Southcorp Australia Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

[2000] FCA 1480

FEDERAL COURT OF AUSTRALIA

Southcorp Australia Pty Limited v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1480

INDUSTRIAL LAW – picketing and strike activities – injunction to restrain picketing and strike activities – activities jeopardising commercial contracts of applicant – whether picketing and strike protected action pursuant to Workplace Relations Act 1996 (Cth) – serious question to be tried.

Workplace Relations Act 1996 (Cth): ss 127(6) & (7), 170NG

SOUTHCORP AUSTRALIA PTY LIMITED v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
V 788 of 2000

GOLDBERG J
12 OCTOBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 788 of 2000

BETWEEN:

SOUTHCORP AUSTRALIA PTY LTD
(ACN 004 213 665)
Applicant

AND:

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

12 OCTOBER 2000

WHERE MADE:

MELBOURNE

UPON the applicant by its counsel undertaking:

(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order made hereunder or any continuation, with or without variation, thereof; and

(b)       to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.Until 4.00pm on 27 October 2000 or further order, the respondent, whether by itself, its officers, agents, members employed by the applicant at its premises at 17 McNaughton Road, Clayton, Victoria and at 127 Cherry Lane, Laverton, Victoria or otherwise howsoever, be restrained from:

(a)preventing, hindering or interfering with free access to and egress from the premises of the applicant at 17 McNaughton Road, Clayton, Victoria (“the Clayton premises”) and at 127 Cherry Lane, Laverton, Victoria (“the Laverton premises”);

(b)abusing, threatening, besetting, harassing or intimidating any person, entering or leaving or about to enter or leave or who has entered or left the Clayton premises or the Laverton premises;

(c)abusing, threatening, besetting, harassing or intimidating any person who is at the Laverton premises or the Clayton premises;

(d)inducing, procuring, advising or persuading any person not to enter or not to leave the Clayton premises or the Laverton premises or attempting to induce, procure, advise or so persuade any person;

(e)inducing, procuring or advising any of its members who are employees of the applicant at its Clayton Premises or its Laverton premises not to perform for the applicant the work they are required to perform in accordance with the terms of their employment.

2.The directions hearing and any application for a continuation of the order made in paragraph 1 after 4.00pm on 27 October 2000 be adjourned to 9.30am on 25 October 2000.

TAKE NOTICE that AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION is liable to imprisonment or sequestration of property if it disobeys this order

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 788 of 2000

BETWEEN:	SOUTHCORP AUSTRALIA PTY LTD (ACN 004 213 665) Applicant
AND:	AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Respondent

JUDGE:	GOLDBERG J
DATE:	12 OCTOBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Background

1. Southcorp Australia Pty Ltd (“the applicant”) applies for urgent interlocutory relief in relation to picketing activities of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the respondent”), and those of its members who are employees of the applicant, at the applicant’s plants at 17 McNaughton Road, Clayton, and 127 Cherry Lane, Laverton North.

2. The applicant is a subsidiary of Southcorp Ltd, a listed public company, which operates in the fields of industrial packaging, wine and water heaters.  The applicant is part of the Southcorp Packaging Group, which has four divisions:  beverage packaging, food packaging, industrial packaging and industrial textiles.  The applicant operates its industrial textiles business at Clayton, where it makes woven plastic materials for industrial use, such as conversion into shade mesh and tarpaulins.  The applicant operates its industrial packaging business inter alia at Laverton North, where it makes rigid plastic packaging. 

3. Each site has previously been covered by agreements certified pursuant to the provisions of the Workplace Relations Act 1996 (Cth) (“the Act”). During this year the parties have been involved in negotiating a new certified agreement at each site. At the Clayton industrial textiles site, the applicant has of the order of 143 employees, the majority of whom are members of the National Union of Workers (“the NUW”). The applicant employs of the order of 110 employees at its Laverton North industrial packaging site, of which 100 employees are members or eligible to be members of the NUW and of the order of 10 employees are members or eligible to be members of the respondent.

4. During this year, the respondent and other unions have been conducting a campaign within the manufacturing industry in Victoria, which is colloquially described as “Campaign 2000”. Speaking generally, that campaign seeks to have employers enter into industry‑wide industrial agreements rather than site-specific industrial agreements. Throughout the year, industrial action and industrial dialogue has occurred. During that period the union has served notices initiating bargaining periods in accordance with the provisions of s 170MI of the Act and, from time to time, notices of intention to take industrial action have been served in accordance with the provisions of s 170MO of the Act.

