Construction, Forestry, Mining & Energy Union v Yallourn Energy Pty Ltd

REASONS FOR JUDGMENT Introduction 1 By a letter dated 20 July 2000, the applicant ("the Union") gave notice to the respondent ("Yallourn Energy") of the intention of members of the Union to take industrial action. The notice stated: "You are hereby advised of the intention of members of the Construction, Forestry, Mining & Energy Union employed by Yallourn Energy Pty Ltd at Yallourn Mine and Yallourn W power station to take industrial action for the purpose of supporting and advancing claims made by the Union in respect of the matters set out in the notice of initiation of bargaining period in C No. 22953 of 1999. Such industrial action will take the form of: · limiting generation output to 1000 megawatts; and · restricting the capacity of the raw coal bunker to sixty per cent (18,000 tonnes) and will commence at 7.00 am on Monday July 24, 2000." 2 As from Monday 24 July 2000, members of the Union took industrial action, in reliance upon the notice, to limit generation output and to restrict the capacity of the raw coal bunker as set out in the notice. The issue the parties are in dispute over is whether the notice complies with the requirement in s 170MO(5) of the Workplace Relations Act 1996 (Cth) ("the Act") that the notice must state "the nature of the intended action". 3 Yallourn Energy contends that the industrial action taken by members of the Union is not protected action under the Act, and therefore does not enjoy the immunity from legal liability conferred by s 170MT. Yallourn Energy claims that it is entitled to an interlocutory injunction under ss 170NC and 170NG of the Act to restrain the continuation of the unprotected industrial action which, it claimed, had cost it $12 million as at 27 July 2000. 4 The Union claims that the industrial action is protected action under the Act and that the threats by Yallourn Energy to issue proceedings claiming injunctive relief are consequently unlawful. The Union claims that it is entitled to an interlocutory injunction restraining Yallourn Energy from instituting a proceeding or from seeking orders against the Union or its members, in respect of the industrial action being taken by them in reliance upon the notice, on the ground that the action is protected action. 5 The Court heard the motions for injunctive relief on Thursday, 27 July 2000. On Monday, 31 July 2000 the solicitors for the Union stated that the industrial action taken pursuant to the notice had ceased from noon on Friday, 28 July 2000, and that another notice under s 170MO had been served on Saturday, 29 July 2000. The solicitors "respectfully suggested" that the issues raised by the motions no longer need to be resolved. The response of the solicitors for Yallourn Energy was to request that judgment in the motions be handed down. The legislative scheme 6 In Australian Workers Union v Yallourn Energy Pty Ltd (2000) 95 IR 207 at 211-213 ("Yallourn Energy") I outlined the statutory scheme under the Act pursuant to which Unions, employees and employers were entitled to engage in protected industrial action during a bargaining period. 7 In ACI Operations Pty Ltd v Automotive Food Metals Engineering Printing and Kindred Industries Union [2000] FCA 393 ("ACI") at [32]-[33] I pointed out that two related aspects of the statutory scheme are significant: "The first is that protected action can be engaged in by a protected person during a bargaining period free of the fetter of the threats of, or the commencement of, litigation by unions, employees and employers in respect of that action. As North J stated in Australian Paper Limited v CEPU (1998) 81 IR 15 at 18: 'The purpose of this statutory scheme is to allow negotiating parties, both employer and employee, maximum freedom consistent with a civilised community to take industrial action in aid of the negotiation of agreements without legal liability for that action.' However, an equally important aspect is that, save for protected action, no other action (whether industrial or otherwise) is to be taken by any person 'with intent to coerce' persons to make, vary or terminate certified agreements. These related aspects are critical to protecting and maintaining the integrity of the bargaining process provided for under the Act. The carefully prescribed limitations on the use of industrial, or other, action that is not protected action, for the purposes of supporting or advancing each party's position as part of that process reflects a legislative policy that, in general, the freedom of the parties to negotiate may be fettered by protected action but not by any other coercive action." 