PWB Anchor Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

REASONS FOR JUDGMENT 1 On the morning of Thursday, 12 October 2000, the employees of the applicant PWB Anchor Ltd stopped work and went out on an indefinite strike. The employees are members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("AMWU") and the Australian Workers' Union ("AWU") who contended that the strike is protected action within s 170ML of the Workplace Relations Act 1996 (Cth) ("the Act"). 2 The applicant contended that the strike is not protected action as there is not extant a notice in relation to the strike which complies with s 170MO of the Act. The applicant seeks urgent interlocutory injunctive relief restraining the respondents from continuing the strike and requiring the respondents to inform their members of the grant of any such injunction and to make a recommendation that they return to work. 3 The circumstances giving rise to the events which unfolded yesterday are briefly as follows. The applicant, part of the Metals Division of Email Ltd, a listed public company, manufactures and imports chain and associated lifting products, such as chain blocks, winches and fittings. It employs approximately 82 employees of whom 51 perform production, engineering, warehousing and distribution functions. Of those 51 employees, 30 are members of the AMWU and 21 are members of the AWU. The applicant operates a five‑day, 24‑hour operation comprising three shifts. On the night shift there are seven employees, on the afternoon shift there are 10 employees and on the day shift there are 34 employees. 4 The applicant is bound by a certified agreement, the Email (Victorian) Manufacturing Agreement 1999. It commenced on 1 October 1999 and its nominal expiry date was 30 June 2000. On 22 June 2000 the AMWU served on the applicant a notice pursuant to s 170MI of the Act, notifying its intention to try and make an agreement under Div 2 of the Act and have it certified pursuant to Div 4 of the Act. On 26 June 2000 the AWU served on the applicant a similar notice. Since July, discussions have occurred between the AMWU, the AWU and the applicant in relation to the terms of the new enterprise agreement for the 51 employees to whom I have referred. 5 On 11 September 2000 each of the respondents served on the applicant a notice of intended industrial action commencing at 7.00 am on 15 September 2000. The notice from the AMWU set out that the nature of the intended action as follows: "(1) Ban on overtime (2) Ban on working with casuals and contractors (3) Ban on loading or despatching of finished or part finished products (4) Rolling stoppages" The notice given by the AWU described the particulars of the industrial action as follows: "(1) Employees shall impose and respect a total ban on overtime. (2) Employees shall impose bans on all working with or working by casual employees and contractors. (3) Employees shall impose and respect a ban on the loading and dispatching of finished or part finished products. (4) Employees shall commence rolling stoppages effecting [sic] all locations to be imposed at random times." Each of the notices provided that the industrial action was to commence at 7.00 am on 15 September 2000 and would continue for a period of three months or until agreement was reached or any disagreement resolved. Those notices were given pursuant to s 170MO of the Act. On Thursday 5 October 2000, the employees, members of the respondents, who were due to commence the day shift at 7.00 am in the warehouse and distribution facilities, and at 8.00 am in the production and engineering facilities, did not commence work. Work by those persons did not resume until 7.00 am on Wednesday, 11 October 2000. 6 On 5 October 2000 the applicant filed an application in the Australian Industrial Relations Commission under s 166A of the Act in respect of its intention to bring an action in tort against the respondents. The conduct referred to in the notice was inducing or procuring breaches of contracts of employees with the applicant and contracts between the applicant and suppliers and contracts between the applicant and customers. The application was heard on 6 October 2000 but not concluded on that day. 7 On Monday 9 October 2000, 30 of the 51 employees returned to the work site at 10.00 am but did not return to work and the applicant on that day relisted its s 166A application for hearing on 11 October 2000. On Tuesday 10 October 2000, the applicant received notices of intended industrial action from each of the respondents which were apparently sent on the evening of Monday 9 October 2000. For present purposes it is not significant whether they were served on the evening of Monday 9 October 2000 or the morning of Tuesday 10 October 2000. 8 Each of the notices was in substantially the same form. They were addressed to the applicant. The notice from the AMWU stated: "The particulars of the notice are as follows: Industrial action will commence on Friday, 13 October 2000. The nature of the intended action is as follows: From the commencement of ordinary hours Friday 13 October, 2000 all employees shall commence indefinite strike activity. That is, employees shall not perform any work as directed or attend work at all. This notice is without prejudice to the notices previously served on the company." The notice from the AWU stated: "The particulars of the notice are as follows: From the commencement of ordinary hours Friday 13 October 2000 all employees shall commence indefinite strike activity. That is, employees shall not perform any work as directed or attend for work at all. This notice is without prejudice to the notices served on the company on 11 September 2000." 