FEDERAL COURT OF AUSTRALIA

McDermott Australia Pty Ltd v Australian Workers’ Union [2011] FCA 303

UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING:

a)        to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as the Court may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order made hereunder or any continuation, with or without variation, thereof; and

b)        to pay the compensation referred to in (a) above to the person there referred to.

THE COURT ORDERS THAT:

1    Until 4.15 pm on Tuesday, 29 March 2011, the second to fifth respondents must:

a)    immediately stop organising or engaging in, or encouraging any employee subject to the enterprise agreement exhibited as “PC-1” to the affidavit of Paul Charlesworth affirmed on 27 March 2011 (“Enterprise Agreement”) to engage in, any industrial action involving the Kipper Tuna and Turrum Project; and

b)    not organise or engage in, or encourage any employee subject to the Enterprise Agreement to engage in, any industrial action involving the Kipper Tuna and Turrum Project.

2    In order 1 above, “industrial action” means:

a)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

b)    a ban, limitation or restriction on the performance of work by a employee or on the acceptance of or offering for work by a employee; and

c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work,

but does not include:

d)    protected industrial action within the meaning of s 408 of the Fair Work Act 2009 (Cth);

e)    action by employees that is authorised or agreed to by or on behalf of the Applicant; or

f)    action by an employee if:

i.        the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

ii.        the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

3    On or by 4pm on Friday, 1 April 2011, the applicant shall file and serve a statement of claim.

4    Liberty to apply be reserved to all parties to apply to the Court on short notice.

5    Costs be reserved.

6    The application be adjourned to a further hearing at 2 pm on Tuesday, 29 March 2011 for hearing of the application for interlocutory relief.

TO:    AUSTRALIAN WORKERS’ UNION, JEFFERY SHARP, JOSEPH PACE, JAMES GORE, AND JOSEPH SCHEMBRI

TAKE NOTICE THAT, PURSUANT TO ORDER 37, RULE 2 OF THE FEDERAL COURT RULES:

You are liable to imprisonment or to sequestration of property if:

a)    you refuse or neglect to do the things that this order requires you to do; or

b)    you do the things that this order requires you to abstain from doing, or otherwise disobey this order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1    On Sunday, 27 March 2011, on the urgent application of the applicant, McDermott Australia Pty Ltd (“McDermott”), and upon the applicant giving the usual undertaking as to damages, I granted interim relief against the second to fifth respondents, Messrs Sharp, Pace, Gore and Schembri, requiring them until 4.15 pm on Tuesday, 29 March 2011, to:

a)    immediately stop organising or engaging in, or encouraging any employee subject to the enterprise agreement exhibited as “PC-1” to the affidavit of Paul Charlesworth affirmed on 27 March 2011 (“Enterprise Agreement”) to engage in, any industrial action involving the Kipper Tuna and Turrum Project; and

b)    not organise or engage in, or encourage any employee subject to the Enterprise Agreement to engage in, any industrial action involving the Kipper Tuna and Turrum Project.

2    I refused, however, the interim relief the applicant sought against the first respondent, the Australian Workers’ Union (“AWU”).

3    My reasons for decision are set out below.

4    The application was initially made ex parte as against the second to fifth respondents, although the first respondent was represented by counsel throughout the hearing.

5    The applicant’s solicitors sent the first respondent a copy of the application and proposed orders to the solicitors for the AWU on Sunday, 27 March 2011 at 11.45 am.

6    At 11.50am on Sunday, 27 March 2011, copies of the application and proposed order were emailed to the applicant’s barge superintendent, Mr Wright, who was directed to make four copies of the documents and personally deliver them to the second to fifth respondents.

7    At the outset of the hearing, I directed that the second to fifth respondents, who were located on a barge in Bass Strait, be contacted and invited to participate in the hearing by telephone. I was informed that a supervisor on the rig informed the second to fifth respondents of the opportunity to participate by telephone, which they declined. Thereafter, the solicitor appearing for the first respondent also made submissions on behalf of the second to fifth respondents.

8    At the commencement of the hearing (or shortly thereafter), the applicant filed the following two affidavits on which it relied:

(a)    the affidavit of Paul Charlesworth affirmed 27 March 2011; and

(b)    the affidavit of Nicholas Ruskin sworn 27 March 2011.

