Shell Refining (Australia) Pty Ltd v Australian Workers' Un ion - [1999] VSC 297

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] VSC 297
Decision Date: 13 August 1999

CaseChat Overview and Summary

In the case of Shell Refining (Australia) Pty Ltd v Australian Workers' Union, the plaintiff, Shell Refining, sought an injunction against the Australian Workers' Union for industrial action that targeted Shell's operations but was not directly related to an existing industrial dispute between the union and Shell. The Federal Court of Australia was called upon to determine the legality of the union's actions and the applicability of the Workplace Relations Act 1996. The central legal issues revolved around whether the industrial action constituted protected action under the Act, and if Shell was entitled to an injunction to prevent further disruption to its business operations.

The court examined the provisions of the Workplace Relations Act 1996, specifically sections 4, 127, 166A, 170ML, and 170MT, to ascertain the nature and scope of protected industrial action. The key point of contention was whether the industrial action was in pursuit of a legitimate trade union objective related to an industrial dispute with the employer or if it extended beyond the bounds of what was permissible under the Act. The court found that the industrial action was not protected as it was not directly related to an existing dispute between the union and Shell, and thus, it was not covered by the protections afforded under the Act.

Upon concluding that the industrial action was unlawful, the court granted Shell's application for an injunction to restrain the union from engaging in the activities that were causing harm to Shell's business. The court emphasised the importance of maintaining a balance between the rights of employers and employees to conduct their business without undue interference, and the right of employees to engage in lawful industrial action. The decision underscored the limitations of protected action and reinforced the need for any industrial dispute to be resolved within the confines of the legal framework provided by the Workplace Relations Act 1996. The court's ruling was decisive in affirming that industrial action against a non-party to an industrial dispute is not protected and can be subject to legal remedy.

Orders