it to be dealt with by the Federal Court. Section 127, so far as is relevant provides:
"(1)If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to:
(a)an industrial dispute; or
(b)the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or
(c)work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur."
In my opinion it is very doubtful that the Commission would have the power to grant injunctive relief of the type sought by the plaintiffs to a person not a party to an industrial dispute. And I repeat, at the time the application was first made to me, the plaintiffs had no dispute whatsoever with the defendants and were then not a party to any proceedings in the Federal Court.
I turn then to the substantive application before the court, namely the application by the plaintiffs for injunctive relief restraining the defendants and their members from picketing the refinery and terminal.
The argument of substance raised in opposition to the application is that the industrial action being engaged in by the defendants is protected action within the meaning of s.170ML of the Act. The relevant subsections of s.170ML read:
"(1)This section identifies certain action (protected action) to which the provisions in s.170MT (which confers certain legal immunity on protected action) are to apply.
(2) During the bargaining period:
(a)an organisation of employees that is a negotiating party; or
(b)a member of such an organisation who is employed by the employer; or
(c)an officer or employee of such an organisation acting in that capacity; or
(d)an employee who is a negotiating party, is entitled, for the purpose of:
(e)supporting or advancing claims made in respect of the proposed agreement; or
(f)responding to a lockout by the employer of employees whose employment will be subject to the agreement; to organise or engage in industrial action directly against the employer, and if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action."
Section 170MT reads:
"(1)An order made by the Commission under section 127 does not apply to protected action.
(2)Subject to subsection (3), no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:
(a) a personal injury; or
(b)wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
(3)Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action."
The definition of "industrial action" appears in s.4 of the Act. The definition reads:
"Industrial action (except in Part XA) means:
(a)the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i)the terms and conditions of the work are prescribed, wholly or partly, by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth; or
(ii)the work is performed, or the practice is adopted, in connection with an industrial dispute;
(b)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an award or an order of the Commission, by a certified agreement or AWA, by an award, determination or order made by another tribunal under a law of the Commonwealth or otherwise by or under a law of the Commonwealth;
(c)a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d)a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work, if;
(i)the persons are members of an organisation and the failure or refusal is in accordance with a decision made, or direction given, by an organisation, the committee of management of the organisation, or an officer or a group of members of the organisation acting in that capacity; or
(ii)the failure or refusal is in connection with an industrial dispute; or
(iii)the persons are employed by the Commonwealth or a constitutional corporation; or
(iv)the persons are employed in a Territory; but does not include:
(e)action by employees that is authorised or agreed to by the employer of the employees; or
(f)action by an employer that is authorised or agreed to by or on behalf of employees of the employer; or
(g) action by an employee if:
(i)the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and
(ii)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."
It can be seen that the definition of industrial action concentrates on the performance by a worker of his work, a ban limitation or restriction on the performance of his work, and a failure or refusal to attend for work or to perform work. Nowhere does the definition refer to picketing; nowhere is picketing authorized let alone the picketing of the premises of a third party not involved in any industrial dispute.
In my opinion, and despite a small number of cases in which a contra view of the matter has been taken and to which I was referred during the course of debate, it is strongly arguable that picketing is not industrial action within the definition in the Act and therefore cannot be protected action.
But assuming that view of the matter is erroneous, is the picketing part of any industrial action taken by the defendants directly against the picketers employer (the emphasis is mine). The answer to the question is, in my opinion, no.
The picketing is directed at the plaintiffs not Danum.
But assume again that that view also is erroneous.
From the descriptions of the events which have occurred at the refinery and facility involving the picketers since 3 August, it is strongly arguable that if the picketing continues, it is likely to involve personal injury to persons seeking to enter the refinery and/or the terminal, particularly the drivers of vehicles. Thus far such persons have shown remarkable restraint despite the harassment and abuse to which they have been subjected. If, however, the picketing continues, eventually there is bound to be a confrontation likely to involve personal injury to either picketers or persons attempting to enter the refinery facility or both.
