FEDERAL COURT OF AUSTRALIA

Integrated Maintenance Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCA 760

INTEGRATED MAINTENANCE SERVICES PTY LTD  v  AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and OTHERS (IN ACCORDANCE WITH THE SCHEDULE OF RESPONDENTS ANNEXED HERETO)

V 543 of 2003

RYAN J

16 JULY 2003

MELBOURNE

THE COURT ORDERS:

1.         THAT by 18 July 2003 the first respondent prepare and distribute to its members employed by the applicant at the Holden V6 site at Port Melbourne (“the site”) a notice in writing (“the notice”) signed by Brendan Whelan and Steven Dargavel advising them of the making of the Order of the Australian Industrial Relations Commission (“the Commission”) of 12 June 2003 as extended by further order of the Commission of 11 July 2003 and directing them to:

(i)         immediately cease and refrain from engaging in industrial action in the form of any strike or any restriction, ban or other limitation on the performance of work;

(ii)        make themselves available for work and perform work as the applicant may reasonably require.

2.         THAT copies of the notice be handed or otherwise made available to the members of the first respondent at the site and be posted by prepaid ordinary post to each of the second to forty-sixth respondents inclusive at his or her address as shown in the schedule annexed to the application herein.

3.         THAT liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

4.         THAT there be a further directions hearing herein on a date and at a time to be fixed by the docket Judge.

REASONS FOR JUDGMENT

1                     There is before the Court an application for interlocutory relief pursuant to an application made by the applicant, Integrated Maintenance Services Pty Ltd, for an injunction under s 127 of the Workplace Relations Act 1996 (Cth) (“the Act”), and for the imposition of penalties under s 170NF of that Act and under s 178 of the same Act for breaches of an order made under s 127 by the Australian Industrial Relations Commission (“the Commission”). 

2                     The evidence discloses that an order was originally made in the by Whelan C on 12 June 2003 (“the Order”).  The Order was extended for a further month by order of Williams SDP on 11 July 2003.  The Order was directed to the first respondent, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”) and, so far as is relevant, provided;

‘4.1      The AMWU and the employees must, whether by themselves, their servants, their agents, or otherwise howsoever immediately cease and desist from engaging in industrial action with respect to the site in relation to the following awards and/or certified agreements.

4.1.1.   The Integrated Maintenance Services Holden V6 Plant Project Agreement 2002.

4.1.2    The National Metal and Engineering On-Site Construction Industry Award 2002.

4.2       Each of the employees must immediately make themselves available for work and must perform work as their employer may reasonably require.

4.3       The AMWU, whether by its agents, officers, employees or otherwise, must take any and all steps necessary and available under the rules of the AMWU to ensure that the employees comply with this order.

4.4       Without limiting the generality of 4.3, the AMWU must take all reasonable steps available to them to advise the employees orally and/or in writing that the employees should comply with this order and that in compliance with such orders, they should cease any industrial action, and not commence any further industrial action prior to the expiry of this order.

4.5       The AMWU is to advise the Commission and IMS - the applicant - through its solicitors, Clayton Utz, in writing by midday on 13 June 2003, of what action it has taken to comply with 4.4 of this order. 

3                     The evidence further discloses that, after the making of the further order of Williams SDP, industrial action was taken at the site on 15 July this year by members of the AMWU employed there, when approximately 50 members of the AMWU attended a meeting.  After the meeting, which occupied some 30 minutes, an officer of the applicant noted that the members did not perform any work, but left the site.  Shortly afterwards, an AMWU delegate advised the site manager that the employees were going home.  The meeting had been attended by Mr Whelan, an organiser employed by the AMWU, and Mr Dargavel, its assistant secretary, who, according to Mr Whelan's affidavit, sworn today, informed the members that they should not take industrial action.  Mr Whelan also indicated that he and Mr Dargavel had informed the members of the applicant of the making of the further order by Senior Deputy President Williams.