8 Under s 170MO industrial action is not protected action unless the requirements of s 170MO(2) are met. Section 170MO(2) requires that where the industrial action is proposed to be taken by an organisation which is a negotiating party there must have been "at least 3 working days' written notice of the intention to take the action" provided to the employer. Section 170MO(5) provides: "A written notice or other notification under this section must state the nature of the intended action and the day when it will begin." 9 Under the statutory scheme the giving of a notice that complies with s 170MO(5) is therefore a pre-condition to the action taken in reliance upon the notice being protected action under the Act. Thus, if a written notice fails to comply with s 170MO(5), any industrial action taken in reliance upon the notice is not "protected action", and therefore does not enjoy the immunity from legal liability conferred under s 170MT: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 ("Davids Distribution") at 495-496 per Wilcox and Cooper JJ. 10 Not surprisingly, whether a notice given under s 170MO(5) states "the nature of the intended action" has become a litigious issue. If the notice complies with the statutory requirements, industrial action taken during a bargaining period in reliance upon it is, in general, immune from legal liability. However, if the notice does not comply with s 170MO(5) then action taken in reliance upon it can not only give rise to legal liability in contract or tort, but is also likely to constitute a contravention of s 170NC(1) of the Act. Section 170NC prohibits a person from taking industrial action with intent to coerce another person to enter into or vary an industrial agreement, unless the action is protected action. As s 170NC is a penalty provision (see s 170ND), a contravention of the section can give rise to penalties as well as injunctive relief (see ss 170NF and 170NG). 11 It follows from the foregoing that, in the event that legal proceedings are threatened in respect of protected action taken to advance the bargaining position of a party during a bargaining period, the party taking the action may have a strong case for the grant of appropriate relief to restrain the bringing and prosecution of the proceedings: see Yallourn Energy at 214 and 218. On the other hand, if the action being engaged in to advance a party's bargaining position in respect of a proposed industrial agreement is not protected action, there may be a strong case for the grant of appropriate relief restraining the party engaging in the unprotected action from continuing to engage in that action: see ACI at [63]. 12 In the present case the Union is claiming that, as its action is protected action, the threats of Yallourn Energy to issue proceedings in tort in respect of the action entitle it to an anti suit injunction to protect the integrity of the bargaining process. However, Yallourn Energy is claiming that the action is unprotected action and undermines the integrity of the bargaining process in a manner that is unlawful under s 170NC, thereby entitling it to injunctive relief under s 170NG and to commence proceedings in tort, if so advised. 13 Often the Court will be well placed in an interlocutory proceeding, albeit on a prima facie basis, to form a view as to the validity of a notice under s 170MO. In Yallourn Energy I indicated that in such cases, while entitlement to injunctive relief is to be determined according to principles governing interlocutory injunctions, the strength or weakness of each party's claim in relation to the validity of the notice will be of importance to the outcome of the application for injunctive relief. I stated at 222: "78. Woodward J, (with whom Smithers and Sweeney JJ agreed) in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472, said that the serious issue to be tried and balance of convenience: '…need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it.' 79. In a case such as the present the observation has a special applicability in that the stronger the case that the action the subject of the proposed litigation is protected action, the more harmful and undermining that litigation is likely to be to the integrity intended to be given by the Act to the industrial bargaining process and the industrial action taken to support it. In such circumstances the case of the unions and of the employees of irreparable harm becomes a stronger one, as they are more likely to be irreparably harmed in the bargaining process by being exposed to the intimidatory and coercive effects of the litigation. The corollary also applies; if a union's case of protected action is a weak one, the court will be more inclined to permit the employer to pursue its claims in tort, contract or otherwise." 