Alcoa of Australia Limited (ACN 004 879 298) v The Australian Workers' Union

Federal Court of Australia|2010-04-23|Before: Mr AJ, Barker J

ISSUE 1 The issue to be determined in these reasons is whether the applicant is entitled to the interlocutory injunction it seeks in its notice of motion filed 8 April 2010, restraining the respondent union from issuing to the applicant any notice of purported protected industrial action pursuant to s 414 of the Fair Work Act 2009 (Cth) (FW Act) if the notice fails to specify: (a) the commencement time; and (b) duration of the proposed industrial action described in the notice.

SUMMARY OF APPLICANT'S SUBMISSIONS 2 The applicant following the putting on of affidavit materials on both sides and the lodging of written submissions and the making of oral submissions finally puts its case this way. 3 The order sought by the applicant is in effect to restrain the respondent from using the "threat of industrial action" and not the action itself to exert industrial leverage on the applicant. 4 The FW Act permits protected industrial action to be used as a bargaining tool in enterprise negotiations. It does not permit the threat of industrial action, particularly where the action actually taken is significantly less than and different to what is threatened to be used in that way. 5 The evidence demonstrates clearly that the respondent has in the past used and is likely to continue, unless restrained, to use the threat of industrial action by giving non‑specific notices to coerce the applicant in the negotiation for the proposed enterprise agreement. 6 The likelihood of the respondent issuing further non‑specific notices of industrial action, being work stoppages, is high. 7 It is strongly arguable that the issue of such further non‑specific notices contravenes the requirements of s 414(6) of the FW Act. 8 The issue of such further notices will cause significant and disproportionate harm to the applicant. 9 The orders sought by the applicant are appropriate and necessary and should be made.

THE ESSENCE OF THE RESPONDENT'S CASE 10 By both oral submissions and subsequent written submissions the respondent puts the essence of its case in this way. 11 The notices is has issued in the past of which the applicant complains are squarely within the requirements of the FW Act. 12 The respondent has a right to engage in protected industrial action at present. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant will suffer a loss of profits, and/or its staff will be inconvenienced is no reason to find that the balance of convenience favours an interlocutory injunction. 13 The application should be dismissed.