9    The affidavit of Daniel Victory affirmed 27 March 2011 was filed on behalf of the first respondent.

Factual Background

10    The factual background to the application was set out in the affidavits of Paul Charlesworth, employed by the applicant on the Project as Senior Project Manager, and Nicholas Ruskin, one of the solicitors for the applicant. The background was broadly summarised in the applicant’s submissions as follows:

(a)    The applicant is a leading engineering company engaged by Esso Australia Resources Pty Ltd (“Esso”) as the Engineering, Procurement, Construction and Management contractor on a project known as the Kipper Tuna and Turrum Project (“the Project”). The Project aims to further develop the Kipper, Tuna and Turrum oil and gas reservoirs located in Bass Strait. By way of example, the Kipper resource holds approximately 620 billion cubic feet of recoverable gas and 30 million barrels of gas liquids. It is located in approximately 100m of water, approximately 45 kilometres south of Marlo in Victoria.

(b)    The applicant has supplied a vessel and equipment for the Project, including a “Combination Derrick/Pipe-lay Barge No 30”, known as the DB30. The DB30 is a heavy lift sea vehicle. It has significant crane capacity and its accommodation areas have a capacity of over 290 people.

(c)    The applicant has contracted Brunel to provide labour to carry out the construction work on the Project. Brunel is the main sub-contractor on the Project.

(d)    It is the employees of Brunel who are engaged in the conduct on the DB30. Within the DB30, all of the applicant’s employees are in supervisory or management positions. None of the applicant’s employees are refusing to work.

(e)    Certain employees (hereafter, "the Brunel employees") are members of, or are eligible to be members of, the AWU.

(f)    The employment of the Brunel employees who are members of, or are eligible to be members of, the AWU is governed by the Brunel Technical Services Pty Ltd Kipper Tuna and Turrum Project Agreement 2010 (“the Enterprise Agreement”). The Enterprise Agreement is an “enterprise agreement” for the purposes of section 417 of the Fair Work Act 2009 (Cth) (“the Act”).

(g)    The Enterprise Agreement has a nominal expiry date that is yet to be reached, namely 30 June 2012.

(h)    In early December 2010, a dispute arose with the AWU in relation to the activities of the “Rigger Foreman”. The “Rigger Foreman” is a position in which an employee of the applicant directs the activities of a crane on the DB30 known as the “Big Rig”. Terry Lee, construction official of the AWU, had told Brunel that the “Rigger Foreman” work should be carried out by Brunel employees (ie members of the AWU). The request was refused. On 5 December 2010, the Brunel employees stopped work. On 6 December 2010, Brunel sought an order from Fair Work Australia directing the industrial action to stop. That order was granted.

(i)    In about 8 March 2011, an altercation occurred between the second respondent (Sharp) and a supervisor of the applicant. Sharp is an AWU Representative on the Project. An investigation followed that meeting and a decision was made to give both persons “written warnings” as a result of the incident. Before Sharp was given his warning, he left the DB30 to go onshore for rostered leave. On his return on 25 March 2011, he was issued with the warning.

(j)    Sharp then proceeded to call an unauthorised meeting of Brunel employees. Following that meeting, “demands” were made by AWU employees on the DB30. One of those demands was the removal from the DB30 of the applicant’s employee involved in the altercation on 8 March 2011. That employee is also a “Rigger Foreman”. Those demands were not agreed to and the employees failed to return to duties.

(k)    Brunel then applied to Fair Work Australia for an order under section 418 of the Act directing the industrial action to stop. That order was granted by Commissioner Blair and took effect at 5.30pm, 25 March 2011.

(l)    At about 7pm, 25 March 2011, a Brunel management representative convened a meeting of the day shift Brunel employees. At that meeting, the orders of Blair C were explained and the employees were asked (among other matters) if they were willing to go back to work. The same procedure was undertaken at about 12.30am on 26 March 2011 in relation to the night shift employees.

(m)    The industrial action continued and is still continuing.

11    It was not disputed that the Enterprise Agreement was binding on the AWU, two other unions, and employees eligible to be members of any such unions engaged in specified classifications. The nominal expiry date of the Enterprise Agreement is 30 June 2012.

12    Before me, it was not disputed that the Brunel employees on the rig site covered by the Enterprise Agreement (who were eligible to be members of the AWU (and most of whom were in fact members)) worked within four classifications specified in the Enterprise Agreement and totalled about 63 persons, all of whom had stopped work.

