FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW – variation sought to orders previously made to maintain status quo – whether conduct of applicants' solicitors disentitles applicant to relief sought. Workplace Relations Act 1996 (Cth) s298K AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION AND GRAEME LEWIS AND PAMELA DICKER v RASHAD BASHA AZIZ AND OTHERS VG 302 of 1998 MARSHALL J SYDNEY 9 SEPTEMBER 1998 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 302 of 1998 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION First Applicant GRAEME LEWIS and PAMELA DICKER Second Applicant AND: RASHAD BASHA AZIZ First Respondent NAHED AZIZ Second Respondent RODNEY AZIZ Third Respondent RANDA AZIZ Fourth Respondent RASHAD AZIZ INVESTMENTS PTY LTD (ACN 005 418 995) Fifth Respondent SELECT MEAT EXPORTS PTY LTD (ACN 070 437 688) Sixth Respondent SOUTH EAST SERVICES PTY LTD (ACN 072 568 999) Seventh Respondent MT SCHANK MEAT PROCESSING PTY LTD (In Liquidation) (ACN 072 569 067) EightH Respondent QUALITY MEAT PACKING PTY LTD (Under Administration) (ACN 072 569 094) Ninth Respondent JUDGE: MARSHALL J DATE OF ORDER: 9 September 1998 place: SYDNEY THE COURT ORDERS THAT: 1. Order (1) of the orders made on 28 July 1998 be varied to include at the conclusion thereof, after the words "at the premises of the respondents", the following words, "on the same terms and conditions of employment as applied to the employment of the Employees as at 1 June 1998." 2. The notice of motion of the 1st to 7th respondents be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 302 of 1998 BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION First Applicant GRAEME LEWIS and PAMELA DICKER Second Applicant AND: RASHAD BASHA AZIZ First Respondent NAHED AZIZ Second Respondent RODNEY AZIZ Third Respondent RANDA AZIZ Fourth Respondent RASHAD AZIZ INVESTMENTS PTY LTD (ACN 005 418 995) Fifth Respondent SELECT MEAT EXPORTS PTY LTD (ACN 070 437 688) Sixth Respondent SOUTH EAST SERVICES PTY LTD (ACN 072 568 999) Seventh Respondent MT SCHANK MEAT PROCESSING PTY LTD (in liquidation) (ACN 072 569 067) EightH Respondent QUALITY MEAT PACKING PTY LTD (under administration) (ACN 072 569 094) Ninth Respondent JUDGE: MARSHALL J DATE: 9 september 1998 PLACE: SYDNEY REASONS FOR JUDGMENT On 5 August 1998, the Court published its reasons for judgment concerning the applicants' application for interlocutory relief. These reasons for judgment must be read in conjunction with that judgment. The Court made orders on 28 July 1998. The first order was in the following terms: Until the hearing and determination of the application, or further order, the first to seventh respondents inclusive will not by themselves or through their servants or agents acquire from any person or party other than the former employees of Mt Schank Meat Processing Pty Ltd ("Mt Schank Meats") or Quality Meat Packaging Pty Ltd ("Quality Meats") services of meatworkers of the kind which were supplied at their abattoirs by Mt Schank Meats and Quality Meats on 1 June 1998. Provided that such respondents may obtain the services of persons other than such former employees where an insufficient number of such former employees is ready, willing and available to perform work on any given day at the premises of the respondents. The applicants sought to vary that order so as to add the following words to the end of it: "on the same terms and conditions of employment as applied to the employment of the Employees as at 1 June 1998." The object of the applicants in so doing was to ensure that the meatworkers referred to in paragraph 1 of the order, should they be re-employed at the abattoir, are accorded the same wages and conditions to which they were entitled as at 1 June 1998. 1 June 1998 is the date upon which Mt Schank Meats and Quality Meats were placed into voluntary administration. In its judgment of 5 August 1998 the Court found, for the purposes of the application for interlocutory relief as the evidence then stood, that the first to seventh respondents, ("the relevant respondents"), had breached s 298K of the Workplace Relations Act 1996 (Cth) "the Act" concerning the meatworkers and had engaged in an unlawful conspiracy. At page 15 of the judgment the Court said: "The corporate group and the individual respondent members of the Aziz family acted to place the employer companies into administration and attempted, as Mr Borenstein said, to use such administration: "….as a vehicle whereby the employment of these employees would be prejudiced and ultimately terminated by a third party (the administrator) who would be left in a position where really he had no choice, by reason of the conduct of the other respondents."" Further evidence