United Group Infrastructure Pty Ltd ACN 096 365 972 v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
[2005] FCA 1575
•13 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
United Group Infrastructure Pty Ltd ACN 096 365 972 v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1575
INDUSTRIAL LAW – interim injunction – whether threatened industrial action protected action
Workplace Relations Act 1996 (Cth), ss 170MO, 170MI(2), 170MN
Building and Construction Industry Improvement Act 2005 (Cth), s 41UNITED GROUP INFRASTRUCTURE PTY LTD ACN 096 365 972 v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
WAD 295 OF 2005SIOPIS J
13 OCTOBER 2005
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 295 OF 2005
BETWEEN:
UNITED GROUP INFRASTRUCTURE PTY LTD ACN 096 365 972
APPLICANTAND:
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
RESPONDENTJUDGE:
SIOPIS J
DATE OF ORDER:
13 OCTOBER 2005
WHERE MADE:
PERTH
UPON THE APPLICANT’S UNDERTAKING TO:
(a)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 or undertaking or any continuation (with or without variation) thereof; and
(b)Pay the compensation referred to in (a) to the person there referred to.
THE COURT ORDERS THAT:
1.The respondent immediately withdraw the section 170MO notice given to the applicant on Tuesday 11 October 2005 and all authorisation and advice for the taking of the industrial action referred to in that notice and, by its servants or agents, take immediate steps to inform all of its members who might be affected by that notice of its withdrawal; and
2.Until further order, the respondent be restrained , whether by itself or its servants or agents or howsoever otherwise:
(a)from issuing any further section 170MO notices; and
(b)from permitting, directing, authorising, inducing, encouraging or procuring any employee of the applicant engaged to work at the Alcoa Kwinana Refinery to fail to attend for work and/or to fail to perform work in the manner as customarily performed for the applicant;
where the purpose, or a purpose of that conduct is to support or advance the claims against the applicant in respect of the employment of employees of the applicant pursuant to the draft Enterprise Bargaining Agreement served by the applicant on the respondent which is exhibit PK12 of Affidavit Mr Peter Kingsbury Davis dated 12 October 2005.
3.The respondent file and serve any affidavit(s) in opposition to this application by 4:00 pm on Friday 21 October 2005.
4.The applicant file and serve any affidavit(s) in reply by 4:00 pm on 26 October 2005.
5.The respondent to file and serve written submissions by 4:00 pm on 31 October 2005.
6.The motion and the directions hearing be otherwise adjourned to 2:15 pm on Wednesday 2 November 2005.
7.Costs of and incidental to this notice of motion be reserved.
8.Each party have liberty to apply on 24 hours notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 295 OF 2005
BETWEEN:
UNITED GROUP INFRASTRUCTURE PTY LTD ACN 096 365 972
APPLICANTAND:
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
RESPONDENT
JUDGE:
SIOPIS J
DATE:
13 OCTOBER 2005
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for an interim injunction requiring the withdrawal of a notice issued on 11 October 2005 (‘the s 170MO notice’) by the respondent to the applicant pursuant to s 170MO of the Workplace Relations Act 1996 (Cth) (‘the Act’); and for other related interlocutory injunctive relief, founded upon the threat by the respondent to take industrial action. By the s 170MO notice the respondent threatens to take industrial action commencing on 17 October 2005 and lasting for 48 hours, in respect to the operations of the applicant on the Liquor Burner Project at the Alcoa Kwinana Refinery.
On the basis of the threat, this matter was heard on an expedited basis with only a few hours notice being given to the respondent of the application. The respondent has not had an opportunity to file affidavits in opposition to the application.
There are two affidavits relied upon by the applicant in support of the application. The first is sworn by Mr Peter Kingsbury Davis on 12 October 2005; and the second is sworn by Ms Linda Suzanne Gibbs on 12 October 2005. Ms Gibbs has annexed to her affidavit an unsworn affidavit from Mr David Douglas Pretsel. In that unsworn affidavit Mr Pretsel says that on 28 September 2005 the respondent served a copy of a Notice of Initiation of Bargaining Period (‘the notice to initiate bargaining’) pursuant to s 170MI(2) of the Act on the applicant to make an agreement in respect of the applicant’s project work which is over and above the normal maintenance work carried out at the Alcoa Kwinana site covered by the United KG Ltd Alcoa Local Services Contracts and Associated Projects Certified Agreement 2003. Mr Pretsel says that after the issue of that notice there were some discussions between the applicant and the respondent, but no progress was made and on 11 October 2005 the s 170MO notice was sent by the respondent to the applicant.
In order for an interlocutory injunction to be granted there must firstly be a serious question to be tried; and secondly, the balance of convenience must favour the grant of the injunction.
The applicant claims that there is a serious question to be tried that the respondent is threatening to take industrial action in support of claims which are already the subject of a certified agreement and that, therefore, any industrial action which the respondent might take pursuant to the s 170MO notice would not be protected action and would be unlawful.
The applicant has referred in some detail to the terms contained in two documents. The first document is a draft enterprise bargaining agreement which the applicant says the respondent provided to it as the basis of the new certified agreement which the respondent wishes to make pursuant to the notice to initiate bargaining. The second document is the existing certified agreement between the applicant and the respondent, referred to above, being the United KG Pty Ltd Alcoa Local Services Contracts and Associated Projects Certified Agreement 2003, which expires in July 2006.
Counsel for the applicant also took me to s 170MN of the Act and, also, in particular, to the wide ambit of s 41 of the Building and Construction Industry Improvement Act 2005 (Cth). The terms of the draft enterprise bargaining agreement contain provisions which arguably cover categories of work which are already encompassed by the existing certified agreement. There is, therefore, in my view, a serious question to be tried whether the proposed industrial action would contravene those sections, and that, accordingly, such industrial action would not be protected action under the Act.
The second question is to whether there is a balance of convenience which favours the applicant over the respondent. Mr Davis has deposed in his affidavit that the applicant will incur financial detriment if the injunction is not granted. On the other hand, a grant of an interim injunction for a short time against the respondent would not create the same degree of detriment. However, I recognise that the respondent does potentially suffer detriment in that, if its case prevails at trial, it is being precluded from exercising valuable industrial statutory rights. However, I am of the view that, as presently informed, the applicant’s case is strongly arguable, and that the balance of convenience favours the grant of the injunction.
During the hearing I expressed some concern that the applicant did not first ventilate this matter before the Australian Industrial Relations Commission (‘the Commission’) before coming to this Court. However, the applicant has demonstrated that the applicant and the respondent had indeed been before the Commission already in relation to disputation at the Alcoa Kwinana site and that the Commission had made orders precluding the respondent from taking industrial action at the Kwinana site. In any event, whether the parties have first approached the Commission is only a matter which goes to discretion and there is no reason in this case to exercise my discretion against granting the injunction on that ground. I will, accordingly, grant interim injunctive relief on limited terms.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 15 December 2005
Counsel for the Applicant: Mr J Blackburn and Ms L Gibbs Solicitor for the Applicant: CCI Legal Pty Ltd Counsel for the Respondent: Ms J Boots Solicitor for the Respondent: Boots & Co Date of Hearing: 13 October 2005 Date of Judgment: 13 October 2005
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