FEDERAL COURT OF AUSTRALIA Wesfarmers Premier Coal Ltd ABN 21 008 672 599 v The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 1339 INDUSTRIAL RELATIONS – notice of intention to take industrial action – protected action – negotiations for proposed certified agreement – interlocutory relief – injunction Workplace Relations Act 1996 (Cth) s170MO Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 209 ALR 116 WESFARMERS PREMIER COAL LIMITED ABN 21 008 672 599 v THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, JOHN KILDAY FERGUSON, COLIN GEOFFREY SAUNDERS, LUKE EDMONDS, JOHN LESLIE KEARNEY, WAYNE THOMAS WAYWOOD, ANTHONY BRUCE KENT, WAYNE ROBERT SANFORD, THE AUTOMOTIVE FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION – WESTERN AUSTRALIA W230 of 2004 FRENCH J 8 OCTOBER 2004 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W230 OF 2004 BETWEEN: WESFARMERS PREMIER COAL LIMITED ABN 21 008 672 599 APPLICANT AND: THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT JOHN KILDAY FERGUSON SECOND RESPONDENT COLIN GEOFFREY SAUNDERS THIRD RESPONDENT LUKE EDMONDS FOURTH RESPONDENT JOHN LESLIE KEARNEY FIFTH RESPONDENT WAYNE THOMAS WAYWOOD SIXTH RESPONDENT ANTHONY BRUCE KENT SEVENTH RESPONDENT WAYNE ROBERT SANFORD EIGHTH RESPONDENT THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION – WESTERN AUSTRALIA NINTH RESPONDENT ORDERS JUDGE: FRENCH J DATE OF ORDER: 8 OCTOBER 2004 WHERE MADE: PERTH UPON THE APPLICANT UNDERTAKING THAT IT WILL: (a) 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 operations of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and (b) to pay the compensation referred to in (a) to the person there referred to. THE COURT ORDERS THAT: 1. The First, Third, Fourth, Fifth, Sixth, Seventh, and Ninth Respondents whether by themselves, their servants, delegates, agents or howsoever otherwise, are restrained from midday on 11 October 2004 until trial or further order from: (a) engaging or continuing to engage in industrial action in the nature of a stoppage of or ban on all work by employees of the Applicant pursuant to or in reliance upon the notice to the Applicant from the First Respondent dated 1 October 2004; (b) authorising, directing inciting, procuring, or encouraging any employee of the Applicant to: (i) stop work or fail to perform work as normal; (ii) take or continue to take or threaten to take any industrial action in the nature of a stoppage of all work pursuant to or in reliance upon the notice to the Applicant from the First Respondent dated 1 October 2004. 2. The First and Ninth Respondents are to use their best endeavours and over the next two days and at the meeting of employees of the Applicant scheduled for 10am on Monday 11 October 2004 to bring the terms of this Order to the notice of those employees of the applicant who are members of the First Respondent. 3. The order be served on the Respondents by service at the State Branch of the First Respondent at 121 Royal Street, East Perth and on the First Respondent by facsimile to 133 Parramatta Road, Granville, New South Wales, 2142. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W230 OF 2004 BETWEEN: WESFARMERS PREMIER COAL LIMITED ABN 21 008 672 599 APPLICANT AND: THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT JOHN KILDAY FERGUSON SECOND RESPONDENT COLIN GEOFFREY SAUNDERS THIRD RESPONDENT LUKE EDMONDS FOURTH RESPONDENT JOHN LESLIE KEARNEY FIFTH RESPONDENT WAYNE THOMAS WAYWOOD SIXTH RESPONDENT ANTHONY BRUCE KENT SEVENTH RESPONDENT WAYNE ROBERT SANFORD EIGHTH RESPONDENT THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION – WESTERN AUSTRALIA NINTH RESPONDENT JUDGE: FRENCH J DATE: 8 OCTOBER 2004 PLACE: PERTH REASONS FOR JUDGMENT ON CLAIM FOR INTERLOCUTORY INJUNCTION 1 The claim before the Court today is for interlocutory relief against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and various of its officers and against its State Branch, in respect of industrial action by maintenance workers commenced pursuant to a notice of intention to take industrial action dated 1 October 2004. That notice is said to have been issued pursuant to s 170MO of the Workplace Relations Act 1996 ( Cth). The nature of the intended action and the date of the action was stated in the notice as follows: 'A stoppage of all work, beginning at 7 am on Wednesday, 6 October 2004 and continuing until Saturday, 6 November 2004.' 2 The applicant employer, which operates a coal mine at Collie, has advanced a number of bases upon which it is said that the action, which has now commenced, is not protected action under the Workplace Relations Act. The primary basis is that the 'proposed agreement', that is to say, the proposed certified agreement currently under negotiation between the applicant and the first respondent, includes proposals or clauses which, in the light of the decision of the High Court in Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 209 ALR 116, would render that agreement, if concluded, non‑certifiable under the Workplace Relations Act. The ground for that contention is that the various provisions relied upon fall outside the scope of the employer‑employee relationship because they do not deal with matters arising between the employer and employee in their capacities as such. 3 The particular clauses which have been identified include a provision for the negotiation of a separate agreement between the applicant and the AMWU in the event that a pilot Char Plant is developed, constructed or operated during the period of the proposed certified agreement. There are provisions relating to leave for union training courses or conferences, the engagement of contractors, the performance of warranty work, redundancies, leave for the purposes of attendance at local government meetings and the right of entry on the part of the AMWU. 4 It appears that most of those matters, if not all, have been the subject of at least provisional agreement in negotiations between the parties to this point. The bargaining period in respect of which the present notice of intended industrial action was issued is a bargaining period, which itself was purportedly commenced by a notice identifying some matters already agreed and other matters not yet agreed which, on the face of it, would seem to fall within the employer‑employee relationship. It was the second notice of its kind issued by the AMWU in respect of these negotiations. The employer contends first that the second bargaining period notice was not valid because the first bargaining period, commenced by an earlier notice, had not in fact been concluded. 