4                     Mr Whelan further deposed that this morning, 16 July 2003, he attended the site and had a further meeting with members of the AMWU employed there, who then decided to return to work.  Despite that return to work, the applicant has pressed for interlocutory relief, contending that, in contravention of the Order of the Commission as extended, the AMWU has not taken any and all steps necessary and available under its rules to ensure that employees comply with the Order. 

5                     It has been suggested that further steps which could, and should, have been taken include the terminating of a bargaining period which had been initiated by notice dated 3 July 2003, the holding of a meeting of the National Council of the AMWU to pass a resolution calling on the members to cease engaging in industrial action and immediately make themselves available for work and perform work as the applicant may reasonably require, a direction requiring the Victorian State Council of the AMWU to give a similar direction to the members at the site and a requirement that the Victorian State Council issue a publication to that effect. The suggestion is further made that the Victorian State Council should call a meeting of members employed at the site for the purpose of reinforcing the directions to which I have already referred.  It is sought that an order be made that, in the event that the members do not return to work, the AMWU deal with those members for breach of the rules of the AMWU, pursuant to r 36, subr 2 (2) of those rules.

6                     In support of the application for interlocutory relief, Mr O'Grady of Counsel for the applicant referred to the judgment of Merkel J in Transfield Construction Pty Ltd v AMWU (2002) FCA 1413, and the judgment of Beaumont J in BHP Steel (AIS Pty Ltd) v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275.  In the latter case, his Honour, at 295 drew on the principle that:

‘Where an injunction is mandatory, it is the duty of the party bound by the injunction to discover the proper means of obeying the order.’

7                     That was a quotation from Halsbury's Laws of England, 4th Edn, Vol 9(1) par 472.  His Honour also referred to Attorney General v Walthamstow Urban District Council (1895) 11 TLR 533, where Chitty J said it was:

‘The duty of the defendants to find out the proper means of obeying the order.  If a defendant was not merely doing his best, but also taking proper measures to comply with the order, the court would suspend the sequestration where a corporation was concerned, in order to give to the corporation some opportunity of finding means of dealing with the subject of complaint.  It was, however, no part of a plaintiff's duty to point out to a defendant the proper means to remedy the nuisance.  It was the defendant's duty to find out the proper mode of complying with the order.’

8                     I am not persuaded by the evidence on this interlocutory application which is necessarily incomplete that all of the steps suggested on behalf of the applicant as appropriate to be taken by the AMWU are necessary and available under the rules of the AMWU to ensure that its members comply with the Order of the Commission made pursuant to s 127 of the Act.  However, I do consider that the Order contemplated that, in addition to the conveying of oral advice at a meeting of the members at the site, it might have been necessary for the AMWU to advise its members, in writing, to the same effect.  Whether that be so or not, I am persuaded, at all events, that it is appropriate today to order that such notification in writing be given.

9                     Accordingly, I shall order:

1.         That by 18 July 2003 the first respondent prepare and distribute to its members employed by the applicant at the Holden V6 site at Port Melbourne ("the site") a notice in writing (“the notice”) signed by Brendan Whelan and Stephen Dargavel advising them of the making of the Order of the Australian Industrial Relations Commission ("the Commission") of 12 June 2003 as extended by further order of the Commission of 11 July 2003 and directing them to:

(i)         immediately cease and refrain from engaging in industrial action in the form of any strike or any restriction, ban or other limitation on the performance of work;

(ii)        make themselves available for work and perform work as the applicant may reasonably require.

2.         That copies of the notice be handed or otherwise made available to the members of the first respondent at the site and be posted by prepaid ordinary post to each of the second to forty-sixth respondents inclusive at his or her address as shown in the schedule annexed to the application herein.

3.         That liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

4.         That there be a further directions hearing herein on a date and at a time to be fixed by the docket Judge.

Associate:

Dated:              16 July 2003

SCHEDULE OF RESPONDENTS