14 On the issue of balance of convenience, unprotected action by a party, whether it be a Union or an employer, to advance its bargaining position, as well as threats of proceedings in respect of protected action, have a propensity to harm and undermine the integrity intended to be given by the Act to the industrial bargaining process and the industrial action that lawfully may be taken to support it: ACI at [32] and [33], and Yallourn Energy at 222. Thus, commonly the principal issue for the purpose of determining the respective interlocutory motions for injunctive relief is whether the Union's notice complies with s 170MO(5). Section 170MO(5) 15 Although industrial action is defined in s 4(1) of the Act, the requirement in s 170MO(5) to state the nature of the intended action implies a measure of particularity greater than would be conveyed merely by quoting the words of one of the paragraphs in the definition: see Davids Distribution at 494-495 per Wilcox and Cooper JJ. However, as their Honours pointed out (at 494), the legislature has struck a balance between requiring a notice that provides little information (which would be inadequate) and one which required the statement of the exact steps that were to be taken (which would be industrially unrealistic and an unduly demanding interpretation of s 170MO(5)). Their Honours observed (at 495) that the sub-section 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." 16 Wilcox and Cooper JJ stated that it was "necessary and sufficient, for parties to describe the intended action in ordinary industrial English". Thus "an indefinite strike of all employees", "a lockout of all employees employed in the AB Fabrication Plant", "a ban on overtime", "a ban on the use of MN Equipment", "rolling stoppages throughout the mine", "a ban on the servicing of delivery vehicles" would all comply with s 170MO(5). However, 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, would not adequately disclose "the nature of the intended action" (at 495). 17 In Yallourn Energy I considered whether a notice relating to certain bans and rolling stoppages at the employer's sites complied with s 170(5). I expressed the view (at 214) that, as legal immunity is conferred in respect of protected industrial action, it is of obvious importance that the nature of the proposed action be specified accurately, as a failure to do so will be likely to lead to uncertainty and litigation as to whether the action taken subsequent to the notice is protected under the Act. Accordingly, it is critical that the particularity be sufficient to enable the parties to be aware of the nature of the intended action and whether the action actually taken in reliance on the notice is or is not protected action when it is taken. 18 In Burswood Resort (Management) Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union [1999] FCA 1443 Carr J, on an interlocutory application, considered whether a statement of intended action "in the form of stoppages of work, bans and limitations" complied with s 170MO(5). In forming the view that there was a "reasonably strong" case that the notice did not conform because of its generality, his Honour (at [18]) accepted that the issue of clarity in a notice is "a question of degree". 19 More recently in Australian Workers Union v Johnston Matthey (Aust) Ltd (2000) 171 ALR 410 at 415-416 Marshall J concluded that a s 170MO(5) notice, which referred generally to industrial action as defined in s 4(1) of the Act but also referred to particular industrial action, communicated to any "rational reader of the notice" that the notice given was of a "complete withdrawal of labour by the relevant employees" from a specific time. Although his Honour indicated that it would have been preferable for the notice simply to refer to "an indefinite strike of all employees who are AWU members" he said that "properly understood" that was what the notice "in effect, conveyed". 20 In each of the cases to which I have referred the issue related to whether the generality of the notice was such that it had failed to state with sufficient clarity the nature of the intended action. A different issue arises in the present case as the notice relates to action to achieve a particular outcome rather than to action to be taken irrespective of the outcome. Accordingly, it was contended by counsel for Yallourn Energy that the notice relates to action that might be taken, rather than the action intended to be taken, and therefore it failed to describe the nature of the "intended action": see Davids Distribution at 495. 