FEDERAL COURT OF AUSTRALIA Automotive Foods Metals Engineering Printing & Kindred Industries Union v Dayson Pty Limited [2002] FCA 1202 AUTOMOTIVE FOODS METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION v DAYSON PTY LIMITED & TDU PTY LIMITED t/as TRANE N 977 of 2002 WILCOX J SYDNEY 23 SEPTEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N977 of 2002 BETWEEN: AUTOMOTIVE FOODS METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION APPLICANT AND: DAYSON PTY LIMITED FIRST RESPONDENT TDU PTY LIMITED t/as TRANE SECOND RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 23 SEPTEMBER 2002 WHERE MADE: SYDNEY THE COURT NOTES THAT: 1. The applicant gives the usual undertaking as to damages. THE COURT ORDERS THAT: 2. Until final determination of the matter or earlier order, the respondents and each of them be restrained from taking any action (except for serious misconduct) in or about the termination of the employment of any of the following persons: Ian Cushway, Zbigniew Krasicki, Max Norton, Rudy Kresevic, Mieczyslaw Wojdalowicz, Lucas Gerolimos, Daniel Stevens, Craig Cochrane, Neil Laughlin, Rolando Flores and Sergiy Polyakov. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N977 of 2002 BETWEEN: AUTOMOTIVE FOODS METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION APPLICANT AND: DAYSON PTY LIMITED FIRST RESPONDENT TDU PTY LIMITED t/as TRANE SECOND RESPONDENT JUDGE: WILCOX J DATE: 23 SEPTEMBER 2002 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT WILCOX J: 1 This application for an interlocutory order is put to the Court on two alternative bases. The first basis is that 11 identified members of the applicant union, all of whom are admitted to be employees of the first respondent, Dayson Pty Limited, are threatened with termination of their employment because of their involvement in protected industrial action. The second basis is that they are threatened with termination because of their membership of an industrial organisation, namely the applicant. 2 It seems to me there are problems about the applicant's reliance on the first ground. These were pointed out by Mr Dubler on behalf of the respondents. There may be an answer to these problems. However, at the moment, it is not apparent to me. I have considerable doubt whether there is a serious question to be tried in relation to the claim that the threatened dismissals are related to protected action. 3 On the other hand, it is conceded by Mr Dubler that there is a serious question to be tried in respect of the second basis. 4 Mr Dubler does not concede his clients are, in fact, threatening termination of the employees because of their union membership. He observes there is evidence to suggest that not all members of the applicant, who are employed by the respondents, are threatened with termination. However, I am concerned only with the issue whether there is a serious issue to be tried. Bearing in mind that the onus of proof rests upon the employer to establish the absence of a prescribed reason (see s 298V of the Workplace Relations Act 1996) it seems to me I should accept Mr Dubler's concession – indeed come to the independent conclusion - that there is a serious question to be tried in respect of this second basis of the application. 5 The more difficult problem is to determine what course ought be taken, having regard to the balance of convenience. 6 The evidence reveals a most unhappy industrial situation, which has developed over a period of more than a year. It seems the attitude of the respondents, for a long time, was that they would not negotiate with the applicant, being a union, but talk only to individual employees. In more recent times, the respondents have been forced to depart from that attitude. However, they have been unwilling to engage in any serious negotiations regarding two documents, so-called "logs of claim", that have been served on the respondents. 7 There are technical questions about the status of the documents. Notwithstanding this, it is apparent that the documents contain a set of demands concerning matters of an industrial nature. The demands may or may not be reasonable. I make no comment about that; it is not a matter for me to determine. But they appear to be genuinely made. I would have thought any employer would have seen merit in entering into substantive negotiations regarding such demands. Instead of this, there has been an unwillingness by the respondents to engage in discussion. This has led to a strike by many of the employees. There has been picketing. That has given rise to complaints by the respondents about the behaviour of the picketers. This is a classic case of unwillingness to communicate causing problems to escalate. 8 The first respondent, during the last 10 days, has made the claim that its operations are no longer financially viable and, for this reason, the employees are to be terminated. It may be that, at the trial, the first respondent will establish it is compelled to close down its business for commercial reasons, and that the reasons for dismissal of the 11 employees do not include either of the grounds raised by the applicant. However, it would be a coincidence, as Mr Nolan has pointed out, if it was indeed the situation that commercial pressures required a decision to close the business and terminate the employees at the very time when the industrial action has reached a climactic position. 