9 On Tuesday, 10 October 2000 at 10.00 am, a meeting of factory employees of the applicant voted to return to work on Wednesday 11 October 2000 which they subsequently did. On that date, the hearing before the deputy president of the Australian Industrial Relations Commission in relation to the applicant's application for a certificate pursuant to s 166A concluded and the deputy president indicated that he would grant a certificate the next day which he did. The certificate, given pursuant to s 166A(6) of the Act, stated: "I hereby certify the Commission had not stopped the conduct by the end of 72 hours after the notice was given under subsection (3)." 10 On the morning of Thursday 12 October 2000, there was a meeting of employees of the applicant and at approximately 8.40 am that morning Mr Homann, the operations manager for the applicant, was advised by Mr Finbar Dowling, an officer of the AMWU, that the employees had gone home on indefinite strike. The employees on day shift that day left the site at approximately 9.00 am and have not returned to work since. The indefinite strike is continuing at this time. 11 The applicant seeks urgent injunctive relief because it contends that it is suffering harm because of the strike. Evidence has been given by Mr Homann that there is a substantial loss each day to the applicant made up of lost revenue and overhead costs which are continuing to be incurred. He also said that the applicant imports products from overseas and there are shipments in storage. He also alleges that there will be significant damage to its reputation if the strike continues because it has clients who contribute substantial revenue to it in the millions of dollars each year and these customers have forward order systems whereby products are ordered well in advance. If these forward orders cannot be complied with the applicant believes that it will lose a substantial part of its business with those clients. Indeed there is evidence that one of the clients has already placed an order for products with a competitor of the applicant which would normally have been supplied by the applicant as a preferred supplier. Details of the applicant's loss and damage are set out generally in pars 30 to 40 of Mr Homann's affidavit sworn 13 October 2000. 12 The applicant seeks relief pursuant to s 170NC of the Act on the basis that it contends that the industrial action has been taken with intent to coerce the applicant to enter into a new agreement, the nominal expiry date of the earlier agreement having occurred on 30 June 2000. Whether there is a serious question to be tried in relation to that issue depends upon the validity of the notices already served by the respondents and whether or not the indefinite strike presently continuing is "protected action" for the purposes of the Act. 13 The applicant contended that the strike is not protected action because the notices dated 9 October 2000 do not relate to the strike which commenced on 12 October 2000. The applicant submitted that if the notices of 9 October 2000 do relate to the strike which commenced on 12 October 2000, the applicant was not given three days' notice as required by s 170MO(2) of the Act. The strike which is currently in progress is one which commenced on 12 October 2000 and is claimed to be protected action. The applicant submitted that although the notice related to the strike commencing on 13 October 2000 it is not open to the respondents to say that the notices relate to a period commencing the second day of the period, the conduct having started on the previous day. 14 The applicant alternatively submitted that the notices of 9 October 2000 do not adequately describe the nature of the industrial action because there is a reference to an "indefinite strike" and there is no specification of the date of the termination of the strike. The applicant relied upon Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ACI Mould Manufacturing [1999] FCA 1859 where I held that there was a serious question to be tried as to whether under the provisions of the Act it was necessary for there to be specified a termination date in respect of a notice of lockout that had been given. In that case the commencement date of the lockout had been given but no termination date had been provided. 15 I have had cause to reflect upon that decision but I do not consider that it is applicable to the circumstances before me. In this case the strike which is identified in the notices is expressed to be indefinite. There is therefore an indication given that it is to be a strike that will go on for some considerable time. No such word as "indefinite" was found in the relevant notice in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ACI Mould Manufacturing (supra). In any event, in Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550, Wilcox and Cooper JJ observed (at 578) that it would be sufficient for the purposes of the Act if there was a reference in a notice, for example, to an indefinite strike of all employees. In those circumstances I do not consider there is a serious question to be tried that by describing the industrial action as "indefinite strike activity" in the notices, the notices are thereby invalid. 