BHP Steel (AIS) Pty Ltd ACN 000 019 625 v Construction, Forestry, Mining & Energy Union

BHP Steel (AIS) Pty Ltd ACN 000 019 625 v Construction, Forestry, Mining & Energy Union - [2000] FCA 828 - FCA 2000 case summary — Zoe

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1 I have before me six actions instituted today by a number of companies who operate a large number of coal mines at various locations in Queensland and New South Wales. The respondent in each action is the Construction, Forestry, Mining and Energy Union. 2 On application by the present applicants, Commissioner Bacon, sitting in the Australian Industrial Relations Commission late last night, made orders under s 127 the Workplace Relations Act 1996 (Cth) prohibiting the Union and the employees of the applicant companies, who are members of the Union, from engaging in industrial action (including refusing to attend for work) in respect of, or in any way in connection with, the decision of the High Court in Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union [2000] HCA 34, a decision given on Thursday, 15 June 2000. 3 Commissioner Bacon ordered that each of these prohibitions was to come into force at 11.30 pm Sunday, 18 June 2000 and is to remain in force for a period of seven days, ie, until next Sunday evening. The applicants now seek final injunctive relief under s 127(6) of the Act requiring the Union to "immediately cease and not to recommence prior to 11.30 pm Sunday, 25 June 2000" any industrial action the subject of Commissioner Bacon's orders. In the originating applications, interlocutory injunctive relief in the same terms is also sought. 4 It is the claim for the latter relief that I have to deal with now. 5 The matter has proceeded before me in the absence of the Union. Though officers of the applicant companies have been able to give local union officials at many of the mine sites in the period since midnight last notice of Commissioner Bacon's orders, the evidence before me shows that there is a concerted plan on behalf of the Union and its senior officials in Queensland and New South Wales to prevent service of those orders on the Union and on those officials. The evidence before me also shows a determination on the part of the Union to try to frustrate service of the process of this Court in each of the actions now before me. 6 Counsel for the applicants informed me at the start of the hearing that Oaky Creek Coal Pty Ltd and Newlands Coal Pty Ltd, the applicants in action Q 51 of 2000, no longer seek relief, in view of the absence of any significant industrial disruption at any of their mines. Counsel also sought, by way of interlocutory orders, relief in the terms mentioned above, but confined in its operation to the period of 48 hours from now. The hearing before me commenced at 2.15 pm today, although the need for the Court to provide an urgent hearing was foreshadowed on Friday afternoon last, 16 June 2000, and the Court put arrangements in place to ensure it could meet the request if any request had been made at any time prior to this morning for an urgent hearing. I should say that when the Court indicated to the applicants this morning that it would sit at 2.15 pm to deal with the matters, no indication was made by the applicants that that was not a satisfactory time for the commencement of the hearing even though, as will appear, the material upon which they brought their applications for interlocutory relief, which was filed by leave at the start of the hearing, showed that the strike had been called for 24 hours only and that period would end at 6 pm today. 7 There is substantial evidence that Commissioner Bacon's orders have been breached at all the mines, other than those the subject of application in action Q 50 of 2000. The evidence before me shows that at many mines, though local officials of the Union have been orally advised by mining company officers earlier today of Commissioner Bacon's orders, rostered shifts have not attended for work. At some mines, however, some workers commenced their shifts, but have promptly gone on strike. 8 Commissioner Bacon issued a seven day prohibition. But this Court in exercising its discretionary injunctive powers under s 127 the Workplace Relations Act 1996 (Cth), must act only on evidence before it sufficient to justify the exercise of those powers. The evidence relied on to justify the 48 hour interlocutory injunction sought was confined, at first, to a note given by a Mr Lazarus, Vice-President of the Union Lodge at Moranbah North mine to Moranbah North management yesterday. The note reads:

