Union v Joy Manufacturing Co Pty Ltd

[2000] FCA 693

FEDERAL COURT OF AUSTRALIA

Automotive, Food, Metals, Engineering, Printing & Kindred Industries
Union v Joy Manufacturing Co Pty Ltd
[2000] FCA 693

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, AUSTRALIAN WORKERS’ UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, DAVID LLOYD TURNER and KENNETH LESLIE PRICE v JOY MANUFACTURING CO PTY LIMITED t/as JOY MINING MACHINERY
N497 OF 2000

GYLES J
SYDNEY
24 MAY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 497 OF 2000

BETWEEN:

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

AUSTRALIAN WORKERS' UNION
SECOND APPLICANT

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
THIRD APPLICANT

DAVID LLOYD TURNER
FOURTH APPLICANT

KENNETH LESLIE PRICE
FIFTH APPLICANT

AND:

JOY MANUFACTURING CO PTY LIMITED t/as JOY MINING MACHINERY (ACN 000 049 392)
RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

24 MAY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for interlocutory orders 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
NEW SOUTH WALES DISTRICT REGISTRY	N 497 OF 2000

BETWEEN:

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

AUSTRALIAN WORKERS' UNION
SECOND APPLICANT

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
THIRD APPLICANT

DAVID LLOYD TURNER
FOURTH APPLICANT

KENNETH LESLIE PRICE
FIFTH APPLICANT

AND:

JOY MANUFACTURING CO PTY LIMITED t/as JOY MINING MACHINERY (ACN 000 049 392)
RESPONDENT

JUDGE:	GYLES J
DATE:	24 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were commenced by the first three applicants, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Unions (“AMWU”), Australian Workers Union (“AWU”) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”) against the respondent, Joy Manufacturing Co Pty Limited (“Joy”), for injunctions and other relief arising out of a lockout of employees at premises that Joy conducts at Moss Vale.  The matter came on before me for interlocutory relief on Friday, 19 May 2000, on short notice granted by a judge of the Court.  At the conclusion of proceedings on that day I refused to grant interlocutory relief and gave short reasons for that decision.  The matter was stood over until Tuesday, 23 May at 9.30am to enable the parties to consider their respective positions and as the applicants had foreshadowed the joinder of individual employees in view of a complaint about standing. 

2. When the matter was called on on 23 May the fourth and fifth applicants, respectively David Lloyd Turner and Kenneth Leslie Price, were granted leave to become applicants.  Evidence was tendered as to the service of certain new notices of lockout on behalf of Joy which will become effective on Friday, 26 May.  Counsel for the applicants indicated that their clients would be prepared to facilitate return to work by employees once the lockout came to an end.   As I had Full Court commitments for the rest of the day, the matter was resumed at 4.20pm, when some further evidence was tendered and further submissions received.  That which had taken place last Friday was taken as read for the purposes of a further application by the applicants for interim relief.  This possibility had been envisaged by me when I gave my decision on Friday.  Counsel for the applicant confirmed that the applicants would facilitate a return to work.

3. It is important that a decision be made and that reasons be known as soon as possible, but that means that these reasons will not be as complete as they otherwise might have been.

4. Joy conducts operations from two premises located at Moss Vale – one at Vale Road and the other at McCourt Road, and from other locations in New South Wales which are presently irrelevant.  It manufactures and repairs underground mining machinery such as long wall shearers, continuous miners, shuttle cars and pan lines.

5. Joy claims that there are four distinct operational parts to the business at Moss Vale, namely:

   1.The Main Workshop, situated at Vale Road, staffed by members of the AWU and one member of the AMWU, together with supervisory staff.

   2.The Gearbox Shop, situated at McCourt Road, in a separate building, staffed by members of the AMWU together with supervisory staff.

   3.The Hydraulic Shop, which until 4 May was situated at McCourt Road in a geographically separate building, staffed by members of the AMWU together with supervisory and planning staff.

   4.The Main Workshop, situated at McCourt Road in a geographically separate building, staffed by members of the AMWU and the CEPU together with supervisory and planning staff.

6. Employees of Joy at Moss Vale represented by AWU, CEPU and AMWU were respondents to the Joy Mining Machinery (Moss Vale Site) Certified Agreement 1998-1999 (“the Certified Agreement”).  In addition, terms of employment in respect of retrenchment and redundancy are provided for under the Joy Mining Machinery (Moss Vale) Redundancy Certified Agreement 1996 (“the Redundancy Certified Agreement”).  The nominal expiry date for the Certified Agreement was 31 December 1999.

7. Negotiations for a new Certified Agreement commenced in September 1999. In December 1999 each of the applicant unions gave notices to Joy pursuant to s 170MI of the Workplace Relations Act 1996 (“the Act”) initiating a bargaining period in relation to all of the employees at the Moss Vale premises one way or another. There is no suggestion that these notices were not effective. In January and February 2000 the applicant unions gave various notices of intended industrial action purporting to be pursuant to s 170MO of the Act. I shall return to the form of those notices in due course. A series of industrial actions followed.

8. On 24 February 2000 Joy gave notice purporting to initiate bargaining periods in respect of four separate agreements with the employees of the four separate establishments it claimed.  Notice was given to the employees but not to any union.  On 31 March there was a general withdrawal of labour and on 3 April there were resolutions by the workers to stop work.  On 12 April Joy gave notification to all employees apart from those in the hydraulics shop of a lockout effective until 13 July 2000.  An agreement was subsequently arrived at with the hydraulics shop employees.   On 17 April the first of several Supreme Court orders in relation to picketing and like activities was made at the initiation of Joy. 