WHETHER THERE IS A SERIOUS ISSUE TO BE TRIED 14 The parties accept the usual principles that there is an onus on the applicant to show that there is a serious issue to be tried and that the balance of convenience favours the Court granting the injunction. 15 There is also a recognition that in this case the injunction sought by the applicant is in the nature of a quia timet injunction, in that the applicant is seeking to restrain the future conduct of the respondent union by requiring it, if it issues s 414 notices in the future, to specify the duration of the industrial action it notifies. Absent that content, the applicant contends that the notices fail to comply with the requirements of the FW Act. The applicant contends the evidence supports the view that the respondent is likely to issue further such notices, particularly concerning stoppages. 16 There is no dispute between the parties that the respondent union presently has the right to engage in protected industrial action. This is because in respect of the applicant's Pinjarra Refinery orders were issued by a Fair Work Australia Commissioner on 18 February 2010 in matter number B2010/2875. These orders have been the subject of an appeal heard by the Full Bench of Fair Work Australia on 8 April 2010, but not yet determined. The argument on appeal centres around the question whether the proposed agreement between the applicant and respondent union contains non‑permitted matters in relation to the employer's right to engage contractors. Pending any alteration to the status of the orders made by the Commissioner there is, as noted, no dispute that the union and its members have a right to engage in protected industrial action. 17 The respondent union has issued a number of notices pursuant to s 414 of the FW Act. As at 16 April 2010, when the applicant lodged its outline of submissions in support of its application for an interlocutory injunction, the union had issued some 31 notices. Since then further notices have been issued. 18 Many of the notices relate to work stoppages, but not all of the notices do this. Some of the notices relate to employees in certain departments (for example crane and transport, milling, carpenters, trades assistants) or certain tasks (level 2 tagging, untrained operating, ban on work without a JSA) or on certain shifts. 19 As to the notices that notify a work stoppage, a number of these notify start and finish times within a 12 hour or lesser period, or within specific times on specific days, for example: (a) The day is stated on which the particular form of protected industrial action is to commence and it is limited to a particular shift; or (b) The start date is stated and the action specified to continue until a time (unspecified but no more than, for example, four hours) within a particular time (for example, two work stoppages of up to 12 hours in each 12 hour period between 7.30pm on one day to 7.30pm four days hence). 20 It is the work stoppages specified in this way that are of particular concern to the applicant and in its final submissions it appears to limit its claim for an interlocutory injunction to work stoppage notices. The point made by the applicant is that although under the work stoppage notices issued a stoppage may occur for all of a notified 12 hour period (or lesser period) in fact the stoppages that have actually occurred have been for shorter durations. The applicant implies the reason for this is that there is a financial disincentive for workers to engage in longer actions as their remuneration entitlements reduce commensurately. The applicant finds itself having to prepare for a "worst case" scenario because it cannot be sure what action it will actually face. This is onerous because it has to over-compensate in taking defensive action. The applicant plainly considers this to be an unfair industrial strategy on behalf of the union and one which breaches the requirements of the s 414 notice provision. 21 The respondent union, on the other hand, considers that it has strictly met the requirements of the s 414 notice provision and that, properly construed, it is entitled to take such protective industrial action which has the type of consequences the applicant complains of. 22 The applicant contends that there is no doubting the jurisdiction and power of the Court to grant an interlocutory injunction of the type sought. So far as the power of the Court to award such an injunction, attention is drawn in particular to what Le Miere J said in John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 144 IR 418; [2005] WASC 146 (John Holland), at [76] - [77], which was followed in decisions of this Court in CBI Construction Pty Ltd v Abbott (2008) 177 IR 134; [2008] FCA 1629 and United Group Resources Pty Ltd v Calabro (No 2) [2010] FCA 71. The applicants also refer to the general principle that the origin of quia timet injunctions may be an illustration of the rule "that prevention is better than cure", as observed by the High Court in Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21, at [52]. 23 I do not doubt that in an appropriate case an injunction in the nature of a quia timet injunction may be issued by this Court and that the general considerations identified by Le Miere J in John Holland, at [76] - [77], may be considered relevant. In that regard, I also accept the general principle stated by Finkelstein J in CGM Investments Pty Ltd v Chelliah (No 2)[2003] FCA 305, at [4], referred to by Le Miere J, that provided there is a real risk of wrongful conduct which would cause injury which is more than trivial, there may be no good reason to refuse quia timet relief. 24 In this case, the applicants say that the past conduct of the union in issuing notices on a number of occasions that lack appropriate specificity indicates that the respondent union may act in this way in the future, and having regard to the potential damage caused to the applicant or level of inconvenience likely to be visited upon it, it is appropriate for the injunction to go. I should note immediately that the respondent union, through counsel, notes that the union does not accept or undertake in any way to particularise any future s 414 notices in the manner required by the applicant. While some of its recent notices have exhibited the degree of specificity that the applicant would like on all occasions, the union it seems is not prepared generally to indicate that it will necessarily issue notices with that degree of specificity on all occasions in the future. It does not say that it will and it does not say that it will not. 25 So far as specificity is concerned, the applicant draws attention to s 414(6) of the FW Act that provides: A notice given under this section must specify the nature of the action and the day on which it will start. Section 413(4) makes it plain that the notice requirements must have been met in relation to industrial action for it to be protected industrial action. 