FEDERAL COURT OF AUSTRALIA

Email Ltd v Automotive Food Metals Engineering Printing & Kindred Industries Union [2000] FCA 1932

INDUSTRIAL LAW – application for interlocutory injunction – alleged breaches of s 170MN of the Workplace Relations Act 1996 (Cth) (“the Act”) and the law of tort – “purpose” in s 170MN refers to the dominant purposes of industrial action – s 170MN covers industrial action for claims that are contemplated to be made within a reasonably proximate period.

Workplace Relations Act 1996 (Cth)  s 170MN

EMAIL LTD & ANOR v AUTOMOTIVE FOOD METALS ENGINEERING PRINTING & KINDRED INDUSTRIES UNION & ORS

N1290 of 2000

MADGWICK J

5 DECEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.             The first and second respondents by themselves, their servants, agents be restrained from organising inciting or otherwise encouraging members of those respondents employed by the applicants at the applicants’ premises referred to in Order 3 hereof, to stop work or to fail to attend for work on 6 December 2000 in accordance with the provisions of the Email National Manufacturing Agreement 1999;

2.             The said respondents shall forthwith by fax and telephone calls to their delegates at the said premises, inform their members employed there that the said respondents no longer incite or encourage any failure to attend for work or stop work on 6 December 2000; and

3.             The premises referred to are those at:

·               Simpson Avenue, Dudley Park, South Australia, 5008;

·               Joinder Avenue, Zetland, New South Wales; 2017; and

·               19 Pope Street, Beverly, South Australia, 5009.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     This is an urgent application for an interlocutory injunction by a well known employer in the whitegoods industry and an associated company.  In the principal proceedings, the applicants seek penalties for an alleged contravention of s 170MN of the Workplace Relations Act 1996 (Cth) (“the Act”) and an injunction, to run to 1 July 2001, to restrain the three respondent Unions, who have members employed by the applicants at their several Australian plants, from engaging in any industrial action in support of employment claims.  This is a claim evidently made in reliance on s 170MN and on s 170NG of the Act.  In addition, the applicant sue for tortious damage for interference with contractual relations and for inducing breaches of contract and association injunctions.  The application raises a number of difficulties and, in the time available, it has not been possible for them all to be fully debated. 

Claim for relief based on the law of tort

2                     Very little has been placed before me on the interlocutory application which would deal with the claims for final relief based on the law of torts.  As I indicated in the course of argument, I am quite unprepared to act on an interlocutory basis in relation to those causes of action;  among other reasons because it seems to me that in respect of these claims, there is no reason shown why damages would not be an appropriate remedy.

Claim for relief pursuant to s 170MN of the Act

3                     However, in relation to s 170MN, the position is different.  Sections 170MN(1) and (2) are in the following terms: 

“(1)     From the time when:

(a)    a certified agreement; or

(b)    an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);

comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.

(2)              For the purposes of subsection (1), the following are covered by this subsection:

(a)               any employee whose employment is subject to the agreement or award;

(b)               an organisation of employees that is bound by the agreement or award;

(c)                an officer or employee of such an organisation acting in that capacity.”

4                     These provisions fall within Part VIB of the Act which deals with certified agreements.  The broad scheme of the Act is that, once agreements are reached, an employer should be protected against industrial action in support of claims relating to the employment of the employees covered by the agreement.  The applicant’s employees are covered by certified agreements which will expire no later than 1 July 2001. 

5                     There is no evidence to implicate the third respondent and accordingly no interlocutory relief will be granted in respect of it.  In relation to the other two Unions, particularly the first respondent, it appears that they have embarked on a campaign known as “Campaign 2001”.  The purposes of this campaign are:

“to provide greater job security in the manufacturing sector, build better paid manufacturing jobs and stop the free trade race to the bottom.

Campaign 2001 aims to reverse the industry policy crisis confronting Australia and it’s manufacturing industry and workers.  A log of claims providing pay and conditions will be served on employers later this year.

Key features of the logs of claims are:

·                    an industry-wide agreement protecting key industry standards;

·                    a minimum pay increase of 6 per cent per year;

·                    a common expiry date;

·                    Manusafe - an industry funded scheme to secure and make portable all workers entitlements;

·                    the creation of more permanent full time jobs.

Campaign 2001 will be aimed at thousands of manufacturing work places.”

6                     In a leaflet much supported by other material, issued actually by the second respondent but manifestly supported also by the first respondent, workers have been urged (and they have otherwise been urged by agents of the two Unions concerned) to "[s]upport Campaign 2001 and the right to industry bargaining".  The Unions have, it seems, taken steps to exhort employees to cease work for the whole or part of what would be an ordinary day shift tomorrow and to attend rallies, at various cities around Australia, in support of the campaign.  The Email interests are in a rather different position from that of other employers in the industry, in that negotiations are in train which may result in the transfer of Email's workforce to another whitegoods manufacturer, known as Electrolux.

