FEDERAL COURT OF AUSTRALIA ABM Plastic (Aust) Pty Ltd (Receivers and Managers Appointed) ACN 005 028 099 v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 111 ABM PLASTIC (AUST) PTY LTD (RECEIVERS AND MANAGERS APPOINTED) ACN 005 028 099 v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and NATIONAL UNION OF WORKERS and the employees named in the schedule attached hereto V 101 of 2005 RYAN J 17 FEBRUARY 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 101 of 2005 BETWEEN: ABM PLASTIC (AUST) PTY LTD (Receivers and Managers Appointed) ACN 005 028 099 Applicant AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and NATIONAL UNION OF WORKERS and the employees named in the schedule attached hereto Respondents JUDGE: RYAN J DATE OF ORDER: 17 FEBRUARY 2005 WHERE MADE: MELBOURNE UPON THE APPLICANT by its Counsel giving the usual undertaking as to damages IT IS ORDERED: 1. That the respondents and each of them be restrained from 1.00 pm this day until 4.15 pm on 23 February 2005 or further order from (whether by its officers, or his, her or its employees, agents or himself, herself or itself or howsoever otherwise) (a) preventing, hindering or interfering with access to, or egress from the premises situate at 56 to 67 Tarnard Drive, Braeside ("the Braeside Site") of persons or vehicles seeking such access or egress; (b) organising, maintaining or participating in the conduct referred to in sub-paragraph (a) of this paragraph. 2. That a copy of this order be served on each respondent who has not entered an appearance herein at the same time as service on that respondent of the application herein and the affidavits filed this day by the applicant provided, however, that the applicant is excused from serving on any such respondent each of the exhibits to the said affidavits. 3. That without derogating from paragraph 2 of this Order, notice of this Order be given to the respondents by displaying a copy or copies thereof at a prominent and externally visible place or places at the Braeside Site. 4. That liberty be reserved to any party to apply on not less that 24 hours notice to the other parties for the variation or dissolution of the injunctive relief hereby granted provided however that any such notice by the applicant need be given only to the first and second respondents. 5. That subject to any further or other orders the directions hearing herein be adjourned to 23 February 2005 or further order. 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 101 2005 BETWEEN: ABM PLASTIC (AUST) PTY LTD (Receivers and Managers Appointed) ACN 005 028 099 Applicant AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and NATIONAL UNION OF WORKERS and the employees named in the schedule attached hereto Respondents JUDGE: RYAN J DATE: 17 FEBRUARY 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant ABM Plastics (Australia) Pty Ltd (receivers and managers appointed) ("ABM"), seeks injunctive relief restraining contraventions by the respondents of s 170MN and by amendment s 170MMC of the Workplace Relations Act 1996 (Cth) ("the Act"). Relief is also sought to prevent the continuance of what have been identified in the applicant's written submissions as economic torts at common law. 2 The first and second respondents, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU") and the National Union of Workers ("the NUW"), are organisations of employees registered under the Act. The remaining individual respondents with one or two exceptions are all said to be employees employed by the ABM at its Braeside plant in Victoria. At least one of those individual respondents, Mr Addison, who appears on behalf of the AMWU today, has been listed as a respondent by virtue of his holding of office within one of the participant unions, the AMWU. 3 On 28 November 2004 receivers and managers of ABM were appointed at the instigation of a secured creditor GE Capital Finance Pty Ltd ("GE"). At all material times ABM has conducted at the Braeside site a business of designing, making, and supplying flexible packaging for use in, amongst other industries, food processing and packaging. It has at all relevant times been a party to the ABM Plastics (Australia) Pty Ltd Certified Agreement of 2002 ("the certified agreement") to which the AMWU and the NUW are also parties. As well, ABM has been a party to the Rubber, Plastic and Cable Making Industry General Award 1998 and the Graphic Arts General Award 2000. 4 After their appointment the receivers and managers continued to carry on the business of ABM with a view to selling it as a going concern. However, after an extensive advertising campaign and negotiations with the two most promising prospective purchasers, the receivers and managers decided to sell to Amcor Packaging Australia Pty Ltd ("Amcor") for about $7.1 million ABM's plant and equipment but not the business as a going concern. It quickly became apparent that the receivers and managers could not generate sufficient money from that sale and from sales after the conversion into finished goods of existing and future stocks of raw materials then on hand to pay in full the entitlements of ABM employees under the certified agreement, the Plastics Award, and the Graphic Arts Award, including entitlements to redundancy payments. 