26 In David's Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [2999] FCA 1108 (David's Distribution), Wilcox and Cooper JJ (with whom Burchett J agreed on this point) said of the equivalent provision to s 414(6) in the then Workplace Relations Act 1996 (Cth) (WR Act) at [87]: We think s 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action. Under that provision of the WR Act, it was provided: "A written notice of other notification under this section must state the nature of the intended action and the day when it will begin". It can be seen that the two provisions are quite similar. 27 I accept that in the light of David's Distribution case the reason why a notice issued under s 414(6) of the FW Act must specify the "nature of the action" is so that its target may organise itself to take appropriate defensive action. 28 In David's Distribution, the Court held that a notice that refers only to "bans and rolling stoppages", without any indication of the nature of the bans or the location of the rolling stoppages, did not adequately disclose "the nature of the intended action". However, in that case the "temporal issue", as the applicants put it here, was not considered. That is to say, whether there is also an obligation under s 414(6), in stating the "nature of the action", to indicate exactly when action will start on the day in question and when it will conclude. 29 In Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859 (ACI Mould Manufacturing), Goldberg J held at [25]‑[28], although "not without hesitation", that there was serious question that a lockout notice was invalid because it failed to state the end date of the proposed action. In response to a submission on behalf of the union that it is a simple intellectual exercise in statutory interpretation to say that because the provision for duration or termination is not specified in the relevant provision the Parliament did not intend there to be such provision, his Honour, at [25], commented that he did not think the matter could be resolved "so simply". In Australian Workers' Union v Johnson Matthey (Aust) Ltd (2000) 96 IR 476; [2000] FCA 728, at [36], Marshall J, without having to decide the issue perhaps suggested to the contrary. 30 Other cases that resulted in relief being granted against union parties, in the submission of the applicant, lend support to the view that the commencement time and finishing time of an industrial action must be specified in a notice, at the risk of the notice being considered invalid; see PWB Anchor Limited v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 1482, at [26] - [27] (PWB Anchor Limited); Adelaide Brighton Cement v Australian Workers' Union (2002) 113 IR 104; [2002] FCA 601, at [18] (Adelaide Brighton Cement). 31 In CSBP Ltd v Liquor, Hospitality and Miscellaneous Union of Workers (2007) 162 IR 81; [2007] FCA 539 (CSBP Ltd v LHMU) a notice issued under s 441(6) of the WR Act advised: You are advised that industrial action in the form a stoppage of seven (7) days duration will commence on Friday 6 April 2007. Of this notice, Gilmour J said, at [94]: the Protected Action Notice is arguably defective in failing to identify the start and finish times of the industrial action with greater precision, in the context of the particular circumstances which govern the operation of the Plant by the applicant. In my opinion the expression 'the nature of the intended action' is wide enough, arguably, in an appropriate case, and arguably this case is one, as to when on the specified day in the notice the intended action is to commence as well as the time on the last day when the intended action is to cease. If it were otherwise, in the circumstances of this case, the applicant would be required to take defensive steps for the period commencing immediately after midnight on the day before the intended action and in respect of the period up until midnight on the last day of the intended action. His Honour went on in that paragraph to suggest that the recipient of the notice might well "over compensate" if there is a lack of specificity in the notice and this would be onerous. 32 It seems on the authorities cited to me that there is no case in which this issue concerning the claimed requirement to specify the duration of proposed industrial action with particularity, has been finally decided. The cases to which I have referred fall short of that. The decision in CSBP Ltd v LHMU were observations made by Gilmour J at an interlocutory stage of proceedings. Even then, his Honour's comments emphasise the extent to which the question will always have a context in which it must be determined. His Honour is at pains to emphasise that that the duration issue is "arguable" and that the "circumstances of the case" must be regarded. 33 For myself, while I accept the admonition of Goldberg J that a matter may not be so simply decided, one would have thought, taking the text of s 414(6) at face value, that because the Parliament has chosen to impose some notice requirements of industrial action when, prior to the Workplace Relations Act 1996 (Cth), there were none, a court should be slow, in effect, to travel beyond the plain words of the provision. The requirement to specify the "nature of the action" and then separately "the day it will start", do not, of themselves, suggest to me that it is also necessary to particularise the commencement and finishing time of the proposed action in a notice. For the Court to supply this degree of particularisation might be seen to supplant the role of the legislature in prescribing industrial behaviour, a matter of continuous contention over the course of this country's history since Federation in 1901. 34 Nonetheless, along with Goldberg J and Gilmour J, I accept that there may well be an argument, particularly in the circumstances of a particular case, that in specifying the "nature of the action", having regard to a particular action, it may in some cases be necessary to say something about the commencement and/or the conclusion times of the industrial action. But it is not a requirement that, to my mind, immediately leaps to the eye from the text of s 414(6). 35 I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be. 36 In these circumstances, while I accept there is a serious question to be tried, having regard to the authorities, such as they are, I do not consider that, in the particular circumstances of this case, the general question concerning specificity raised by the applicant is at the high end of a scale of seriousness. 