FEDERAL COURT OF AUSTRALIA

Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd

[2000] FCA 1607

INDUSTRIAL LAW - application for interlocutory relief seeking to compel compliance with certified agreement - whether Court has jurisdiction to grant interlocutory relief which seeks to enforce an award made, or agreement certified, by the Australian Industrial Relations Commission - whether balance of convenience favours granting of interlocutory relief sought - whether appropriate to deal with issues on interlocutory basis when those issues will be finally determined in related proceeding

Workplace Relations Act 1996 (Cth) ss170VK, 170WG, 298K, 298L, 298U

Industrial Relations Act 1988 (Cth)

Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 149 ALR 296 followed

Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203 followed

Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627 distinguished

AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION, COLLIN ROSS and Ors v G & K O’CONNOR PTY LTD (ACN 005 934 029)

V 833 of 2000

MARSHALL J

MELBOURNE

14 NOVEMBER 2000

THE COURT ORDERS THAT:

1.                  The application for interlocutory relief be dismissed.

2.                  The directions hearing be adjourned to 10.15 am on 2 February 2001.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By their application filed on 25 October 2000, the applicants have sought relief against the respondent in the form of:

·        the imposition of penalties for breach of s170WG of the Workplace Relations Act 1996 (Cth) (“the Act”);

·        injunctions requiring the respondent not to contravene s170WG(2) of the Act;

·        the imposition of penalties for breach of s298K of the Act;

·        the payment of compensation to the personal applicants pursuant to s298U(c) of the Act; and

·        the imposition of penalties for breach of s170VK of the Act.

2                     Interlocutory relief was sought in the following form:

1.         An order that the Respondent be restrained from failing and refusing to pay to each of the Second to Thirty-First Applicants wages, penalties and allowances that are no less beneficial than those provided in the terms of the G&K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992, including but not limited to:

(a)        the allowance payable pursuant to clause 3.3.1(iv) of the G&K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992 in respect of work performed by the Twenty-Fourth Applicant William Kirkham in the collection of slinker blood;

(b)        make-up pay in accordance with clause 4.4 of the G&K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992, to any person who has qualified for workers' compensation payments pursuant to the Accident Compensation Act 1985(Vic) (as amended), including to the Fifth Applicant (Mr Adam Brockman), the Fourteenth Applicant (Mr Kelvin Peterson), the Seventeenth Applicant (Mr Chris Symons) and the Eighteenth Applicant (Mr David Zivolic).

(c)        wages, allowances and penalties calculated on the basis of maximum tally within the meaning of clause 11.1.1 of the G&K O'Connor and Australasian Meat Industry Employees' Union Victorian Meat Processing Agreement 1992.

2.         An order that the Respondent be restrained from directing or requiring any of the Second to Thirty-First Applicants herein to work hours of work (other than overtime) outside the span of hours from 6.00 am to 5.30 pm, Monday to Friday inclusive.

3.         An order that the Respondent refrain from directing the Twenty-Fourth Applicant, Mr William Kirkham, to perform duties different to those customarily performed by him during the period from 25 November 1999 to 16 October 2000, being work in the Slinks' Room at its premises at Pakenham, which duties included the collection of slinkers' blood.

4.         An order that the Respondent offer to the Second to Thirty-First Applicants herein overtime work on the same basis as such overtime work is offered to its employees who are party to Australian Workplace Agreements.

5.         An order that the Respondent offer to the Twenty-Third Applicant, Mr Brendan Evans, a position as a learner Slicer.

6.                  Such further or other orders as to the Court seem appropriate.”

3                     Apart from a few claims which do not, in terms, seek to enforce an industrial instrument which binds or has bound the first applicant and the respondent, most of the interlocutory claims effectively seek to compel compliance with that instrument, ie. a certified agreement made in 1992 (“the certified agreement”).

4                     There is a line of authority in this Court and the Industrial Relations Court of Australia (“IRCA”) which demonstrates that the Court has no jurisdiction to grant interim relief which seeks to enforce an award made, or an agreement certified, by the Australian Industrial Relations Commission: see Construction, Forestry, Mining and Energy Union v Gordonstone Coal Management Pty Ltd (1997) 149 ALR 296, where the authorities are discussed by Burchett J. The certified agreement which is effectively sought to be enforced by injunctive relief was made under the Industrial Relations Act 1988 (Cth) (“the IR Act”). The argument that it is permissible to seek to enforce the certified agreement by injunction is met squarely by the judgment of Madgwick J sitting in IRCA in Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203, to which Burchett J referred (at 298) in Gordonstone. In Wattyl, it was held that an agreement certified under the IR Act could not be enforced by injunctive relief.