9 Mr Dubler submitted that nothing would be gained by making an order in favour of the applicant. He said the affected employees have not presented for work for many weeks; they have been on strike and many, if not most, of them have been involved in the picket. Accordingly, Mr Dubler argued, the employees are not losing wages at the present time because of any action of the respondents; they would not suffer any hardship if the Court decided to withhold an interim order pending a final hearing. 10 I indicated to the parties that a final hearing could be fixed to commence on Monday, 18 November, which is eight weeks from today. 11 There is force in Mr Dubler's argument. I discussed with Mr Nolan the possibility of the employees returning to work pending the final hearing. It seems to me this would be a constructive step. However, it would be likely to achieve a satisfactory situation only if there was real negotiation between the parties, either directly or with the assistance of an independent mediator, in order to resolve their underlying dispute. 12 I suggested to Mr Nolan that a desirable scenario might be for the affected employees to return to work immediately, being prepared to be flexible as to the work they would do, having regard to the change in the arrangements which are apparently being made by the respondents, and also being prepared to undertake not to engage in any industrial action until the final hearing. It would also be part of the scenario that the parties would join in an application to the Australian Industrial Relations Commission to conciliate and, if necessary, determine the matters outstanding between them. 13 Mr Nolan, after having the opportunity of obtaining instructions during the luncheon adjournment, indicated that his clients, and the affected employees, would agree to the whole of this suggestion. 14 Mr Dubler told me, before the luncheon adjournment, that the second respondent would undertake to indemnify the first respondent against any order made against the first respondent, in the event that I refuse the applicant's application and, in the meantime, there was closure of the first applicant's business. I thought that to be a useful offer, and I hoped it would be followed by an offer to join in an application to the Industrial Relations Commission to resolve the underlying dispute. However, after the luncheon adjournment, Mr Dubler told me his instructions were not to make such an offer. 15 The respondents' attitude is disappointing. It does nothing to resolve the real problem between the parties. I have difficulty in understanding the reluctance of the respondents to engage in meaningful discussions with its employees, and their representative, particularly if, as they maintain, they are experiencing financial problems. If there is a real need to cut back or close down one of the businesses, I would have thought detailed discussions, with production of relevant financial information, would take much heat out of the dispute. However, I cannot force the respondents to join in an application to the Commission. All I can do is to deal with the application that is before me. 16 Having regard to the whole of the circumstances, I think I should accede to the application. My main reason for taking that course is that, if I restrain the respondents from proceeding to terminate the 11 affected employees, this offers the best chance of there being meaningful discussions. Mr Nolan is correct to say that, if those employees are dismissed, even though there may be a theoretical right of reinstatement after a final hearing, the respondents will have little incentive to engage in serious discussion. In an industrial matter, the Court ought to take into account, as a factor in considering the balance of convenience, what course most tends to reduce future disputation or to lead to agreement between the parties. In the end, that is the critical factor in my decision. 17 I note that the applicant, the Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union, gives the usual undertaking as to damages. On the basis of that undertaking, I order that, until final determination of the matter or earlier order, the respondents and each of them be restrained from taking any action (except for serious misconduct) in or about the termination of the employment of any of the following persons: Ian Cushway, Zbigniew Krasicki, Max Norton, Rudy Kresevic, Mieczyslaw Wojdalowicz, Lucas Gerolimos, Daniel Stevens, Craig Cochrane, Neil Laughlin, Rolando Flores and Sergiy Polyakov. 18 I fix Monday, 18 November 2002 for commencement of a final hearing of the application. The trial of the matter is to be on the basis of affidavit evidence, subject to cross-examination as required. Any further affidavits to be relied upon by the applicant are to be filed and served by Friday, 11 October 2002. Any further affidavits to be relied on by the respondents are to be filed and served by Wednesday, 30 October. Any affidavits in reply are to be filed and served by Tuesday, 12 November. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 23 September 2002 Counsel for the Applicant: J W Nolan Solicitor for the Applicant: Turner Freeman Counsel for the Respondents: R Dubler Solicitor for the Respondents: Australian Business Lawyers Date of Hearing: 23 September 2002