FEDERAL COURT OF AUSTRALIA Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 127 INDUSTRIAL LAW – application for interlocutory injunctions to restrain a strike and picketing – no orders are sought against the employees on strike or picketing – consideration of appropriate orders against the union Workplace Relations Act 1996 (Cth) ss 127, 127(2), 170MO and 170NC ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union [2000] FCA 393 - cited Hayman Reese a Division of TriMas Corporation Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2001] FCA 1328 - cited Skilled Engineering Limited v Automotive Food Metals Engineering and Kindred Industries Union [2001] FCA 1397 - cited AMCOR PACKAGING (AUSTRALIA) PTY LTD T/AS AMCOR FLEXIBLES AUSTRALASIA (ACN 004 275 165) v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION V 92 OF 2002 JUDGE: MERKEL J DATE: 20 FEBRUARY 2002 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 92 OF 2002 BETWEEN: AMCOR PACKAGING (AUSTRALIA) PTY LTD t/as AMCOR FLEXIBLES AUSTRALASIA (ACN 004 275 165) APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT JAMES REID SECOND RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 20 FEBRUARY 2002 WHERE MADE: MELBOURNE UPON the applicant by its counsel having given the usual undertaking as to damages THE COURT ORDERS THAT: 1. Until further order the first respondent ("the AMWU") and the second respondent ("Reid") whether by their officers, servants, agents or howsoever otherwise, be restrained from: (a) hindering or interfering with or attempting to hinder or interfere with free access to, and egress from, the premises of the applicant ("Amcor") at 29 Bell Street, Preston ("the Preston site"); (b) inducing, procuring or advising persons not to enter into or depart from the Preston site. 2. The AMWU forthwith: (a) notify all AMWU members employed by Amcor at the Preston site that any continuation of the present strike action and picketing is not authorised by the AMWU or by any person, including Reid, acting on behalf of the AMWU; (b) request all AMWU members employed by Amcor at the Preston site that they do not hinder or interfere with free access to and departure from the Preston site and do not attempt to prevent persons from entering into or departing from the Preston site. 3. Until further order the AMWU and Reid, whether by their servants, agents, or howsoever otherwise, be restrained from inducing, procuring, advising or encouraging any members of the AMWU employed by Amcor at the Preston site from continuing their present strike action to any time up to 7.00 am on 22 February 2002. 4. By no later than noon on 21 February 2002 the AMWU cause its solicitors Maurice Blackburn Cashman, to write a letter to Clayton Utz, the solicitors for Amcor, stating the steps the AMWU has taken to comply with para 2 of this order. 5. Reserve liberty to apply. 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 92 OF 2002 BETWEEN: AMCOR PACKAGING (AUSTRALIA) PTY LTD t/as AMCOR FLEXIBLES AUSTRALASIA (ACN 004 275 165) APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT JAMES REID SECOND RESPONDENT JUDGE: MERKEL J DATE: 20 FEBRUARY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant ("Amcor") manufactures laminated packaging, primarily for the food industry. Amcor's workforce at its premises in Preston ("the Preston site") includes a significant number of employees who are members of the first respondent ("the AMWU"), which is an organisation registered pursuant to the Workplace Relations Act 1996 (Cth) ("the Act"). The second respondent ("Reid") is the regional secretary of the printing division of the AMWU and is the official responsible for representing the industrial interests of members of the AMWU employed by Amcor at the Preston site. 2 A certified agreement covering employment of Amcor's members at the Preston site contained a nominal expiry date of 31 December 2001. Since August 2001 a management team at Amcor and representatives of the AMWU have been attempting to negotiate a new enterprise agreement to be certified under the Act to replace the present certified agreement. Reid has been the lead negotiator for the AMWU and has been the primary point of contact between the AMWU and Amcor in relation to the negotiations. As the parties were unable to reach agreement on a new enterprise agreement employees at the Preston site have been on strike and a picket line has been in place at both entrances to the Preston site since 8 February 2002. The picketing has interfered with access to and egress from the Preston site. 3 On 15 February 2002 the Australia Industrial Relations Commission ("the Commission") made orders under s 127(1) of the Act requiring Amcor's employees, who were members of the AMWU employed by Amcor at the Preston site, to immediately cease and refrain from engaging in industrial action and to make themselves available for work and perform work as Amcor may reasonably require. The AMWU was ordered to take all necessary and available steps under its Rules to ensure that the employees complied with the Commission's order. Notwithstanding the Commission's order the strike and picketing has continued. 4 Amcor applied to the Court for injunctions and penalties in respect of the industrial action and picketing at the Preston site. I granted an interim injunction restraining the AMWU and Reid from preventing, hindering or interfering with free access to and egress at the Preston site. Notwithstanding my interim injunction the employees' interference with free access to and egress from the Preston site, as a result of the employees' picket line, has continued. 