5                     Counsel for the applicants relied upon the judgment of Gray J in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627 to support the proposition that an interlocutory order can be made which would compel the respondent to engage certain employees on terms and conditions not less favourable than those they enjoyed in 1995 (a time when the certified agreement was unquestionably in operation). The matter before Gray J was an application made solely under Part XA of the Act in reliance upon s298K of the Act. It was not a proceeding involving award or agreement enforcement or in which award or agreement enforcement was effectively sought on an interlocutory basis. It does not detract from the line of authority referred to in Gordonstone.

6                     If I am in error in determining that the Court has no jurisdiction to grant relief which would effectively enforce a certified agreement made under the IR Act, when considering the balance of convenience, I would refuse to grant interlocutory relief of that nature given that in another proceeding between the same interests (V 723 of 2000), which is due to be heard on 13 December 2000, those issues will be finally determined by another Judge of the Court.

7                     The proposed order No 1 in the interlocutory relief sought by the applicants relates to the proper application or otherwise of the certified agreement. Proposed order No 2 seeks a prohibition on the working of ordinary hours outside the span of hours provided for in the certified agreement. Proposed order No 2 relates to an issue which is interwoven with the question of what is the correct interpretation of the certified agreement.

8                     Proposed order No 3 was ultimately not pressed by counsel for the applicants (see t/s 73). Proposed order No 4 would require the respondent to offer the personal applicants overtime work in the same way that it is offered to other employees. During his submissions, senior counsel for the respondent said that his client “would be quite happy if the individual applicants worked overtime on the same basis as the AWA people”. I will treat that statement as an undertaking to the Court on the basis that the ability of each employee to accept overtime offered is the same, irrespective of whether an employee has signed an Australian Workplace Agreement. Consequently, I see no need for injunctive relief in terms of the proposed order No 4.

9                     The final issue raised by the claim for interlocutory relief related to a proposed order that the twenty - third applicant, Mr Brendan Evans, be offered a position as a learner slicer. In their written submissions, the applicants’ counsel contended that:

“the conduct of the Respondent in refusing to offer the Twenty-Third Applicant a position as Learner Slicer is an injury in employment within the meaning of s298K(1)(b), and/or an alteration of the position of Mr Evans to his prejudice within the meaning of s298K(1)(c), carried out for prohibited reasons… .”

10                  The prohibited reasons relied upon under s298L of the Act in respect of Mr Evans all related to an allegation that he had asserted his rights under the certified agreement. That issue is so bound up with the question of the correct interpretation of the certified agreement that it is inappropriate to grant interlocutory relief in respect of it. In any event, on the balance of convenience it is an issue which will be assisted in its determination by the judgment of the Court in matter V 723 of 2000 where the application or otherwise of the certified agreement to Mr Evans, inter alia, will be canvassed.

11                  I will order as follows:

1.                  The application for interlocutory relief be dismissed.

2.                  The directions hearing be adjourned to 10:15 am on 2 February 2001.

Associate:

Dated:              14 November 2000

SCHEDULE OF APPLICANTS

Fili ASA                                               Third Applicant

Darryl BISHOP                                    Fourth Applicant

Adam BROCKMAN                           Fifth Applicant

Ronald BROWN                                  Sixth Applicant

Ross DAVIES                                      Seventh Applicant

Philip DEMPSTER                               Eighth Applicant

Paul ELLIS                                          Ninth Applicant

Samuel GLEESON                              Tenth Applicant

Raymond MURPHY                            Eleventh Applicant

Mark OSBORN                                  Twelfth Applicant

Andrew OULD                                    Thirteenth Applicant

Kelvin PETERSON                              Fourteenth Applicant

David PITCHER                                  Fifteenth Applicant

Murtagh SHEEAN                               Sixteenth Applicant

Chris SYMONS                                  Seventeenth Applicant

David ZIVOLIC                                   Eighteenth Applicant

Carmel ANDERSON                           Nineteenth Applicant

William ANDERSON                          Twentieth Applicant

Stanley BLACKWOOD                      Twenty - First Applicant

Peter DYALL                                      Twenty - Second Applicant

Brendan EVANS                                 Twenty - Third Applicant

William KIRKHAM                             Twenty - Fourth Applicant

Nathian KNIGHT                                Twenty - Fifth Applicant

Thomas MCMASTER             Twenty - Sixth Applicant

Ronald RYAN                                     Twenty - Seventh Applicant

James TAUBE                         Twenty - Eighth Applicant

Karen THOM                                      Twenty - Ninth Applicant

Jodie TREADWAY                             Thirtieth Applicant

Peter VOSS                                         Thirty First Applicant