13    Clause 27 of the Enterprise Agreement stated:

27    EMPLOYEE REPRESENTATIVE

27.1    An employee appointed Employee Representative shall, upon notification to BTS, be recognised as the accredited representative of the union to which he/she belongs, and, provided that he/she obtains the permission of his/her supervisor, shall be allowed the necessary time during working hours without loss of pay to deal with matters affecting employees whom he/she represents, which may include meeting with the employer and the union representative or attendance at Fair Work Australia.

27.2    Provided the Right of Entry Provisions of the Fair Work Act are complied with, representatives of the unions signatory to this agreement will be granted access to the offshore facility to hold discussions with members, and the employer will provide offshore transport to facilitate such visit/s.

14    The applicant’s application to Fair Work Australia on 25 March 2011, referred to in para 10 above, was ex parte. The AWU was served by facsimile at about 3.15pm that day and Terry Lee of the AWU, was served at around the same time.

Interim order

15    On 25 March 2011, Commissioner Blair made the following interim order (“FWA interim order”):

Brunel Technical Services Pty Ltd

v

The Australian Workers’ Union

(C2011/3779)

COMMISSIONER BLAIR

MELBOURNE, 25 MARCH 2011

Alleged industrial action at DB30 Barge located in Bass Strait.

Pursuant to s418 of the Fair Work Act 2009 (the “Act”), Fair Work Australia orders as follows:

1. TITLE

1.1 This Order shall be known as the Brunel Technical Services Pty Ltd Industrial Action Order 2011 No. 1 (the Order).

2. APPLICATION

2.1 This Order is binding on:

(a) The Australian Workers’ Union (AWU) and its officers, employees, agents and delegates; and

(b) Employees to whom the Brunel Technical Services Pty Ltd Kipper Tuna & Turrum Project Agreement 2010 applies and who are members, or who are eligible to be members, of the AWU (Employees).

2.2 For the purposes of this Order:

Applicant means Brunel Technical Services Pty Ltd.

Kipper Tuna and Turrum Project means the Kipper Tuna and Turrum Project in Bass Strait Victoria to which the Brunel Technical Services Pty Ltd Kipper Tuna & Turrum Project Agreement 2010 applies, including works on the “DB30 Barge”.

3. INDUSTRIAL ACTION

On and from the date specified in clause 6 of this Order, until 24 April 2011:

3.1 The AWU, its officers, employees, agents and delegates must:

(a) stop and not commence, engage in, or threaten to engage in any industrial action;

(b) immediately stop organising any industrial action involving any the Kipper Tuna and Turrum Project;

(c) not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any employee performing work on the Kipper Tuna and Turrum Project to engage in industrial action; and

(d) not facilitate any industrial action by any employee performing work on the Kipper Tuna and Turrum Project.

3.2 Employees must:

(a) stop and not commence, engage in, or threaten to engage in any industrial action;

(b) immediately stop organising any industrial action involving the Kipper Tuna and Turrum Project;

(c) not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any employee performing work on the Kipper Tuna and Turrum Project to engage in industrial action; and

(d) not facilitate any industrial action by any employee performing work on the Kipper Tuna and Turrum Project.

4. DEFINITION OF INDUSTRIAL ACTION

4.1 For the purposes of this Order “industrial action” means:

(a) the performance of work by a employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by a employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by a employee or on the acceptance of or offering for work by a employee; and

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

but does not include:

(d) protected industrial action within the meaning of s 408 of the Fair Work Act 2009;

(e) action by employees that is authorised or agreed to by or on behalf of the Applicant; or

(f) action by a employee if:

(i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employee to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

5. SERVICE OF THIS ORDER

5.1 It will be sufficient service of this Order upon the parties bound by this Order if a copy is sent by facsimile transmission or email to each of the:

(a) National Secretary of the AWU; and

(b) State Secretary of the AWU.

5.2 The AWU must prepare a written notice which must be signed by an authorised official of that organisation in the following terms (Written Notice):

“Fair Work Australia has issued a section 418 order to stop or prevent industrial action.

The order is called the Brunel Technical Services Pty Ltd Industrial Action Order 2011 No. 1.

The order requires that the AWU not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any industrial action at or in connection with the Kipper Tuna and Turrum Project.

