Australian Workers' Union v Arrium Limited

DAVIES J: 1 The Australian Workers' Union ("AWU") has sought an order pursuant to s 447A of the Corporations Act 2001 (Cth) ("the Act") in the following terms: Part 5.3A of the Act is to operate in relation to each of the First to Ninety-Fourth Respondents (the Group) as if it provided that at the meeting or meetings held pursuant to section 436E of the Act, each employee of the Respondents who is a member of the Australian Workers' Union (the AWU) had duly appointed Mr Scott McDine to be her or his attorney pursuant to Regulation 5.6.31A for the purpose of that meeting or meetings save for (a) any employee who attends any meeting in person; and (b) any employee who signs a proxy appointing some other person to attend any meeting on his or her behalf. 2 The first to ninety-fourth respondents are members of a group of companies ("the Group") of which the first respondent, Arrium Limited, is the parent company. Mr Scott McDine is the national secretary of the AWU. 3 On 7 April 2016, Messrs Paul Billingham, Said Jahani, Matthew Byrnes and Michael McCann of Grant Thornton ("the administrators") were appointed administrators of the Group. 4 On 7 April 2016, the administrators provided Mr McDine with the following documents proposed to be sent to employee creditors of the Group: (a) a standard letter advising of the appointment of the administrators; and (b) a frequently asked questions document. 5 The frequently asked questions document disclosed that the administrators intend to hold a concurrent meeting of creditors of the Group on 19 April 2016 at 2pm in Sydney with a live webcast to Whyalla, at which creditors will have an opportunity to vote on resolutions and raise any questions. 6 There is evidence before me that the members of the AWU include about 2000 persons who are employed by some of the entities within the Group; there are a number of enterprise agreements made under the Fair Work Act 2009 which cover and apply to the AWU, employing entities within the Group, and employees of those entities including AWU members; the AWU members are employed at several sites across Australia, including Whyalla in South Australia, Laverton in Victoria and Rooty Hill in New South Wales; and AWU members who were employed by the Group as at 7 April 2016 will be creditors of the Group with respect to employee entitlements. 7 The AWU wishes to ensure that the interests of its members as employees of the Group are properly advanced at the first creditors' meeting on 19 April 2016 due to the significant value of employee entitlements and is concerned that the short timeframe before the creditors' meeting will impede the ability of AWU members to participate in the meeting. Due to their geographical spread, many AWU members will be unable to attend the meeting in Sydney or Whyalla, and there is a significant logistical challenge in having individual AWU members sign the necessary proxy forms before the creditors' meeting takes place. Accordingly, the AWU has sought the order in the form to which I have referred. 8 There is authority for the making of such an order: see Re Pasminco Ltd (subject to a deed of company arrangement) (2003) 45 ACSR 1; [2003] FCA 265; Re Ansett Australia Ltd (admin apptd) (2001) 39 ACSR 296; [2001] FCA 1348. In both cases the Court held that it has the power under s 447A of the Act to make such an order and, in circumstances similar to the present case, that it was appropriate that the Court make that order in furtherance of the objects of Pt 5.3A of the Act. In Re Pasminco, Goldberg J stated at [19] that: …the court should be concerned to ensure that whenever meetings of creditors of companies subject to a deed of company arrangement are called, that any inhibitions upon, or barriers to, creditors being able to have their voice heard or vote cast at such meeting be overcome. More particularly is this so where there is a large body of creditors, such as employees, each with claims modest by reference to the overall indebtedness of the companies subject to deeds of company arrangement, but substantial and significant for each employee. In the present case, the administrators are yet to have the first meeting, but Goldberg J's comments apply equally to the ability of employees to have a voice at the first creditors' and subsequent creditors' meetings. 