FEDERAL COURT OF AUSTRALIA Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 874 INDUSTRIAL LAW – interlocutory injunction – dispute arising before expiry of certified agreement – notice of protected industrial action – whether injunction should be granted – whether Union should be ordered to send letter to members directing return to work Amcor Packaging Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1999] VSC 434 not followed AMCOR PACKAGING (AUSTRALIA ) PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTIRES UNION & ORS V 694 OF 2001 HEEREY J 3 JULY 2001 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V694 OF 2001 BETWEEN: AMCOR PACKAGING (AUSTRALIA) PTY LTD APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION & ORS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 3 JULY 2001 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondents (and in the case of the first respondent whether by its officers, servants, agents or employees or howsoever otherwise) be restrained, until 13 August 2001 at 4.30 p.m. or until further order, from: (a) inducing, persuading, advising, procuring or encouraging any member of the first respondent employed at the applicant's premises located at: (i) 520 Geelong Road, Brooklyn; (ii) 249 Middleborough Road, Box Hill; and (iii) 1420 Ferntree Gully Road, Scoresby – (the applicant's premises) not to perform their work in accordance with their contract of employment with the applicant; (b) taking any action, including by inducing, persuading, advising or procuring others to take any action which prevents, hinders or interferes with the applicant, or any of its employees, contractors, customers, suppliers or any other persons from gaining access to or from the applicant's premises. 2. By 2.00 p.m. on 4 July 2001 or as soon thereafter as reasonably practicable, the first respondent forward to its members employed by the applicant at the applicant's premises by pre-paid post a circular to be printed on the official letterhead of the first respondent and signed by the first respondent enclosing a copy of this Order. The applicant is to meet the cost of postage. 3. By 2.00 p.m. on 4 July 2001 or as soon thereafter as reasonably practicable, the first respondent forward by facsimile transmission to the applicant's solicitors (facsimile 9629 8488) a copy of the circular referred to in Order 2. 4. By 2.00 p.m. on 4 July 2001 or as soon thereafter as reasonably practicable, the first respondent (whether by its officers, delegates, servants, agents or howsoever otherwise): (a) duly attach a copy of this order at the gate at the front entrance to each of the applicant's premises; (b) distribute this order to all persons present at any picket line at each of the applicant's premises. 5. Until the hearing and determination of this proceeding or until further order, the respondents (and in the case of the first respondent whether by its officers, servants, agents or employees or howsoever otherwise) be restrained from countermanding or contravening the force and effect of this order. 6. By 2.00 p.m. on 6 July 2001 or as soon as reasonably practicable, the respondents file and serve an affidavit stating whether they have complied with par 2 of this order and what steps were taken in order to so comply. 7. The service of this order on all respondents be permitted by facsimile transmission to the offices of Maurice Blackburn Cashman, solicitors for the respondents (facsimile 9347 2704). 8. Liberty to apply be reserved. 9. The further directions hearing in this proceeding be otherwise adjourned to 10.15 a.m. on 13 August 2001 before the Honourable Justice Marshall. 10. By 24 July 2001 the applicant file and service a notice of change in relation to the contempt proceeding. 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 V 694 OF 2001 BETWEEN: AMCOR PACKAGING (AUSTRALIA) PTY LTD APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION & ORS RESPONDENT JUDGE: HEEREY J DATE: 3 JULY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This application arises out of an industrial dispute between the applicant, which is a manufacturer of cardboard packaging and associated products, and the respondents, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union), Mr James Reid, who is the Assistant State Secretary of the Union, and Mr Robert Yette, who is a Union organiser. The applicant has three premises in the Melbourne metropolitan area at 520 Geelong Road, Brooklyn, 249 Middleborough Road, Box Hill and 1420 Ferntree Gully Road, Scoresby. 2 Disputes have arisen between the Union and the applicant arising out of two issues. The first is a health and safety matter which originated in a serious accident on 16 June 2001 at the Brooklyn plant when one of the applicant's employees, who is a member of the Union, was injured in an accident. As a result his leg has been amputated. The other dispute arises out of redundancies at the Box Hill plant and in particular whether there are to be involuntary redundancies. 3 There has been in existence a strike of 455 employees at the three plants since 20 June and a picket which has varied in numbers from day to day. But there is at least a triable issue that this picket is still continuing. The applicant is incurring a loss of some $360,000 per day. In addition, there is loss suffered by other parties, in particular suppliers of the applicant such as Flink Ink Australia Pty Ltd and Simplot Pty Ltd. I am satisfied there is a triable issue as to the involvement of the Union and Mr Reid and Mr Yette. 