The order applies to:

a) the AWU and its officials, delegates, employees and agents; and

b) employees to whom the Brunel Technical Services Pty Ltd Kipper Tuna & Turrum Project Agreement 2010 applies.”

5.4 By 12:00pm (midday) on Saturday 26 March 2011, the AWU must post this Order and the Written Notice in a prominent position on its website.

6. TERM AND DATE OF EFFECT

6.1 This Order shall come into effect at 5:30pm on 25 March 2011.

16    Commissioner Blair fixed a full hearing of the application for Monday, 28 March 2011.

17    Mr Ruskin deposed to the service of the FWA interim order as follows:

I am informed by Ms Parker in the email attached as NR-1 that the Interim Order of Fair Work Australia (Order) was served on the First Respondent by email and facsimile to the AWU’s Victorian and Federal offices at around 6.15pm and 6.17pm respectively on Friday 25 March 2011. This was in accordance with clause 5.1 of the Order (PR507862) on that day.

I am informed by Mr Christopher Jankowski, Brunel Representative that at approximately 7pm on Friday 25 March 2011 he gathered the AWU employees (on day shift) affected by the Order together on the DB30, and told them that a purpose of the meeting was for him to serve them with the Order. Mr Jankowski also informed me that the Order was also served on those AWU employees on night shift at approximately 12:30am, Saturday 26 March 2011.

18    By the application dated 27 March 2011, the applicant sought relief principally under s 421 of the Act.

relevant legislation

19    Section 417 of the Act provides:

No industrial action

(1)    A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:

(a)    an enterprise agreement is approved by FWA until its nominal expiry date has passed; or

(b)    a workplace determination comes into operation until its nominal expiry date has passed;

whether or not the industrial action relates to a matter dealt with in the agreement or determination.

(2)    The persons are:

(a)    an employer, employee, or employee organisation, who is covered by the agreement or determination; or

(b)    an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.

Injunctions and other orders

(3)    If a person contravenes subsection (1), the Federal Court or Federal Magistrates Court may do either or both of the following:

(a)    grant an injunction under this subsection;

(b)    make any other order under subsection 545(1);

that the court considers necessary to stop, or remedy the effects of, the contravention.

(4)    The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

(5)    Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).

20    Section 418 of the Act provides:

(1)    If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a)    is happening; or

(b)    is threatened, impending or probable; or

(c)    is being organised;

FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

(2)    FWA may make the order:

(a)    on its own initiative; or

(b)    on application by either of the following:

(i)    a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii)    an organisation of which a person referred to in subparagraph (i) is a member.

(3)    In making the order, FWA does not have to specify the particular industrial action.

(4)    If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a)    some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b)    which has not ended before the beginning of that stop period; or

(c)    beyond that stop period;

FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

21    Section 421 of the Act provides:

Contravening orders

(1)    A person to whom an order under section 418, 419 or 420 applies must not contravene a term of the order.

(2)    However, a person is not required to comply with an order if:

(a)    the order is an order under section 418, or an order under section 420 that relates to an application for an order under section 418; and

(b)    the industrial action to which the order relates is, or would be, protected industrial action.

Injunctions

(3)    The Federal Court or Federal Magistrates Court may grant an injunction, under this subsection, on such terms as the court considers appropriate if:

(a)    a person referred to in column 2 of item 15 of the table in subsection 539(2) has applied for the injunction; and

(b)    the court is satisfied that another person to whom the order applies has contravened, or proposes to contravene, a term of the order.

Note:    Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.

No other orders

(4)    Section 545 (which deals with orders that a court can make if a person has contravened etc. a civil remedy provision) does not apply to a contravention of a term of the order.

22    Section 539(2) provides:

(2)    For each civil remedy provision, the persons referred to in column 2 of the item may, subject to sections 540 and 544 and Subdivision B, apply to the courts referred to in column 3 of the item for orders in relation to a contravention or proposed contravention of the provision, including the maximum penalty referred to in column 4 of the item.

23    The principles relevant to the grant of an interlocutory injunction were not in dispute.

Principles Applicable to interlocutory relief

24    As the applicant submitted:

The general principles to be applied by a court in determining whether or not it should grant an interlocutory injunction are:

(a)    whether there exists a prima facie case; in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief. It is to be recalled that the test does not require that the Court reach a determination that it will be more probable than not that the applicant for an injunction will succeed at trial but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and

(b)    whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the respondent would suffer if an injunction were granted.