5 The question for the Court is whether there is, in the light of the Electrolux decision and the arguments advanced, an arguable case, or at least a serious question to be tried, as to whether the industrial action presently underway, is 'protected action' under the Act. That question is to be assessed alongside the issue of the balance of convenience. That requires consideration of the loss that would be sustained by the employer in the event that the interlocutory injunction is not granted and in the event that the employer is ultimately successful in the proceedings. It also requires consideration of any damage that might be sustained by the respondents if an injunction were to be granted and they were to be successful ultimately in the proceedings. So I think it is clear that the balance of convenience lies almost entirely in favour of the employer. The employer has given substantial evidence of the effects upon its operation of industrial action by its maintenance workers and the extent to which on a progressive basis that compromises its ability to operate efficiently in time to come. 6 Counsel for the respondents has not had anything to say on the question of balance of convenience and that is perfectly understandable. On the materials before the Court there is no loss or damage to which he could if the industrial action were to be restrained pending trial. In assessing the question of balance of convenience and the extent to which it might support the grant of interlocutory relief, I have regard to the strength of the case which is advanced by the employer, that being the other factor to be considered with it. These are not independent factors. They are interdependent. So where there is a very strong case, the balance of convenience may not have to weigh as much in favour of the applicant for interlocutory relief, as it might in the case where the legal case advanced by the applicant is not so strong. 7 Any views I express at this stage are entirely provisional, based as they are upon the argument that has been presented. While it has, in the circumstances, been presented comprehensively it cannot be said to be full argument. Those respondents who did appear have been brought on at fairly short notice to deal with it. The second and third respondents have apparently not yet been served. Other respondents were in Court but did not participate. Having said all that there is, at least in respect of some of the clauses to which reference has been made, an arguable case that they fall outside the scope of the employer‑employee relationship. I do not think the matter is beyond debate. Counsel for the first, fourth and proposed ninth respondents, Mr Edmonds, did make some telling points, particularly in relation to the provisions dealing with leave, but there are other provisions which raise a serious question as to whether or not on the Electrolux test they would fall outside the scope of the employer‑employee relationship. 8 I appreciate, of course, that there are other questions of construction involved relating to s 170ML(2) and the extent to which the question of the relevant purpose can be quarantined by reference to the claim in relation to which the industrial action is taken. In that regard, too, I think there is at the very least a serious question to be tried. 9 Having concluded that there is a serious question to be tried and that the balance of convenience favours the employer, I am prepared to grant interlocutory relief. However, in doing so I am going to have regard to the practical necessities that govern the implementation of that relief. I also have regard to the relatively short time to trial of the critical preliminary issues which I have indicated the Court can accommodate in this case. That is, upon the formulation of appropriate preliminary issues which will identify questions going to whether or not the action is protected action we should be able to get to a trial on Thursday and Friday of next week (I interpolate that at the time of the publication of these reasons, the trial date was fixed for the 4 and 5 November 2004). 10 Two of the respondents are not present and may not have had notice of the application. As Mr Parry indicates, there were letters written to the employees indicating the employer's view of the position and its intention to take this action. 11 A reasonable time should be allowed to implement the injunctive relief and that should be done in the most practicable way possible. In fixing a time for the commencement of the injunction I have regard to the fact that although the services provided by the maintenance workers are important, there is a balance to be struck between the damage that may be suffered by reason of any short delay in bringing them back to work and the need to ensure that there is a reasonable opportunity for the respondents to comply with the order. What I propose to order upon the applicant's undertaking as to damages, which has been filed, which is an undertaking in the usual terms, is: 1. The first, third, fourth, fifth, sixth, seventh and ninth respondents, whether by themselves, their servants, delegates, agents or howsoever otherwise, are restrained from midday on 11 October 2004 from: (a) engaging or continuing to engage in industrial action in the nature of a stoppage of or ban on all work by employees of the applicant pursuant to or in reliance upon the notice to the applicant from the first respondent dated 1 October 2004; (b) authorising, directing, inciting, procuring or encouraging any employee of the applicant to: (i) stop work or fail to perform work as normal; (ii) take or continue to take or threaten to take any industrial action in the nature of a stoppage of all work pursuant to or in reliance upon the notice to the applicant from the first respondent dated 1 October 2004. 2. The first and ninth respondents are to use their best endeavours over the next two days and at the meeting of employees of the applicant scheduled for 10 am on Monday, 11 October 2004 to bring the terms of this order to the notice of those employees of the applicant who are members of the first respondent. 3. The order be served on the Respondents by service at the State Branch of the First Respondent at 121 Royal Street, East Perth and on the First Respondent by facsimile to 133 Parramatta Road, Granville, New South Wales, 2142. The effect of that order is that they have to resume work at least insofar as the industrial action has to cease by midday on Monday. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 18 October 2004 Counsel for the Applicant: Mr Parry SC Solicitor for the Applicant: Clayton Utz Counsel for the 1st, 4th and 9th Respondents: Mr L Edmonds Solicitor for the 1st, 4th and 9th Respondents: Mr L Edmonds Date of Hearing: 8 October 2004 Date of Judgment: 8 October 2004