United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1926

FEDERAL COURT OF AUSTRALIA

United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2005] FCA 1926 WORKPLACE RELATIONS – interlocutory injunctive relief – restraint of unlawful industrial action – building industrial action – whether probable – serious issue to be tried – balance of convenience favouring applicant

Building and Construction Industry Improvement Act 2005 (Cth) ss 3(1), 3(2), 36, 36(1), 37, 38, 39, 39(1), 39(2), 39(3), 48(2), 49, 49(3), 69 Workplace Relations Act 1996 (Cth) ss 4(8), 127, 127(1), 127(5), 127(6), 127(7)

Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd. R. 634

UNITED GROUP INFRASTRUCTURE PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, STEVEN JAMES MCCARTNEY and WILLIAM WARREN TRACEY

WAD 383 of 2005

NICHOLSON J

23 DECEMBER 2005

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 383 OF 2005

BETWEEN: UNITED GROUP INFRASTRUCTURE PTY LTD

(ACN 096 365 972)

APPLICANT

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

FIRST RESPONDENT

STEVEN JAMES MCCARTNEY

SECOND RESPONDENT

WILLIAM WARREN TRACEY

THIRD RESPONDENT

JUDGE: NICHOLSON J

DATE OF ORDER: 23 DECEMBER 2005

WHERE MADE: PERTH

UPON THE APPLICANT UNDERTAKING TO: (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 operation of the interlocutory order made hereunder or any continuation (with or without variation) thereof; and (b) Pay the compensation referred to in (a) to the person there referred to. THE COURT ORDERS THAT: 1. The application be amended to include section 49 of the Building and Construction Industry Improvement Act 2005 (Cth) as a basis for final and interlocutory injunctive relief. 2. Until determination of the application or further order, the respondents whether by themselves, their officers, delegates, agents, employees or howsoever otherwise be restrained from directing, authorising, inducing, encouraging, aiding, or procuring (or continuing to direct, authorise, induce, encourage, aid, or procure) any employee of the applicant engaged on work at the Alcoa Pinjarra Refinery, Alcoa Kwinana Refinery or Alcoa Wagerup Refinery to fail to attend for work and/or to fail to perform work in the manner as customarily performed for the applicant. 3. Until determination of the application or further order, the respondents whether by themselves, their officers, delegates, agents or employees or howsoever otherwise be restrained from directing, authorising, inducing, encouraging, aiding, or procuring (or continuing to direct, authorise, induce, encourage, aid, or procure) any employee of the applicant, whose employment is subject to: (a) the United KG Pty Ltd (Alcoa Kwinana Plant) Industrial Action Order 2005 made by Deputy President McCarthy of the Australian Industrial Relations Commission on 13 September 2005 (PR 962497) (as amended or varied from time to time); or (b) the United KG Pty Ltd – Pinjarra Efficiency Upgrade Project Industrial Action Order September 2005 made by Deputy President McCarthy of the Australian Industrial Relations Commission on 20 September 2005 (PR 962890) (as amended or varied from time to time) and any final section 127 order issued in matter C2005/249 (as amended or varied from time to time); (together, or each separately, the Alcoa s 127 Order(s)); to fail to attend for work and/or to fail to perform work in the manner as customarily performed for the applicant prior to the expiry of the relevant Alcoa s 127 Order. 4. 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: (a) First respondent be permitted by forwarding by facsimile transmission (facsimile number 08 9225 4744) an original or copy of the Order to, Mr J Ferguson, State Secretary or Mr C Saunders, State President of the first respondent or, alternatively, by leaving an original or copy of the Order with a person apparently an officer or employee of the first respondent and apparently of or above the age of 16 at the office of the first respondent located at 121 Royal Street, East Perth in the State of Western Australia; and (b) Second and third respondents be permitted by forwarding an original or copy of the Order to each of the second and third respondents by facsimile transmission (facsimile number 08 9225 4744, being the second and third respondents' place of work), or, alternatively, by leaving an original or copy of the Order for each of the second and third respondents with a person apparently an officer or employee of the first respondent and apparently of or above the age of 16 at the work address of the second and third respondents located at 121 Royal Street, East Perth in the State of Western Australia. 5. (a) By 13 January 2006 the applicant file and serve draft directions to program the application to trial including estimate of the time for trial and unavailable dates; (b) Within 7 days of such service the respondents file and serve any alternative draft directions together with any written submissions necessary to explain the draft. (c) Within a further 7 days of such service the applicant file and serve any reply. 6. Each party have liberty to apply at short notice to discharge or vary the order. 7. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.