Hawker de Havilland Aerospace Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

(b) the accurate and complete booking of work time to the appropriate jobs in accordance with the Applicant's standard procedures; or

(c) any other work by an employee of the Applicant;

in support of or in relation to any industrial claim relating to the Boeing Share Value Trust.

No later than 2.30 pm on 14 December 2004: (a) the First Respondent conduct a meeting of its members employed by the Applicant at its premises at 226 Lorimer Street Port Melbourne and then inform those members of the terms of this Order; and (b) the Second Respondent send an email communication to each of its members employed by the Applicant at its premises at 226 Lorimer Street Port Melbourne, informing that member of the terms of this Order.

The Applicant file and serve a Statement of Claim by 4.00 pm on 17 December 2004.

Each of the Respondents file and serve a Defence by 4.00 pm on 17 January 2005.

The Applicant file and serve any Reply by 4.00 pm on 31 January 2005.

The Directions Hearing be adjourned to a date to be fixed in February 2005.

Liberty to apply is granted. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA

Introduction 1 Theapplicant,Hawkerde HavillandAerospace Pty Ltd, ("the Company"), seeks urgent interlocutory injunctive relief against the respondents, each an employee industrial organisation, in respect of conduct which it contends constitutes industrial action which is prohibited by the Workplace Relations Act 1996 (Cth) ("the Act") and which is not protected action within the meaning of that expression as found in s 170ML of the Act. 2 The Company is part of a group of companies owned ultimately by Boeing Australia Holdings Pty Ltd which are involved in the manufacture and repair of aircraft components. Boeing Australia Holdings Pty Ltd is itself a subsidiary of Boeing Company Inc, a United States Company. 3 The Company contends that the respondents have organised and engaged in industrial action which is contrary to: · the provisions of s 170MN of the Act because the industrial action is happening before the nominal expiry date of the applicable certified agreement; and · the provisions of s 170NC of the Act because the agreement has the purpose of coercing the Company into making another certified agreement. The dispute the subject of the proceeding involves the Company's factory at Port Melbourne.