16 I turn then to consider whether there is a serious question to be tried in relation to whether the present indefinite strike is protected action. I consider there is a serious question to be tried that the conduct which has occurred and is continuing is not conduct which is the subject of the notices of 9 October 2000. The AMWU notice states: "Industrial action will commence on Friday 13 October." The AWU notice states: "From the commencement of ordinary hours Friday 13 October 2000 all employees shall commence indefinite strike activity." It seems to me that there is a serious question to be tried whether a strike which is continuous and starts a day earlier than the date specified in the notices is industrial action which is "protected action" by virtue of the provisions of the Act. In my view it is arguable that the strike which has occurred is not the strike referred to in the notices. 17 There is a further basis upon which I consider there is a serious question to be tried that the industrial action currently undertaken by way of indefinite strike is not protected action and that is that even if the notices, properly construed, can apply to the strike presently being undertaken, three days' notice of the intention to take the action was not given. In Construction, Forestry, Mining and Energy Union v Curragh Queensland Mining Ltd (unreported, Wilcox J, 30 September 1998), his Honour concluded that the three days provided for in s 170MO(2)(b) was three clear days' notice. 18 It is clear in this case that, assuming the notices were given on Monday 9 October 2000, three days' notice was not given in respect of the industrial action which started on Thursday 12 October 2000; at the most only two days' notice was given. In those circumstances, it is certainly arguable - and a serious question arises - that the terms of s 170MO(2)(b) have not been complied with. There is a serious question that that factor may well invalidate the notices and render them ineffective for the purpose of creating an umbrella of protected action over the conduct because s 170MO(1) provides that any action taken - as mentioned in s 170ML(2) - by the relevant persons is not protected action unless the requirements set out in s 170MO(2) are met. One of those requirements is the three days' notice requirement. 19 In the course of argument the issue was raised whether it might be said that that potential invalidity only relates to the first day of the strike and that the second day of the strike which commenced today, 13 October 2000, was a day in respect of which three clear days' notice had been given. However, I consider there to be a serious question to be tried as to whether that is the proper way to approach this particular industrial action. The conduct engaged in is intended to be continuous. It was intended to be indefinite and was so stated. It seems to me that there is a serious question to be tried that in those circumstances there has not been a notice given under s 170MO in respect of the current industrial action in the nature of an indefinite strike which commenced on 12 October 2000. 20 This matter was touched upon in a sense in Curragh, to which I have already referred, where Wilcox J, referring to the requirements of s 170MO(2), said at 19: "Compliance with those requirements is an essential ingredient in the concept of protected action. As the requirements of section 170MO(2) were not met in this case, either by CFMEU or CEPU, the industrial action taken by those of their members who were employed by Curragh was not protected action within the meaning of Division 8 of Part VIB of the Act." Later his Honour said, at 20: "Neither applicant is able to use an earlier notice to overcome the problems sustained by the inadequate notice given of the two week stoppage commencing on 1 August. The stoppage that was in effect on 6 August was not 'protected action' within the meaning of Division 8 of Part VIB of the Act." In essence what was before his Honour on that occasion was industrial action which had commenced before the relevant three days' notice had been given in respect of a particular notice. That conduct continued to a point of time where three clear days had elapsed, which is similar to the circumstances in this case. His Honour held that in those circumstances the notice could not be relied on to validate or protect the later periods of the industrial action. His Honour held that the whole of the industrial action was not protected action. 21 It seems to me that those circumstances, by parity of reasoning, certainly raise a serious question to be tried in this particular case. There is dicta to similar effect by Harper J in National Workforce Pty Ltd v Australian Manufacturing Workers' Union (1997) 75 IR 200, particularly at 201. Although that matter went on appeal, his Honour's finding on that aspect of the invalidity, namely the fact that the conduct was not protected action because of the dates upon which the notices were served, was not interfered with. 22 I should point out that this is not simply a technical defect. There is a policy reason for the three‑day period. As was pointed out by Merkel J in Construction, Forestry, Mining and Energy Union v Yallourn Energy Pty Ltd (2000) FCA 1070, it gives the respondent to the notices an opportunity to take defensive action and to have a period of three days within which to take that action. Similar observations were made in Davids Distribution Pty Ltd v National Union of Workers (supra) where Wilcox and Cooper JJ said at 578: "We think s 170MO(5) 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. For example, an employer may operate a sophisticated item of equipment that will be damaged if precipitately shut down. If warned in advance of a ban that might affect the continued operation of that plant, the employer might choose a controlled shut down during the period of the notice. More commonly, perhaps, an employer might use the notice time to communicate with suppliers and customers, and thereby reduce the consequences for them of the notified industrial action. Very often, the recipient of the notice will respond in a way that has a legal dimension." These observations demonstrate that I am not dealing with a technical defect but I am rather dealing with a substantive defect. 