9 I accept that the Court has the power to make the order under s 447A of the Act and I am satisfied on the evidence that the order should be made. I am fortified in that view by the consent of the administrators to the making of the orders, which are also supported by the US noteholders which, I am informed, constitute a large body of creditors of companies in the Group. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

SCHEDULE OF PARTIES VID 296 of 2016

First Respondent: ARRIUM LIMITED (A.C.N 004 410 833) Second Respondent: A.C.N. 006 769 035 PTY LTD (A.C.N 006 769 035) Third Respondent: AKKORD PTY LIMITED (A.C.N 060 486 991) Fourth Respondent: ANI CONSTRUCTION (W.A.) PTY. LIMITED (A.C.N 008 670 871) Fifth Respondent: ARRIUM FINANCE PTY LIMITED (A.C.N 093 954 940) Sixth Respondent: ARRIUM IRON ORE HOLDINGS PTY LIMITED (A.C.N 152 752 844) Seventh Respondent: ATLAS GROUP EMPLOYEES SUPERANNUATION FUND PTY. LTD. (A.C.N 060 568 998) Eighth Respondent: ATLAS GROUP STAFF SUPERANNUATION FUND PTY. LTD. (A.C.N 059 654 241) Ninth Respondent: ATLAS GROUP SUPERANNUATION PLAN PTY LTD (A.C.N 065 649 050) Tenth Respondent: AUSTRALIAN NATIONAL INDUSTRIES PTY LTD (A.C.N 000 066 071) Eleventh Respondent: AUSTRALIAN WIRE INDUSTRIES PTY LTD (A.C.N 064 267 456) Twelfth Respondent: AUSTUBE MILLS HOLDINGS PTY LIMITED (A.C.N 123 160 172) Thirteenth Respondent: AUSTUBE MILLS PTY LIMITED (A.C.N 123 666 679) Fourteenth Respondent: AWI HOLDINGS PTY LIMITED (A.C.N 004 157 475) Fifteenth Respondent: B.G.J. HOLDINGS PROPRIETARY LIMITED (A.C.N 004 859 536) Sixteenth Respondent: BRADKEN CONSOLIDATED PTY LIMITED (A.C.N 000 011 932) Seventeenth Respondent: CENTRAL IRON PTY LIMITED (A.C.N 143 503 397) Eighteenth Respondent: COCKATOO DOCKYARD PTY LIMITED (A.C.N 000 025 918) Nineteenth Respondent: COMSTEEL PTY. LIMITED (A.C.N 006 218 524) Twentieth Respondent: COOBER PEDY RESOURCES PTY LIMITED (A.C.N 151 599 905) Twenty-First Respondent: EAGLE & GLOBE PTY LIMITED (A.C.N 000 122 305) Twenty-Second Respondent: EMAIL ACCUMULATION SUPERANNUATION PTY LTD (A.C.N 065 263 658) Twenty-Third Respondent: EMAIL EXECUTIVE SUPERANNUATION PTY LTD (A.C.N 065 263 818) Twenty-Fourth Respondent: EMAIL HOLDINGS PTY LIMITED (A.C.N 092 348 555) Twenty-Fifth Respondent: EMAIL MANAGEMENT SUPERANNUATION PTY LTD (A.C.N 065 263 710) Twenty-Sixth Respondent: EMAIL METALS PTY. LTD. (A.C.N 004 574 681) Twenty-Seventh Respondent: EMAIL PTY LTD (A.C.N 000 029 407) Twenty-Eighth Respondent: EMAIL SUPERANNUATION PTY LIMITED (A.C.N 065 263 603) Twenty-Ninth Respondent: EMWEST HOLDINGS PTY. LTD. (A.C.N 001 992 123) Thirtieth Respondent: EMWEST PROPERTIES PTY LIMITED (A.C.N 003 146 334) Thirty-First Respondent: GSF MANAGEMENT PTY LIMITED (A.C.N 064 116 874) Thirty-Second Respondent: J. MURRAY-MORE (HOLDINGS) PTY LTD (A.C.N 000 158 412) Thirty-Third Respondent: JOHN MCGRATH PTY LTD (A.C.N 000 004 937) Thirty-Fourth Respondent: KELVINATOR AUSTRALIA PTY LTD (A.C.N 007 873 734) Thirty-Fifth Respondent: LITESTEEL PRODUCTS PTY LIMITED (A.C.N 109 854 677) Thirty-Sixth Respondent: LITESTEEL TECHNOLOGIES PTY LIMITED (A.C.N 113 101 054) Thirty-Seventh Respondent: METALS PROPERTIES PTY. LTD. (A.C.N 000 040 040) Thirty-Eighth Respondent: METALSTORES PTY LIMITED (A.C.N 000 267 112) Thirty-Ninth Respondent: METPOL PTY LIMITED (A.C.N 000 927 373) Fortieth Respondent: N.K.S. (HOLDINGS) PROPRIETARY LIMITED (A.C.N 004 321 313) Forty-First Respondent: O DEE GEE CO. PTY. LTD. (A.C.N 004 208 191) Forty-Second Respondent: ONESTEEL AMERICAS HOLDINGS PTY LIMITED (A.C.N 147 067 016) Forty-Third Respondent: ONESTEEL BUILDING SUPPLIES PTY LIMITED (A.C.N 000 045 