5 The sale agreement between the receivers and managers and Amcor contemplated that the assets of ABM would be removed from the Braeside site within 90 days of the completion date - that being 18 February 2005 - or such other date as might be agreed between ABM and Amcor. Mr Hewitt, one of the receivers and managers of ABM, has deposed that, on 21 January 2005, he was advised by Mr Addison, who, as I said, is an industrial officer employed by the AMWU, that a meeting of AMWU and NUW members employed at the Braeside site had resolved to take strike and picket action which had commenced immediately and would be maintained until all the employees' entitlements had been guaranteed. 6 According to Mr Hewitt, no Notice of Initiation of a Bargaining Period pursuant to s 170MI of the Act and no notice of intention to take industrial action pursuant to s 170MO of the Act has been given to ABM by either the AMWU or the NUW. As a result of the industrial action, according to Mr Hewitt, there has been no production at the Braeside site since 21 January 2005. Attempts have been made to negotiate a return to work on the basis that GE would guarantee to put the receivers and managers in funds of up to $700,000 to pay each employee his or her outstanding superannuation, annual leave, vesting sick leave, and long service leave entitlements as at the date of termination of his or her employment. Those proposals were rejected at a mass meeting of employees on 3 February 2005. 7 Since, at the latest, 8 February 2005, a picket has maintained outside the Braeside site which has had the effect of obstructing access to and egress from that site. One former employee, Bradley John Loy, has deposed that his car when parked in a driveway at the site was hemmed in by four picketers' vehicles from 12.30 pm until about 4.00pm on 9 February 2005 and he was thereafter prevented by the picket from leaving the site until he procured police assistance and allowed one of the picketers to search his vehicle for printing plates. 8 Another deponent, John Leslie Hellier, a truck driver, has sworn that, on 9 February 2005, he attempted to enter the Braeside site to collect some stock and equipment for his employer, Greens General Foods Pty Ltd ("Greens"), a customer of ABM. Mr Hellier's affidavit continues at [5]; ' …. Upon arriving at the Braeside site I observed a picket line located across Tarnard Drive which is a court that ends in a dead end near the entrance to the Braeside site. I parked my truck in Tarnard Drive and got out of the vehicle. A person who identified himself as Des Redman from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union - AMWU - approached me and I had a conversation with Mr Redman during which (a) he asked me what I was doing; (b) I told Mr Redman that I was attending the Braeside site for the purposes of picking up stock and equipment owned by Green; (c) Mr Redman told me that the AMWU, the NUW, and members of those unions employed by ABM had established a picket line to protest against the nonpayment of employee entitlements; (d) I asked Mr Redman if I could have access to the Braeside site to retrieve stock and equipment owned by Greens; (e) Mr Redman told me that, "Nothing would be getting loaded and getting out of the site." 6. As a result of my conversation with Mr Redman I feared for my safety and for that of my truck if I attempted to enter the Braeside site, load my truck, and leave the site. 7. I then got out of my truck and entered ABM's offices where I spoke briefly to office personnel who explained to me that the picket line was preventing trucks from entering or leaving the Braeside site with goods. 8. As consequence of what Mr Redman had said to me I decided to leave the Braeside site without seeking to collect the stock or equipment, goods owned by Greens that were situated at the Braeside site. I was not prepared to place myself or my truck in danger. 9. I then went outside where Mr Redman approached me again. He said to me, "What are you doing?" I told him that I was leaving the site. He said, "Good." 10. I then left the Braeside site in my truck without collecting the stock and equipment owned by Greens.' 