BACKGROUND 4 The history of the Company's business goes back many years, but the involvement of Boeing Company Inc in the business of the Company and in Aerospace Technologies of Australia Pty Ltd ("ASTA"), another Company owned by Boeing Australia Holdings Pty Ltd, is only of recent origin, in the last eight or nine years. 5 In or about October 2003, as part of a corporate restructure, employees of ASTA were offered and accepted new employment on the same terms and conditions with the Company. Thereisanothercompany,Hawkerde HavillandPty Ltd,whichwasformerlyknownas Hawker de Havilland Limited which has no employees and is presently under external administration in accordance with the provisions of the Corporations Act 2001 (Cth). 6 The terms and conditions of the employees of the Company at the Port Melbourne factory are regulated by two agreements, which have been certified under the Act, and by an award. The two certified agreements are: · The Hawker de Havilland Aerospace Pty Ltd (Port Melbourne) Certified Agreement 2004. It was certified on 15 March 2004 and its nominal expiry date is 2 February 2007 ("the certified agreement"). · The Aerospace Technologies of Australia Limited Redundancy Agreement 2002. The nominal expiry date of that agreement is 30 September 2005. These two certified agreements operate in conjunction with each other and with the Aerospace Technologies of Australia Limited Award 1998. 7 There are approximately 594 employees of the Company covered by these industrial instruments, who are members of, or are eligible to be members of, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("AMWU") of which there are approximately 542 employees who are members, the Association of Professional Engineers, Scientists and Managers, Australia ("APESMA"), of whom approximately 40 employees are members, and the National Union of Workers of whom approximately 12 employees are members. 8 Prior to 1996, Boeing Company Inc, the Company's ultimate parent, established a program for distributing to eligible employees incentive payments under a share value program which provided for payments to be made to employees by a separate trust entity, the Share Value Trust, in accordance with the terms of its trust deed. Payments are to be made by the trustee, which is a legal entity separate from Boeing Company Inc and the Company. The Company cannot authorise or approve of payments under the Share Value Trust. 9 Since 1996, no distributions had been made to the Company's employees under the Share Value Trust. It does not appear that there is any clause in any contract of employment or industrial instrument which entitles any employee of the Company to payment under the trust. The Company's representatives could not recall any negotiations in relation to the trust from the time of the negotiation of the certified agreement, although as shall appear hereafter, the representatives of the AMWU contend that representations were made to them in relation to their entitlement to receive benefits under the trust. 10 The crystallisation of the issues in this matter occurred around August 2004 when a payment was made from the Share Value Trust to a number of employees of the Company. None of these employees was covered by the certified agreement. There were discussions with union delegates in relation to the share value trust and the opportunity or the possibility for other employees to obtain payments from it, but nothing came of these discussions. 11 Victor Jose, a state organiser of the AMWU, has sworn an affidavit in which he sets out in some detail what he contends was the understanding and the expectation of the AMWU and its members in relation to participation in the Trust, and contends that representations were made that they would be entitled to participate in the Trust. The issue of those representations gives rise to contested issues of fact that will have to be dealt with at final trial. 12 Matters started to come to a head on 19 October 2004 when the AMWU notified the Australian Industrial Relations Commission ("the Commission") of the existence of an alleged industrial dispute. That dispute notification simply identified the dispute concerning the payment from the Share Value Trust to employees. 13 On 9 November 2004, there was a conciliation conference, as a result of which Mr Addison, an industrial organiser with the AMWU, sent a facsimile letter to the Company which contained a demand that the Company pay the full amount available to employees under the Share Value Scheme within 14 days of receipt of the letter. 14 Later that day, there was a stop-work mass meeting of all employees on the site attended by approximately 500 employees. A resolution was passed for the employees to withdraw their labour at the commencement of the 6.30 am shift on Wednesday, 10 November 2004. Thereafter, no employees who were covered by the certified agreements and the award to which I have referred and who were members of the AMWU and the NUW reported for work until 11 November 2004, and some members of APESMA also did not attend. That absence from work was not authorised by the Company. It is not disputed in the proceeding before me that this action and the action to which I will refer hereafter was organised by the respondents or that they were involved in it. 15 Let me come back to 9 November 2004. Later on that day, the Company filed a notification of an alleged industrial dispute with the respondents, relating to a breach of the certified agreements disputes avoidance procedure. There was a hearing in the Commission on the following day. 16 At that hearing, the AMWU accepted that there had been a breach of the agreement in relation to the following of the disputes avoidance procedure. At the end of the hearing, the Commissioner made a recommendation that the unions convey to the members that the certified agreement provided for dispute resolution procedure, and that illegitimate action should not be taken. 17 On 11 November 2004, employees returned to work, but shortly thereafter, bans and limitations on work were imposed by the members of the AMWU and NUW. The bans and limitations related to two areas: · a ban on participation in continuous process improvement training and workshops; and · and a ban on attendance at ethics training programs. Those bans lasted until 15 November 2004. 