21 Whether a notice is sufficient to comply with s 170MO(5) can involve questions of fact but will more usually involve questions of degree. When assessing such questions, as was stated in Davids Distribution at 495, it is important that the inquiry does not place a premium on legalism; rather the inquiry is as to what the notice would convey "in ordinary industrial English" to the reader. Further, the purposes for which the notice is given (to which I have referred above) can be relevant factors in determining whether a notice adequately or sufficiently conveys the nature of the industrial action intended to be taken: cf A1 v National Crime Authority (1996) 67 FCR 464 at 479-481 and National Crime Authority v A1 (1997) 75 FCR 274 at 277 and 294. The evidence 22 The Union contended that the notice, by stating that generation was to be limited to a specific output, and that the capacity of the raw coal bunker was to be restricted to a specific quantity, stated the nature of the intended action, even if it did not state the detail of that action. The basis for the Union's case was summarised in the affidavit of Adam Paul Bandt, sworn 27 July 2000, as follows: "5. Yallourn operates a power station that has two fundamental elements. The first is the mining of coal in an open cut mine proximate to the power station. The second is a power station comprised of 4 generating units that convert the coal to electricity. 6. The coal is dug in the mine by bucket wheel dredgers. Most of the employees who work in the mine operations area are members of the CFMEU. Mr Felsbourg is not aware of any employees in mine operations (other than supervisors and managers) who are in a union other than the CFMEU. Some supervisors and managers are in the Australian Services Union (the ASU). 7. The coal is then conveyed on belts to the raw coal bunker where it is stored. From the raw coal bunker, the coal is conveyed on belts to the power station. The employees who are union members whose work relates to the raw coal bunker, the conveying of the coal to the station and the maintenance of the necessary equipment are in one of the following unions: the CFMEU; the ASU; the Communications, Electrical and Plumbing Union (the CEPU); the Australian Manufacturing Workers' Union (the AMWU); the Australian Workers' Union (the AWU); and the Australian Professional Engineers Scientists and Managers Association (the APESMA). 8. The raw coal is fed into the power station where it is fed into the station bunkers and then into the units. Each of the four units is operated by operators and assistant operators, all of whom are union members. Such union members are members of either the CFMEU or the ASU. At any given moment, a unit may be operated by ASU members alone, CFMEU members alone or ASU and CFMEU members together. The CFMEU and its members do not determine who is operating the units at any give time. This is determined by the roster. 9. The restricting of the capacity of the raw coal bunker by CFMEU members to 18,000 tonnes can only be achieved in obvious and entirely forseeable ways. It is done by adjusting the rate at which coal is dug by the bucket wheel dredgers and stopping and starting the dredger system as required. 10. The limiting of the generation output to 1000 megawatts is also something that can only be achieved in obvious and entirely foreseeable ways. It is done by taking manual control of the units. That is, by taking the unit off AGC (Automatic Generation Control) and adjusting the megawatt target/setpoint to the required setting in concert with manual alterations to the boiler firing in such a manner as to ensure stability and such other ancillary alterations to the unit as many be necessary. 11. Because the mining process is dynamic - that is, has constant activity and moving parts, is subject to breakdown and requires the consistent giving of instructions and carrying out of tasks to maintain the process - to achieve the object of restricting the capacity of the raw coal bunker to 18,000 tonnes, it is not possible to specify in advance the rate at which dredging will be adjusted at any given time nor if and when the dredging will be stopped and for how long. 12. Because the generating process is dynamic, to limit generating capacity to 1000MW output, it is not possible to specify the amount by which each unit will be turned down or the time at which any such action will occur. Further, this is especially the case given that the CFMEU members' participating in industrial action do not necessarily operate all four units at any given time. 13. Mr Felsbourg informs me that he has read the section 170MO Notice and that the possible impact of the industrial action on Yallourn's operations, equipment and plant and the possible impact on customers whom Yallourn supplies is readily apparent to anyone with even a basic understanding of Yallourn Power Station and Yallourn's business. 14. Mr Felsbourg also informs me that it is common as a matter of day to day operations for instructions to be given by Yallourn management to its employees in terms similar to the notice. That is, operators are usually directed simply to maintain the outputs of their units to achieve a given minimum level for the entire station. Employees whose work is associated with the mine and the raw coal bunker usually given, receive and understand directions to maintain the capacity of the bunker at a certain tonnage." 