Other matters were argued on behalf of the defendants in opposition to the plaintiffs application for injunctive relief. In my opinion they do not advance the defendants case in this regard and I do not propose to spell them out in these reasons for judgment even if I had the time available to do so.
Clearly on any view of the matter there is a serious issue to be tried in the proceeding.
The evidence before the court demonstrates, on its face, that the defendants have induced their members, who are employed by Danum, to engage in the strike action they have to date. From that material it is strongly arguable that unless they are restrained from doing so, the defendants will continue to induce the employees of Danum to undertake further picketing action.
As to the balance of convenience, in my opinion, it is all one way. The plaintiffs have suffered substantial losses to date by reason of the strike action, and will suffer even more significant losses if the strike action were to continue.
On the other hand, to grant the interlocutory relief sought can cause no financial loss or damage to the defendants. In Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others (1998) 81 I.R. 15, and when dealing with the question of balance of convenience North J said at page 26:
"Finally, it is often argued that, if a stoppage of work in the course of an industrial dispute causes loss of production and other monetary loss, the balance of convenience is "all one way" in favour of the grant of an injunction. This argument also lacks the necessary balance required in the consideration of the grant of an interlocutory injunction. It ignores the interest which employees have in furthering their industrial claims by taking direct action. When the Court prevents further monetary loss by granting an injunction to the employer, it concurrently deprives the employees of the means of advancing their industrial interest by direct action. The emphasis which the Court will give to each interest is a matter of judgment in every case. But it is wrong to view the interest of employees in pursuing direct action as failing to provide a consideration to be placed in the balance against the interest of the employer in preventing further monetary loss and damage."
If His Honour had added after the words "direct action" at the end of the fourth line the words "against their employer" and made it clear that any such action was peaceful, I may not have any quarrel with His Honour's views in the matter.
But that of course is not the situation in the present case. The picketing is aimed at disrupting the lawful activities of the plaintiffs, and as the affidavit material makes abundantly clear, it is far from peaceful.
Further, the orders I now intend to make in the proceeding, will not have the effect of depriving the employees of Danum from advancing their industrial interests by direct action.
There will be no restriction on them withdrawing their labour from Danum if they are so minded and no restriction on them peacefully picketing premises occupied by Danum other than the Geelong Refinery and Lara Terminal.
The appropriate undertaking as to damage having been given by counsel for the plaintiffs, I make the following orders in the proceeding.
The court hereby orders that:
1.The Defendants and each of them (whether by their officers, delegates, servants, agents or howsoever otherwise) be restrained until trial or further order from commencing any proceedings in the Federal Court of Australia or taking any step in any proceedings already commenced in the Federal Court of Australia, where those proceedings seek to prevent or seek relief which has the effect of preventing the Plaintiffs from bringing any action or pursuing any action already commenced in the Supreme Court of Victoria relating to the industrial action taking place at or near the Shell refinery at Corio or the Shell gas storage terminal, corner Hendy Street and Heales Road, Lara, both near Geelong in Victoria ("the Sites").
2.The Defendants and each of them (whether by their officers, delegates, servants, agents, shop stewards or howsoever otherwise), be restrained until trial or further order:
(a)from preventing, hindering, or interfering with free access to and free egress from the Sites by any person, vehicle, train or vessel;
(b)from standing in line or in any other formation on any roadway, lane, footpath, railway track, or any other form of access leading to or away from the Sites or otherwise obstructing the movement of any person, vehicle, train or vessel onto or off the Sites;
(c)from abusing, threatening, besetting, harassing, intimidating or physically harming any person entering, leaving or about to enter or leave or who has entered or left the Sites;
(d)from inducing, procuring, advising or persuading any person not to enter or not to leave the Sites, or attempting so to induce, procure advise or persuade;
(e)from taking a photograph of any person who is on, or who is entering or leaving or is about to enter or leave or has entered or left the Sites or attempting to take such a photograph;
(f)from damaging or interfering with any vehicle or train, or the contents or load of any vehicle or train entering or leaving, or about to enter or leave, or which has entered or left the Sites, or attempting to so damage or interfere;
(g)from doing any act which interferes with or is likely to damage or interfere with the property or equipment of the Plaintiffs;
(h)from injuring, assaulting or physically harming any person entering or leaving or about to enter or leave, or who has entered or left the Sites, or attempting so to injure, assault or physically harm;
(i)from besetting or following any person, vehicle, train or vessel approaching or on the way to, or in the course of or after departure from the Sites;
(j)from doing any act which procures or induces any person to breach, or has the effect of interfering with, any contracts or contractual or business relationships to which the Plaintiffs are parties;
(k)from doing any act which interferes with the Plaintiffs' quiet and lawful enjoyment, use or occupation of the Sites;
(l)from causing, inducing, procuring, or advising any person to do or attempt to do any of the things restrained by any of the subparagraphs (a) to (k) of this order.
