FEDERAL COURT OF AUSTRALIA United Group Infrastructure Pty Ltd ACN 096 365 972 v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1823 INDUSTRIAL LAW – interlocutory injunction – whether industrial action may contravene s 170MI(2) of the Workplace Relations Act 1996 (Cth) Workplace Relations Act 1996 (Cth), ss 127, 170MI, 170MI(2), 170MJ, 170MN(1), 170MO United Group Infrastructure Pty Ltd ACN 096 365 972 v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union wad 295 of 2005 SIOPIS J 2 NOVEMBER 2005 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 295 OF 2005 BETWEEN: UNITED GROUP INFRASTRUCTURE PTY LTD ACN 096 365 972 APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION RESPONDENT JUDGE: SIOPIS J DATE OF ORDER: 2 NOVEMBER 2005 WHERE MADE: PERTH THE COURT ORDERS THAT: 1 Until trial or further order, the respondent be restrained whether by itself or its servants or agents or howsoever otherwise: a. from issuing any further section 170MO notices; and b. from permitting, directing, authorising, inducing, encouraging or procuring any employee of the applicant engaged in work at the Alcoa Kwinana Refinery to fail to attend work and/or to fail to perform work in the manner as customarily performed for the applicant; where the purpose, or a purpose of that conduct is to support or advance the claims made against the applicant in respect of the employment of employees of the applicant pursuant to the draft Enterprise Bargaining Agreement served by the respondent on the applicant which is annexure PKD12 to the affidavit of Peter Kingsbury Davis dated 12 October 2005 and/or the Notice of Initiation of Bargaining Period dated 27 September 2005 which is annexure PKD13 to the affidavit of Peter Kingsbury Davis dated 12 October 2005. 2 Service of this order as required by Order 37 Rule 2 of the Federal Court Rules is dispensed with and, instead, service of this order on the respondent is permitted by serving an original or copy of this order on the respondent at its State Branch at 121 Royal Street, East Perth, Western Australia and by facsimile to the respondent's National Office on facsimile number (02) 9897 9274. 3 The directions hearing be adjourned to 9:30 am on Thursday 17 November 2005. 4 Each party have liberty to apply on short notice to discharge or vary the order. 5 Costs 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 WESTERN AUSTRALIA DISTRICT REGISTRY WAD 295 OF 2005 BETWEEN: UNITED GROUP INFRASTRUCTURE PTY LTD ACN 096 365 972 APPLICANT AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION RESPONDENT JUDGE: SIOPIS J DATE: 2 NOVEMBER 2005 PLACE: PERTH REASONS FOR JUDGMENT 1 On 13 October 2005 I granted an interim injunction restraining the respondent from taking industrial action pursuant to a notice dated 11 October 2005 served by the respondent on the applicant in reliance upon s 170MO of the Workplace Relations Act 1996 (Cth) ('the Act') and I granted other interim relief. 2 The applicant now claims an interlocutory injunction restraining the respondent from issuing any further notices under s 170MO of the Act and from taking any industrial action in relation to a bargaining period which has been initiated by the Notice of Initiation of Bargaining Period dated 27 September 2005 which was served by the respondent on the applicant ('the notice to initiate bargaining'). The notice is annexure PKD13 to the affidavit of Peter Kingsbury Davis sworn on 13 October 2005 ('Mr Davis' affidavit'). The respondent also provided to the applicant as part of the bargaining process a draft enterprise bargaining agreement ('the draft EBA') which refers to the scope of the work proposed to be covered by the proposed agreement which the respondent wishes to negotiate with the applicant. The draft EBA is annexure PKD12 to Mr Davis' affidavit. 3 The notice to initiate bargaining was issued by the respondent under s 170MI(2) of the Act. The notice to initiate bargaining included, inter alia, the following particulars provided pursuant to s 170MJ of the Act: '(a) The single business or part of the single business to be covered by the proposed agreement is the employer's Project Work, which is, over and above the normal maintenance work carried out at the Alcoa Kwinana site covered by the 'United KG Pty Ltd Alcoa Services Contracts and Associated Projects Certified Agreement 2003. (b) The types of employees whose employment will be subject to the agreement are the employees of the employer, who are carrying out Project type mechanical work on the Liquor Burner and other Project type mechanical work at the Kwinana site, who are eligible for membership of or who are members of the AMWU; the other persons who will be bound by the agreement are the AMWU and United KG Pty Ltd. …' 4 It is submitted by the applicant that the scope of the agreement proposed by the respondent, which was identified in the notice to initiate bargaining and, albeit in different terms, in the draft EBA, is already covered by the scope of a certified agreement between the parties which is currently in force. This certified agreement is the United KG Pty Ltd Alcoa Local Service Contracts and Associated Projects Certified Agreement 2003 ('the 2003 Certified Agreement') which was entered into in December 2003 and is to remain in force until 1 July 2006. The applicant submits that any industrial action taken by the respondent in support of claims in relation to the proposed new agreement would contravene s 170MN(1) of the Act and would not be 'protected action' and would thus be unlawful. 