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

REASONS FOR JUDGMENT 1 On 13 October 2000 I made orders restraining the respondents from continuing to take or threatening to take or advising any employee of the applicant to take action in the nature of rolling stoppages in reliance upon notices dated 11 September 2000 or in the nature of an indefinite strike in reliance upon notices dated 9 October 2000. I have published my reasons for making those orders: [2000] FCA 1482. 2 Since 13 October, further actions have occurred and there have been further developments in relation to issues between the applicant and members of the respondents who are employees of the applicant. They are set out in an affidavit of Michael Ulf Homann, the operations manager of the applicant, sworn this day which has been corrected by a supplementary affidavit. I refer briefly to the matters in that affidavit which bear upon the issues before me. At approximately 9.00 am on Monday 16 October, the 51 employees who worked on the day shift of the applicant, as referred to in my earlier reasons, returned to work. About 10 minutes thereafter Mr Homann was told by the shop stewards representing each of the respondent unions that a ban on the loading of trucks and a ban on the movement of people in the factory would be implemented by the applicant's employees. 3 Mr Homann was told that the bans may or may not be continued and would be reviewed on a day‑to‑day basis. The consequence of the ban on the loading of trucks means that employees will not load or dispatch product manufactured by the applicant from the warehouse to customers. The ban on the movement of employees around the factory means that employees, when asked to move to another area, for example, from a production line to the warehouse, have refused to do so. Mr Homann told the shop stewards that he would only meet with the unions at 1.00 pm, as had been previously arranged, if the bans were removed. The bans were removed at approximately 11.30 am. 4 Later that day, the applicant received notices of intended industrial action from the respondents notifying it that from the commencement of ordinary hours on Friday 20 October the applicant's employees would commence indefinite strike activity. 5 On the following day, Tuesday 17 October at approximately 4.00 pm, Mr Homann was advised by an organiser of the first respondent ("AMWU") that the factory employees would be implementing bans on working with casuals and on the loading of trucks. The ban on the loading of trucks has the consequence that factory employees employed to fill customer orders and load products from the warehouse onto trucks and complete invoicing will not carry out this work. From approximately 4.30 pm on 17 October, the loading and dispatching of the applicant's product did not occur. 6 At approximately 3.30 pm on 17 October, the applicant received a notice of intended industrial action from the second respondent ("AWU") which gave notice of intention to take industrial action being an indefinite strike to commence Monday 23 October. The notice also provided that the notice which had been served on 16 October was withdrawn. Approximately two hours later a similar notice was received from the AMWU. 7 The consequence is that notices have been given by both respondents notifying the commencement of indefinite strike action on Monday 23 October. The respondents contend that the ban on the loading of trucks is protected action for the purposes of the Workplace Relations Act 1996 (Cth) ("the Act") by virtue of the notices given to the applicant by the respondents on 11 September 2000. 8 The notice given by the AMWU on 11 September 2000 was in the following terms: "(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 on 11 September 2000 was in the following terms: "(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." 9 The applicant seeks urgent injunctive relief in the following terms: "1. That pending the trial of the proceeding or further order, the respondents and each of them be restrained whether by their officers, agents or otherwise howsoever from taking, 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 any industrial action in the nature of bans upon the loading of trucks or bans on the dispatching of finished or part finished product pursuant to, or in reliance upon, the notices to the applicant dated 11 September 2000 being exhibits MUH4 and MUH5 to the affidavit of Michael Ulf Homann sworn 13 October 2000. 2. That pending the trial of the proceeding or further order, the respondents and each of them be restrained whether by their officers, agents or otherwise howsoever from taking, 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 any industrial action in the nature of an indefinite strike pursuant to or in reliance upon the notices to the applicant dated 17 October 2000 being exhibits MH2 and MH3 to the Second Affidavit of Michael Ulf Homann sworn 17 October 2000, unless the indefinite strike commences no earlier than Tuesday 24 October 2000. 10 The applicant submitted that there was a serious question to be tried that the current ban on the loading of trucks was not covered by the notices dated 11 September 2000. It was said that there was no correlation between the action taken on 17 October 2000 and the action referred to in the notices. It was submitted that it followed that there was a serious question to be tried that there was a contravention of s 170NC of the Act, that is to say that the respondents are taking action with intent to coerce the applicant to agree to make an agreement under Div 2 or Div 3 of the Act. 11 The applicant submitted that in the context in which the industrial action was taken there was a serious question as to coercion because there is a serious question that it is not protected action and it is being taken with a proscribed intent. For present purposes I consider, having regard to the context in which the bans have occurred, the circumstances to which I referred in my earlier reasons for judgment and what has occurred this week, that there is a serious question as to the existence of that intention to coerce. The determination of that question for the purposes of s 170NC of the Act depends upon whether there is a serious question that the bans are not protected action. 12 The applicant submitted that if the bans on loading were not protected action the consequence was that there was a serious question that it had not been given the appropriate three days' notice of the intention to commence the indefinite strike. It was said that because the three days' notice given of the intention to commence the indefinite strike on 23 October included days when the bans upon the loading of trucks applied, the applicant did not have the required period within which it could take defensive action. 