FEDERAL COURT OF AUSTRALIA

Electrolux Home Products Pty Ltd v Australian Workers Union

[2001] FCA 1840

INDUSTRIAL LAW – appropriate declaratory relief

Workplace Relations Act 1996 (Cth) ss 170NC(1) and 170ML

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 -

ELECTROLUX HOME PRODUCTS PTY LTD v AUSTRALIAN WORKERS UNION AND OTHERS - S157 OF 2001

JUDGE:          MERKEL J

DATE:            20 DECEMBER 2001

PLACE:          MELBOURNE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT IT BE DECLARED THAT:

1.      The industrial action of the first respondent on 14, 21 and 22 September 2001, being action threatened in notices issued by the first respondent dated 5, 11, 13 and 14 September 2001:

(a)    was not protected action within the terms of s 170ML of the Workplace Relations Act 1996 (Cth) and;

(b)   breached s 170NC(1) of that Act.

2.      The industrial action of the second respondent on 14, 21 and 22 September 2001, being action threatened in notices issued by the second respondent dated 5 and 14 September 2001:

(a)    was not protected action within the terms of s 170ML of the Workplace Relations Act 1996 (Cth) and;

(b)   breached s 170NC(1) of that Act.

3.      The industrial action of the third respondent on 14, 21 and 22 September 2001, being action threatened in notices issued by the third respondent dated 6, 11, 13 and 14 September 2001:

(a)    was not protected action within the terms of s 170ML of the Workplace Relations Act 1996 (Cth) and;

(b)   breached s 170NC(1) of that Act.

AND THE COURT ORDERS THAT:

4.      The proceeding otherwise be dismissed.

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

REASONS FOR JUDGMENT

1                     In my reasons for judgment handed down on 14 November 2001 I concluded as follows:

“55.     The industrial action taken in September 2001 by the unions, pursuant to the notices issued under s 170MO, was action for the purpose of supporting or advancing claims made in respect of a proposed agreement that was not an agreement about matters that pertained to the relationship between Electrolux and its employees, as such.  Consequently, the industrial action was not protected action under the Act.

56.       Electrolux is entitled to declaratory relief that gives effect to my conclusions.  I propose to give directions for the parties to file submissions about the form of that declaratory relief and about whether, in all the circumstances, any other relief is appropriate or necessary.”

2                     The solicitors acting for the applicant (“Electrolux”) have submitted a form of declaratory relief seeking eight declaratory orders which they contend give effect to my reasons for judgment.  The solicitors acting for the second and third respondents have agreed to the form of declaratory relief proposed by the solicitors for Electrolux.  The solicitors acting for the first respondent did not wish to express a view as to the form of the relief.

3                     The proposed declaratory orders seek to give effect to each of the main findings made by me in reaching the conclusion that the industrial action engaged in by the respondents, which was the subject of the proceeding, was not protected action under the Workplace Relations Act 1996 (Cth) (“the Act”).  The legal controversy between the parties related to whether the industrial action taken by the respondent unions was protected action and, if not, whether s 170NC(1) of the Act was breached.  Electrolux contended that the action was not protected action as the respondents’ claims for employee entitlements, shop steward’s access rights, and for a bargaining agent’s fee were not matters pertaining to the relationship between an employer and an employee.  Consequently, so it was contended, insofar as the action taken was for the purpose of supporting or advancing those claims the action was not in respect of a proposed agreement about matters pertaining to the relationship between Electrolux and its employees, as such.  The respondents disputed Electrolux’s contentions in respect of each of the claims, saying that they all related to matters pertaining to the relationship between an employer and an employee.

4                     In reaching the conclusion that the action taken was not protected action I found in favour of the respondents in respect of the employee entitlements claim and the shop steward’s access claim but I found against the respondents in respect of the bargaining agent’s fee claim.

5                     The Court has a broad discretion to grant declaratory relief: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582.  However, in a case such as the present it seems to me that it is appropriate to direct that relief to the ultimate conclusion that disposed of the legal controversy between the parties, rather than to each of the steps I took in reaching that conclusion.

6                     Accordingly, it is appropriate to grant declarations that the industrial action taken by each of the first three respondents on 14 September 2001, 21 September 2001 and 22 September 2001, pursuant to the notices issued by those parties threatening such action, was not protected action within the terms of s 170ML of the Act and was taken in breach of s 170NC(1) of the Act.  My reasons adequately explain why it is appropriate to grant that declaratory relief, which gives effect to my ultimate conclusion rather than to my reasons for reaching that conclusion.

7                     As Electrolux has indicated that it is not seeking any orders other than declaratory orders, the proceeding should otherwise be dismissed.

Associate:

Dated:              19 December 2001