5 The essential argument before me has been whether the scope of the 2003 Certified Agreement would include within it the work which is currently being carried out at the Alcoa Kwinana site in relation to a project known as the Liquor Burner Project, and in respect of which the respondent now seeks to negotiate a separate agreement. 6 This application for an interlocutory injunction is to be decided by reference to the usual principles, namely whether there is a serious issue to be tried in respect of the claims made by the applicant; and whether the balance of convenience favours the grant of the injunction. 7 I accept that there is a serious issue to be tried as to whether the new agreement which the respondent, purportedly pursuant to s 170MI of the Act, wants to negotiate, covers work which is already within the scope of the 2003 Certified Agreement. This emerges from the dispute of fact between the evidence of Mr Davis on behalf of the applicant and the evidence Mr Mark Carl Golesworthy on behalf of the respondent. 8 Mr Davis deposed to the effect that the project work which is undertaken pursuant to the Liquor Burner Project is of the same nature as work which has been undertaken previously under the 2003 Certified Agreement and its predecessors in relation to calciner upgrades and other calciner projects and project and construction work at the Kwinana, Pinjarra and Wagerup sites of Alcoa. The applicant argues that the scope of the 2003 Certified Agreement must be assessed by reference to the background which was known to both parties when that agreement was entered into in December 2003. 9 Mr Golesworthy disagrees with Mr Davis. Mr Golesworhty deposes that the work being carried out on the Liquor Burner Project is of a different character to the work which was previously undertaken in relation to calciner upgrades, other calciner projects and at the other Alcoa sites. The work being undertaken in relation to the Liquor Burner Project is more in the nature of work undertaken in relation to a stand alone project work than maintenance work. 10 There is clearly a dispute on the facts between the parties as to the nature of the work which is being undertaken at the Liquor Burner Project and whether the work at the Liquor Burner Project is sufficiently different in character so as to take it outside the scope of the 2003 Certified Agreement. It follows that the applicant has satisfied me that there is a serious issue to be tried as to whether any industrial action taken by the respondent in support of the claims made in the notice to initiate bargaining and the draft EBA in relation to the negotiation of the proposed new agreement would contravene s 170MN(1) of the Act. 11 I turn to deal with the question of balance of convenience. The applicant submits that the balance of convenience favours it because of the financial losses that could be caused to it in the event that industrial action was undertaken. I accept that the respondent would suffer detriment if at trial it was proved that its claims in support of the new agreement were properly made because it would be denied the opportunity of taking protected action. On weighing the balance of convenience, I come to the view that the balance of convenience favours the applicant. The respondent has argued that no injunction should be made because there is no threat of industrial action. This is because there is no s 170MO notice on foot. However, in my view, so long as a bargaining period has been initiated under s 170MI of the Act, there is always, in the circumstances of this case, a threat of industrial action being brought at short notice by the issue of a s 170MO notice and, therefore, I reject the argument that there is no or no sufficient threat to warrant the grant of an injunction. 12 I also note that in relation to the Kwinana site, there is already in existence an order made by the Australian Industrial Relations Commission under s 127 of the Act which precludes the respondent from taking of any industrial action at the Kwinana site. The only exception to that order is in relation to protected action. Protected action can only occur where there has been lawful initiation of a bargaining period. There is a serious issue to be tried as to whether a lawful bargaining period has been initiated because, as I have already found, there is a serious issue to be tried as to whether the scope of the work referred to in the notice to initiate bargaining process and in the draft EBA falls within the scope of work covered by ambit of the 2003 Certified Agreement. I will, therefore, not permit the respondent to take any industrial action in reliance upon either or both of the notice to initiate bargaining or the draft EBA. Accordingly, I will grant an injunction which will prevent the respondent until trial or further order, from taking any industrial action or issuing any notices under the Act pursuant to either of those two documents. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 15 December 2005 Counsel for the Applicant: Mr J Blackburn and Ms L Gibbs Solicitor for the Applicant: CCI Legal Pty Ltd Counsel for the Respondent: Ms J Boots Solicitor for the Respondent: Boots & Co Date of Hearing: 2 November 2005 Date of Judgment: 2 November 2005