349) Forty-Fourth Respondent: ONESTEEL COIL COATERS PTY LIMITED (A.C.N 123 138 732) Forty-Fifth Respondent: ONESTEEL MANUFACTURING PTY LIMITED (A.C.N 004 651 325) Forty-Sixth Respondent: ONESTEEL MBS PTY LIMITED (A.C.N 096 273 979) Forty-Seventh Respondent: ONESTEEL NSW PTY LIMITED (A.C.N 003 312 892) Forty-Eighth Respondent: ONESTEEL QUEENSLAND PTY LIMITED (A.C.N 010 558 871) Forty-Ninth Respondent: ONESTEEL RECYCLING HOLDINGS PTY LIMITED (A.C.N 059 240 952) Fiftieth Respondent: ONESTEEL RECYCLING OVERSEAS PTY LIMITED (A.C.N 105 479 356) Fifty-First Respondent: ONESTEEL RECYCLING PTY LIMITED (A.C.N 002 707 262) Fifty-Second Respondent: ONESTEEL REINFORCING PTY LIMITED (A.C.N 004 148 289) Fifty-Third Respondent: ONESTEEL STAINLESS AUSTRALIA PTY LIMITED (A.C.N 004 610 851) Fifty-Fourth Respondent: ONESTEEL STAINLESS PTY LIMITED (A.C.N 006 362 652) Fifty-Fifth Respondent: ONESTEEL TECHNOLOGIES PTY LIMITED (A.C.N 096 380 219) Fifty-Sixth Respondent: ONESTEEL TRADING PTY LIMITED (A.C.N 007 519 646) Fifty-Seventh Respondent: ONESTEEL US INVESTMENTS 1 PTY LIMITED (A.C.N 131 211 606) Fifty-Eighth Respondent: ONESTEEL US INVESTMENTS 2 PTY LIMITED (A.C.N 131 211 571) Fifty-Ninth Respondent: ONESTEEL WIRE PTY LIMITED (A.C.N 000 010 873) Sixtieth Respondent: OVERSEAS CORPORATION (AUSTRALIA) PTY LTD (A.C.N 004 242 086) Sixty-First Respondent: P & T TUBE MILLS PTY LIMITED (A.C.N 010 469 977) Sixty-Second Respondent: PALMER TUBE MILLS PTY LIMITED (A.C.N 010 469 879) Sixty-Third Respondent: PIPELINE SUPPLIES OF AUSTRALIA PTY LIMITED (A.C.N 008 573 475) Sixty-Fourth Respondent: REOSTEEL PTY LIMITED (A.C.N 000 142 094) Sixty-Fifth Respondent: ROENTGEN RAY PTY LTD (A.C.N 000 028 106) Sixty-Sixth Respondent: SOUTHERN IRON PTY LIMITED (A.C.N 119 611 068) Sixty-Seventh Respondent: SSG INVESTMENTS PTY LTD (A.C.N 085 490 526) Sixty-Eighth Respondent: SSG NO.2 PTY LTD (A.C.N 087 840 720) Sixty-Ninth Respondent: SSG NO.3 PTY LTD (A.C.N 087 840 515) Seventieth Respondent: SSGL SHARE PLAN NOMINEES PTY LTD (A.C.N 085 943 540) Seventy-First Respondent: SSX ACQUISITIONS PTY LIMITED (A.C.N 090 574 520) Seventy-Second Respondent: SSX EMPLOYEES SUPERANNUATION FUND PTY LTD (A.C.N 064 431 116) Seventy-Third Respondent: SSX HOLDINGS PTY LIMITED (A.C.N 087 813 116) Seventy-Fourth Respondent: SSX INTERNATIONAL PTY LIMITED (A.C.N 084 990 947) Seventy-Fifth Respondent: SSX PTY LIMITED (A.C.N 082 181 726) Seventy-Sixth Respondent: SSX RETIREMENT FUND PTY LTD (A.C.N 064 431 303) Seventy-Seventh Respondent: SSX SERVICES PTY LIMITED (A.C.N 083 090 831) Seventy-Eighth Respondent: SSX STAFF SUPERANNUATION FUND PTY LTD (A.C.N 064 431 072) Seventy-Ninth Respondent: TASCO SUPERANNUATION MANAGEMENT PTY LTD (A.C.N 071 901 712) Eightieth Respondent: THE ANI CORPORATION PTY LIMITED (A.C.N 000 421 358) Eighty-First Respondent: THE AUSTRALIAN STEEL COMPANY (OPERATIONS) PTY LIMITED (A.C.N 069 426 955) Eighty-Second Respondent: TUBE ESTATES PTY. LTD. (A.C.N 010 449 939) Eighty-Third Respondent: TUBE STREET PTY LTD (A.C.N 004 785 157) Eighty-Fourth Respondent: TUBE TECHNOLOGY PTY. LTD. (A.C.N 010 469 986) Eighty-Fifth Respondent: TUBEMAKERS OF AUSTRALIA PTY LIMITED (A.C.N 000 005 498) Eighty-Sixth Respondent: TUBEMAKERS SOMERTON PTY LIMITED (A.C.N 004 595 546) Eighty-Seventh Respondent: WESTERN CONSOLIDATED INDUSTRIES PTY LTD (A.C.N 001 185 913) Eighty-Eighth Respondent: WHYALLA PORTS PTY LIMITED (A.C.N 153 225 364) Eighty-Ninth Respondent: X.C.E. PTY LTD (A.C.N 004 081 903) Ninetieth Respondent: XEM (AUST) PTY LIMITED (A.C.N 004 158 025) Ninety-First Respondent: XLA PTY LTD (A.C.N 004 239 392) Ninety-Second Respondent: XLL PTY LTD (A.C.N 006 301 266) Ninety-Third Respondent: XMS HOLDINGS PTY LIMITED (A.C.N 008 742 014) Ninety-Fourth Respondent: ZINCTEK PTY LIMITED (A.C.N 010 474 790) (All Administrators Appointed) Ninety-Fifth Respondent: PAUL BILLINGHAM Ninety-Sixth Respondent: SAID JAHANI Ninety-Seventh Respondent: MATTHEW BYRNES Ninety-Eighth Respondent: MICHAEL MCCANN (Voluntary Administrators)