FEDERAL COURT OF AUSTRALIA Transfield Pty Ltd v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia [2002] FCA 870 INDUSTRIAL LAW – application for interlocutory injunction restraining strike at gas facilities site – certified agreements in place – union respondents pursuing site-specific agreement with applicant – striking workers either employed by applicant or joint venturer – applicant suffering significant loss – whether serious question to be tried as to responsibility of respondent unions for strike – whether joint venturer's workers fall within terms of s 170MN (1) Workplace Relations Act 1996 (Cth) Workplace Relations Act 1996 (Cth) s 170MN (1) TRANSFIELD PTY LTD v COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA AND OTHERS NO V 427 OF 2002 HEEREY J 8 JULY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 427 OF 2002 BETWEEN: TRANSFIELD PTY LTD (ACN 000 854 688) APPLICANT AND: COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and OTHERS RESPONDENTS JUDGE: HEEREY J DATE OF ORDER: 8 JULY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Until the hearing and determination of the proceeding or 31 March 2003 (whichever is earlier) or further order: (a) the sixth to fourteenth respondents be restrained from continuing the strike action commenced on 2 July 2002 and that they be further restrained from failing to work in accordance with the terms of the certified agreement binding upon them for the purpose of supporting or advancing a claim for improvements to their terms and conditions of employment where those terms and conditions of employment are set out in and covered by the terms of the certified agreements binding upon them through the negotiation and operation of a site-specific agreement to operate at the Patricia Baleen Onshore Facility site. 2. Liberty to apply be reserved. 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 427 OF 2002 BETWEEN: TRANSFIELD PTY LTD (ACN 000 854 688) APPLICANT AND: COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and OTHERS RESPONDENTS JUDGE: HEEREY J DATE: 8 JULY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant Transfield Pty Ltd (Transfield) seeks an interlocutory injunction under s 170MN (1) of the Workplace Relations Act 1996 (Cth) (the Act) to restrain a strike which has proceeded since last Tuesday, 2 July 2002, at a site in Gippsland. 2 At that site Transfield is designing and constructing the Patricia Baleen On‑Shore Facilities gas site under a contract with OMV Australia Pty Ltd. Another company concerned at the site is Corke Instrument Engineering (Australia) Pty Ltd (Corke) which is carrying out jointly with Transfield, mechanical, electrical and instrumentation components. 3 There is in existence a number of certified agreements. Relevantly Transfield has certified agreements with the Australian Workers Union (the AWU) and the Automotive Food, Metal, Engineering and Printing and Kindred Industries Union (the AMWU). Both of these expire on 31 March 2003. Corke has its own enterprise agreement. The first respondent is the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The fourth respondent is an organiser of that union, Mr Peter Mooney. The second and third respondents are, respectively, the AWU and the AMWU and the fifth respondent is an AWU organiser, Mr Terry Lee. The remaining 13 individual respondents are employees of either Transfield or Corke. The 15th to 18th respondents are employees of Corke and the other respondents are employees of Transfield. 4 Since April this year the union respondents have been pursuing a site-specific agreement with Transfield, which would be additional to and provide some superior benefits to those already applicable under the certified agreements. Transfield has at all times resisted the claim of a site-specific agreement. 5 On last Tuesday, 2 July, Mr Mooney and Mr Lee visited the site. They spoke to representatives of Transfield, Messrs Dekazos and Caffery. They said that they were still waiting for a response from a matter raised in a previous meeting, which had been held on 9 May. Mr Lee asked where they could speak to the employees. Mr Dekazos suggested that the best place would be in the crib room, where the employees were about to arrive for a smoko. There are 19 employees in total on the site and 13 of these employees are members of the respondent unions. According to Mr Lee, he and Mr Mooney went to the crib room and met with the employees. Mr Lee told them that there had been a rejection of the proposal for a site-specific agreement and no counter-offers. Mr Lee says that the employees were very angry and they expressed what Mr Lee described as an "overwhelming feeling that they would have to stop work to push negotiation further". 6 The members indicated that they were stopping work and left the site. Mr Lee then returned to Mr Dekazos' office and told him that the employees had resolved to stop work pending negotiation of the site-specific agreement between the unions and Transfield. 7 The next event was an application by Transfield to the Australian Industrial Relations Commission (the Commission) for a certificate under s 166A of the Act, which would enable Transfield to take common law action. The matter came before the Commission on Thursday, 4 July. A conference was held but matters were not resolved. 