Inner and Eastern Health Care Network v Health Services Union of Australia

REASONS FOR JUDGMENT The substantive proceeding in this matter is an application by the Metal Trades Industry Association of Australia ("MTIA") for an injunction pursuant to s 127(6) of the Workplace Relations Act 1996 (Cth) ("the Act"). The application sought relief in the following terms directed to the respondent Union. "1. An Order restraining the Respondent whether by its officers, delegates, servants or agents or howsoever otherwise from engaging in conduct which constitutes a contravention of the Order made by Senior Deputy President Polites on 29 November 1997 in proceeding C No. 3855802 of 1997, before the Australian Industrial Relations Commission (the Order) 2. An Order directing the Respondent to give to the Applicant by 10 am on Tuesday 2 December 1997 a letter on the Respondent's letterhead and signed by an authorised officer of the Respondent, directing members of the Respondent to Comply with the Order." The application also claimed "by way of interim and/or interlocutory relief", the relief sought in the substantive proceedings. The application was filed in the Registry of the Court at approximately 1:00 pm on Monday 1 December 1997. The MTIA's application for an interim injunction pursuant to s 127(7) of the Act was listed for mention at 2.15 pm on that afternoon. The hearing of the application for an interim injunction commenced at 5.00 pm on the same afternoon. Proceedings were adjourned at 6.00 pm. The matter resumed at 8.00 am on Tuesday 2 December 1997. Counsel's submissions concluded by noon. At 12.30 pm the Court made its order in the application for interim relief and informed the parties that it would publish its reasons later. What follows are my reasons for dismissing the application for an interim injunction. BACKGROUND FACTS The MTIA is an organisation of employers registered under the Act. It represents the industrial interests of large numbers of employers in manufacturing industry. The respondent Union, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, ("AMWU") is an organisation of employees registered under the Act. The AMWU represents the industrial interests of employees employed in a range of industrial pursuits including metal workers. On 28 November 1997, the MTIA made application pursuant to s 127(2) of the Act to the Australian Industrial Relations Commission ("the Commission") for an order pursuant to s 127(1) of the Act. Section 127(1) of the Act provides as follows: "If it appears to the Commission that industrial action is happening, or is threatened, impending or probable, in relation to: (a) an industrial dispute; or (b) the negotiation or proposed negotiation of an agreement under Division 2 of Part VIB; or (c) work that is regulated by an award or a certified agreement; the Commission may, by order, give directions that the industrial action stop or not occur." The application was made in the following form: "Workplace Relations Act 1996 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Application for an Order to stop or prevent industrial action In the matter of work that is regulated by the: . Metal Industry Award 1984, Part I . Metal Industry Award 1984, Part II . Metal Industry (Engine Drivers and Firemen's) Award . National Metal and Engineering On-Site Construction Industry Award 1989 (collectively "the Awards") Application is made by Metal Trades Industry Association of Australia for an order under subsection 127(2) of the Act in the following terms: 1. Title This order shall be known as the Victorian WorkCover Industrial Order 2. Parties Bound This order is binding on: 2.1 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, its officers and members employed in Victoria on work subject to the awards (or any one of them) 2.2. The Australian Workers' Union, its officers and members employed in Victoria on work subject to the awards (or any one of them) 2.3 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, its officers and members employed in Victoria on work subject to the awards (or any one of them) 2.4 Construction, Forestry, Mining and Energy Union, its officers and members employed in Victoria on work subject to the awards (or any one of them) 2.5 National Union of Workers, its officers and members employed in Victoria on work subject to the awards (or any one of them) 3. Industrial action to stop 3.1 Industrial action as defined in clause 3.3 including in particular strikes, bans and limitations on the performance of work by persons to whom this order applies shall not occur on Wednesday, 3 December 1997 3.2 Industrial action as defined in clause 3.3 including in particular strikes, bans and limitations on the performance of work by persons to whom this order applies shall not for the duration of this order occur in support of claims by the Unions named in Clause 2 in relation to changes in WorkCover legislation in Victoria 3.3 For the purposes of this Order, the expression industrial action means: 3.3.1 Failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work; 3.3.2 A ban, limitation or restriction on the performance of work, or an acceptance of or offering for work; 3.3.3 The performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of work. 4. Term and Date of Effect This Order shall come into effect at on December 1997 and shall remain in force for a period of 12 months. The grounds on which this application is made are as follows: a) The aforementioned organisations of employees represented by the Metal Trades Federation of Unions (MTFU) have announced an intention to initiate strike action by their members for a period of 24 hours on Wednesday 3 December in Victoria in those industries covered by the awards referred to in this application. A copy of an AMWU notice to this effect is Attachment 1. b) The industrial action is in response to a refusal by MTIA to accede to demands 'to negotiate a package which broadly compensates workers for losses incurred as a result of the WorkCover legislation changes of 12 November 1997.' See Attachment marked '2'. (c) The proposed strike would be the third occasion on which industrial action has affected members of MTIA in relation to proposed changes to WorkCover legislation in Victoria. (d) On 27 October 1997 Senior Deputy President Polites issued a Recommendation in the terms of the attached marked '3'. (e) The proposed strike action would not, to the best of the applicant's knowledge and belief, be protected action within the meaning of the Act. (f) The proposed strike will cause substantial loss and damage to members of the applicant. DATED 28th NOVEMBER 1997" The s 127(1) application was heard by the Commission (constituted by Polites SDP) on 29 November 1997. The AMWU appeared by counsel on that day. The MTIA was represented by its solicitor. The solicitor for the MTIA referred the Commission to the AMWU's intention to direct its members to stop work for twenty-four hours on 3 December 1997 to attend a protest rally at Parliament House. The protest was a response to legislative changes being made by the Victorian Parliament which would impact on the rights of workers and their dependents to be adequately compensated for injuries occurring at the workplace. The Commission made an order in the following terms: "A. Further to a decision dated 29 November, 1997 of the Commission the following order is made.