23 Yallourn Energy contended that the notice states the outcome of the industrial action intended to be taken, rather than the nature of that action which, it claims, can take a number of different forms, none of which are specified in the notice. The basis for Yallourn Energy's case was summarised in the affidavit of Michael John Smith, sworn on 24 July 2000, as follows: "61. …There is a range of industrial action which can be taken by the members of the CFMEU in which generation may be reduced to 1000MW and the raw coal bunker capacity may be restricted to 18,000 tonne: (a) reduced load on all four generating units by an equal amount to give 1,000 megawatt output - this would involve each UC taking the unit off automatic governor control, and manually lowering the output by an equal amount across each unit to give a station output of 1,000 megawatts. To achieve this effect all four units would need to be covered by CFMEU members. That means the UC and AUC would all need to be CFMEU members, as opposed to ASU member (this can occur on some shifts); (b) reduce load on a selected unit or units - this would be achieved in circumstances where some units are controlled by ASU members and some are controlled by CFMEU members. The units that have CFMEU members as UCs and AUC would be able to reduce loads, whereas units that have an ASU, UC, and for example a CFMEU AUC, would not be able to reduce the load unless the UC was absent from the control room (which occurs often); (c) take unit off load - this would involve shutting the unit down completely, that is, shutting the unit down to zero megawatts. If this occurred, it would take anywhere between 12 to 24 hours to restore the unit back to an operational level; (d) apply a permit bans to prevent any equipment/controls that break down from being repaired, and thus allowing generation output to fall - this would involve a CFMEU UC refusing to issue a permit to repair any breakdowns on any equipment in the control room unit. This would have the effect of that equipment not being repaired and the generation output would fall to a lower than normal level, and remain at that level until the repairs are fixed. (e) apply a black ban to a mill or mills - there are currently 6 mills per W power unit at Yallourn, which feed raw coal into the boiler. If a black ban was placed on a mill (ie. refusal to operate the mill), it would mean a reduction of coal being fed to the W unit, which would have the effect of lowering the W unit's output of megawatts. The reduction of coal being fed to a W unit [would] have an instantaneous effect on the W unit MW output and the loss of output would be approximately 40 to 50 megawatts. (f) reduce coal supply to one or more units by shutting down conveyor belts - this would occur by any of the conveyor belts around the mine or the power station being shut down, having the effect of reducing the feed of coal to either the raw coal bunker or the mill; and (g) apply overtime ban - a ban on overtime would be quite serious due to the 'fixed manning' nature of the power station and open cut mine. For example, in the power station, there is regular overtime worked by all plant employees on a weekly basis. Overtime runs at approximately 10% to 20% and overtime occurs when personnel are sick, on recreation leave, training leave or where an accident occurs. A ban on overtime may result in shutting down a unit due to fixed manning agreement requirements). 62. There are a variety of industrial actions that can be taken by CFMEU members working at Yallourn to restrict the capacity of the raw coal bunker to 60% (18,000 tonne). (a) an employee refusing to operate a specific coal dredger ie D6, D7, D8 or D12, by placing a black ban on that item of plant; (b) applying an overtime ban - there are fixed manning levels in the open cut mine. A ban on overtime may result in the lower supply of coal to the raw coal bunker; (c) operate dredges at lower than normal [dig] rate; (ie rate required to cut requisite amount of coal) (d) refuse to operate specific conveyor belts - for example, a black ban in order to prevent raw coal bunker stocks form rising. This would result in an operator refusing to operate a conveyor belt which would lower the amount of coal being supplied to the raw coal bunker; (e) apply a permit ban in the mine to prevent any breakdowns being attended to and repaired - as only operators of plant can issue a permit with respect to a breakdown, if an operator refused to issue a permit, the breakdown could not be repaired; and (f) refuse to carry out higher duties (ie upgrades to supervisor etc) - this would result where a CFMEU member refused to upgrade to a supervisor's position, for example, there would be no-one to direct personnel within the open cut on the dredgers and if an ASU member could not be utilised in a supervisory role." 24 In a responding affidavit dated 27 July 2000 Mr Bandt stated that the matters set out in paras 61(d), (e), (f) and (g) would not, and could not, reasonably be expected to achieve a consistent target of 1,000 megawatts. He also stated that the matters set out in paras 62(b), (e) and (f) would not, and could not, reasonably be expected to achieve a consistent capacity of 18,000 tonnes. Does the notice comply with s 170MO(5)? 