ABB Australia Pty Ltd v Communications, Electrical, Electronic,

AND: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING and ALLIED SERVICES UNION OF AUSTRALIA

(and others according to the schedule of respondents)

REASONS FOR JUDGMENT 1 The applicants, ABB Australia Pty Ltd, and Worley Pty Ltd, have applied to this Court for urgent injunctive relief against the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU"), and against forty-nine individuals whom the applicants employ, restraining them from engaging in certain conduct which they claim is in breach of an order made by the Australian Industrial Relations Commission under s 127(1) of the Workplace Relations Act 1996 (Cth) ("the Act"). They invoke the jurisdiction of the Court to grant injunctive relief for a breach of that section conferred by s 127(6). 2 Alternatively, the applicants claim that the respondents' conduct is in breach of s 170MN of the Act. They invoke the jurisdiction of this Court to grant injunctive relief for a breach of that section conferred by s 170NG. 3 Finally, and in the further alternative, the applicants seek to invoke the accrued jurisdiction of the Court in relation to a claim against the CEPU for the tort of inducing breach of contract. However, no certificate under s 166A of the Act has been sought, or granted in relation to that claim. I shall return to the significance of that fact later in these reasons for judgment.

Background 4 The background to this application may be briefly stated. The applicants are joint venturers. They bring together the construction resources of the first applicant, and the engineering resources of the second applicant, to provide engineering, procurement, and construction services to Esso Australia Ltd's Bass Strait, Offshore and Onshore operations. Since late 1996 the applicants have completed major work for Esso. This includes engineering and construction work carried out in 1998 and 1999 to restore the Longford Gas Plant. 5 On 2 September 1999 the applicants successfully tendered for a project at the Longford Gas Plant that involved over $200 million of construction work to be carried out over two years. In February 2001 they were awarded a new two year contract for various other Esso projects. 6 Currently, there are approximately 140 trade employees working at the Longford site on various projects. About a third of these employees are members of the CEPU. They include the second to fiftieth respondents. 7 The applicants are parties to a certified agreement. It is titled "Worley ABB - Bass Strait (Esso) Onshore / Offshore Facilities Certified Agreement 2000". The agreement was certified on 10 July 2001. It is scheduled to expire on 30 June 2003. 8 The evidence discloses that between August 2001 and October 2001, there were numerous instances of stoppages and bans at Longford. In late October 2001 and early November 2001, an overtime ban was imposed. That prompted the applicants to lodge with the Industrial Relations Commission an application for an order under s 127(1) that industrial action stop or not occur. The applicants also sought a certificate under s 166A which would enable them to bring an action in tort against the respondents. The matter was resolved through negotiation and conciliation. 9 On 21 January 2002 the applicants' employees, and the contractors on the Longford site, commenced a 48 hour strike. This followed a mass meeting held by the CEPU organisers. The strike included CEPU members. 10 In late February 2002 the applicants again applied to the Industrial Relations Commission for an order under s 127(1) of the Act. On 1 March 2002 Deputy President Hamilton ordered that the industrial action, occurring at that time, cease. That order was to continue in operation for a period of three months. 11 On 1 May 2002 the CEPU and its members employed at Longford took strike action. The reason given was a concern on the part of the union that the applicants lacked proper commitment to safety issues. The strike was alleged by the applicants to be in clear breach of the order made by Deputy President Hamilton on 1 March 2002. 12 On 31 May 2002, all employees at Longford, including CEPU members, took strike action. That action was said to relate to a particular payment to which the unions claimed their members were entitled. The strike lasted three days. It was again alleged by the applicants to be in breach of the order made by Deputy President Hamilton. 13 Early in June 2002, the applicants sought a further order pursuant to s 127(1), based upon the pattern of industrial behaviour on the part of the unions. On 17 June 2002, Deputy President Hamilton made such an order. It was expressed to operate for a period of three months. 14 Clause 4.1 of the order provided that the persons named: "… shall stop engaging or threatening to engage in industrial action by which or as a result of which the employee refuses to attend for work as normal at Esso's Longford site …" 15 Clause 4.2 defined "industrial action" so as not to include: " … action that is directly, reasonably or proportionately related to an action or decision by Worley ABB or their subcontractors about the work or conditions of an employee that is an action or decision taken in a manner that is not substantively or procedurally fair or reasonable, or that does not result in full compliance by the company with the grievance procedure set out in … clause 12 of the … Certified Agreement …"