37 This is particularly so when one appreciates that in this case, unlike the circumstances in some of the precedent cases to which I have referred, the union has not simply notified its intention to undertake rolling stoppages but has stipulated clear periods of proposed stoppage. In Adelaide Brighton Cement the notices were in respect of a "series of rolling stoppages… of 24 hours duration… 7am on Thursday 2 May 2002 until 7am on Monday 30 September 2002" - a period of five months. The Court considered the notice in such circumstances was not protected action. 38 In PWB Anchor Limited Goldberg J granted interim injunctions against rolling stoppages pursuant to notices to the effect that "industrial action was to commence at 7am on 15 September 2000 and would continue for …. three months or until agreement was reached or any disagreement resolved". In that case it appears that his Honour did not consider that the indefinite strike notification rendered the notices invalid. He held there was a serious question to be tried however ([16] - [28]) because the strike started the day earlier than was specified in the notice, and there was a failure to provide three clear days notice as required. Additionally, one set of notices overlapped with another set of notices and there was simply a reference to rolling stoppages. In other words, this was a David's Distribution type of case, not one that depended upon a finding that there should be greater specification of the duration of the stoppages concerned. 39 In the ACI Mould Manufacturing case, Goldberg J made his duration comments as noted above. In that case, the notification was for an indefinite lock out. The respondent union in the present case before me accepts that employer notices of lock out logically must provide some clarity on duration because the employees need to know when they will be permitted or required to return to their duties. 40 In respect of the CSBP Ltd v LHMU decision, counsel for the respondent union note that the matter proceeded on the basis of uncontested fact, as the union did not adduce any evidence. Initially the notice advised of a stoppage of seven days, commencing on Friday 6 April 2007. Gilmour J at [30] - [31], [60] found that in the event of a seven day stoppage, CSBP would be required to cease operations at most of its chemical facilities which would require a "controlled shutdown" taking between 6 - 12 days and, in some cases, three or four days. This would likely lead to a 14 - 15 day stoppage in production. 41 The notices currently before the Court in this case are of a different order. The ones that relate to stoppages specify quite clearly the possible duration of a stoppage. What they do not do is specify exactly when the stoppage will start and end. In my view, the requirement of the respondent union, in the particular circumstances of this case, to provide the additional degree of particularity in a notice demanded by the applicant must, as a matter of law, be doubted. That is, as I have indicated above, not to say that there is not a triable issue, only to say that I consider it, on a scale of seriousness, not to be at the higher end. 42 However, it should also be borne in mind that most of the authorities considered above concern the need to specify a duration of a industrial action were not decided in circumstances that quite resemble those in which this applicant brings this application for an interlocutory injunction. Rather, they involved current threats of a particular industrial action in relation to which a notice had already issued. A particular notice was under attack. If it was found to be arguably invalid such that there was no protected industrial action under the FW Act (or its equivalent), then the proposed industrial action might not lawfully proceed. Here, what the applicant is trying to do, based on inconsistent past notification performance by the respondent union, is require the union in relation to currently unspecified future protected industrial action, to issue notices of a certain type. 43 The evidence currently is such that the Court may reasonably infer that the respondent may well give notice of further proposed industrial action. However, it is less easy for the Court to be satisfied on exactly what terms any future notices concerning stoppages, for example, might be proposed. I struggle with the notion, in the circumstances of this case, that it is appropriate for this Court to assume that all possible forms of protected industrial action that the respondent union may wish to take must necessarily be the subject of a notice that specifies start and finish times in respect of the proposed industrial action. Indeed it was acknowledged by counsel for the applicant during oral submissions that if the Court were concerned about that aspect of the case, then the injunction should only go to stoppages. However, in my view, that is only to recognise the difficulty with which the Court is faced generally. One cannot, at this point, anticipate what particular forms of industrial action, including in respect of stoppages, the respondent union might propose in the future. For the Court to do this, on the facts before the Court, would be to act prematurely. To require the union to stipulate start and finish times in request of such hypothetical or unspecified action would be to assume information not in evidence and require the Court to speculate about the future. As a result, the quia timet aspects of this injunction application only go to serve the view that the interests of justice would not be aided by the Court granting interlocutory relief at this point. The damage or loss with which the applicant might be threatened as a result of some hypothetical notice are, on the evidence before me, neither clear nor imminent. I do not consider that the considerations generally relevant to the grant of a quia timet injunction, referred to above, are made out in circumstances such as these. In short, in these circumstances I am not satisfied, having regard to the strength of the issue raised and the evidence before me, that the applicant has made out a real risk of wrongful conduct that is imminent. 44 In my view it follows that it cannot be said in these circumstances that the respondent union is somehow abusing the rights created by the FW Act in respect of a protected industrial action. I can see no basis, on the facts of this case, for finding, even on some arguable basis, that the respondent has given the notice for some purposes not comprehended by the operation of the FW Act. 45 On this basis, without considering the balance of convenience, I would not grant the interlocutory injunction sought. I will however also deal with the convenience issues for the sake of completeness as to some extent the two issues overlap