8 On Friday, 5 July, at about 1 pm, a meeting took place between the employees employed by the respondent unions at the AMWU office at Morwell. Mr Lee told the employees what had happened in the Commission the previous day and put forward a recommendation that members of the three unions return to work as soon as possible. The recommendation was seconded by Mr Greg Warren, the AMWU organiser. Mr Warren as well as Mr Lee spoke in favour of a return to work. The union officials warned that if there was not a return to work, legal action could be taken against the union as a result of s 166A and other options available to the company. These recommendations were rejected. Mr Warren deposed: "In my experience as a union organiser, it is not unusual for members to reject the recommendations of union officials. In these particular circumstances, many of the members [of the ETU, a division of CEPU, who had been instructed to work on the project by Corke] had been paid 'the usual Gippsland rates' on other projects and suddenly they were a couple of hundred dollars short in their pay packet. They cannot understand why their company is being so unaccommodating particularly considering the remoteness of the site on which they are working." 9 The strike is still continuing. Transfield is incurring costs. In an affidavit sworn on its behalf Mr Stephen Sasse deposed that Transfield has incurred "holding costs" of approximately $30,000. These costs comprise of such matters as staff salary costs, rental of equipment and plant and a disruption to works. It appeared during the course of the argument that it is not suggested that all work at the site has stopped, although this could have been made clearer in the affidavit. In the event, it is said that the holding costs will increase to approximately $50,000 per day, and if the contract is not completed by the time specified under the contract, there will be liquidated damages of $25,000 a day. 10 The first issue which has been argued is whether there is a serious issue to be tried as to the responsibility of the respondent unions for the strike and the possibility of any further involvement by them. The terms of the injunction sought are that the unions be restrained from "directing, inducing, encouraging or procuring" any employee of Transfield to stop work. I am not satisfied that there is a triable issue, either that the unions have engaged in conduct of that nature in the past, or that there is any significant threat that they are likely to do so in the future. The evidence of Mr Mooney, as to what occurred at the meeting on Tuesday, was not challenged and it is not inconsistent with the evidence on behalf of Transfield. The clear picture conveyed by that evidence is that the strike initiated as a result of the decision of a small number of employees who had, as they saw it, a real grievance. 11 The lack of liability of the unions is confirmed by what happened at the meeting last Friday. The evidence is uncontradicted and I see no reason to doubt it. Mr Lee and Mr Mooney urged a return to work, but their advice was rejected by the employees. It is true that for some months the unions have been pursuing a claim for a site-specific agreement, but there is clear distinction between pursuing such a claim, which is quite legitimate, and taking industrial action in support of that claim, which is not. For the reasons mentioned I am not satisfied that the unions have engaged in the latter form of conduct. 12 There are some separate issues in relation to the CEPU and its members who are respondents. It was argued that they do not come within the terms of s 170MN (1), which is as follows: "From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of employees whose employment is subject to the agreement or award, engage in industrial action." 13 It seems to me this argument is correct. Section 170MN only applies where industrial action is being engaged in for the purpose of supporting or advancing claims against the employer. The uncontradicted evidence is that no claim has been made against Corke. True it is the CEPU employees might get a practical benefit if Transfield entered into a site-specific agreement and no doubt that was why Mr Mooney saw it as part of his duties to be involved in the claim made on Transfield. But s 170MN forms part of highly detailed prescriptive legislation which creates certain serious consequences for a breach. I think it has to be construed according to its ordinary language. So as far as the CEPU is concerned, there is an added reason for it not being enjoined and that reason would also apply to the 15th to 18th respondents, who are CEPU members. 14 There is a further ground for not enjoining two of those members, that is, Alan Palmer and Eric Graham, who have, on the evidence of Mr Mooney, been asked to work elsewhere for Corke. So there is no withdrawal of labour from their employer by those two men. 15 There then remains the question of injunction against the other individual respondents, who are members of the AMWU or AWU. The evidence does disclose that there is a serious issue to be tried, that they are engaging in a strike which is in contravention of s 170MN. The evidence does show, although not as clearly as it might, that Transfield is suffering significant loss and it does seem clear that courts cannot weigh as a matter of the balance of convenience the loss of such bargaining power as the union members might have had by continuing the strike. 16 So I will grant the orders sought in relation to those respondents. It was agreed that the term of the order should be until the hearing and determination of this proceeding or 31 March 2003, whichever is the earlier. There will not be an order in terms of par 1(c) of the draft requiring the unions to supply copies of the orders to employees. It is true, as counsel for Transfield accepted, that there has been very little time for the individual respondents to consider their position and get advice, so I will reserve liberty to apply should they so be advised. Costs will be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 11 July 2002 Counsel for the Applicant: Ms J Maclean Solicitor for the Applicant: Clayton Utz Counsel for the first and fourth Respondents: Mr J Maddison Solicitor for the first and fourth Respondents: CEPU (Mr Maddison) Counsel for the second, third and fifth Respondents: Mr W L Friend Solicitor for the second, third and fifth Respondents: Maurice Blackburn Cashman Date of Hearing: 8 July 2002 Date of Judgment: 8 July 2002