The events of August 2002 16 On 2 August 2002, shortly after 2.00pm, all employees walked off the site at the Longford plant. They did not return for the rest of the day. It appears that the strike was prompted by a disagreement between the applicants and the CEPU regarding what was described in the evidence as the "skills matrix" issue. That concerned an exercise conducted in late 2000 between the unions and the contractors to review skills within the classifications on site. It was initially independent from the negotiations for the certified agreement, but was later included in those negotiations. To resolve that issue a "skills enhancement clause" was included in the certified agreement. That was done in order to avoid continuing with the "skills matrix" proposal which was regarded by the applicants as being both impractical and cumbersome. 17 On 15 August 2002 the CEPU raised a complaint with the applicants regarding the payments being received by certain employees. Mr Shaun Maxfield, a shop steward with the Electrical Division, Victoria Branch of the CEPU, raised with Mr Colin Milne, the Industrial Relations Consultant to the Joint Venture, the fact that tubebenders who worked offshore were being paid more than tubebenders who worked onshore. Mr Milne told Mr Maxfield that this issue had already been resolved. He said that all employees were expected to work in accordance with their classification and the structure contained within the certified agreement. However, this did not satisfy Mr Maxfield who at once called a meeting of the CEPU members employed at the site. 18 In his evidence before the Court, Mr Milne said that he had said to Mr Maxfield words to the effect: "This is just about higher wage rates, isn't it?" 19 According to Mr Milne, Mr Maxfield replied: "Yes it is." 20 Mr Milne said that there was then further debate between Mr Maxfield and himself regarding the "skills matrix" issue. That debate culminated on 20 August 2002 in bans being imposed upon the signing off on quality assessment documents (the "QA documents"), and the holding of "multi-disciplinary crew permits". According to Mr Milne, the effect of the ban upon the permits was to remove the efficiencies of having multi-disciplinary crews in which one crew leader alone organised all of the various permits needed for multi-disciplinary work. Mr Milne said that he was told by Mr Maxfield that the crew leaders would not supervise non-electrical disciplines, and that they would not supervise contractors. According to Mr Milne, Mr Maxfield again agreed in the course of discussions that the proposal to introduce a "skills matrix" was "only about getting the blokes a pay increase". 21 On 22 August 2002 Mr Peter Mooney, a CEPU organiser, came onto the site. He was accompanied by Mr Maxfield. There was a meeting with Mr Milne during the course of which discussions became heated. According to Mr Milne, Mr Mooney and Mr Maxfield refused to accept that employees were obliged to sign off on the "QA documents". After further discussion, Mr Mooney was alleged to have said to Mr Maxfield words to the effect: "We're not getting anywhere here, it looks like we'll have to put the boys in the shed because it's unsafe to work." 22 Mr Milne claimed that he replied denying that there was any safety issue. He told Mr Mooney that the dispute was contrived. He said that it was nothing but an attempt by the CEPU to use "safety" to force the applicants to negotiate about a "skills matrix". This was merely a device by which various employees would be reclassified, and paid more money. 23 Mr Milne said that the parties then broke for lunch. Further discussions ensued, and he was told that Mr Maxfield had called a mass meeting of the workers. He said that the CEPU members began to congregate in the car park at about 2.45pm and that the meeting concluded at about 3.15pm. 24 According to Mr Milne, after the meeting had concluded, Mr Mooney told him that his members were unhappy about various matters, and that they had resolved to go on strike for a period of seven days, until 29 August 2002. Mr Mooney said that the employees had determined that they would not sign the QA documents, even after the strike was over. However, he said that arrangements might be made to have the men return to work provided that the applicants were prepared to "talk" with the CEPU.

The issue to be resolved 25 The evidence before the Court makes it clear that the second to fiftieth respondents are on strike and, unless compelled to do so, will not return to work until 29 August 2002. The nominal expiry date of the certified agreement is 30 June 2003. No notice initiating a bargaining period has been served. Moreover, no notice of intent to take industrial action was served prior to the commencement of the strike on 22 August 2002. 26 The evidence also makes it clear that the bans foreshadowed by Mr Mooney and Mr Maxfield, namely, the refusal of the members to sign QA documents, their refusal to hold multi-disciplinary crew permits, and their refusal to supervise non-electrical disciplines and contractors, were all in breach of what was said to be "customary practice" at the Longford site. 27 The evidence discloses that the financial impact of the strike upon the applicants is substantial. It suggests that they are losing approximately $32,000 per day while the strike continues. In addition, the potential cost to the applicants of the bans, if they are maintained, is considerable. 28 The issues to be considered, as in all cases where interlocutory injunctive relief is sought, are firstly whether there is a serious question to be tried in relation to one or more of the claims made by the applicants and secondly whether the balance of convenience favours the grant of interlocutory relief.