3.The Second Defendant place an advertisement in the Geelong Advertiser for publication on or before 18 August, 1999:
(a)stating that the advertisement is taken out by the Second Defendant by the order of the Supreme Court of Victoria; and
(b) in the form set out in Schedule "A" to this Order.
Such advertisement to be not less than one quarter of one page and to appear at any place in the first ten pages of that edition of the Geelong Advertiser.
The costs of such an advertisement are to be paid in the first instance equally by the first three defendants.
4. The costs of this application are reserved.
5.The plaintiffs file and serve their statement of claim on or before 31 August 1999. Thereafter further pleadings are to be filed and delivered in accordance with the rules.
6. Liberty to the parties to apply is reserved.
7.The solicitors for the Plaintiffs prepare this Order and bring it to me for authentication.
8.The notification of the making of this Order may be effected by telephone message to the Defendants.
9.Service of a copy of this Order by facsimile shall be deemed to be proper service.
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MR BROMBERG: If Your Honour pleases. There is one matter I want to go to, if I may. Your Honour, in Your Honour's orders that Your Honour has pronounced I think it is 2.
HIS HONOUR: Yes.
MR BROMBERG: As I understood Your Honour's reasons for judgment, Your Honour didn't intend that the defendant be restrained from being involved in the non performance of work by Danum employees. I think, I don't remember Your Honour's exact words in relation to that, I understood Your Honour's intent was that the defendant not be precluded from taking action directly against Danum.
HIS HONOUR: Yes, that is correct at any where other than the refinery and the terminal.
MR BROMBERG: Yes, by way of picket, I think Your Honour said.
HIS HONOUR: That's correct.
MR BROMBERG: If Your Honour looks at sub-paragraph (j) that sub-paragraph, Your Honour, if that restraint is made, Your Honour, there would be a restraint on the defendants involving themselves in action against, directly against Danum, in seeking to procure employees of Danum not performing their contracts with Danum.
HIS HONOUR: Yes, you are quite correct and I meant to exclude from that Danum, "Save for any contract between the plaintiffs and Danum," that will be added to sub-paragraph (j).
MR BROMBERG: Can I consider that for a moment, Your Honour.
HIS HONOUR: Certainly.
MR BROMBERG: Your Honour, I think that the intent, Your Honour's intent may be achieved if the addition was, "Save for any contract between Danum and the plaintiffs ," because the sub-paragraph is directed at contractual relations between the plaintiffs and other person.
HIS HONOUR: Yes.
MR BROMBERG: The employees don't have contractual relations. The plaintiffs, that is Shell.
HIS HONOUR: No, it is Danum.
MR BROMBERG: It is Danum, so that paragraph, with respect, Your Honour, these words should be added.
HIS HONOUR: Yes.
MR BROMBERG: "Save for any contract between Danum and the plaintiffs."
HIS HONOUR: Yes, I am content with that.
MR BROMBERG: Yes, if Your Honour pleases, thank you.
HIS HONOUR: Mr Wood, I shall expect that order to be available for my signature by Monday morning.
MR WOOD: Yes, I will see that that is done, Your Honour.
HIS HONOUR: Thank you.
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