National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1258

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 382 of 1998

BETWEEN NATIONAL UNION OF WORKERS

Applicant

AND: DAVID DISTRIBUTIONS PTY LTD

Respondent

JUDGE(S): NORTH J

DATE OF ORDER: 26/08/98

WHERE MADE: MELBOURNE

Upon the applicant by its counsel undertaking to pay to any party adversely affected by these orders such compensation (if any) as the Court thinks just, in such manner as the court directs – And upon the applicant by its counsel further undertaking that, from 3 pm on Friday, 28 August 1998, it will not engage in any industrial action relating to the negotiations with the respondent concerning an enterprise agreement – In this undertaking "industrial action" does not include any action by an employee if: (a) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (b) 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. And upon the applicant by its counsel further undertaking that no prejudice or action of retaliation or victimisation by it through its servants, agents or members shall be effected, taken or implemented against any person, including any supervisor, employee or contractor, on account of the participation or non‑participation in industrial action or on account of the performance or non‑performance of any work during the period between 8 July 1998 and 28 August 1998 – And upon the applicant by its counsel further undertaking to enter into an agreed process of discussion with the respondent as to the circumstances of the purported termination of each of the 52 employees with a view to narrowing the differences between the parties on this issue – THE COURT ORDERS THAT: 1. Until 4 pm on 9 September 1998, the respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, treat all persons employed by it on 8 July 1998 as employees of the respondent with continuity of service, save and except for the purpose of the payment of wages; 2. Until 4 pm on 9 September 1998, the respondent, Davids Distribution Pty Ltd, by itself, its servants and agents, be restrained from taking all and any steps to give effect to any purported termination of employment effected on or after 8 July 1998, or to give effect to any threat of termination made on or after 8 July 1998; 3. The further hearing of this application is adjourned until 10.15 am on 9 September 1998, to consider the extension of the above orders beyond 9 September 1998 and for directions. 4. Liberty to apply on very short notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.