5. However on 26 September 2000 the respondent and the Australian Workers Union served notices terminating outstanding bargaining periods. It is more accurate to say that in accordance with s 170MV(b) of the Act they notified a number of employers in writing that they no longer wanted to reach an agreement with the nominated employers under Div 2 or 3 of that Act. Accordingly, by virtue of the provisions of section 170MV of the Act, relevant bargaining periods came to an end. The formal notice is an exhibit in this proceeding but, for present purposes, I do not need to refer to it in any greater detail.

6. Notwithstanding the service of that notice, industrial dialogue has continued between the parties with offers to conclude industrial agreements laid on the table.  There is already a certified agreement entered into by the applicant with the NUW covering a substantial part of its workforce, including the workforce at the two sites under consideration. 

7. On 13 September 2000, Munro J in the Australian Industrial Relations Commission at the suit of the applicant against the union ordered as follows:

   “The Union, its officers and members who are employees of the Company at its Clayton site cease and desist from maintaining a picket, and stop any conduct that blocks access to or egress from the Company's site at Clayton, and from any conduct that intimidates or besets any person seeking to enter or leave the premises.”

   That order was made, and ancillary directions were given, after Munro J heard from representatives of the applicant and the respondent.  The order was made as a consequence of picketing activities which had occurred at the Clayton site, which occurred in the context of negotiations for a new certified agreement.  That picketing had the effect of stopping trucks entering the premises.  Cars had been parked across the driveway which prevented employees of the applicant who were members of the NUW entering the premises.  No doubt as a result of the order that picket was removed at 3.00 pm on 13 September 2000.

   The present application

8. The events which have brought about the application today commenced on Wednesday, 11 October 2000, when strike and picketing action commenced at a number of the applicant's sites, including the Clayton and Laverton North sites.  At the Laverton site picketing stopped deliveries and there were impediments created which stopped people carrying on commercial activities from entering and leaving the premises. 

   Picketing activities

9. These matters are set out in some detail in the affidavit of Mr Gavin Welch who is the plant manager at the Laverton premises.  He has deposed to the fact that he requires regular deliveries of plastic resin in order to produce a number of plastic products and that since 11 October 2000, when the picketing commenced, he has not been able to have any further deliveries of resin made.  He estimates that there is at the most two days' supply of raw resin left based on current production, and when that supply is exhausted he will have no alternative but to cease production and close the Laverton premises. 

10. At the Laverton premises the applicant has a number of contractual obligations to supply of the order of 45 customers, some of them major Australian companies.  Because the plastics industry is extremely competitive, Mr Welch is concerned, and says it is highly likely, that if the strike and the picket continue the applicant will lose contracts and revenue as a result of the existence of the picket line and that if it loses the contracts it is unlikely that it will recover them.

11. At the Clayton premises the picketing has stopped trucks entering.  Cars have been parked across the entrance to the employees’ carpark, stopping any entry and exit of employees.  Those activities occurred on 11 October 2000 and have continued today.  Mr Michael Pennings has deposed to the consequences of the picketing at the Clayton site, and says that the applicant has contracts which require delivery of products by specific dates and that there will be consequential problems for its customers if those products are not delivered on time.  He is concerned about the potential liability of the applicant for any third party losses.  In short, the picketing has resulted in, or is causing, the inability of the applicant to deliver products, which is putting commercial contracts in jeopardy.

12. The respondent has opposed the application for interim relief and its counsel did not indicate that the picketing would stop unless it was restrained by Court order. The applicant has submitted that there is a serious question to be tried. Firstly, it submitted that the picketing activity set out in detail in the affidavits to which I have referred has been taken with intent to coerce the applicant to enter into a certified agreement. The applicant submitted that if there is such an intent there is thereby a contravention of s 170NC(1) of the Act which gives rise to the jurisdiction of the Court to grant an injunction in accordance with s 170NG of the Act.

13. Secondly, the applicant submitted that there is a serious question to be tried whether the picketing activities being carried on at the Clayton site constitute a breach of Munro J’s order in the Australian Industrial Relations Commission on 13 September 2000. Section 127(5) of the Act provides:

    “A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.”

    It was submitted that the picketing activities at Clayton constituted a failure to comply with that order; a breach of which gives rise to the jurisdiction of the Court to grant injunctive relief and interim injunctive relief pursuant to s 127(6) and s 127(7) of the Act.

14. It appears from the evidence presently before me that the current activities which are being carried on are not covered by any notice of initiation of a bargaining period in accordance with s 170MI of the Act or any notice of intention to take industrial action in accordance with the provisions of ss 170ML and 170MO of the Act. In any event, there is authority for the proposition that picketing is not protected action: see Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 574‑575 per Wilcox and Cooper JJ. Further, in any event, s 170NC(2) of the Act provides:

    “Subsection (1) does not apply to action or industrial action that is protected action within the meaning of division 8”

    and it is submitted that, at the least, there is a serious question to be tried whether the picketing activities being carried on are not protected action for the reasons to which I have referred.

