National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530

FEDERAL COURT OF AUSTRALIA

INTERIM INJUNCTION – power of the Court to grant interim orders –injunction to restrain the employer terminating the employment of employees – order requiring the employer to reinstate employees dismissed for picketing – construction of ss 170NG, 170NH and 298U(b) and (c) – application of s 23 of Federal Court of Australia Act 1976 (Cth) to these sections – whether orders may be made under s 170NG in the absence of a claim for a penalty under s 170NF – whether serious question to be tried that employer engaged in conduct in contravention of ss 170MU and 298K Workplace Relations Act 1996 (Cth) – onus of proof under s 298V - whether balance of convenience favours the continuation of orders – interrelationship between serious question and balance of convenience. INDUSTRIAL LAW – protracted industrial dispute – strikes and picketing – termination of employment – threat to dismiss further employees – whether employer engaged in conduct in breach of s 298K Workplace Relations Act 1996 (Cth) – whether dismissals were for a prohibited purpose – whether breach of s 170MU Workplace Relations Act 1996 (Cth) – whether employees engaged in protected action – whether picketing constitutes industrial action – whether industrial action engaged in "in concert" – whether notice was sufficient under s 170MO. PRACTICE AND PROCEDURE – whether judge should disqualify himself for apprehended or actual bias – factors claimed to give rise to apprehended bias examined. Workplace Relations Act 1996 (Cth) ss 4(1), 4(9), 127, 170L, 170ML, 170MM, 170MO, 170MT, 170MU, 170MW, 170ND(c), 170NF, 170NE(9), 170NG, 170NH, 298K, 298L, 298T, 298U, 298V Federal Court of Australia Act 1976 (Cth) ss 22, 23 Trade Practices Act 1974 (Cth) ss 45(2), 80 Workplace Relations Act 1997 (Qld) Trade Union & Labour Relations (Consolidation) Act 1992 (UK) Trade Union Reform & Employment Rights Act 1993 (UK) Independent Education Union of Australia v Canonical Administrators, Barkly Street, Bendigo (Ryan J, Federal Court of Australia, 9 September 1998, unreported) Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 643 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 626 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Murphy v Lush (1986) 65 ALR 651 Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (1984) 3 FCR 55 Construction, Forestry, Mining & Energy Union v Curragh Queensland Mining Ltd (Wilcox J, Federal Court of Australia, 30 September 1998, unreported) Castlemaine Perkins Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union of Australia, Queensland Branch, Union of Employees (Derrington J, Supreme Court of Queensland, 2 December 1997, unreported) FH Transport Pty Ltd v Transport Workers Union of Australia (1997) 145 ALR 366 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1997) 77 IR 269 Coal and Allied Operations Pty Ltd v Construction, Forestry, Mining and Energy Union (1998) 80 IR 14 Construction, Forestry, Mining & Energy Union v Full Bench of the Australian Industrial Relations Commission (Full Court, Federal Court of Australia, 6 November 1998, unreported) Dowling v Bowie (1952) 86 CLR 136 Flower Davies Wemco Pty Ltd v Australian Builders Labourers' Federated Union of Workers, WA Branch (1986) 20 IR 88