Thiess Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union
[1998] FCA 1766
•5/11/98
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW – application for interim injunction to restrain commencement of industrial action – whether Industrial Relations Commission has implied power to make urgent interim orders under s 170MW(1) Workplace Relations Act 1996 (Cth) (“the Act”) to prevent harm that is likely to flow from industrial action in the period the Industrial Relations Commission needs to make decision on whether to make final orders restraining industrial action provided sufficient evidence exists to satisfy the Industrial Relations Commission on a provisional basis that one or other of the grounds in s 170MW(2) to (7) exist and provided sufficient evidence exists that serious harm will flow from a failure to make order.
Workplace Relations Act 1996 (Cth) ss 4, 127, 150, 170MI, 170MN, 170MO, 170MT, 170MW
THIESS CONTRACTORS PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS
QG 141 of 1998
DRUMMOND J
5 NOVEMBER 1998
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 141 of 1998
BETWEEN:
THIESS CONTRACTORS PTY LTD (ACN 010 221 486)
APPLICANTAND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
FIRST RESPONDENTALEX JACK OLIVER
SECOND RESPONDENTGARY THOMAS SUHLE
THIRD RESPONDENT
JUDGE:
DRUMMOND J
DATE OF ORDER:
5/11/98
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The respondents and each of them, whether by themselves, their servants, or agents, or otherwise howsoever, be restrained from commencing industrial action at 6.00 am on Friday, 6 November 1998 against the applicant, or from taking any industrial action against the applicant during the period that Commissioner Holder’s order of 5 November 1998 remains in operation, or until earlier order.
The costs of today are reserved.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 141 of 1998
BETWEEN:
THIESS CONTRACTORS PTY LTD (ACN 010 221 486)
APPLICANTAND:
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
FIRST RESPONDENTALEX JACK OLIVER
SECOND RESPONDENTGARY THOMAS SUHLE
THIRD RESPONDENT
JUDGE:
DRUMMOND J
DATE:
5/11/98
PLACE:
BRISBANE
REASONS FOR JUDGMENT
I have before me an application for injunctive orders aimed at restraining the commencement of industrial action against the applicant foreshadowed to commence at 6 am tomorrow. The application has come before me in circumstances of considerable urgency, and it has not been possible to deal with all the quite complex arguments that have been raised.
The applicant and the union are parties to a certified agreement under the Industrial Relations Act 1988 (Cth). This has a nominal expiry date of 11 July 1999. I think it is at least arguable on the basis of the submission made on behalf of the applicant to Commissioner Hodder, and in particular in pars 6 and 19 of that submission, which is exhibit 5, that this agreement has effect for the purposes of s 170MN the Workplace Relations Act 1996 (Cth).
On 2 April last the union gave notice under s 170MI the Workplace Relations Act initiating a bargaining period for a new agreement under this Act. A planned four day strike by the union commenced on 18 September last. Subsequently, the union indicated its reasons for this strike as being, in effect, to further the union campaign for the new agreement instigated by the 2 April 1998 notice. See, in particular, what Mr Foster, of the applicant, says in his affidavit, which is exhibit 3, and see also exhibit BF9 to that affidavit.
Commissioner Hodder in the Australian Industrial Relations Commission made orders on 21 September, ie, on the last day of this industrial action, against all three of the present respondents. These orders included the following:
3. Industrial Action to Stop
(a) Employees of Thiess Contractors must not engage in industrial action being any refusal to attend for work;
(b) Employees of Thiess Contractors must attend work and perform work as normal and without cessation during working hours; and
(c) the CFMEU must not recommend any ban on employees of Thiess Contractors attending for and performing work.
4. Return to Work Employees are directed to return to work in accordance with their current roster …
5. Exclusions This order shall not apply to action by an employee: …
in circumstances there defined which include action based upon safety concerns. Finally, the Commissioner ordered that his orders should come into effect on 21 September 1998 and should remain in force until 11 July 1999. That is until the nominal expiry date of the certified agreement under the old Act. These orders were made under s 127(1) the Workplace Relations Act. They cannot bar protected action. See s 170MT(1).
On 2 November the union gave a notice under s 170MO(2)(b) of its intention to engage in industrial action against the applicant. The notice foreshadows strike action over eight days to commence, as I have indicated, at 6 am tomorrow. It can only be effective to legitimise that strike action if given by the union in its capacity as a negotiating party, a status it says it acquired by reason of its 2 April 1998 notice. This November notice states that the industrial action is in furtherance of its campaign for a new agreement.
Today, the applicant obtained an order under s 170MW from Commissioner Hodder on an application for a termination order under that section. In view of this order, the industrial action planned to commence tomorrow is, prima facie, unlawful.
The balance of convenience heavily favours the applicant. The applicant will suffer very substantial financial losses if the industrial action proceeds. On the evidence, it will put at risk further export contract negotiations in which a business associate of the applicant is involved. Further, it will cause shutdowns of the Bowen Coke Works and the Collinsville Power Station, which must involve considerable and serious disruption to the public.