15. The respondent has submitted that if any injunction is to be granted it should be by way of interim relief and not interlocutory relief until the hearing and determination of the final hearing of the matter.  As the matter has come on with great haste, the papers only having been filed this morning, I am disposed to agree with that submission.  If any injunctive relief is to be granted it should be granted for a relatively short period, albeit up to one or two weeks and not until the trial of the proceeding, to give the respondent the opportunity to consider the matter further and make any further submissions to the Court it wishes. 

16. The respondent submitted further that the Court should be slow to intervene in industrial disputes where the parties have built up techniques for dispute resolution and that the Court should show a degree of restraint in interfering in the industrial relations process.  In support of that submission, the respondent relied on dicta to this effect by North J in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 24. Merkel J considered these observations in ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 173 ALR 109 at 120 and in the context of the proceeding presently before me I agree with Merkel J’s observations. In this particular case the observations of North J are of little assistance to the respondent, having regard to the nature of the activities sought to be restrained.

17. The respondent also submitted that the order of Munro J was beyond jurisdiction because picketing is not industrial action as defined in s 4(1) of the Act and so could not be made the subject of an order pursuant to s 127 of the Act. The order of 13 September 2000 has not been the subject of any application for leave to appeal within 21 days or at all, and although counsel for the respondent said that he was instructed that the respondent was considering the matter of an appeal, it seems to me that I should treat the order of Munro J as a valid order until it is set aside. On that basis it is open to me to exercise jurisdiction under s 127(6) and s 127(7) of the Act.

18. The order made by Munro J was made in the context of a particular picketing activity which ceased, not surprisingly, shortly after the making of the order.  Nevertheless, I consider that the time frame within which there has been further picketing activities is such that there is a serious question that what has occurred yesterday and today is in contravention of Munro J’s order. 

19. In any event, I am satisfied that there is a serious question to be tried that the activities currently engaged in by the respondent and its members, who are employees of the applicant, are in contravention of s 170NC(1) of the Act. The picketing activities and the activities associated with that picketing at both sites have arisen in the context and framework of a continuation of negotiations for the making of industrial agreements with the respondent. A relevant contravention of s 170NC occurs where action is taken with intent to coerce another person to agree to make a certified agreement. I consider the material before me is such that I should infer that there is a serious question to be tried that those activities have been carried on with that intent. If they have been carried on with that intent there is a contravention of s 170NC.

20. I turn then to the balance of convenience, the second threshold over which an applicant for interlocutory or interim relief must pass.  In my view, the balance of convenience is in favour of the grant of injunctive relief.  There is evidence before me that  the picketing activities are interfering substantially with the applicant’s business, its deliveries of its finished product and its obtaining of raw materials, such as resin, to make its finished product.  There is also evidence before me, in particular, that having regard to the competitive nature of the plastics industry, the applicant runs the risk that unless it can continue with its deliveries it might not only run the risk of liability for failing to complete and fulfil current orders, but it might lose the opportunity for further orders. 

21. In those circumstances a remedy in damages would not be an adequate remedy where there is a loss of future business.  So far as the respondent is concerned, it has not been submitted that the respondent would be prejudiced in any particular way by the granting of injunctive relief.  Of course, the granting of injunctive relief is an order stopping the conduct complained of, but it is not suggested that the respondent will suffer any significant harm or prejudice by having that activity restrained until the matter can be investigated further.  In any event, the respondent will be protected by the usual undertaking as to damages which has been proffered by counsel for the applicant.

22. I consider that an injunction should be granted but that the injunction should be not an interlocutory injunction until the hearing and determination of the final hearing of this matter, but for a period of time to enable the respondent and its advisers to give this matter the required degree of attention which it needs. That has not been available to them during the shortness of time which has elapsed since they first became aware of the proceeding to be instituted and the material relied upon.

23. The applicant submitted a form of a draft order which was too wide. The injunction should be in terms which go no further than is required to deal with the particular matters which have arisen. If further matters arise in respect of which the applicant has complaint, and which it claims constitutes a contravention of the Act, further application can be made to the Court. In the same way, if other activities which occur hereafter which the respondent complains inhibits it in the lawful conduct of its activities, it can come back to the Court and seek relief.

    Strike action

24. As well seeking interlocutory relief in relation to the picketing activities to which I have referred, the applicant seeks interlocutory relief restraining the respondent from engaging in or threatening to engage in any industrial action as defined in s 4(1) of the Act. That claim for relief is based upon the evidence that not only are the employees who are members of the union engaged in picketing activities but they have also, in colloquial terms, gone on strike, that is to say, withdrawn their services from the applicant, and are failing and refusing to carry out the work they are required to carry out in accordance with their terms of employment.

