Borgcraft v Automotive Food Metals Engineering Printing & Kindred Industries Union [2000] FCA 1685

FEDERAL COURT OF AUSTRALIA

Borgcraft v Automotive Food Metals Engineering Printing &

Kindred Industries Union [2000] FCA 1685

BORGCRAFT PTY LTD V AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION V 660 OF 2000 NORTH J 1 SEPTEMBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 660 OF 2000

BETWEEN: BORGCRAFT PTY LTD

APPLICANT

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 1 SEPTEMBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The respondent is, until further order, whether by itself, its servants or agents, restrained from taking or threatening to take any industrial action in accordance with the notification of industrial action dated 22 August 2000 served upon the applicant by the respondent. 2. The respondent is restrained until further order from, whether by itself, its servants or agents, organising or continuing or threatening to organise or being otherwise involved in physical obstruction or physical impediment to the free movement of goods or people to and from the business premises of the applicant at 31-33 Slough Road, Altona. 3. The matter is adjourned for further directions until 10.15am on Monday 2 October 2000.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 660 OF 2000

BETWEEN: BORGCRAFT PTY LTD

APPLICANT

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

RESPONDENT

JUDGE: NORTH J

DATE: 1 SEPTEMBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant, Borgcraft Pty Ltd, seeks urgent interlocutory relief as set out in its application in par 1 in the following terms: "An injunction that until the hearing and determination of this Application or further order, the Respondent, whether by itself, its servants, agents or howsoever, be restrained from taking or threatening to take any industrial action in accordance with the notification of industrial action of 22 August 2000 served upon the Applicant by the Respondent." 2 And in par 4 of its application, it seeks an injunction that: "until the hearing and determination of this application or further order the Respondent, whether by itself, its servants, agents or howsoever, be restrained from organising or continuing or threatening to organise or being otherwise involved in physical obstruction or a physical impediment to the free movement of goods or people to and from the business premises of the Applicant." 3 The notification of intended industrial action reads as follows: "NOTICE IS HEREBY GIVEN that officers and employees of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and members of the AMWU or persons eligible to belong to the AMWU employed by you intend to organise and engage in industrial action in accordance with the provisions applying to 'protected action' set out in the Workplace Relations Act 1996. The particulars of this notice are as follows: On Monday 28 August at 7.00 am members of the AMWU intend to hold a meeting to discuss the current round of enterprise bargaining. The meeting may cause a stoppage of work. If subsequent discussions between you and the AMWU and its members do not produce a mutually acceptable agreement within a short period of time we intend to escalate the industrial action through bans, limitations, stoppages and/or strike action by placing a picket line at entrance to premises and manned by Borgcraft employees. The extent to which the industrial action occurs depends on your response to demands made by the AMWU and its members." 4 The notice was dated 22 August 2000. On Monday, 28 August the meeting referred to in the notice was held. As a result of the meeting there has been no work performed at the premises of the applicant since that time and a picket has been formed at the entrance of the applicant's premises by employees of the applicant and by at least one official of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the respondent). The applicant contends that the respondent has taken industrial or other action contrary to s 170NC(1) of the Workplace Relations Act 1996 (Cth) (the Act) which provides that: "A person must not: (a) take or threaten to take any industrial action or other action … … with intent to coerce another person to agree, or not to agree, to: … (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; …" 5 The applicant further contends that this action of the respondent is not protected and consequently s 170NC(2) applies. Section 170NC(2) provides that: "Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)."