7                     This throws into sharp relief, for Email employees, the question of the security of their accrued entitlements with Email.  It seems fair to say that, so far as the applicants are concerned, in the application of Campaign 2001 to them, the substantial purposes of the campaign (in no special order of importance) are:  (1) to have Email agree to, and support within industry councils, a return to centralised wage negotiation in the sectors of the manufacturing industry in Australia covered by the Unions who have got up the agitation known as “Campaign 2001”; (2) to remind employers of the potential industrial strength of the united employees and their Unions; and (3) to seek the support of the applicants, as employers, for various political changes relevant to the aspirations of the Unions for their members.

8                     Damages or compensation are not provided as a remedy for a breach of s 170MN(1) but there is provision for heavy penalties.  In addition, s 170NG provides that this Court (among others) "may grant an injunction requiring a person not to contravene, or to cease contravening, a penalty provision".  Section 170MN is such a penalty provision as defined.  Thus, there is no question of other remedies necessarily providing a full and sufficiently convenient remedy for the applicants. 

9                     The material before me on an interlocutory basis provides evidence to support the claim, and there is none (apart from some statements of counsel for the Unions at the bar table which have, in the main, been accepted as statements of fact) which would tend to the contrary.

10                  One of the plants concerned is the plant at Orange.  It appears that plans for a stoppage of work tomorrow there have been set aside and that consultations by the unions with their members at Orange today are not directed to reviving industrial action there tomorrow.  I will give leave to apply on one hour's notice by fax to the Unions’ offices in relation to the plant at Orange, if that understanding should prove incorrect. 

11                  On necessarily inadequate argument, and I do not blame counsel for this because they have had very little time, it seems to me that the purpose referred to in s 170MN(1), where there is more than one purpose, must at least be the dominant purpose of the industrial action engaged in.  It seems to me that, insofar as one of the purposes of the intended industrial action is to remind the applicants, as employers, of the industrial strength of the united employees and the unions in relation to claims foreshadowed to be made in about July 2001 in respect of the employment conditions of employees, that this probably falls within the purpose expressed in s 170MN(1).

12                  While s 170MN(1) is certainly not a catch-all provision in respect of all industrial action and, to mix the metaphors, certainly does not provide an employer who has an agreement with armour against any industrial action, it is within the reasonable meaning and spirit of the section, in its context, to interpret “claims” as including claims which are actually in prospect within a reasonably proximate period, which I think July 2001 is.  This conclusion is contrary to the submissions of counsel for the Unions who argued that s 170MN did not apply as no claim had been made and it has proposed that a claim would be made at some future time.  Engaging in “industrial action” has an extended meaning under s 4(1) and that term would include directly or indirectly being a party to a concern in the conduct.  In the case of organisations, if they organise, incite or otherwise encourage industrial action it seems to me that they would be caught by the notion of engaging in industrial action under the Act.

13                  Thus, it seems to me that there are serious questions to be tried and that, on the material before me, the applicant employers would probably succeed.  That second consideration is relevant to what is usually called the balance of convenience. 

14                  I think I should distinguish this case from others in which, from the mixed purposes of industrial action, it would not satisfactorily appear that there is a serious question to be tried as to whether the dominant purpose is one caught by s 170MN.  Some examples were discussed in argument and it seems to me that there may very well be other cases in which the Court would not readily conclude that there is a serious question to be tried on this factual aspect.

15                  It seems to me that the applicant having entered into an agreement which achieves the status of a certified agreement under the Act are entitled to be protected from industrial action where the dominant purpose, though not the only purpose, seems to be related to claims that will quite soon be made, and which in some respects have already been formulated in respect of the employment of the employees, whose employment is subject to that agreement.

Disposition

16                  It has been indicated that there is no guarantee that any other remedy in respect of this cause of action would fully avail the employer.  The balance of convenience given the absence of other evidence, rests with the employer. 

17                  Accordingly interlocutory relief must be granted.  Upon the applicants giving, by their counsel as they have, the usual undertaking as to damages, I order that:

(1)          The first and second respondents by themselves, their servants, agents be restrained from organising inciting or otherwise encouraging members of those respondents employed by the applicants at the applicants’ premises referred to in Order 3 hereof, to stop work or to fail to attend for work on 6 December 2000 in accordance with the provisions of the Email National Manufacturing Agreement 1999;

(2)          The said respondents shall forthwith by fax and telephone calls to their delegates at the said premises, inform their members employed there that the said respondents no longer incite or encourage any failure to attend for work or stop work on 6 December 2000; and

(3)          The premises referred to are those at:

·               Simpson Avenue, Dudley Park, South Australia, 5008;

·               Joinder Avenue, Zetland, New South Wales, 2017; and

·               19 Pope Street, Beverly, South Australia, 5009.

Associate:

Dated:              6 February 2001