25. The evidence before me upon which that claim for relief is based is as follows.  At the Laverton premises there are nine employees who are members of the respondent or who are eligible to be members of the respondent who work in the maintenance division of the plant.  When Mr Welch, the plant manager arrived at the premises on 11 October 2000 at 7.30 am the maintenance workers had already walked off the job, and in his affidavit he identified those maintenance workers by name. 

26. Mr Welch said that the Laverton plant is dependent for its operation upon routine maintenance from its maintenance staff in order to function.  The plant at those premises consists of 68 production machines, each working in tandem over a 24‑hour period.  At the time of swearing his affidavit this day, production volume had been severely reduced and 10 of the 68 machines were not operating due to lack of maintenance.  Mr Welch expressed the view that it is likely that 20 machines could be rendered inoperative due to lack of maintenance by the end of the current working week. 

1. In relation to the Clayton premises, Mr Pennings said in his affidavit that the machines at the plant require regular service and repairs and if the machines break down they may not be repaired in circumstances, such as the present.  Mr Pennings said that before the picketing activities started on 11 October 2000, fitters had commenced pulling machines apart.  Those fitters have now withdrawn their services and gone on strike and are participating in the picket and the machines which had been pulled apart are no longer operative. 

2. For the same reasons as apply in relation to the picketing activities, I consider there is a serious question to be tried that these strike or withdrawal of labour activities are also a contravention of s 170NC(1) of the Act. Ordinarily such activities would be protected action if a notice of intention to invoke a bargaining period and notice of intention to undertake industrial action had been served in accordance with the sections to which I have referred. But, as I noted earlier, the notice of intention to invoke a bargaining period was withdrawn and there are no extant notices of intention to take industrial action.

3. There is therefore a serious question to be tried in relation to the strike activities of the employees which, according to the evidence, has been, at the least, participated in by the respondent and, at the most, procured by it.  I refer for example to Mr Pennings’ evidence that at about 7.30 am yesterday morning he had a meeting with Mr Soto and Ms Cassin, an AMWU organiser.  In the course of the conversation which occurred, Ms Cassin told Mr Pennings:

   “The boys have had a stop work meeting and have voted that they will be on the grass indefinitely.” 

   Mr Pennings said, “So this is illegal action?” and Ms Cassin replied “Yes”. 

4. In these circumstances I consider it appropriate that there be an injunction granted restraining the respondent from continuing to procure, induce or advise the continuation of that strike activity.  It was submitted initially by counsel for the applicant that I should grant injunctive relief directed to the persons who are on strike, but I am not disposed to do that, having regard to the fact that they are not parties to the proceeding at the present time and have not been put on notice that relief is sought against them personally.  I would only be prepared to entertain such an application if those persons were given notice of the proceeding and notice of the relief sought against them.  However, I consider the balance of convenience, for the reasons to which I have already referred in relation to the picketing activities, is in favour of the grant of injunctive relief against the respondent in relation to the strike action. 

5. Subject to anything counsel on either side may say further, the order of the court will be that, upon the applicant by its counsel giving the usual undertaking as to damages, it is ordered:

   1.Until 4.00 pm on Friday, 27 October 2000 or further order, the respondent, whether by itself, its officers, agents, members employed by the applicant at its premises at 127 Cherry Lane, Laverton North, and 17 McNaughton Road, Clayton, or otherwise howsoever be restrained from

   (a)preventing, hindering or interfering with free access to and egress from the premises of the applicant at 17 McNaughton Road, Clayton (“the Clayton premises”), and 127 Cherry Lane, Laverton (“the Laverton premises”);

   (b)abusing, threatening, besetting, harassing or intimidating any person entering or leaving or about to enter or leave or who has entered or left the Clayton premises or Laverton premises;

   (c)abusing, threatening, besetting, harassing or intimidating any person who is at the Clayton premises or Laverton premises;

   (d)inducing, procuring, advising or persuading any person not to enter or not to leave the Clayton premises or Laverton premises or attempting to induce, procure, advise or so persuade any person;

   (e)inducing, procuring or advising any of its members who are employees of the applicant at its Clayton premises or its Laverton premises not to perform for the applicant the work they are required to perform in accordance with the term of their employment.

   2.The directions hearing in this matter and any application for a continuation of the orders made in paragraph 1 hereof after 4.00 pm on Friday, 27 October 2000 be adjourned to at 9.30 am on 25 October 2000.

I certify that the preceding thirty‑one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             18 October 2000

Counsel for the Applicant:	NJD Green QC and T Angelopoulos
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondent:	M Champion
Solicitor for the Respondent:	Maurice Blackburn Cashman
Date of Hearing:	12 October 2000
Date of Judgment:	12 October 2000