Conclusion 29 In my opinion there is a serious question to be tried in relation to the claim brought by the applicants under s 127(6) of the Act. The evidence suggests, at least prima facie, that the respondents are in contravention of the order made by Deputy President Hamilton on 17 June 2002. 30 Ms Gooley, on behalf of the CEPU, submitted that there was insufficient evidence to warrant the conclusion, even on a prima facie basis, that the union had incited or encouraged its members to go on strike during the course of the meeting on 22 August 2002. She also submitted that even if the union had incited or encouraged that course, the strike fell squarely within cl 4.2 of the order, and accordingly was not relevantly "industrial action". 31 These submissions have merit, and may well be accepted when this matter is dealt with at a final hearing. However, they do not dissuade me from being satisfied, on an interlocutory basis, that there is a serious question to be tried as to whether the CEPU has incited or encouraged a breach of Deputy President Hamilton's order. 32 It seems to me that it is plainly open to infer that the CEPU, through the actions of Mr Mooney and Mr Maxfield, was in some way relevantly responsible for the decision taken on 22 August 2002. The strike was called almost immediately after it was foreshadowed by Mr Mooney that such action would be taken. Although it is possible that the decision to go on strike was not brought about by anything said or done by or on behalf of the union, that is somewhat improbable. The inference sought to be drawn on behalf of the applicants comfortably passes the threshold test of serious question to be tried. Counsel for the CEPU properly conceded that the balance of convenience overwhelmingly favoured the grant of interlocutory relief. 33 In my opinion, the applicants are also entitled to interlocutory relief arising out of their claim under s 170MN. I need not elaborate upon my reasons for arriving at that conclusion beyond saying that there is ample evidence that the CEPU was relevantly engaged in conduct proscribed by that section. 34 Ms Gooley contended that any industrial action which may have been incited or encouraged should not be regarded as having been "for the purpose of supporting or advancing claims against the employer" within the meaning of that expression in s 170MN(1). She submitted that such action would have been taken for a different purpose, namely that of enforcing existing entitlements under the certified agreement. That too is a matter that can be addressed at trial. However, it does not detract from my conclusion that there is a serious question to be tried in relation to this claim. 35 I should indicate that I am not persuaded that there is a serious question to be tried in relation to the third of the applicants' claims, namely that brought for injunctive relief arising out of a claim in tort under the accrued jurisdiction. That is because I agree, with respect, with the reasoning of Goldberg J in Keppel Prince Engineering Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 109 IR 436 at 442, where his Honour made it plain that claims in tort are not available without a certificate from the Commission under s 166A(1) unless the conduct comes within s 166A(2). His Honour referred to decisions of State courts in which that issue had been raised. Those courts had held that an application for injunctive relief by way of exercise of equitable jurisdiction did not fall within s 166A of the Act. Accordingly, they concluded that such relief was available in claims of tort without such a certificate. However, he considered that the reasoning in those cases did not justify a finding, on an interlocutory basis, that a claim in tort could be brought without a certificate. I am of the same opinion. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the First Respondent: Ms A Gooley of Maurice Blackburn Cashman

Date of Hearing: 27 August 2002

Date of Judgment: 27 August 2002

SCHEDULE OF RESPONDENTS PHILLIP BLACK Third Respondent LESLIE BROWNE Fourth Respondent GRAEME CLARK Fifth Respondent SHANE CORDNER Sixth Respondent LEIGH DAVIDSON Seventh Respondent GARY DAWSON Eight Respondent CHRISTOPHER DORE Ninth Respondent DANIEL DUGGAN Tenth Respondent PAUL FLETCHER Eleventh Respondent ASHLEY GALLAGER Twelfth Respondent MANUEL GARCIA Thirteenth Respondent BRENDAN GORWELL Fourteenth Respondent SHANNON GOULDING Fifteenth Respondent ALLEN GREAVES Sixteenth Respondent BENJAMIN HALL Seventeenth Respondent RUSSELL HANSFORD Eighteenth Respondent BRENDAN HERIBAN Nineteenth Respondent JAMIE KILLEEN Twentieth Respondent PHILLIP KUIZENGA Twenty-First Respondent DARYL LAMB Twenty-Second Respondent DARREN LARGERWAY Twenty-Third Respondent SHAUN MAXFIELD Twenty-Fourth Respondent ANTHONY MCCALLUM Twenty-Fifth Respondent NEIL MCFARLANE Twenty-Sixth Respondent BENJAMIN MORGAN Twenty-Seventh Respondent ALEC NAIRN Twenty-Eighth Respondent RAYMOND NEGRO Twenty-Ninth Respondent DARREN O'CONNOR Thirtieth Respondent MICHAEL O'HEA Thirty-First Respondent ANDREW O'NEILL Thirty-Second Respondent EDWARD PENKARA Thirty-Third Respondent JOHN PENNEY Thirty-Fourth Respondent DAVID POWELL Thirty-Fifth Respondent NORMAN PRICE Thirty-Sixth Respondent GERALD QUIGLEY Thirty-Seven Respondent BARRY SCOTT Thirty-Eight Respondent DARREN SHORT Thirty-Ninth Respondent DEAN SKINNER Fortieth Respondent CLIFF STOTT Forty-One Respondent WIEBE TOET Forty-Two Respondent MICHAEL TOPILNICKI Forty-Three Respondent RODNEY WAIN Forty-Four Respondent GEOFFREY WALKER Forty-Five Respondent IAN WEARNE Forty-Six Respondent FREDERICK WEGH Forty-Seven Respondent TRACEY WHITE Forty-Eight Respondent DEREK WYNTJES Forty-Ninth Respondent BRETT HANSFORD Fiftieth Respondent