5 Amcor's application for interlocutory injunctions came on for hearing on 19 February 2002. I am satisfied that the evidence filed by Amcor, and the inferences I am prepared to draw from that evidence, establish that: · since 8 February 2002 a picket line has been maintained, and continues to be maintained, at the Preston site by Amcor employees who are members of the AMWU; · a purpose of the picket line has been to prevent, hinder or interfere with free access to and egress from the Preston site thereby disrupting Amcor's capacity to conduct its business at the site; · Amcor employees at the Preston site, who are members of the AMWU, have been on strike since 8 February 2002; · Reid, in his capacity as an officer of the AMWU, supported the strike and the picket line of the employees and has been instrumental in ensuring that both have been carried into effect; · the industrial action and the picket line has been engaged in with the intent of coercing Amcor to agree to the terms of the certified agreement proposed by the AMWU; · as a consequence of the strike action and the picket line Amcor is suffering loss and damage, including a loss of goodwill and potential custom, which will be difficult to quantify or recover. 6 AMWU's evidence disputed Amcor's version of the relevant events. Reid has stated that the strike and picket line was conduct engaged in by Amcor's employees of their own volition and is not industrial action engaged in or authorised by the AMWU. Reid has also stated that he attended the site, informed members of the s 127 orders of the Commission and told them that they had to go back to work but they indicated that they would not do so. Reid has also challenged the evidence that employees at the Preston site had prevented persons or vehicles from entering or leaving that site. 7 The AMWU served a notice of initiation of a bargaining period on 13 February 2002. On 18 February 2002 the AMWU served a notice of intention to commence protected industrial action pursuant to s 170MO of the Act as from 7.00 am on 22 February 2002. The notice stated that officers and employees of the AMWU, and persons eligible to belong to the AMWU employed by Amcor, intended to organise and engage in strike action at the Preston site by a complete withdrawal of labour commencing as from 7.00 am on 22 February 2002. The notice also stated industrial action will continue for a period of three months or until agreement is reached, whichever is the sooner. 8 Prima facie, the strike action and picket line has involved unlawful conduct which is not protected action under the Act; has breached orders of the Commission made pursuant to s 127; and is also likely to have breached s 170NC of the Act. Notwithstanding those matters Amcor has not sought to bring action or to claim relief against the employees engaging in that conduct. Rather, it has confined its action and its claims for relief to the AMWU and Reid. The interlocutory relief sought by Amcor includes: · an injunction restraining the AMWU and Reid from inducing, procuring, advising or encouraging members of the AMWU from engaging in any industrial action other than protected action; · an injunction restraining the AMWU and Reid from engaging in any conduct that prevents, hinders, or interferes with free access to and egress from the Preston site and from inducing, procuring, advising or persuading any of Amcor's employees not to enter or leave the Preston site; · an injunction restraining the AMWU from displaying any signs or employing any of its property in support of the picket line at the Preston site; · an order requiring the AMWU to resolve that the members on strike cease and refrain from engaging in any further industrial action and make themselves available for work and perform work as the company may reasonably require and then inform Reid and members of the AMWU of the resolution. 9 The orders are sought pursuant to ss 127(6) and 170NG of the Act, and pursuant to the Court's accrued jurisdiction, on the basis that the conduct complained of is a contravention of the Commission's order, a contravention of s 170NC and is also tortious conduct. 10 In ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union [2000] FCA 393 I outlined the legislative scheme in relation to industrial action analogous to that undertaken in the present case. It is unnecessary for present purposes to repeat the views there expressed save to state that in the present case, as in that case, there is a serious issue to be tried in respect of the claims against the union that it has engaged in conduct that constitutes a contravention of s 170NC of the Act. I am also satisfied that there is a serious issue to be tried as to whether the action of the AMWU and Reid involves tortious conduct in that union members were induced to breach their contracts of employment and to hinder access to the Preston site. 11 I have arrived at the above findings notwithstanding that the parties were in dispute as to the nature and extent of the AMWU's and Reid's involvement in the strike and picketing action at the Preston site. Amcor's evidence, which is not disputed by Reid, is that Reid has been present at and involved in the picket line. On a prima facie case basis I am prepared to infer that Reid has implicitly, if not explicitly, authorised the strike and picketing action. The prima facie case of involvement by Reid in the employees' decision to strike and their picketing means that, by reason of Reid's office in the AMWU, the authorisation will be an authorisation by the AMWU. I am satisfied that the strength of the prima facie case established by Amcor is such that, subject to the balance of convenience, the grant of appropriate injunctive relief is warranted. The balance of convenience is clearly in favour of the grant of such relief. Indeed, the AMWU and Reid have not suggested any countervailing loss or damage they might suffer as a result of the orders sought. The more difficult question in the present case is what is the appropriate injunctive relief. 