FEDERAL COURT OF AUSTRALIA United Voice v Schweppes Australia Pty Ltd [2011] FCA 1355 Citation: United Voice v Schweppes Australia Pty Ltd [2011] FCA 1355 Parties: UNITED VOICE v SCHWEPPES AUSTRALIA PTY LTD (ACN 004 243 994) File number: VID 1290 of 2011 Judge: NORTH J Date of judgment: 24 November 2011 Date of hearing: 24 November 2011 Place: Melbourne Division: FAIR WORK DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr M Harding Solicitor for the Applicant: Mr B Redford Counsel for the Respondent: Mr M McDonald SC with Mr M Follett Solicitor for the Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1290 of 2011 BETWEEN: UNITED VOICE Applicant AND: SCHWEPPES AUSTRALIA PTY LTD (ACN 004 243 994) Respondent JUDGE: NORTH J DATE OF ORDER: 24 NOVEMBER 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application filed by the applicant for interlocutory relief is dismissed. 2. The matter is listed for directions at 10:15 am on 30 January 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 1290 of 2011 BETWEEN: UNITED VOICE Applicant AND: SCHWEPPES AUSTRALIA PTY LTD (ACN 004 243 994) Respondent JUDGE: NORTH J DATE: 24 NOVEMBER 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is a union which represents approximately 155 workers at the Tullamarine site of the respondent. The respondent, at that site, manufactures beverages including soft drinks. The enterprise agreement covering the workforce, who are members of the applicant, has reached its nominal end date. In the course of negotiating a further agreement, the members of the applicant employed at the site voted to take various forms of protected industrial action. One such form of industrial action was to refuse to perform voluntary overtime as provided in the existing agreement. 2 In order to reduce the impact of that industrial action, the respondent utilised other staff on the site, including staff which the applicant alleges are supervisory and management staff, to continue production at the times which otherwise would have been worked as overtime by employees covered by the agreement. Clause 40.1 of the existing agreement provides: Management/Supervisory staff shall not carry out the duties of employees covered by this agreement other than in the presence of the above employees and in the following circumstances: • Job/machine instructions or training. • Commissioning of new or modified equipment prior to its handling over for production/maintenance purposes. • Troubleshooting, i.e. operating of plant/equipment as an audit function, temporary relief of operators and in those situations where immediate action is necessary to prevent injury to personnel, or to avoid damage to plant and equipment, or loss of product. 3 The applicant contends that the respondent's use of supervisory and management staff in place of the employees who have not volunteered for overtime constitutes a breach of clause 40.1. That dispute was referred to Fair Work Australia and some conciliation conferences have been convened in an attempt to resolve the issue. A further conference is to be held tomorrow and the respondent is likely to call for the issue to be arbitrated, if not resolved shortly. 4 There has been communication between the applicant and the respondent about the alleged breach of clause 40. In a letter dated 11 November 2011, Mr Todd, who is the Supply Chain Human Resources Business Partner employed by the respondent, disputed the applicant's proposition that clause 40 applied to the existing circumstances and set out the respondent's position as follows: 1. Managers and supervisors will not be operating lines at the Tullamarine site over the course of this weekend (Saturday 12 and Sunday 13 November 2011), and does not at this stage intend to do so for at least the following week. 2. If Schweppes' position changes, it will provide United Voice with 48 hours notice of its intention to do so. 3. Schweppes is committed to resolving the dispute concerning clause 40 that has already been initiated in Fair Work Australia. To this end, we call upon United Voice to request that the dispute be relisted as a matter of urgency and expect United Voice co-operation with this course. 5 On 18 November 2011 the applicant filed an application which included a claim for interlocutory relief as follows: Until the hearing and determination of the application or further order, the respondent, by itself, its employees or agents be restrained from requiring or permitting a person, usually employed as a manager or supervisor, from carrying out the duties or performing the work of an employee covered by the Agreement when there is no or insufficient numbers of Agreement covered employees available to carry out those duties or perform that work. 6 The terms of the letter from the respondent dated 11 November 2011, read in context, provide a promise to the applicant that the respondent will not continue the conduct which is alleged by the applicant to be in breach of clause 40 without giving 48 hours notice to the applicant of its intention to do so. Mr McDonald SC, who appeared with Mr Follett on behalf of the respondent confirmed that a promise in those terms was intended by the letter and represents the present position of the respondent. 7 Even if it be assumed that the applicant has a reasonably arguable case that the respondent has acted in breach of clause 40.1 and the balance of convenience favours the grant of interlocutory relief as claimed, there are two additional factors which determine that such relief should not be granted at present. 8 The first is that the promise contained in the letter of 11 November 2011, and restated in Court by Mr McDonald SC, deprive the application of any present urgency. The second factor is that the dispute over the operation of clause 40.1 is currently in active consideration by Fair Work Australia. That is the appropriate venue for the issues between the parties to be resolved. 9 The consequences of the grant of an injunction are extremely serious. A breach of an injunction made by the court can give rise to proceedings for contempt, which in turn might lead to serious penalties including imprisonment. No case has been made out at present for the intervention by the Court at this time. 10 This is not to say that if circumstances change, the applicant could not reactivate this application. If the circumstances change, the Court is available at short notice to hear any applications which might be necessary. 11 For the reasons above, the application presently made for interlocutory relief is refused. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 28 November 2011