BALANCE OF CONVENIENCE 46 The applicant draws attention to a range of effects that it says it will suffer to its detriment if it does not in the future receive adequately specific notice of protected industrial action. It refers to a range of safety and environmental issues in particular, as well as more individual effects. The applicant submits that generally speaking it is obliged to ensure broad staff coverage to deal with a stoppage that occupies the full duration of a stoppage notice given by the respondent union. This requires it to undertake onerous responsibilities when recent industrial action has only been for a shorter period than that specified in the notice. 47 A particular reference is to a spill that occurred on 25 March 2010. In the event I do not need to linger on the evidence relating to this spill as the applicant does not in fact contend that industrial action was a cause of it. 48 Particular emphasis is placed on risks associated with a control attendant's (CA's) role. The applicant says if it is not provided with sufficient notice of industrial action so that it can replace CA's taking that industrial action and organise for a proper and complete handover between the CA and the replacement, a number of consequences may result. For example: · an alarm may occur while a CA role is vacant, and no response would be made, meaning a severe incident may result; · an ineffective handover may result in the oncoming CA or person taking over not being aware of a particular situation and not reacting correctly leading to a serious event or where a particular process adjustment is in progress, this may result in a large overflow of large amounts of caustic soda. 49 The applicant also draws attention to risks associated with field operator roles and utilising its own staff. 50 As noted, the applicant also complains in relation to staff coverage, that where notices of purported protected industrial action fail to adequately specify the commencement time and duration of a proposed action, the measure that the applicant must take to ensure the Refinery remains safe are entirely inappropriate and disproportionate to the industrial action that may in the end be taken by the employees. Evidence concerning this was given and not disputed on behalf of the respondent union and I accept that is the case. 51 Evidence is also given to unnecessary impact on staff, who for example were affected by notices over the Easter period. 52 The essential argument of the applicant, as noted above, is that it is obliged, generally speaking, to overcompensate in taking defensive action in the light of notices issued by the respondent union when in fact often the industrial action taken does not meet the high level of the threat. 53 In response, the respondent union notes that the applicant has a contingency plan to replace employees with staff and contractors and that this has been place over a period of time. It says the risks listed by the applicant are a function of matters entirely within its control, principally by controlling or reducing the level of production and operational capacity, or by using the contingency plan. 54 The respondent union objects to hearsay evidence in a range of affidavits filed on behalf of the applicant and even if such evidence qualifies under s 75 of the Evidence Act 1995 (Cth) says it should be given minimal weight. 55 If it comes down to a weighing of the balance of convenience, the applicant obviously says that if it stands to suffer considerably in a financial sense in relation to the operation of its Pinjarra Refinery if it has to assume a worst case scenario in relation to a number of the industrial actions proposed. It also points to hardship visited upon individuals. 56 By contrast, the respondent union says that it is a beneficiary of a Fair Work Australia order that enables it to take protected industrial action. It points out that the ballot supporting the action was strongly supported by members of the union. The respondent union further points out that the FW Act provides only 30 days to the applicant from the date the ballot results to engage in industrial action, pursuant to individual notices under s 414 of the WR Act in relation to each proposed action (for example, a stop work meeting). 57 In my view, the balance of convenience may be said to be evenly balanced. What we have is an industrial stand‑off under the FW Act. Undoubtedly, the protected industrial action of the respondent to date has been intended to inflict industrial pressure on the applicant and apparently has detrimentally affected the applicant. I accept that, generally speaking, the types of burdens identified by the applicant have been imposed upon the applicant by reason of proposed industrial action taken to date in often having to respond to a worst case scenario suggested by stoppage notices of the type recently given (without start and finish times). Such responses may also be required in the future. On the other hand, I also accept the respondent union is entitled under the FW Act to take protected action. It seeks to do what it is lawfully entitled to do under the FW Act. 58 The question whether the respondent is lawfully entitled to issue in the future the types of notices now under attack is raised. I have already found that, as a general issue, I consider the duration issue to be a serious issue, but not at the higher end of a scale of seriousness. Further, I also consider in this case, the threat of imminent harm to be questionable such that the case for an injunction in the nature of a quia timet injunction is not made out. I do not see any basis for approaching the triable issue or the balancing of convenience on the basis that the respondent is abusing its right to take protected industrial action under the FW Act. In these circumstances the factors raised by the applicant in its convenience argument to not persuade me that it is just and equitable to grant the interlocutory injunction sought.

CONCLUSION AND ORDER 59 For these reasons, I would order: 1. Applicant's notice of motion dated 8 April 2010 be dismissed. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Workplace Relations Act 1996(Cth)

Fair Work Act 2009(Cth)s 413(4), s

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (19)