(See Australian Broadcasting Corporation v. O'Neill (2006) 227 CLR 57; Beecham Group Ltd v. Bristol Laboratories Pty Ltd (1968) 118 CLR 618; and CPSU, The Community and Public Sector Union v. Commonwealth of Australia [2006] FCAFC 176).

Where there has been a breach of the legislation regulating industrial rights, slightly different principles may apply. As was said by Merkel J in Transfield Construction Pty Ltd v. AFMEPKIU [2002] FCA 1413 at [28]:

[T]he traditional reluctance of the Court to make interlocutory mandatory orders, including ordering employees to return to work, may not apply to conduct which, prima facie, is in breach of the Act: see Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering and Kindred Industries Union [2002] FCA 127 ("Amcor Packaging") at [11]-[12].

The applicant’s submissions

25    The applicant submitted that it had a strong prima facie case for relief against the second to fifth respondents under s 418 and 421 of the Act because:

(a)    It was not in doubt that Commissioner Blair made an order pursuant to s 418 on 25 March 2011. The evidence clearly established (and it was not disputed) that the order had been contravened, as the employees subject to the order did not resume, and had not at the time of the hearing resumed, work, and the industrial action identified in the order was not “protected industrial action” within the meaning of s 408 as affected by s 413 of the Act.

(b)    The evidence established that all respondents (and others) bound by the Enterprise Agreement (which was in force and had not yet passed its nominal expiry date) had organised and engaged in industrial action, thus breaching s 417(1) (a civil penalty order), thereby empowering the court to grant relief under s 417 (3) and (4) and s 545(1) and (2) of the Act.

(c)    The second to fifth respondents had failed to comply with the FWA interim order and had engaged in industrial action by stopping and failing to resume work, and had also encouraged other employees covered by the Enterprise Agreement to do so.

(d)    Mr Charlesworth’s affidavit set out evidence of the background to the dispute regarding the status of Rigger Foreman, and the second respondent’s role in an altercation on about 8 March 2011 with a Rigger Foreman, following which each employee was formally warned.

(e)    Mr Charlesworth deposed that:

Janowski told me that the AWU Delegates were close by and were directing the Brunel Employees not to respond to the return to work direction.

I understand the influential AWU delegates to be the following four Brunel Employees:

•    Sharp

•    Pace

•    Gore

•    Schembri

26    Although, as discussed below, the AWU had complied with and posted copies of the FWA interim order of Commissioner Blair, and disavowed authorising or encouraging industrial action, the applicant submitted that the activities and influence of its officer Mr Lee and the concurrence of the hierarchy in the conduct of the second to fifth respondents could be inferred. In relation to its prima facie case on the involvement of the first respondent AWU in organising the industrial action, the applicant relied on:

(a)    Mr Charlesworth’s evidence that he was informed by the applicant’s Human Resources Senior Manager, Terry Adams, that Mr Lee, the AWU construction officer, had required the second to fifth respondents and nineteen others to be employed prior to the making of the Enterprise Agreement.

(b)    Messrs Sharp and Pace were stated, in an email from Mr Lee to Colin Saunders (at Brunel) dated 10 December 2010, to be representatives under clause 27 of the Enterprise Agreement.

(c)    Mr Charlesworth was informed by Mr Adams that the second to fifth respondents were union delegates.

(d)    The AWU had not deposed to instructing employees to cease their industrial action.

27    The applicant submitted that the balance of convenience favoured the grant of the relief sought because far-ranging detriment would otherwise be suffered by the applicant, as well as third parties. Conversely, neither the unions nor the crew would suffer any detriment if the injunction were not granted.

28    In particular, the applicant claimed that it would suffer potentially very substantial damages because:

(a)    There is an obligation on the Applicant to complete the Project in a timely manner.

(b)    Delay costs to the Applicant (and/or Esso) while the employees refuse to work are about $1.5 million per day.

(c)    There are a number of other vessels impacted by the stoppage which are in turn required to be put on standby – the affidavit of Paul Charlesworth identifies 24 such vessels.

(d)    There are also a number of other sub-contractors on standby (including a helicopter service).

41.    That is, in addition to the substantial direct costs of delay, there are a number of other costs which are difficult (if not impossible) for the Applicant to quantify, particularly as they relate to third parties affected by the industrial action.