18 On the day previously, 10 November 2004, a notice of the initiation of a bargaining period had been given by the AMWU pursuant to s 170MI of the Act. The notice was in the following terms: "Under sub‑section 170MI(2) of the Workplace Relations Act: Notice is hereby given to the Australian Industrial Relations Commission, that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), Level 4, 440 Elizabeth Street, Melbourne, Vic, 3000 is an organisation of employees and intends to try: (a) to make an agreement under Division 2 or 3 of Part VIB of the Workplace Relations Act 1996 ('the Act') with HAWKER DE HAVILLAND PTY LTD and (b) to have any agreement so reached certified under division 4 of Part VIB of the Workplace Relations Act 1996 ('the Act'). Particulars as specified in section 170MJ are: (a) The whole of the business carried on by the above named [sic] company in Victoria which: (i) Is not covered by a current certified agreement; or (ii) Is covered by a certified agreement which has passed its nominal expiry date. (b) (i) the employees subject to the proposed agreement are all persons employed by the company who are members of or are eligible to be members of the AMWU who perform work described in the classifications in the Aerospace Technologies of Australia Award 1998. (ii) the employer who is proposed to be bound by the agreement is HAWKER DE HAVILLAND PTY LTD. (c) The matters that should be dealt with by the proposed agreement are as follows: 1. Boeing Sharevalue Trust Agreement (d) The agreement is sought under Division 2 or 3, Part VIB of the Act. (e) The proposed nominal expiry date of the agreement is 2nd February 2007. The Commission is not being asked to exercise powers to try by conciliation to facilitate the making of such agreement at this stage, however, we may seek the Commission's assistance at some future occasion." Because of a submission that was made in relation to this notice, I should point that the notice was addressed to Hawker de Havilland Pty Ltd, not Hawker de Havilland Aerospace Pty Ltd. The significance of that fact is that Hawker de Havilland Aerospace Pty Ltd has employees, but it does not appear to be proposed as a party to the agreement which the AMWU is seeking to conclude in its notice. 19 On 16 November 2004 the Company's solicitors wrote to the AMWU pointing out that the notice was directed towards what they thought was the wrong Company. A revised notice was sent, but it was still addressed to the same Company. 20 On 17 November, 2004 APESMA sent a notice of initiation of a bargaining period again addressed to Hawker de Havilland Pty Ltd. The notice was in the following terms: "Under sub‑section 170MI(2) of the Workplace Relations Act (the Act) notice is given that the: Association of Professional Engineers, Scientists and Managers, Australia (APESMA), 163 Eastern Road, South Melbourne 3205 (an organisation of employees), intends to try: (a) to make an agreement under Division 2 or Division 3 of Part VIB of the Act with: Aerospace Technologies of Australia (trading as Hawker de Havilland) 226 Lorimer Street, Port Melbourne 3205 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) Level 4, 440 Elizabeth Street, Melbourne 3000; and the National Union of Workers (NUW) 552 Victoria Street, North Melbourne Vic 3051. and (b) to have any agreement so reached certified under Division 4 of Part VIB of the Act. Particulars as specified in section 170MJ of the Act are: (a) The single business to be covered by the proposed agreement is the whole of the business carried on by Aerospace Technologies of Australia (trading as Hawker de Havilland) in Victoria (b) The types of employees whose employment would be subject to the agreement are all persons employed by the company who are members of, or who are eligible to be members of, APESMA. The parties who would be bound by the agreement would be Aerospace Technologies of Australia (trading as Hawker de Havilland), the AMWU, NUW and APESMA. (c) The matters that should be dealt with by the agreement are the Boeing Share Value Trust Agreement. (d) The agreement is sought under Division 2 or 3, Part VIB of the Act. (e) The proposed nominal expiry date of the agreement is 2 February 2007. At this stage, the Commission is not being asked to exercise powers to try by conciliation to facilitate the making of such an agreement." 21 The Company found out on 24 November 2004 that a stop‑work mass meeting of all employees was scheduled for 25 November 2004. At that meeting, it was resolved by the members that on 26 November 2004 there was to be given 72 hours' notice of industrial action that would involve two general areas: · a total ban on ethics training; and · a total ban on employees booking time to any jobs at all. What was proposed was that the employees would swipe in at the commencement of their shift and book time immediately to a miscellaneous code. 22 These two areas are of significance to the Company. There is evidence before me that as part of the employee training program, the employees are required to undertake ethics training every 12 months. This ethics training is relevant to the work that both the Company and other Boeing subsidiaries carry out, and it is part of Boeing's compliance program to ensure that regulations set down by agencies, particularly in the United States of America, are not contravened. 23 The issue of the recording of time is set out in the material before me in relation to the costing of the work and the products of the Company and I will refer to this hereafter when I come to deal with the issue of the balance of convenience. 24 As a result of that activity by the unions, the Company has sought interlocutory relief in the following terms: "1. That until trial or further order, each Respondent (whether by its officers, officials, agents or howsoever otherwise) be restrained from engaging in, organising, procuring or maintaining, and from advising or counselling any employee of the Applicant to engage in or maintain, any ban, limitation or restriction upon - (a) attendance at ethics training conducted by the Applicant; or (b) the accurate and complete booking of work time to the appropriate jobs in accordance with the Applicant's standard procedures; or (c) any other work, duty or function of an employee of the Applicant; in support of or in relation to any industrial claim relating to the Boeing Share Value Trust. 2. That on or before 12.00 noon on 13 December 2004 each Respondent prepare and distribute to each of its members employed by the Applicant at its premises at 226 Lorimer Street, Port Melbourne, a notice in writing signed by the Secretary of the Respondent's relevant State Branch advising them of the making of this Order. 3. Allowing for substituted service of any orders made; 4. The time before which this notice of motion is to be served be abridged."

