Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd

REASONS FOR JUDGMENT THE COURT: 1 Before the Court are applications for leave to appeal and a stay against orders made by Marshall J on 12 December 2000. His Honour ordered that pending the hearing and determination of the substantive proceedings or until further order and upon the Australasian Meat Industry Employees' Union (the union) giving the usual undertaking as to damages: 1. The respondent be restrained from failing and/or refusing to accord to each of the second to thirty-first applicants wages, penalties, allowances and conditions that are no less beneficial than those provided by the G. & K. O'Connor and Australasian Meat Industry Employees Union Victorian Meat Processing Agreement 1992. 2. This order shall come into effect at the beginning of the next pay period after the making of the order. 2 The applicant for leave and for the stays, whom I will refer to hereafter as O'Connor, alleged that his Honour erred in five respects. In par 2 of its outline of argument, O'Connor alleged the following errors: "1 His Honour refused to read or take into account an affidavit which the respondent filed subject to the Full Court judgment in AMIEU v G. & K. O'Connor Pty Ltd [2000] FCA 1760; 2 His Honour, as a result of not referring to the affidavit, did not consider the effect of the respondent's withdrawal of its offer of AWAs to the individual applicants and did not take into account the circumstances of the applicants as individuals; 2. His Honour, while opining that the applicants had an 'apparently strong claim', declined to address, other than by merely adverting to it, the prospect that the 1992 agreement might, as a result of a new award made on 21 November 2000, no longer be relevantly binding on the respondent; 3. His Honour granted an injunction in terms which merely formulated, rather than resolved on an interlocutory basis, the underlying controversy between the parties and did not specify the actual steps which the respondent was required to take; and 4. His Honour granted to the applicants interlocutory relief which was wider than that sought by them." 3 In our view, at least some of these grounds raise an arguable case that the orders are attended with sufficient doubt that they justify attention by a Full Court and to allow those orders to stand would create injustice sufficient to warrant the grant of leave to appeal. We therefore turn to the question of whether the orders should be stayed. 4 It is clear that the reference to conditions in par 1 of his Honour's order went beyond the relief which the applicants sought. For this reason it is appropriate that the part of the order referring to conditions be stayed, pending the hearing of the appeal or further order. 5 As to the balance of the order, the proper approach to an application for a stay in such circumstances was described by the majority of the Full Court of the Federal Court in Australian Workers' Union v Pilkington (Australia) Ltd [2000] FCA 1169 at par [10] as follows: "The Court is given a discretion which is only circumscribed by the need to be satisfied that there be a reason sufficient in the circumstances to warrant the exercise of the discretion in favour of the grant of the stay." 6 There exists no such reason in the present case. In particular, we regard it as important that the trial of the application will commence on 5 February 2001 and in the meantime the only prejudice which O'Connor could suffer is financial. This is adequately addressed by the union's undertaking as to damages. Any difficulty in the application of the order may be addressed by the exercise of liberty to apply to the trial judge. 7 O'Connor has filed material before the Full Court concerning the way in which it has arranged to comply with the order of Marshall J. These arrangements were criticised by the union and the other applicants. Whether these arrangements do or do not undermine the order, as those parties contend, is not for us to determine on this application. If any pressing problem arises, the Court can deal with it at short notice.