4 There is some hearsay evidence on both sides as to the involvement of Mr Reid and Mr Yette. On behalf of the applicant there is hearsay evidence that on 28 June at about 5.45 pm about 25 to 30 persons were in the picket line at the Brooklyn site and Mr Reid and Mr Yette were at the picket talking to two separate groups of employees. This covered a period of approximately 5.45 pm to 6.20 pm. At the same time there was a sign on the ground which said "AMWU Picket Line" and also an AMWU flag. From the respondents there was hearsay evidence that Mr Reid and Mr Yette went to the Brooklyn site at the request of the applicant which had sought the Unions approval and signature to a document prepared by the applicant relating to the release of certain funds to the Union member who had been injured in the accident. It is said that Mr Reid and Mr Yette met with the applicant's production manager, who gave them the proposed document and asked them to sign it. The only reason that they were at the site was to sign the document. When leaving the site they simply passed the picketers and told them that they were present for the purpose of signing the document. 5 On the very limited and untested evidence available, I can only say that there is a triable issue as to whether Mr Reid and Mr Yette were present at the picket for longer than their version suggests and whether they had communication - and in particular communication taking the form of encouragement to those on the picket – and were not there simply for the purpose of signing the document. 6 There is some other evidence which indicates Union involvement in the strike activity, in particular that a resolution was passed after Mr Yette spoke to a meeting and also Union officials advising an applicant's representative that a teleconference of shop stewards would be held. There is also evidence of industrial action being taken in New South Wales and Queensland, apparently related to these Victorian issues, something that would be unlikely to happen without the involvement of the Union. 7 The matter was taken to the Australian Industrial Relations Commission by the applicant and on 26 June Commissioner Whelan made an order under s 127 of the Workplace Relations Act 1966 (Cth) (the Act). This was after a contested hearing. On 28 June Marshall J made an order restraining the respondents until 12 midnight on 30 June 2001 or until further order from inducing, persuading, advising, procuring or encouraging any member of the first respondent employed at the applicant's three premises not to perform their work in accordance with their contract of employment. The reason for that termination date is that the certified agreement between the Union and the applicant was to expire at midnight on 30 June. This will become relevant for other purposes. 8 The applicant has brought two proceedings. The first, V 694 of 2001, was the matter before Marshall J. This morning the applicant issued against the same respondents V 704 of 2001 which seeks a penalty under s 170NF of the Act for engaging in industrial action prior to the nominal expiry date of the enterprise agreement and pursuant to s 178(1) of the Act for breach of the order made by Commissioner Whelan and further an order for the punishment of the respondents for contempt of court for breach of the orders of Marshall J on 28 June. The applicant also, in reliance upon the accrued jurisdiction of this Court, seeks damages at common law for the "tortious conduct of the respondents committed against the applicants by reason of the industrial action and picketing that has been occurring since June 2001." 9 I am satisfied, as I have said, that there is a triable issue. It seems to me the balance of convenience favours the grant of an injunction. There is substantial continuing damage to the applicant. While some of it could be no doubt the subject of proof in the event of the applicant ultimately succeeding at a trial of this action, other damage such as loss of custom and loss of goodwill would be difficult, if not impossible, to quantify. 10 I also have regard to the fact that dispute settling procedures are open to the Union under the enterprise agreement, notwithstanding that the agreement has now expired. 11 Turning to the forms of the order, par 1 seeks an order that the respondents be restrained from: "(a) inducing, persuading, advising, procuring or encouraging any member of the first respondent employed at the applicant's three premises not to perform their work in accordance with their contract of employment with the applicant; (b) taking any action including by inducing, persuading, advising or procuring others to take any action which prevents, hinders or interferes with the applicant or any of its employees, contractors, customers, suppliers or any other persons from gaining access to or from the applicant's premises." 12 There was argument as to the time for which order 1(a) should continue. Counsel for the respondents argued that it should extend for no longer than 3 pm on Thursday, 5 July. The basis for that was that by notice dated 27 June the Union initiated a "bargaining period" in accordance with Div 8 of Part 6B of the Act and on same day gave notice of intended industrial action as "protected action" under s 170ML of the Act. The notice stated: "As from 3 pm on Thursday, 5 July 2001, members of the AMWU engaged by Amcor Fibre Packaging at sites throughout Australia will commence industrial action being a cessation of all work and bans on the performance of work and such industrial action will continue indefinitely or until agreement is reached on the matters to be dealt with in the agreement as notified in the notice of bargaining period." 13 Counsel for the respondents argued that any injunction I granted should not interfere with the Union's statutory right to bring protected industrial action, which it was entitled to upon the expiry of that notice. However, I agree with counsel for the applicant that this cannot be looked at in isolation. The industrial action with which we are concerned as a matter of reality is not protected action; once started its character cannot be amended retrospectively. The provision of the Act in any event relates only to the negotiation of a new certified agreement, not to past issues of the kind with which this dispute is concerned. 