25 I have not found the application of the principles outlined above to the notice in the present case to be an easy task. Nevertheless, it is appropriate to form a view as to the validity of the notice on the basis of the evidence as it presently stands, as the strength or weakness of the respective prima facie cases sought to be put by the Union and Yallourn Energy in support of their motions for injunctive relief are critically dependent upon that view. 26 The notice states that the industrial action intended to be taken will take the form of limiting generation to a particular output and restricting the raw coal bunker to a particular capacity. The Union contends that the notice should be taken, implicitly if not explicitly, only to refer to the action that was directly capable of achieving the stated outcomes, namely the action identified in Mr Smith's affidavit in para 61(a), (b) and (c) in relation to the 1,000 megawatt output and in para 62(a), (c) and (d) in relation to the 18,000 tonne capacity of the raw coal bunker. It further contends that the nature of this action would have been well known and understood by Yallourn Energy. Yallourn Energy contends that, as the limitations or restrictions on output or production could be achieved by a variety of steps or forms of action, whether taken independently or cumulatively, the notice had failed to state the nature of the intended action. 27 The parties are broadly in agreement about the manner in which the outcomes specified under the notice could be directly achieved, although the formulations they each used to express this differed in detail. 28 In respect of the reduced generation, the nature of the action in para 61(a), (b) and (c) of Mr Smith's affidavit can be formulated as reducing loads on, or shutting down, one or more of the generating units to limit generation output to 1000 megawatts ("the Yallourn Energy formulation"). That action was described in Mr Bandt's affidavit as taking manual control of the units and adjusting the megawatt target/setpoint to the required setting in concert with manual alterations to the boiler firing to achieve the specified output ("the Union formulation"). 29 In respect of the restricted raw coal bunker capacity, the nature of the action in para 62(a), (c) and (d) of Mr Smith's affidavit can be formulated as reducing the operating rate on, or shutting down, the coal dredgers or conveyor belts to restrict output to 60% (18,000 tonnes) ("the Yallourn Energy formulation"). That action was described in Mr Bandt's affidavit as adjusting the rate at which coal is dug by the bucket wheel dredgers and stopping and starting the dredger system as required ("the Union formulation"). 30 Yallourn Energy contended that other steps, namely those specified in paras 61(d), (e), (f) and (g) and 62(b), (e) and (f) of Mr Smith's affidavit could also be utilised to reduce generation and coal tonnage. While the evidence discloses that certain steps, such as overtime and repair bans, could, together with other factors, contribute to a limiting or restricting of generation or capacity, in my view the specificity of the outcomes of the intended action would not be taken by the employer to embrace action which is not capable of achieving those outcomes. On a legalistic view, the notice may be taken to be capable of extending to such action, but it is unlikely that it would be taken to convey to the reader in "ordinary industrial English" that that was the action intended to be taken. The specificity with which the output and capacity is stated would enable the employer, with a relatively high degree of certainty, to identify the nature of the industrial action that is intended to be taken by members of the Union. 31 Further, the Union's affidavit evidence, which was not disputed, was that Yallourn Energy would understand the notice to refer to the direct action as set out in either the Union formulations or the Yallourn Energy formulations because that is how it would give operating instructions if it sought to achieve the specified outputs. Mr Smith of Yallourn Energy had no difficulty in stating the action that is necessary to achieve the stated outcomes. Thus, upon receipt of the notice, Yallourn Energy would be well placed to take such defensive action as it may be advised to take. While the precise action to be taken is not stated, and therefore the defensive action may not be able to be precisely formulated, that limitation is inherent in the requirement that it is only necessary to notify the employer of the nature of the intended action, rather than the actual intended action. Yallourn Energy would also be well placed to determine whether the action actually taken in reliance upon the notice is or is not protected action when it is taken. 