THE PARTIES' SUBMISSIONS 25 The principal contention before me is that the industrial action is in breach of s 170MN of the Act. Section 170MN provides: "(1) From the time when: (a) a certified agreement; or (b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period); comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action. (2) For the purposes of subsection (1), the following are covered by this subsection: (a) any employee whose employment is subject to the agreement or award; (b) an organisation of employees that is bound by the agreement or award; (c) an officer or employee of such an organisation acting in that capacity. (3) If the employee, organisation or officer contravenes subsection (1), the action concerned is not protected action. …" The response of the respondents to the claim is that the decision in what has been called generally the Emwest case (Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2003) 125 IR 449) applies, and that the action taken by the respondents and the members of those unions, the employees, is protected action. 26 The Company makes two general submissions in relation to the Emwest decision. Senior counsel for the Company formally submitted that the Emwest decision was incorrect and should not be followed. Sitting as a single judge, I am bound by a decision of a Full Court, and counsel recognised that fact. The submission was formally made in case this matter is considered in due course by a higher court. Secondly, the Company submitted that the Emwest case was distinguishable in a manner to which I will refer shortly. 27 The Company also submitted that the notice given by the AMWU initiating the bargaining period did not create an opportunity for protected action in relation to it because the notice initiating the action was directed to the wrong company, that is, Hawker de Havilland Pty Ltd. Section 170ML it was submitted, only protects industrial action taken directly against the employer. 28 Both respondents submitted that the industrial action taken was protected action, and that the proper party to the certified agreement was not the Aerospace Company, but was Hawker de Havilland Pty Ltd. The difficulty with that submission is - and this is a matter that cannot be resolved at this stage - that although the certified agreement is headed Hawker de Havilland Pty Ltd, the document is called the Hawker de Havilland Aerospace Pty Ltd (Port Melbourne) Certified Agreement and the agreement is executed by Hawker de Havilland Aerospace Pty Ltd. 29 It was submitted on behalf of the AMWU that this is a technical matter. I am not so sure that it is a technical matter, but it is a matter that will have to be resolved at a later point in time. I am not in a position at this interlocutory hearing to make a finding in relation to the identity of the employer company that is a party to the agreement and in relation to that matter there is a serious question to be tried. I turn to the key issue which is whether the action taken is protected action. 30 The issue arises for this reason. In the Hawker de Havilland Aerospace Pty Ltd (Port Melbourne) Certified Agreement, cl 1.3.1 provides: "This agreement incorporates the ASTA Certified Agreements of 1994, 1995, 1996, 1998, 2001 and the ASTA Award (to the extent that they are not inconsistent with this Agreement)." and then follows this sentence: "This agreement is comprehensive and shall apply to the exclusion of all other awards and certified agreements which might be applicable by virtue of transmission of business or otherwise." I turn also to cl 1.9 which contains a heading "No Extra Claims", and then cl 1.9.1 which provides: "It is a term of this agreement that the unions and each of the employees bound by this agreement will not pursue any extra claims, award or over award, for the duration of this agreement as specified in Clause 1.5." 31 The Company submitted that these two clauses came within what might be called a caveat or an exception or a reservation identified by the joint judgment of French and von Doussa JJ in the Emwest case (supra) which took this agreement and the present circumstances out of the principle of the Emwest case. 32 The issue in Emwest was the proper construction of s 170MN(1) in relation to the words: "… an employee, organisation or officer … must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, or award engage in industrial action." In their joint judgment French and von Doussa JJ pointed out that the term "in respect of the employment of employees whose employment is subject to the agreement" was capable of more than one meaning, as had found the trial judge. At par [24] of their reasons, their Honours identified one possible construction: "… the expression would refer only to matters actually agreed upon by the parties in the agreement. The prohibition would then extend only to industrial action for the purpose of advancing claims in respect of such agreed matters." They then identified in par [25] the alternative construction which was that: "… the prohibition would extend to industrial action taken for the purpose of advancing any claim pertaining to the employment of an employee to whom (or to whose work) the certified agreement applied." Their Honours then analysed the context of the Act and reached the conclusion that Kenny J had not erred in finding that the expression referred only to matters actually agreed upon by the parties in the agreement. 33 So it followed that in Emwest, the prohibition only extended to industrial action for the purpose of advancing claims in respect of the agreed matters. 