12 As was pointed out in Hayman Reese a Division of TriMas Corporation Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2001] FCA 1328 and Skilled Engineering Limited v Automotive Food Metals Engineering and Kindred Industries Union [2001] FCA 1397 the traditional reluctance of the courts to order workers to return to work may not be applicable to strike or other industrial action in breach of the Act. In those cases orders were made restraining workers from engaging in strike action or refusing to work in accordance with the terms of the applicable certified agreement where the employees' purpose in taking such action was to advance claims made in respect of a proposed certified agreement. 13 However in those cases, unlike the present case, the employees concerned were joined as parties to the proceedings and relief was sought directly against them. In the present case Amcor has not taken that course. Rather, it has sought orders against the AMWU and Reid requiring them to resolve that the workers be directed or advised to return to work and then inform the workers that they should return to work pursuant to that resolution. It was argued on behalf of Amcor that it is within the power of the AMWU to give appropriate directions or advice to the employees and that it was then a matter for the employees as to whether they wished to comply. 14 In substance, the proposed relief seeks to enforce, albeit indirectly, the Commission's s 127 orders against the employees. The appropriate course, however, is to seek enforcement orders against the parties in breach. Save in special circumstances I doubt that it is appropriate to obtain orders against the AMWU that it require, direct or advise employees to return to work if it is open to Amcor to seek such orders directly against the employees. Special circumstances might have arisen if it was clear that the AMWU had directed or procured workers to strike in a manner that was unlawful. In those circumstances it may be appropriate for the Court to grant injunctive relief requiring the AMWU to take specified steps to direct or procure the workers to cease strike action. However, I am not satisfied that the evidence is sufficiently strong or clear at this stage to put the AMWU's conduct in that category. 15 In summary, I infer that the AMWU, acting through Reid, has implicitly authorised and supported the action taken by the employees rather than formally directing or procuring that that action be taken. In such circumstances it is appropriate to make orders requiring the AMWU and Reid to desist from further engaging in or continuing to authorise the existing industrial action or other action at the Preston site which I am satisfied is for the purpose of seeking to have Amcor agree to the terms of the AMWU's proposed certified agreement. 16 There is a further issue arising in the present case. As from 7.00 am on Friday, 22 February 2002 workers at the Amcor site may be entitled under the Act to take strike action that is protected action. Amcor disputes that entitlement but has not applied for relief in respect of the proposed strike action. It contended that it was appropriate to exclude protected action from the ambit of the order. I disagree. An order should be clear in its terms and should not leave a party required to obey it in doubt as to whether or not the action it is undertaking will, or will not, breach the order. It is undesirable that I pre-empt any question about the lawfulness of action pursuant to the s 170MO notice by any order I make at this stage. Accordingly, at this stage any injunctive orders that I might be disposed to make will not prevent strike action that might be protected action under the Act. 17 In all the circumstances I have decided that the following injunctive relief is appropriate in the present case. 1. Until further order the AMWU and Reid, whether by their officers, servants, agents or howsoever otherwise, be restrained from: (a) hindering or interfering with or attempting to hinder or interfere with free access to, and egress from, the Preston site; (b) inducing, procuring or advising persons not to enter into or depart from the Preston site. 2. The AMWU forthwith: (a) notify all AMWU members employed by Amcor at the Preston site that any continuation of the present strike action and picketing is not authorised by the AMWU or by any person, including Reid, acting on behalf of the AMWU; (b) request all AMWU members employed by Amcor at the Preston site that they do not hinder or interfere with free access to and departure from the Preston site and do not attempt to prevent persons from entering into or departing from the Preston site. 3. Until further order the AMWU and Reid, whether by their servants, agents, or howsoever otherwise, be restrained from inducing, procuring, advising or encouraging any members of the AMWU employed by Amcor at the Preston site from continuing their present strike action to any time up to 7.00 am on 22 February 2002. 4. By no later than noon on 21 February 2002 the AMWU cause its solicitors Maurice Blackburn Cashman, to write a letter to Clayton Utz, the solicitors for Amcor, stating the steps the AMWU has taken to comply with para 2 of this order. 5. Reserve liberty to apply. 18 The orders relate to the existing industrial action, which is for the purpose of coercing Amcor to agree to the AMWU's proposed certified agreement. Accordingly, I have not limited the conduct the subject of the orders to conduct engaged in for that purpose. As the orders are for a limited period or until further order, application can be made for their discharge or variation if the purpose of the industrial action changes. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 20 February 2002 Counsel for the Applicant: Mr M McDonald and Mr C O'Grady Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: Mr W Friend Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 19 February 2002 Date of Judgment: 20 February 2002