32 It is significant that the notice states specific output and capacity figures which would be understood by the employer to be achievable only by the taking of well known and well understood action by employees who are members of the Union. A quite different situation would apply if the notice stated that limitations or restrictions were to be imposed on output or capacity up to a stated figure, rather than to a stated figure. A notice in that form would be likely to be so general that it would fail to convey to the reader the nature of the intended action. Such a notice would convey to the reader the action that might be taken, rather than the action intended to be taken. In that event, the notice would not comply with s 170MO(5). 33 Finally, a danger inherent in stating an outcome rather than specifying the action designed to achieve it, is that the intended action may not be able to be clearly identified as protected action until after, rather than before, it is taken. If that were the case, the notice would be unlikely to comply with s 170MO(5) as, inter alia, it would render nugatory the purpose of giving 3 days prior notice in respect of the intended action. However, in the present case, as the steps that are capable of achieving the stated outcomes were well known and understood by Yallourn Energy, they were able to be identified as such prior to, rather than after, the steps being taken. 34 In those circumstances I have formed the view that the notice sufficiently and adequately states the nature of the intended action. Accordingly, on the basis of the material presently before the Court, the preferable view, albeit on a prima facie basis, is that the notice does comply with s 170MO(5). Balance of Convenience 35 It was not seriously in dispute that, for the reasons I expressed earlier in these reasons for judgment, the outcome of the respective interlocutory motions, including the balance of convenience, would follow my finding on validity. This was because in a case such as the present, the main issue in respect of the balance of convenience is the protection and maintenance of the integrity of the bargaining process which is provided for under the Act. While substantial financial losses have been suffered by Yallourn Energy, any entitlement to recover those losses will depend substantially on whether the notice is valid. Further, if the Union is in doubt on that issue it may discontinue the action and give a fresh, and more specific, notice under s 170MO(5). Thus, while financial considerations are relevant to the balance of convenience they do not have the significance they might otherwise have where the main issue in dispute relates to the validity of a s 170MO(5) notice. 36 As I have formed the prima facie view that the notice complies with s 170MO(5), the grant of interlocutory injunctions restraining Yallourn Energy from issuing proceedings against the Union or its members or threatening injunctions in respect of protected industrial action taken in reliance upon the notice of the Union will, on my prima facie view, protect and maintain the integrity of that process. The action that is protected is limited to that which, of itself, is capable of achieving the stated output or capacity and not the other more general industrial action which, of itself, cannot do so. Accordingly, as matters stood at the conclusion of the hearing, it was appropriate to grant the injunctive relief in terms which restrict that relief to the action that I have determined is protected action. Conclusion 37 For the reasons set out above the Union had a strong case for interlocutory injunctive relief restraining Yallourn Energy from commencing proceedings in contract or tort in respect of the action of its members which, on a prima facie basis, I concluded was protected action. 38 However, since the hearing, the Union has given notice that it is no longer continuing to engage in industrial action in reliance upon the notice, and that it is therefore unnecessary for the Court to resolve the issues raised by the motions. Yallourn Energy disagreed and requested that judgment be handed down. As neither party has sought leave to withdraw its motion for relief, or to put further submissions in relation to the motions, it is appropriate to deliver judgment on those motions, but to desist from making any orders until the parties have had the opportunity to consider these reasons for judgment. It is appropriate to indicate that, as the solicitors for the Union stated that the issues raised by the motions no longer need to be resolved, the onus will clearly be upon the Union to demonstrate why any injunctive orders should now be made in respect of the action taken under the notice dated 20 July 2000. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.