34 Senior counsel for the Company relied specifically on what he submitted was an exception to this principle in par [38] which is in the following terms: "It is of course possible that parties to an agreement may seek to abuse s 170MN by confecting some issue not explicitly covered by a certified agreement and using that as a basis for constructing an entitlement to protected action. It may be that in such a case, the court would construe the agreement as intended to cover the field of terms and conditions defining the employment relationship in question. Indeed the parties may, as Kenny J pointed out, make that intention explicit by the inclusion of a provision that the agreement is intended to be exhaustive of the terms and conditions of the relevant employment relationship." Counsel then submitted that cl 1.3.1 fell into that category and also submitted that if there was any doubt about the matter, the matter was rendered conclusive by cl 1.9.1. It was submitted that if one was to look for a definition of "comprehensive", it would mean "covering the field". 35 The respondents submitted in contra‑distinction to this argument that where the word "comprehensive" was used, it was limited to comprehensively dealing with the subject matter of the agreement. 36 I consider there to be a serious question to be tried on this issue. It is significant to note - and senior counsel for the Company also relied upon - par [37] of the Emwest decision which contains this significant passage: "Both views of the purposes of s 170MN have force. Each side of the argument can point to anomalous outcomes which could arise from the other's approach. In the end, however, in our opinion, the preferable view is that which permits and encourages flexibility in the bargaining process." Then comes this statement which I consider to be significant: "Comprehensive agreements may be desirable and in some and perhaps most circumstances. But there may be cases when it will be in the interests of good workplace relations to conclude an agreement on some issues and leave less pressing issues for subsequent agreement." In my opinion, there is a serious question to be tried on this issue of whether cl 1.3.1 and cl 1.9.1 take the circumstances in this application out of the Emwest principle and within the exception to it to which I have referred. Ultimately this is a matter of interpretation of the industrial instrument. I invited the parties to consider having an expeditious final hearing on this issue alone. The respondents declined to do so, and in the circumstances, having regard to the speed in which the case has come on for hearing, I was not disposed to pressure the parties into doing so. 37 However, I am satisfied at this point of time that there is a serious question to be tried. The reason is that the words in cl 1.3.1 seem on their face to fall within what is contemplated by in par [38] of the joint judgment in Emwest. It is also significant, in my view, that the word "comprehensive", which is identified in par [37] of the Emwest judgment, appears in cl 1.3.1. Even if it be thought that the comprehensiveness of the agreement relates only to matters which existed at the time the agreement was entered into, and does not cover future matters, it is necessary to give some meaning to the no extra claims clause (cl 1.9.1). 38 The no extra claims clause in paragraph 1.9.1 was not a matter that was dealt with by Kenny J in her decision. Although there had been a no extra claims clause in the industrial instrument that was before Kenny J, having regard to the manner in which the parties conducted the case and what they had agreed to put aside for future consideration, her Honour gave no consideration to the no extra claims clause in that case, and it was not the subject of determination, consideration or submission by the parties. 39 In the written submissions of APESMA, it was submitted that cl 1.9.1 is a no extra claims clause drafted in nearly identical language to the clause in the Emwest case. That is not so, but for present purposes, it does not matter. It was also stated in those written submissions that the Full Bench in Emwest held that the no extra claims clause applied only to matters covered by the agreement, and it was submitted that the same principle of law applies to cl 1.9.1. When I pointed out that I could not find that holding of the Full Bench, the submission was reconsidered and was withdrawn. In my opinion, there is nothing in the Emwest case which has the effect of pronouncing on a no extra claims clause similar to cl 1.9.1 of the industrial instrument before me. 40 What is an extra claim? It was submitted by counsel for the Company that it covers the claims which are made by the unions at this time, and in my opinion there is a serious question to be tried that it covers any claim whether made in relation to agreed matters or matters not the subject of agreement in the certified agreement. I consider, independently of cl 1.3.1, that the terms in cl 1.9.1 also raise a serious question to be tried that it covers the claims now made by the respondents. 41 For all of those reasons, I am satisfied that the first hurdle an applicant for an interlocutory injunction has to overcome has been satisfied. There is a serious question to be tried that the conduct undertaken and proposed to be undertaken by the unions is not protected action and is in breach of s 170MN. It also follows that there is a serious question to be tried in relation to the claim that there is a contravention of s 170NC.