14 Should this current issue dispute be resolved and the Union nevertheless wished to take protected action for matters unrelated to the present disputes between now and 13 August, it can of course come back to the Court and seek a discharge of the injunction. 15 Counsel for the applicant accepted that the terms of paragraph 1 should not be in the normal terms of an interlocutory injunction, that is, until determination of proceeding, but only until 13 August 2001 at 4.30 pm, that being the date on which the matter is due to come back for directions before Marshall J on whose docket this matter will remain. So I think that is a reasonable period of time. 16 The second main dispute as to the form of the order is par 2 and related paragraphs. Paragraph 2 in effect sought an order that the Union forward to its members employed by the applicant a notice to be printed on the official letterhead of the Union, and signed by Mr Reid for and on behalf. As originally proposed, the terms of this proposed notice were as follows: "Dear Member, The Federal Court of Australia on 3 July 2001 has ordered that the industrial action against Amcor Packaging, including any obstruction on the entry or exits of persons at its premises in Brooklyn, Scoresby and Box Hill, immediately cease. I now direct you and other members to: (1) comply with the above order and cease industrial action; (2) comply with the order and cease any obstruction on the entry and exit of persons and products to and from Amcor Packaging premises; (3) return to work at Amcor Packaging as required by your contract of employment." 17 As counsel for the respondent has pointed out, there are a number of problems with such an order, not least of which is that it is no function of a Union, and indeed it probably does not have power, to direct its members to do anything. Moreover, the members of the Union employed by the applicant are not parties to this proceeding and they are not, directly at least, the subject of any order. 18 In the course of debate counsel for the applicant suggested that the form could be modified so that in effect the notice would say that the Union did not encourage any further industrial action. There had to be, he said, some "ownership" by the Union of the notice. He said that an order similar to that originally proposed by the applicant had been made in a proceeding between the same parties, in the Victorian Supreme Court in Amcor Packaging Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1999] VSC 434. However, counsel was unable to draw my attention to any such order made in the Federal Court. 19 I think as a matter of principle a court should be reluctant to compel a party, under penalty of contempt for non-obedience, to express opinions which the party does not in truth hold or give advice with which the party does not agree. If an order is made of course it is to be obeyed and nobody, especially a party to the order, should not encourage any disobedience of the order. That in itself would be a contempt. But I would not be prepared to make the order sought, either as originally sought or in its modified terms. 20 It would be reasonable however to have the Union circulate a copy of the order and I think to avoid confusion it is better that its letter simply enclose the order rather paraphrase its terms. 21 So the order I make will have an order to that effect. The enclosed letter will be on the letterhead of the Union but will simply enclose a copy of the order. I understand the applicant has the requisite mailing addresses of employees who are members of the Union and the applicant is prepared to meet the cost of postage. 22 Paragraph 4 of the proposed order simply provided that the applicant be at liberty to distribute the notice, that is the "directing" notice, to its employees who are members of the first respondent. This has been rather overtaken by the form I have suggested. 23 Paragraph 5 deals with attaching a copy of the notice at the gate of each of the applicant's premises and distributing the notice to all persons present at any picket line. I think that particular order can be made, provided that is the order itself rather than a notice that is to be so publicised. 24 Order 6 can be made in modified form provided it refers to the order and not the notice so that it would read: "Until the hearing and determination of this proceeding or until further order, the respondents - and in the case of the first respondents - whether by itself, its servants agents or employees or howsoever otherwise be restrained from countermanding or contravening the order." 25 Paragraph 7 requires the respondents to file and serve an affidavit by 4 July 2001 stating whether they have complied with this order and what steps they have taken in order to so comply. I think in the circumstances all that is necessary is an affidavit of the Union stating that it has sent out copies of the order with a covering letter in the way indicated. Paragraph 8 provides for service on the respondents' solicitors by fax and that is not opposed. 26 Paragraph 9 sought consolidation of the two proceedings. There are some complications here because part of V 704 of 2001 is a contempt proceeding which has a different standard of proof and possibly a different evidentiary regime. I think this is better not dealt with on a hypothetical basis. The mater can await directions. Liberty to apply will be reserved and the further directions adjourned to 10.15 am on 13 August 2001 before Marshall J. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey J. Associate: Dated: 11 July 2001 Counsel for the Applicant: J Bourke Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: P Rozen Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 3 July 2001 Date of Judgment: 3 July 2001