23 It follows from these observations that I am satisfied there is a serious question to be tried that the current indefinite strike is not protected action because of the failure to comply with s 170MO of the Act by giving a notice that complies with that section. On that basis a serious question then arises that the industrial action is taken with intent to coerce the applicant to enter into a new agreement as contemplated by s 170NC(1) of the Act. I consider it to be a reasonable assumption to make, in circumstances where an indefinite strike has commenced and negotiations have continued for some considerable time since the nominal expiry of the earlier agreement, that there is a serious question to be tried, that the industrial action is taken with intent so to coerce the applicant. 24 I also consider there is a serious question to be tried that the notices do not sufficiently identify the intended action for the purposes of s 170MO(5) because of the reference to the fact that the notices are without prejudice to the notices previously served on the applicant. Mr Lawrence who appears for the respondents says that I should construe the "without prejudice" statement in the notices as saying no more than that the notices are concurrent with the earlier notices and that the earlier notices are left on foot. That is certainly a construction which is open. But I am also of the opinion that there is a serious question to be tried that it is arguable that the effect of the notice is that there is going to be an indefinite strike but in some way that indefinite strike may terminate at a moment's notice and be replaced by the conduct referred to in the earlier notices of 11 September 2000. It might be said that in some way that is an artificial construction but the difficulty is how to construe the notices having regard to the lapse of time which has occurred since the earlier notices. 25 There is also an issue which arises in relation to the notices of 11 September 2000. In the AMWU notice there is simply a reference to rolling stoppages. In Davids Distribution Pty Ltd v National Union of Workers (supra) Wilcox and Cooper JJ said at 578: "… 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, does not adequately disclose 'the nature of the intended action'." It seems to me therefore that there is a serious question to be tried that the notice of 11 September 2000 by the AMWU, insofar as it is intended to justify or warrant rolling stoppages hereafter, is not a valid notice so that any stoppage which occurs either hereafter or somehow constitutes or is said to constitute the present industrial action is not protected action. 26 Mr Lawrence submitted that the AWU notice was valid and effective because rather than just referring to rolling stoppages it referred to: "Employees shall commence rolling stoppages effecting [sic] all locations to be imposed at random times." He submitted, relying on Davids (supra), that the reference to "effecting all locations" had the result of what their Honours contemplated in Davids as being a valid notice. 27 Mr Wood, who appeared for the applicant, submitted that the decision in Davids did not have that consequence and that, a fortiori, the AWU notice was not satisfactory and did not comply with s 170MO(5) of the Act because a reference to "random times" said nothing as to when the rolling stoppages might occur. That aspect of the matter was not touched upon by their Honours in Davids (supra). I consider the matter is not clear and I am of the view that there is a serious question to be tried as to whether the description of the rolling stoppages in the AWU notice is an adequate description for the purposes of s 170MO(5). 28 Mr Lawrence accepted that an indefinite strike could not be said to fall under the description of a rolling stoppage. Nevertheless, I consider that it is necessary to address this matter because it is not clear as to whether the indefinite strike might not be converted forthwith, or at some time in the near future, into a rolling stoppage. 29 I am therefore satisfied that the first threshold over which the applicant must cross in order to obtain interlocutory relief is satisfied, that is, there is a serious question to be tried as to whether or not the conduct, the indefinite strike, is protected action. 30 I turn to the balance of convenience. Mr Wood submitted that the balance of convenience was all one way because of the circumstances surrounding the inhibitions and interference with the applicant's business to which I have already referred. There are clear financial consequences: production is being disrupted and brought to a close and there is substantial interference with the ability of the applicant to supply orders. It runs the risk of losing orders, future goodwill and reputation. 