9. The applicants argue that the lockout notices served by Joy on 12 April were ineffective because the provisions of s 170MO were not complied with. As 3 days notice was not given, they can only be justified pursuant to s 170MO(3) or s 170MO(4)(a).

10. The applicants say that the unions were each a negotiating party but were not given written notice of the intended lockout therefore s 170MO(3)(a)(i) is not satisfied. Its alternate submission is that s 170MO(4) is not applicable because any industrial action engaged in by the employees was in respect of the proposed union agreement not the direct agreements proposed by Joy. The applicants say that regardless of the position which may exist in relation to the new notices, the position at least until Friday is governed by the old notices. Joy has not in any sense abandoned the old notices nor ceased to rely upon them. The new notices are said by it to be by way of backup.

11. Joy’s answer to the argument as to invalidity is that it initiated a bargaining period with each of its employees on 24 February in respect of several agreements proposed by it directly with its employees. It argues that none of the unions is a negotiating party in respect of that bargaining. If this be right, it contends that, firstly, the union applicants have no standing to bring proceedings and that, secondly, they were not entitled to be served. Even if the addition of two individuals may solve the standing problem in a technical fashion, they do not represent the other individuals concerned. It is further submitted that each of the employees who are on strike is literally within the description in s 170MO(4) as they are each negotiating parties in respect of the proposed agreement.

12. It contends that the fresh notices of intended lockout have been served upon the unions and do give 3 days notice and therefore deal with the problems which have been advanced in relation to the first notices.  This appears to be so on its face, and counsel for the applicant has not pointed to any other defect, although there has not been much opportunity to consider them in detail. 

13. I am satisfied that there is an arguable case that the first set of notices were invalid. I cannot say very much about the strength of that argument because it is novel and has not been subject to any direct examination in other cases so far as counsel are concerned. It is put by Joy that, if correct, it would appear to cut across the express and implied objectives of Div VIB of the Act. Whether that is so or not, it certainly raises some fundamental questions as to how that division works. Joy, however, puts a number of matters going to the balance of convenience.

14. It submits that any interlocutory injunction based upon the existing notices would only last for a very short time, and has led evidence both as to inability to provide any substantive work during the period and as to the problems which would be caused by necessity for brief re-engagement between strikers and other workers in circumstances where there are allegations of intimidation, industrial sabotage and picketing which has required Supreme Court injunctions to restrain it.  Whilst this factor is entitled to weight, it seems to me that as Joy has not abandoned its reliance upon the principal notice, and as the new notice has not been tested, I cannot look at the matter as if it is only for one or two days.  I agree, however, that it should be looked at in a relatively short timeframe.

15. Joy submitted that the unions have suffered no loss, and the loss sustained by the individuals (applicants or otherwise) is more apparent than real.  If the lockout is unlawful, then wages will have to be paid in due course and, in any event, there is an adequate remedy elsewhere for non-payment of wages, this Court having no power to enforce a certified agreement.  There is weight in this consideration.

16. It is submitted that the notifications by the union applicants of industrial action did not, themselves, comply with s 170MO(5) with the consequence that the industrial action which has so far taken place has been unlawful. That being so, the employer says it is entitled to protect itself at common law and lock out the offenders. Those who have been acting in breach of the law cannot expect to walk back at will. It is also put that by engaging in this unlawful conduct which has provoked the lockout, the applicants are disentitled to the discretionary relief which is sought. It seems to me that there is a strongly arguable case that the union notices were invalid in view of the decision of the Full Court in National Union of Workers v Davids Distributors Pty Ltd (1999) 165 ALR 595. This is of relevance for the reasons advanced by Joy.

17. It has been put that the proceedings in this Court have only been brought as a tactical manoeuvre after the Supreme Court action has gone against the applicants and that, in particular, the currency of the Supreme Court proceedings is no excuse for the delay in approaching this Court.  I do not give any real weight to this as an independent consideration.

18. The applicants argue that the employer has been guilty of tactics – it has not approached the Industrial Relations Commission to end the bargaining period and it made no approach to the Court to restrain what it now argues to be unlawful industrial action.  It does not appear to me that either of these considerations has any particular relevance to the issues which are before me today.

19. Joy puts that it has faced a campaign of industrial action, including a total withdrawal of labour and picketing, and that it is against the spirit of the legislation to not enable it to reply in kind.   There is more than a hint in some of the submissions on behalf of Joy that different rules are applied for employers than are applied for unions in these circumstances.  I certainly do not agree that employers should be disadvantaged in industrial negotiations or industrial conflict, and I am not aware of any binding authority which says that.  However, the law should be obeyed by all parties and neither unions nor employers are exempt from that obligation.

20. In my opinion, the case made by the applicants as to invalidity is not strong enough or certain enough of success to warrant stepping in with positive orders in such a highly charged situation, taking account of the considerations on the balance of convenience which have been pressed by Joy.

21. I therefore decline to make interlocutory orders but envisage making arrangements for as early a final hearing as is possible.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .

Associate:

Dated:             25 May 2000

Counsel for the Applicant:	W Haylen QC and J Nolan
Solicitor for the Applicant:	Turner Freeman
Counsel for the Respondent:	G Hatcher and B Cross
Solicitor for the Respondent:	Middletons Moore & Bevins
Date of Hearing:	19, 23 May 2000
Date of Judgment:	24 May 2000