placed before the Court today reveals that operations at the abattoir are shortly to recommence. That evidence also shows that meatworkers to be offered re-employment at the abattoir are to be offered employment on different terms and arguably inferior terms to those which applied as at 1 June 1998. In the event that there is room for a difference of view as to the relative provisions of the state award pursuant to which the meatworkers were engaged, and the conditions offered by the relevant respondents, the orders sought by the applicants have the advantage of adding certainty to that issue. Mr Dixon, counsel for the relevant respondents, submitted that the assessment of the effect of the proposed new conditions is a matter for the Employment Advocate under the Act.I do not see why that level of scrutiny is necessary given what was intended to be achieved by the order made on 28 July 1998. The central purpose of the orders of the Court of 28 July 1998, as evidenced in the Court's reasons for judgment of 5 August 1998, was to preserve the status quo that existed as at 1 June 1998 prior to the placing of Mt Schank Meats and Quality Meats into the hands of the administrators. No good reason has been advanced by the relevant respondents as to why the order of the Court on 28 July 1998 should not be varied in the terms sought by the applicants to maintain the status quo as referred to above. The variation of the order would assist in restraining the relevant respondents from further injuring the second applicants prior to the hearing and determination of the proceeding. Consequently, the order of the Court on the motion of the applicants is as follows: - Order (1) of the orders made on 28 July 1998 be varied to include at the conclusion thereof, after the words "at the premises of the respondents", the following words, "on the same terms and conditions of employment as applied to the employment of the Employees as at 1 June 1998." There was a further motion before the Court this morning, being a motion by the relevant respondents for certain relief in respect of the orders made by the Court on 28 July 1998, and also the foreshadowed variation, as it then was, to the order made by the Court on 28 July in relation to order (1). Mr Dixon contended that the orders made on 28 July should be discharged and / or the variations sought today be refused on account of the conduct of the applicants' solicitors. That conduct is referred to in an affidavit of Ms Albertini, a solicitor acting for the relevant respondents. The conduct is alleged to have caused harm to the relevant respondents and essentially relates to the solicitors for the applicants advising the bankers of the relevant respondents of the existence of the orders of 28 July 1998. On the material before me I am not satisfied that the applicants' solicitors have done any more than notify those banks to ensure that they do not inadvertently assist in any possible breach of the second order of the Court made on 28 July 1998. I do not believe that such conduct disentitles the applicants to the relief which they achieved on 28 July 1998 or indeed to the variation which the Court has already indicated it would grant. The second order of the Court, in respect of the notice of motion by the first to seventh named respondents, is that the notice of motion be dismissed. ADDENDUM Immediately after I gave my ex tempore reasons for judgment Mr Dixon asked me a question concerning the effect of the change to Order 1. I replied to the effect that his clients maintain the rights which they had on 1 June 1998. On reflection I am of the view that my answer to that question was not an accurate one. The appropriate answer was that the variation means what it says, that is, any meat worker re-engaged in accordance with the order shall be entitled to the wages and conditions of employment to which she or he was entitled on 1 June 1998. I am at pains to point this out as soon as possible lest any contempt of the Court's order be inadvertently committed as a consequence of my reply to Mr Dixon's question. It remains open to any party troubled by the interim order currently in place to seek an urgent hearing of the substantive application or a further variation of the interim orders pursuant to liberty to apply. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall Associate: Dated: 9 September 1998 Counsel for the Applicant: Mr E White and with him Mr G R Gronow Solicitor for the Applicant: Gill Kane & Brophy Counsel for the 1st to 7th Respondents: Mr H Dixon Solicitor for the 1st to 7th Respondents: Manuel Fuller Merrigan Date of Hearing: 9 September 1998 Date of Judgment: 9 September 1998 (ex tempore, as revised from the transcript)