42.    In these circumstances, the prejudice to the Applicant (and other innocent third parties) is substantial.

Respondents’ submissions

29    Contrary to the applicant’s allegation of the AWU’s role, Mr Victory deposed:

On Friday 25 March 2011, I became aware of an Interim Order made by Commissioner Blair of Fair Work Australia. Attached to this Affidavit and marked DV1 is a copy of that Interim Order.

On Saturday 26 March 2011 at about 11:23am I visited the website http://vic.awu.net.au/ and saw that a link relating to the Interim Order on the front page of that website. I clicked on the link and was taken to a page containing the Interim Order and a letter from AWU National Secretary Paul Howes (“Mr Howes”). I took a screen shot of the front page of the website and the top of the page containing the interim order. Attached to this Affidavit and marked DV2 are copies of those screenshots.

I have also been provided with a copy of the letter from Mr Howes by Mr Cesar Melham (‘Mr Melham’) who I know to be the Secretary of the Victorian Branch of the Australian Workers’ Union. Attached to this affidavit and marked DV3 is a copy of that letter.

On Sunday 27 March 2011, I had a telephone conversation with Mr Melham. During the course of that conversation, Mr Melham advised me, and I believe that:

(a)    the Australian Workers’ Union (‘the AWU’) did not authorise the taking of any industrial action by members of the Union, or persons eligible to be members of the Union, engaged in work on the Kipper Tuna Turrum Project in Bass Strait, Victoria (‘the Project’);

(b)    that the AWU was aware of and had complied with the terms of the Interim Order, including by posting on its website in a prominent position a notice in the terms required by that Interim Order;

(c)    that the AWU will issue a memorandum (‘the Memorandum’) to members employed on the Project and bound by the Interim Order advising them that:

(i)    the AWU does not authorise the taking of industrial action in relation to the matters subject of the dispute before Commissioner Blair on Friday, 25 March 2011 and in respect of which the Interim Order was made;

(ii)    that the AWU does not encourage any person to take industrial action in relation to the matters subject of the dispute before Commissioner Blair on Friday 25 March 2011 and in respect of which the Interim Order was made;

(iii)    they are bound by the Interim Order and recommending that they comply with its terms.

(d)    that the Memorandum will be posted on the website alongside the Interim Order. Attached to this Affidavit and marked DV4 is a copy of that memorandum.

30    Counsel for the first respondent submitted that:

(a)    There was no evidence of the second to fifth respondents’ status within the AWU, or anything to link their conduct (if established) with the AWU, which had complied, and advocated compliance, with the FWA interim order.

(b)    There was no evidence to establish that the second to fifth respondents had played any role in encouraging industrial action.

(c)    While the respondents did not dispute that the second to fifth respondents had not complied with the FWA interim order and had taken industrial action, it would be inappropriate to single out four only of the approximately 63 employees subject to the Enterprise Agreement who had stopped work, particularly when the order of Commissioner Blair was an interim order heard ex parte and the matter would be fully heard on Monday (that is, the next day).

discussion

31    I concluded that the evidence did not establish a prima facie case for relief against the AWU in the light of the matters to which Mr Victory deposed, and the relatively slight indications of the second to fifth respondents’ status within the AWU. Two individuals were employee representatives as at 2010, but there was no evidence of their current official status. Although all four individuals were reputed, on hearsay evidence, to be AWU delegates, I was not persuaded that the status of delegate, if ultimately established, would suffice to identify their conduct with that of the AWU.

32    There was, however, sufficient evidence, albeit hearsay, constituted by Mr Charlesworth’s assertions, to establish a prima facie case that the second to fifth respondents had encouraged or directed the industrial action. The evidence was stronger in relation to Mr Sharp due to the background and antecedents, his role in the altercation, and the evidence of his status as an employee representative (shared by Mr Pace) as at 2010.

33    Further, there was clear evidence that the second to fifth respondents had stopped work, thereby engaging in industrial action and contravening the FWA interim order.

34    While mindful of the implications of singling out a small number of a group of employees who participated in the same conduct, and the hearing before Commissioner Blair scheduled for Monday, in the present case, there was sufficient evidence that the four respondents in question had encouraged, organised or directed the conduct of the other employees.

35    When the magnitude of the accumulating claimed daily loss resulting from the industrial action was taken into account, the balance of convenience in my view favoured the grant of short term interim relief against the second to fifth respondents.

Associate:

Dated:    13 April 2011