FEDERAL COURT OF AUSTRALIA

Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342

MARITIME UNION OF AUSTRALIA AND PETER WINCH-BUIST, PAUL ARTHUR, CLIVE LAURISTEN, STEVEN PENNEY V GERALDTON PORT AUTHORITY AND ERIC CHARLETON AND MURRAY CRIDDLE

WAG 98 and 101 of 1998

R D NICHOLSON J

19 SEPTEMBER 2000

PERTH

SUMMARY STATEMENT

(Read upon delivery of the Reasons for Decision)

This matter is listed today for the Court to announce its decision and publish its reasons in an application purportedly pursuant to a liberty to apply.  I read the following summary of the main conclusions of the reasons.  This summary is not intended as a substitute for or as an addition to the published reasons which constitute the only authoritative pronouncement of the Court decisions.

1.                  In final orders made on 10 February 2000 it was ordered that the first respondent remedy the effects of contravening conduct under s 298K of the Workplace Relations Act 1996 (Cth) by making the labour of the second applicants and the MUA members (“the employees”) available for hire to stevedores to undertake stevedoring work at the Port.  The final orders also provided there be liberty to apply in respect of the operation of the orders.

2.                  The applicants have brought a notice of motion seeking proposed orders on the basis that new rates set by the first respondent for the supply of labour for stevedoring purposes have resulted in a frustration of the final orders of the Court in that none of the employees have been engaged in such work since the making of the final orders.  It is also alleged that the rate increases were non-genuine and designed to bring about the frustration.

3.                  The reasons examine the evidence relied upon for the first respondent to support these contentions and make certain findings in relation to the methodology adopted by the first respondent.

4.                  The reasons find as a fact that the final orders of the Court were frustrated.

5.                  The reasons decline to find that the methodology adopted by the GPA in reviewing its rates for provision of labour was a non-genuine exercise directed to the purpose of frustrating the final orders.  It is found that such a finding would be akin to a finding of contempt of court without the observance of the protections appropriate to contempt particularly in respect of the standard of proof required being beyond reasonable doubt.

6.                  In any event the proposed orders could not be made under the reserved liberty to apply, the scope of which does not extend to the scope of the proposed orders.

7.                  Furthermore, the proposed orders would be inappropriate because they would involve the Court in ongoing supervision of the first respondent’s commercial activities.

8.                  However, submissions should now be received from the parties on the appropriateness of the Court readdressing the form of the final orders under the provisions of O 37 r 6 of the Federal Court Rules on the ground of matters occurring after the date on which the final orders took effect.  Directions will be made to allow for submissions in relation to that.  Such submissions should include submissions on whether the final orders should be amended so as to provide for a finite penalty on the first respondent in respect of the contravening conduct as well as the nature and quantity of any such penalty on the basis that the requirement to make the employees available for hire for stevedoring work would be removed from the final orders.