Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1496

FEDERAL COURT OF AUSTRALIA

Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1496

MARITIME UNION OF AUSTRALIA v BURNIE PORT CORPORATION

V467 of 1999 RYAN J MELBOURNE 18 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V467 of 1999

BETWEEN: MARITIME UNION OF AUSTRALIA

Applicant

AND: BURNIE PORT CORPORATION

Respondent

JUDGE: RYAN J

DATE OF ORDER: 18 SEPTEMBER 2000

WHERE MADE: MELBOURNE

UPON the respondent undertaking that: (a) It will, within 14 days of the pronouncement of judgment after the hearing of its appeal from the orders of 24 August 2000, offer to terminate any AWA made between it and the relevant employees in accordance with s 170VM of the Workplace Relations Act 1996 (Cth); and that (b) It will comply with all directions of the Court to expedite the hearing of its appeal;

THE COURT ORDERS THAT:

1. The respondent be released from its undertaking given on 26 April 2000. 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 V467 of 1999

BETWEEN: MARITIME UNION OF AUSTRALIA

Applicant

AND: BURNIE PORT CORPORATION

Respondent

JUDGE: RYAN J

DATE: 18 SEPTEMBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 In this case, after judgment had been reserved there was an agreement between the parties pursuant to which, in lieu of an interlocutory injunction which had been sought by the applicant, the following undertaking was given on behalf of the respondent: "If the Court finds in matter V467 of 1999 that the respondent has contravened section 170WG or section 298K of the Workplace Relations Act 1996 ("the Act") by reason in part of its requirement that new employees enter into an Australian Workplace Agreement, including threatening to refuse to employ a person who does not wish to enter into an AWA, the respondent will, within 14 days of the pronouncement of judgment, offer to terminate any Australian Workplace Agreement made between it and the relevant employee in accordance with section 170VM of the act. (b) The relevant employee may elect to terminate the AWA, in which case the respondent should take all necessary steps to effect such termination forthwith. (c) If an AWA is terminated pursuant to the preceding paragraph the relevant employee's terms and conditions of employment should be governed by the Burnie Port Authority Integrated Labour Force Agreement 1995 or any agreement pursuant to section 170LJ of the Act, replacing it or any relevant award of the Australian Industrial Relations Commission." 2 Judgment was given in this matter on 24 August 2000 and it was declared that the respondent, in refusing in August 1999 to employ Stephen Gerard Rolls, contravened s 298K(1) of the Act. The application was adjourned for consideration of the question of penalty and was otherwise dismissed. 3 The respondent has exercised its right to appeal from those orders but has pointed to the fact that the appeal, in one sense, would be rendered nugatory if it were required in the meantime to comply with its undertaking by offering to terminate AWAs which have been entered into with two employees recruited after the proceedings number V467 of 1999 were instituted. 4 Mr Friend of Counsel for the applicant has opposed the application for an order that the respondent be released from the undertaking to which I have referred, subject to its entering into a further undertaking in similar terms, to enure until the hearing and determination of the appeal. Mr Friend has referred to this passage from Spry, The Principles of Equitable Remedies, 5th ed. 1997 at p 480, where it is observed: "Further, where an undertaking is accepted in lieu of an interlocutory injunction the court may in its discretion, on a subsequent application, release the defendant from the undertaking or accept a substituted undertaking. A release or substitution will not however be appropriate, save pursuant to the consent of both parties, unless facts are established that render the continuation of the original undertaking unjust in all the circumstances. In exercising its discretion the court takes account here of all matters that affect the justice or injustice of continuing the undertaking, including any changes in material facts or the obtaining of new evidence, especially if it was not previously available, and the fact, if it be the case, that the original undertaking was accepted pursuant to what amounted to an agreement between the parties. Here it may be of importance to establish whether for example the undertaking was intended to stand definitely up to some future event or whether it was merely provided on an indefinite basis in order to enable a party to establish his position more fully. Since these matters are within the discretion of the court and the relevant circumstances may vary greatly from case to case, no general rule can be laid down. However, where the original undertaking was given in order to settle definitely the rights of the parties or pursuant to an agreement by them, ordinarily the defendant is not subsequently released therefrom, unless with the consent of the plaintiff or in accordance with the terms of the agreement or if on some legal or equitable ground the agreement is not binding in the relevant respects." 5 In the present case the undertaking was, as I have said, proffered on an interlocutory basis. It is clear from its terms that the framers of the undertaking did not advert to the possibility of an appeal from any order of the Court in proceedings numbered V467 of 1999. However, in my view, the matter does raise considerations going to the exercise of the Court's discretion. 6 Having given the matter such reflection as I have been able in the time available, I consider it an appropriate exercise of that discretion to release the respondent from the undertaking, upon its giving a further undertaking in like terms, such undertaking to enure until the hearing and determination of the appeal. I indicate that my exercise of the discretion in that way has been influenced in part by the absence of any evidence that the two employees recruited since judgment was reserved in this matter would be disadvantaged or consider themselves to be disadvantaged, in any specific respect by continuing to work under an AWA until the offer contemplated by the undertaking in its original form is made if the appeal is unsuccessful. 7 I have also taken into account, in the exercise of my discretion, the need for expedition of the appeal. I shall condition the order which I have foreshadowed on the respondent's undertaking to comply with all directions of the Court designed to achieve that expedition. 8 In these circumstances I propose, subject to the undertaking that I have just mentioned, to order that the respondent be released from the undertaking on its giving an undertaking in similar terms that it will, within 14 days of the pronouncement of judgment after the hearing of its appeal from the orders of 24 August 2000, offer to terminate any AWA made between it and the relevant employees in accordance with s 170VM of the Act. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.