9 In an affidavit sworn 14 February 2005, Judith Margaret Burch, the payroll officer for ABM, has identified some 41 individual respondents as having participated in the picket between 21 January and 8 February this year, and smaller numbers of the individual respondents as having taken part in the picket on each of 9, 10, 11, 13, and 14 February. An affidavit attesting to the maintenance of the picket by a blockade of vehicles and by personal physical obstruction preventing access to and egress from the Braeside site has been sworn on 15 February 2005 by Matt Byrnes. Mr Byrnes is a senior manager employed by the receivers and managers of ABM. 10 Of the deponents I have mentioned, Mr Hewitt, Mr Loy, and Mr Byrnes have attested to a belief that, in addition to individual respondents employed by ABM, other persons believed to be officers or employees of one or other of the AMWU and the NUW have participated in and appeared to have partly orchestrated the picket. I have already referred to Mr Addison. The persons alleged to have been physically present at the Braeside site were Jamie Bellamy, said to be a representative or organiser of the AMWU, Mark Cole, said to be a representative of the NUW and a Lorraine Cassin, who is said to have identified herself as being "of the AMWU". 11 The affidavit evidence discloses that the conduct of the picket has prevented, and is continuing to prevent, representatives of customers of ABM from collecting printing plates and finished goods from the Braeside site. The printing plates have assumed significance because they have been prepared at the instance of customers of ABM for use by ABM or others, if the customers so desire, for the printing of plastic bags and wrapping for the customers' products. As to those plates, Mr Hewitt has deposed as follows at [55] of his affidavit sworn 14 February 2005: 'Although the plates remain in possession of ABM at all times they are treated by ABM as the property of each customer who is free to collect the plates from ABM at any time at no cost. In the event that a customer decides to change printing suppliers ABM makes the plates available for collection by the customer at no cost. ABM is presently in possession of approximately 1.421 million dollars' worth of plates owned by its customers, details of which are set out in the following table.' Customer Approximate Value of Plates in Possession of ABM Greens $235,000 Masterfoods $450,000 McCains $150,000 Campbell Bros $30,000 Paradise $110,000 Centrepack $50,000 Nestle $240,000 Borgcraft $126,000 Other (estimated) $30,000 Total $1,421,000 Many of the owners of those plates are significant debtors of ABM and the fear has been expressed that damages for the detention of the plates will be set off against those debts. That issue has been identified in these terms at [69] of Mr Hewitt's affidavit; 'Thirdly as noted above, ABM is in possession of plates that are used by it in its manufacturing process, which plates are owned by ABM's customers. If the customers cannot retrieve the plates, those customers may seek to set off against their obligations to pay debts to ABM claims they may have against ABM for the failure of ABM to deliver up the plates, for the cost of sourcing replacement plates, and for any consequential losses which they may suffer. The following debts are owed to ABM by customers whose plates remain in the possession of ABM as referred to in paragraph 55 above and may be subject to set-off claims; Customer Debt Greens $1,210,392 Masterfoods $496,182 McCains $669,632 Campbell Bros $41,260 Paradise Foods $473,347 Centrepack $180,346 Nestle $492,227 Borgcraft $129,385 Total $3,692,771' There is also the prospect that finished goods which remain at the Braeside site and which have not been collected and, therefore, for which the customers are not presently indebted to ABM, will not be collected and the proceeds from those goods will, accordingly, not become available to the receivers and managers. 12 There has at present been no affidavit material filed on behalf of any of the respondents. Indeed, some of the individual respondents identified in the schedule to the application, it appears, have not yet been served with the application or the supporting affidavits. However, most of the affidavit material on which I have drawn for reciting the facts which I have just recounted has been made available to the respondent unions and no attempt has been made to contradict any of the facts which I consider salient for present purposes. 13 I consider that the material as it stands raises serious issues to be tried. Reference has been made to the effect of s 170MN of the Act and to doubts which have been expressed in judgments of this Court about that effect. However, I do not regard what has been said either by Kenny J in Emwest Product Pty Ltd v AMWU (2002) 117 FCR 588 or by the Full Court in Australian Industry Group v AFMEPKIU (2003) 130 FCR 524 as having finally resolved the issue to the extent that it can no longer be said to be serious for present purposes. 14 There are also, as I shall detail in a moment, serious issues about the commission of common law torts. As well, I consider that the balance of convenience is preponderantly in favour of the grant of interlocutory relief. Indeed, the continuing prevention of access to and egress from the Braeside site, as I perceive it, is working to the jeopardy of the former employees engaging in this conduct, because it is likely to diminish the assets of ABM available for distribution to them and its other unsecured creditors. That likelihood will become a certainty, I consider, if Amcor is able to use the continuation of the conduct complained of as a ground for declining to proceed with its contract to purchase the assets from the receivers and managers. 