THE BALANCE OF CONVENIENCE 42 I turn to the question of the balance of convenience, in respect of which the Company relies upon two general propositions. One is the consequences of an inability to have a proper recording of time in relation to work orders. The evidence is set out extensively in Mr Martin's affidavit, and I do not propose to record it in any detail, other than to note that it identifies serious consequences for the Company in relation to the orders which it has to fulfil, its costings and its ability to be competitive and to have proper prices recorded for its products. 43 I have already referred to the ethics training and the significance of the ethics training in relation to the ability of the Company to make its products acceptable for a number of agencies. 44 On the other side of the balance of convenience is the issue of the unions' bargaining power. It was submitted by them that they have the opportunity to take industrial action in order to advance the causes which they are seeking to maintain. It was submitted that at the end of the day, all that was involved with the Company's balance of convenience issues was a matter of money. It may well be a matter of money, but it may well have consequences for the ability of the Company to be seen to be in a position to be able to make and sell its products in an efficient and timely manner. 45 If an injunction were to be granted, the employees and the unions would lose an ability for a period of time to exercise industrial power and to seek to advance their causes in the way they wish to do so. However, in terms of the balancing of the conveniences of both sides, I consider that the scales are weighed more heavily in favour of the Company. 46 I consider that if an injunction is granted, which I propose to grant, subject to there being given the usual undertaking as to damages, this is a case that ought to be expedited in terms of its hearing. I consider it undesirable in an industrial context that there be injunctions overhanging employees and unions in relation to their ability to carry on such industrial activity as is otherwise available to them. 47 For all of these reasons, I propose to grant relief in terms of pars 1(a) and (b) of the application. It was submitted by the Company that I should also grant an injunction restraining any other work, duty or function of an employee in support of or in relation to the Boeing Share Value Trust. I am not disposed to grant relief in such wide terms. I think the injunction should cover something more limited such as work, but I will hear submissions from the parties in relation to that. I am also disposed to grant an order generally in terms of par 2, but I will hear submissions in relation to that, because it may be that that matter was the subject of consideration by the parties yesterday. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 21 December 2004 Counsel for the Applicant: Dr C N Jessup QC with Mr S Wood

Solicitor for the Applicant: Minter Ellison

Solicitor for the Second Respondent: Ms J Fredericks

Date of Hearing: 13 December 2004

Date of Judgment: 14 December 2004