The only consideration argued by the respondents as going to balance of convenience considerations favouring the refusal of the injunctive relief is the general principle reflected in the Workplace Relations Act that a union has a right to engage in lawful industrial action. But that is so only if the action is protected action within ss 170ML and 170MT.
To return to Commissioner Hodder’s suspension order of today, the respondents attacked the validity of the order. Section 170MW(1) provides that:
Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.
Mr Vickers, Queensland District President of the Mining and Energy Division of the first respondent, says that he attended the hearing today. It went on for some two hours. Exhibit 3, Mr Foster’s affidavit, was in evidence before the Commissioner. Submissions were made by both counsel on behalf of the applicant and by Mr Vickers on behalf of the first respondent and concluded with Commissioner Hodder reading a decision in which, as Mr Vickers describes it, Commissioner Hodder indicated he would make an interim order. Mr Vickers continues:
The Commissioner’s reasons were to the effect that he had heard detailed submissions about the law and the construction of the Act, and that he would not be able to make a final decision before the commencement of industrial action scheduled for 6.00 a.m. on 6 November 1998. The Commissioner did not identify any of the grounds in subsection 170MW(2) to (7), either by number, or by reference to the circumstances contained therein, as the basis for the making of the orders.
An appeal has been filed already against Commissioner Hodder’s order. Two of the grounds were agitated before me. They are, firstly, that the Commission erred in law in making the order in the absence of satisfaction that at least one of the circumstances set out in s 170MW(2) to (7) the Workplace Relations Act was in existence; and, secondly, the Commission gave no reasons or inadequate reasons for its decision to issue the order in question.
There is in evidence in exhibit 5 the written submissions made on behalf of the applicant to Commissioner Hodder today. There was evidence before Commissioner Hodder in the form of Mr Foster’s affidavit, which is exhibit 3 before me, to support the submission made to the Commissioner and recorded in par 22 of the written argument to the effect that the Commission ought to terminate the bargaining period on the grounds set out in s 170MW(2)(a) and (b). That evidence deals not only with the first respondent’s strike action since 2 April last, but since 8 November 1996. I consider that earlier body of strike action is relevant to illuminating the respondent’s motives in striking on 18 September and in planning to strike tomorrow. Commissioner Hodder was entitled to so view it. In my opinion, Commissioner Hodder had evidence before him sufficient to justify the making of a suspension order under s 170MW(1), in reliance on s 170MW(2)(a) and (b), to operate in the period between adjournment of the hearing before him today and when he could give his decision.
It is important to note that the suspension order is not a suspension for the period from today until 3 December; it is a suspension up until 3 December, or until an earlier decision issues in the application for the termination order. It is a suspension order only made on an interim basis, pending the Commission being able to give a decision on the wider relief in the form of termination of the bargaining period that was sought.
It is, in my opinion, arguable that the Commissioner has implied power to make an interim order in these circumstances to prevent the harm that is likely to flow from industrial action in the period which the Commissioner needs to make a decision on whether to make what can be termed a final order that will terminate the bargaining period and thus deprive the union of the right to take lawful industrial action. Section 170MW(3), shows that the Commission may be called on to exercise its powers under s 170MW(1) in circumstances of urgency, where a failure to make an order, if well justified, may have catastrophic results for human life. It is at least arguable that s 170MW(1) therefore carries with it implied power to act under that provision to prevent harm in circumstances of urgency and so without the Commission having to reach a final considered view or to give reasons for so acting.
It being arguable that power to make an urgent interim order under s 170MW(1) exists so long as there is evidence before the Commission sufficient to enable the Commission to be satisfied on a provisional basis that one or other of the grounds in s 170MW(2) to (7) exists, and evidence that serious harm will flow from a failure to make the order, or some form of order authorised by s 170MW(1), as I think is the case here, I consider an order of the kind made by the Commissioner is arguably valid. The order of today is also arguably entitled to the protective effect of s 150(1) the Workplace Relations Act in view of the extended definition in s 4(1) of the expression “award”.
Difficult questions arise about the validity of the orders of 21 September 1998. Since I think it is arguable that the order of today, 5 November 1998, is effective, and so removes the immunity that might otherwise be conferred on the foreshadowed industrial action by reason of the notice of 2 November 1998, and because of the circumstances of urgency, I do not propose to deal with these other issues.
For these reasons I propose to order that the respondents and each of them, whether by themselves, their servants, or agents, or otherwise howsoever, be restrained from commencing industrial action at 6 am on Friday, 6 November 1998 against the applicant, or from taking any industrial action against the applicant during the period that Commissioner Hodder’s order of 5 November 1998 remains in operation, or until earlier order.
The costs of today will be reserved.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.
Associate:
Dated: 5/11/98
Counsel for the Applicant: Mr JE Murdoch Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondents: Mr B Docking Solicitor for the Respondents: Construction, Forestry, Mining and Energy Union Date of Hearing: 5 November 1998 Date of Judgment: 5 November 1998
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