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."