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9 In addition, reliance was placed on the industrial action that has already occurred in the course of the day to which I have made reference. When asked what evidence there was to support an inference that the industrial action would endure beyond 6 pm today, counsel could point, initially, only to the fact that some shifts at some mines, but not all, which were programmed to commence at various times during the course of the day, are not due to finish for some hours after 6 pm today and can be expected to be affected by the Union's decision to strike. 10 Subsequently, after taking advantage in the adjournment to consider that matter, counsel produced a schedule which I will mark exhibit 2. This shows that at some, but not all of the mines, shifts which should have commenced prior to 6 pm today, but which have not commenced due to strike action, are rostered to continue in some cases until 7 pm tonight; in other cases, until 11 pm tonight; in one case until 10.30 pm tonight; in one, until 6.15 am, 20 June 2000. In all save three others, the shifts not worked today were, in fact, rostered to end at 6 pm. In the case of three mines, shifts due to commence within what is, on the face of it, a 24-hour strike period due to end at 6 pm tonight, are said to be so rostered as not to finish until various times on Wednesday next, 21 June 2000. 11 If this were all the evidence available, there would be no basis for a blanket interlocutory restraint affecting all mines which is sought by counsel and which would endure for as long as 48 hours. There would also be a real question, in relation to a significant number of the mines, particularly those with shifts scheduled to finish at 6 pm today or soon thereafter, whether this Court should, in such circumstances, issue an injunction to deal with disruption which, as of now, appears to be ephemeral in duration. This would be so, at least in the absence of evidence (and there is none) suggesting that the relief, if granted now, might be capable, in a practical way, of leading to a resumption of work by 6 pm or at least before the time of termination scheduled for the shifts due to cease later this evening. 12 Counsel conceded as I have said that there are some mines at which shifts for which workers have not attended are scheduled to finish at 6 pm. Asking the Court to issue an injunction that will operate for a few hours only and which may not be able to be given any practical effect, particularly in relation to this last group of mine sites, would raise a real question about whether the Court is being asked to exercise its injunctive power to prevent the occurrence of harm for which damages will not be a sufficient remedy, the only legitimate ground on which this Court can properly intervene, or whether instead, it is being asked to do something of little practical utility in order to demonstrate to the Union that the Court's coercive powers are readily available to the applicant companies. 13 However, after the adjournment, counsel for the applicant companies tendered a note recording information very recently received from an officer at the Capricorn Coal mine owned by one of those companies. This officer has reported that he was informed at 3.35 pm by Paul Hendry, the HR Manager at Capcoal that he in turn had been contacted by a Mr Mick Weiss, Lodge President of the Union at the Central Colliery who told him that the three lodges were taking a further 24 hour stoppage, ie, from 6 pm tonight finishing 3 pm on 20 June 2000. The reason for this further stoppage, according to what Mr Hendry was told by Mr Weiss, related to the disruption caused by the attempts to serve the orders issued in the AIRC last night on the Union. Mr Hendry reported that Mr Weiss informed him that the attempts to serve Commissioner Bacon's orders had disturbed his members and caused alarm. 14 Mr Gerard gave brief oral evidence. He is a senior officer of BHP Coal and BHP Steel, owners of some of the mines the subject of the present applications. He says that in February last a 24 hour stoppage was called by the Union over its concern at the level of international coal prices that had been recently negotiated. Orders were obtained from the Commission under s 127 the Workplace Relations Act 1996 (Cth) prohibiting the stoppage. Close to the end of that 24 hour period, the Union called a further 24 hour stoppage giving as its reason the umbrage it took at the steps taken by the companies to serve the s 127 orders on it. A New South Wales-wide strike for a further 24 hours followed. This suggests that the Union has a tactic of calling a short strike, difficult to restrain, but then extending it in circumstances also difficult to restrain. 15 In this state of the evidence I am satisfied that there is a significant risk of the Union calling at least one more widespread 24 hour strike which will commence at the end of the current one to justify the grant of an injunction for 48 hours. 16 I am satisfied of all the requirements for the issue of an interlocutory injunction. I have already mentioned the evidence as to the breach of Commissioner Bacon's orders. I accept that a stoppage extending well into Wednesday, 21 June 2000, at a large number, if not all, of the mines the subject of the actions is likely to inflict considerable financial harm upon the applicant companies for which damages are not likely to be a sufficient remedy. The balance of convenience is all one way in favouring the applicants. 17 There will therefore be injunctions upon the usual undertaking as to damages for 48 hours in the terms sought in the applications. An ex parte injunctive order is ordinarily granted only for a very short period to ensure that the respondent's position is prejudiced as little as possible by the exercise by the Court of its coercive powers. However, in view of the evidence before me, quite extensive in scope, as to the Union's actions in seeking to frustrate service of Commissioner Bacon's orders and service of the process of this Court, I consider it is appropriate for the injunction simply to issue for 48 hours or until further earlier order. 18 I will give liberty to the respondent to apply on notice to the applicants. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

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