31 Mr Lawrence submitted that in considering the balance of convenience I should take into account that notwithstanding what is now said by the applicant in relation to the attack made on the description of the rolling stoppages in the notices of 11 September 2000, no action was taken when it became available in relation to such a stoppage after 15 September 2000. He submitted that at that time the applicant could have made an application to the Australian Industrial Relations Commission in relation to that conduct under s 127 of the Act. That may be so, but ultimately it is a matter of degree. 32 I consider the fact that the applicant may not have taken any steps in relation to the rolling stoppages should not be counted against it where it is now faced with an indefinite strike which has closed down the whole of its operation. Nothing has been put to me that the balance of convenience should weigh in favour of the respondents because of any particular circumstances which affect them. I am satisfied that in the circumstances of the case the balance of convenience is in favour of the grant of interlocutory relief. I am satisfied that an injunction should go, addressed to the respondents on the basis of there being a serious question to be tried that there is an intent to coerce in the terms proscribed under s 170NC of the Act because of the serious question that the notices of intended industrial action are invalid for the purposes of s 170MO of the Act. 33 Mr Lawrence referred me to a decision of North J in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 where at 24 his Honour said, having referred to features of industrial disputes: "By reason of these recurring features of industrial disputes, ordinarily, justice will best be served if the Court approaches the grant of an interim injunction against industrial action with particular caution. I emphasise that this is not a universal or inflexible rule or precondition, but rather an approach which will be applicable in most cases because of the usual features of such cases." In ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 173 ALR 109 at 120 Merkel J considered his Honour's observations of no assistance to the respondents because the picketing under consideration by him was not "industrial action" for the purposes of the Act. In the context of the matter before me today, the observations of North J are of little assistance to the respondents having regard to the matters which have been raised, that is to say matters which go to the validity of the notices and the protected nature or otherwise of the industrial action sought to be restrained. In those circumstances, although one approaches any application for interlocutory relief bearing in mind the imposition which it may impose on parties restrained, I consider this is an appropriate case for the granting of interlocutory relief. 34 As well as injunctive relief, the applicant submitted that I should grant orders which in effect compel or require the respondents not only to inform the employees of any injunction granted but to recommend to them that they return to work at a time and date to be fixed by the Court. Although a recommendation to that effect was made by Harper J in National Workforce Pty Ltd v Australian Manufacturing Workers Union (supra), I am uneasy about making such a recommendation. The applicant pointed to a number of other authorities where directions were given to respondents in cases where industrial action was restrained, directing them to carry out certain matters. I do not consider that it is appropriate in the circumstances of this case at the present time to direct the respondents to make such a recommendation. 35 However, it is necessary in my view that the respondents do bring to the attention of their members who are participating in the industrial action the terms of the injunction which I am about to pronounce. I propose to order that the respondents so notify the members of the respondent who are employees of the applicant of the terms of the order which I am about to pronounce. 36 The form of order I would propose would be subject to the usual undertaking to damages being given which has not yet been offered. I am disposed to grant an order that an injunction be granted pending the trial of the proceeding or further order, restraining the respondents and each of them, whether by their respective officers, agents or otherwise howsoever, from continuing to take or threatening to take any industrial action or inducing, procuring or advising any employee of the applicant to take, continue to take or threaten to take industrial action in the nature of rolling stoppages pursuant to or in reliance upon the notices to the applicant dated 11 September 2000 being exhibits MUH4 and 5 to the affidavit of Michael Ulf Homann sworn 13 October 2000, or in the nature of an indefinite strike whereby employees of the applicant not perform any work for the applicant, as directed by the applicant, or attend work at the applicant's premises at all pursuant to or in reliance upon the notices to the applicant dated 9 October 2000 which are exhibit MUH8 to the said affidavit of Michael Ulf Homann. 37 I indicated in the course of final submissions that I was not disposed to order or direct the respondents to recommend to their members who were employees of the applicant that the strike be terminated. I would expect that once the Court decision has been made known to the applicant's employees that the parties would act responsibly and not require further proceedings to be taken. In those circumstances I would reserve liberty to the applicant to apply for further orders if the employees do not go back to work by a date I propose to discuss with the parties. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.