15 I am not without sympathy for the employees, many of whom, as Mr Addison has pointed out, have worked for ABM for very long periods indeed and stand to lose a substantial part of the benefit of the redundancy provisions under the certified agreement or the Plastics, or Graphic Arts Award. I am also aware, as Mr Addison put it, that the grant of relief against the prevention of access to and egress from the Braeside plant will effectively be final relief if it allows Amcor to dismantle and collect the assets which it has purchased. However, it will be relief against conduct which, at the least, is tortious at common law. No attempt has been made on behalf of the respondents to deny that character to the conduct complained of. 16 It has been suggested that relief should have been sought earlier than it has been, having regard to the fact that the industrial action commenced on 20 January. However, I do not consider, in the light of attempts to resolve the matter by negotiation and other means including, it seems, proceedings in the Industrial Relations Commission, that the delay in approaching this Court has been such as to disentitle the applicants to discretionary relief. 17 In all the circumstances, I consider this to be a clear case for the grant of injunctive relief. The applicant has given the usual undertaking to damages and I shall accordingly order that until 23 February 2005 or further order, the respondents whether by its or his or her officers, employees, agents, themselves, or howsoever otherwise be restrained from (a) preventing, hindering, or interfering with access to and egress from the Braeside site of persons or vehicles seeking such or egress. 18 For the reasons submitted by Mr Gyles who appeared for some of the respondents, I am not disposed to make an order in terms of paragraph 1(b) of the claim for interlocutory relief in the application, but I shall include a paragraph (b) restraining the respondents from organising, maintaining, or participating in the conduct described in paragraph (a). 19 I shall reserve liberty to any party to apply for a variation or dissolution of these orders on not less than 24 hours' notice in writing to the other parties. That notice in the case of the applicants need only be given to the AMWU and the NUW. I shall frame the order to say that the restraint takes effect from 1.00pm today and there will be a provision in the order for service in the manner suggested by Mr Judd. That is not to say that the order should not be served on those who have not appeared when those respondents are served with the initiating application and supporting affidavits. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 17 February 2005 Counsel for the Applicant: Mr J Judd QC with Mr M D Wyles Solicitor for the Applicant: Middletons Lawyers Mr M Addison appeared in person as an individual respondent and by leave for the First-named Respondent. Counsel for certain other Respondents: Mr A Gyles Solicitor for certain other Respondents: Holding Redlich Date of Hearing: 17 February 2005 Date of Judgment: 17 February 2005 SCHEDULE James Nolan Third Respondent Norm Riley Fourth Respondent Murray Nelson Fifth Respondent Jorge Rosales Sixth Respondent Dragon Tesanovic Seventh Respondent Peter Macaji Eighth Respondent Arthur Kotsanis Ninth Respondent Rick Romero Tenth Respondent Eliano Santos Eleventh Respondent Christian Cordero Twelfth Respondent Gavin Herbert Thirteenth Respondent Donald Barnes Fourteenth Respondent Adnan Jasika Fifteenth Respondent Jose Menares Sixteenth Respondent Adem Kandemir Seventeenth Respondent Cao Thuan Eighteenth Respondent Thomas Hassiotis Nineteenth Respondent Michael Monticello Twentieth Respondent Memhet Ozturk Twenty-first Respondent Peter Karanikolos Twenty-second Respondent Nelida Obregon Twenty-third Respondent Adele Robinson Twenty-fourth Respondent Ceaml Deniz Twenty-fifth Respondent Peter Buswell Twenty-sixth Respondent Steve Angeles Twenty-seventh Respondent Sophanaro Uoy Twenty-eighth Respondent Khroung Yik Twenty-ninth Respondent Hoang Nguyen Thirtieth Respondent Hao Do Thirty-first Respondent Senad Mimic Thirty-second Respondent Khai Dang Thirty-third Respondent Graham Towart Thirty-fourth Respondent Phat Nguyen Thirty-fifth Respondent Charles Danford Thirty-sixth Respondent Tony Santos Thirty-seventh Respondent Adrian McTigue Thirty-eighth Respondent Tim Bacic Thirty-ninth Respondent Peter Trickey Fortieth Respondent Quach Trach Vong Forty-first Respondent Michael Rafati Forty-second Respondent Tien Duong Forty-third Respondent Maurice Addison Forty-fourth Respondent Jamie Bellerby Forty-fifth Respondent Mark Cole Forty-sixth Respondent Joseph Mactzuk Forty-seventh Respondent