FEDERAL COURT OF AUSTRALIA Aerospace Technologies of Australia Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCA 302 AEROSPACE TECHNOLOGIES OF AUSTRALIA LIMITED (ABN 56 008 622 008) v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION V 184 of 2003 RYAN J 1 APRIL 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 184 of 2003 BETWEEN: AEROSPACE TECHNOLOGIES OF AUSTRALIA LIMITED (ABN 56 008 622 008) Applicant AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Respondent JUDGE: RYAN J DATE OF ORDER: 1 APRIL 2003 WHERE MADE: MELBOURNE UPON THE APPLICANT by its Counsel undertaking: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party adversely affected by the operation of the interlocutory order made hereunder or any continuation, with or without variation, thereof; and (b) to pay the compensation referred to in (a) to the person referred to; THE COURT ORDERS THAT: 1. Until 4.15 pm on 3 April 2003, or further order, the respondent (whether by its officers, employees, agents or howsoever otherwise), be restrained from: (a)preventing, hindering or interfering with the access to or egress from the applicant's site located at 226 Lorimer Street Port Melbourne ("the Fishermen's Bend site") of persons or vehicles seeking such access or egress; (b)taking or threatening to take any industrial action or inciting or procuring any members of the respondent or other employees of the applicant to take industrial action with intent to coerce the applicant to agree to or approve the making of an agreement under Division 2 or 3 of Part VIB of the Workplace Relations Act 1996, in respect of the employment by Skilled Engineering Ltd of persons formerly or presently employed by ABB Services Pty Ltd at the Fishermen's Bend site; 2. The directions hearing be adjourned to 10.15 am on 3 April 2003. 3. The respondent file and serve, by 5.00 pm on 2 April 2003, any affidavit or affidavits on which it intends to rely in support of the discharge or variation of the injunctions hereby granted. 4. Liberty be reserved to either party to apply on notice in writing to the other party. 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 184 of 2003 BETWEEN: AEROSPACE TECHNOLOGIES OF AUSTRALIA LIMITED (ABN 56 008 622 008) Applicant AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Respondent JUDGE: RYAN J DATE: 1 APRIL 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 In this matter an application has been made to the Court for injunctive relief from the maintenance of a picket and the taking of industrial action at the premises of the applicant, Aerospace Technologies of Australia Ltd, at 226 Lorimer Street, Port Melbourne ("the Fishermen's Bend site"). The matter has been brought on at very short notice, and the respondent union has not had an opportunity to put on evidence or to respond to the affidavit evidence relied on by the applicant. In accordance with general principles governing applications for interlocutory injunctive relief, I am therefore constrained to assume that the evidence will remain as it is until the Court can accord a full hearing to the matter. 2 On the present state of the evidence, and drawing only those inferences which are reasonably available, I am satisfied that a prima facie case has been made out implicating the respondent union in an attempt to coerce the applicant to agree to or approve the making of an agreement under Division 2 or 3 of Part VIB of the Workplace Relations Act 1996 ("the Act"), in respect of the employment by Skilled Engineering Ltd of persons formerly or presently employed by ABB Services Pty Ltd. The evidence establishes that those employees are, or were, employed in maintenance work at the Fishermen's Bend site. 3 Communications have been made to the applicant and the Union has held meetings with, amongst others, representatives of the applicant about the continued or altered employment of those maintenance employees. The evidence indicates that a picket has been established at the Fisherman's Bend site, where those maintenance employees have been employed. Persons directly employed by the applicant have elected not to report for work today. The inference which I draw from the evidence is that the action taken by those employees of the applicant has resulted from an express or implied request or suggestion made to them by persons maintaining the picket. Those persons included Mr Bradley an officer of the respondent Union who intimated to representatives of the applicant that it was his decision whether the picket was removed or remained.. 4 It is undesirable, in the circumstances, that I say more about the evidence than I have, because the evidence may, even at a resumed interlocutory hearing, change or assume a different complexion. Questions of credit may have to be investigated before this application is finally determined. However, in the light of my conclusion that there is a serious question to be tried, and because of my conviction that the balance of convenience is strongly in favour of a restraint for a very limited time, I have been persuaded to make the following orders: Upon the applicant, by its Counsel giving the usual undertaking as to damages, I propose to order: 1. That until 4.15 pm on 3 April 2003, or further order, the respondent, (whether by its officers, employees, agents or howsoever otherwise), be restrained from: (a) preventing, hindering or interfering with the access to or egress from the applicant's site, located at 226 Lorimer Street, Port Melbourne ("the Fishermen's Bend site") of persons or vehicles seeking such access or egress; (b) taking or threatening to take any industrial action or inciting or procuring any members of the respondent or other employees of the applicant to take industrial action with intent to coerce the applicant to agree to or approve the making of an agreement under Division 2 or 3 of Part VIB of the Workplace Relations Act 1996, in respect of the employment by Skilled Engineering Ltd of persons formerly or presently employed by ABB Services Pty Ltd at the Fishermen's Bend site. 5 It was contended by Ms Gooley, on behalf of the respondent, that no order of the kind which I have just indicated should be made because of the operation of s 166A(1) of the Act, which provides that: 'Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees or an officer, member or employee of such an organisation in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity in contemplation or furtherance of claims that are the subject of an industrial dispute, unless the Commission: (a) has certified in writing, as mentioned in paragraph 6(a) or (c) in respect of the conduct; or (b) has certified in writing, as mentioned in paragraph 6(b) in relation to the person, in respect of the conduct.' 6 In my view, the present application is essentially for an injunction of the kind contemplated by s 170NG of the Act, which is a statutory cause of action, not an action in tort under the law of a State or Territory. It is clear, I think, that s 170NC, which the applicant has invoked, is a penalty provision, as listed in s 170ND, and therefore the application attracts the jurisdiction of the Court to grant an injunction under s 170NG. 7 I shall order in addition to paragraph (1) of the Order already proposed that: 2. The directions hearing be adjourned to 10.15 on 3 April 2003. 3. The respondent file and serve, by 5.00 pm on 2 April 2003, any affidavit or affidavits on which it intends to rely in support of the discharge or variation of the injunctions hereby granted. 4. Liberty be reserved to either party to apply on notice in writing to the other party. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 1 April 2003 Counsel for the Applicant: Mr M D Wyles Solicitors for the Applicant: Australian Business Lawyers Counsel for the Respondent: Ms Anne Gooley Solicitor for the Respondent: Maurice Blackburn & Co Date of Hearing: 1 April 2003 Date of Judgment: 1 April 2003