13 It was submitted that in those circumstances the jurisdiction under s 170NG of the Act to restrain a party from contravening a penalty provision, or requiring it to cease contravening a penalty provision, was such that I could make a consequential order as to the effectiveness of the notices in relation to the indefinite strike and as to the commencement of the indefinite strike contemplated by the notices. It was not suggested that the notices served in relation to the commencement of the indefinite strike on 23 October were themselves otherwise invalid. 14 The respondents submitted that there was no serious question to be tried that the ban on the loading of trucks was not protected action. It was submitted that there was no provision in the Act which required the respondents to specify whether the industrial action referred to in a notice given under the provisions of the Act had to specify whether that action was to be continuous or discontinuous. Nor was there any provision in the Act which required a notice to specify each specific or particular act of industrial activity, so long as there was a sufficient description of the industrial action intended to be taken. It was submitted that the bans which were implemented on 17 October were clearly covered by the notices dated 11 September and that it was not material in that context that the industrial action in the nature of the ban on the loading or dispatching of finished or part finished products, as referred to, for example, in the AWU notice, had not started on 15 September 2000. 15 The respondents submitted that although there were observations of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 578 as to the sufficiency of a notice of intention to take industrial action, the issues raised by the applicant on the present motion were not covered by the observations of their Honours in that case. It was submitted that I should not interpret s 170MO of the Act so as to take away the flexibility of unions and employees to decide upon the extent of the industrial action to be taken, so long as a notice adequately describing the industrial action was given. 16 Section 170MO(2)(b) of the Act provides that three days' written notice of intention to take industrial action is required. Section 170MO(5) further provides that: "A written notice or other notification under this section must state the nature of the intended action and the day when it will begin." The notices of 11 September specified the nature of the intended action and the day when it was to begin, that is to say 15 September. 17 The question then arises whether there is a serious question to be tried that the bans which commenced on 17 October, and are continuing, fall within the terms of the notices dated 11 September. In Davids Distribution Pty Ltd v National Union of Workers (supra) the trial judge made the following observations when analysing the requirements of s 170MO (referred to at 577): "That parliament has opted for certainty at some expense to comprehensiveness of description is evident from the requirement to specify the time of commencement of the industrial action. There is no requirement to specify the duration nor, as is required by the United Kingdom legislation, whether the action is to be continuous or discontinuous." Wilcox and Cooper JJ considered his Honour's analysis of s 170MO and the sufficiency of the notice of intended action before the Court at that time. Their Honours observed (at 577): "To interpret [the notice of intended action], on the other extreme, as requiring no more than an indication of industrial action, as argued by NUW, would be significantly to devalue s 170MO(5); the notice would provide little information. To interpret it, on the other extreme, as requiring precise details of every future act or omission would be to impose on the giver of a notice an obligation almost impossible to fulfil. Industrial disputes are dynamic affairs. Decisions as to future steps often need to be made at short notice, sometimes in response to actions of the opposing party or other people, including governments, and changing circumstances. It would be a major, and unrealistic, constraint on industrial action to require a party to specify, three clear working days in advance, exactly what steps it would take. An unduly demanding interpretation of section 170MO(5) would seriously compromise the scheme of Div 8 of Part VIB of the Act; it would be difficult for a party to an industrial dispute to obtain the protection contemplated by the Division." I agree, with respect, with the observations of the trial judge and the observations of Wilcox and Cooper JJ which, as members of a Full Court, bind me. 18 Nevertheless, the issue still arises in this case whether industrial action specified in a notice, and not taken on the date specified as the commencing date or for a period of time, is covered by that notice if it occurs at a later point of time. That specific matter was not addressed by the Court in Davids Distribution (supra). Having regard to the observations made in Davids Distribution (supra), there is still an open question as to what is the consequence if industrial action is specified in a notice, but is not taken at the time specified in the notice, but is rather taken at a later point of time. That is a matter of degree and one can look at two extreme cases. For example, if industrial action is specified in a notice as taking place on a specific date and it commences one day later, it is unlikely in the extreme that the action, albeit commenced one day after the day specified in the notice, would not be considered to be the industrial action specified in the notice. 19 At the other end of the spectrum, one can consider a situation of industrial action specified in a notice to take place on a particular date, but it is not taken until two years thereafter. It is unlikely again in the extreme, all things being equal during the two year period, that the commencement of industrial action two years after the date said to be the commencement of the action in the notice would be covered by the notice. 20 In the present case, the intended industrial action was expressed as four separate types of action. Some of that action did commence on or about 15 September, for example, the ban on overtime. The issue of rolling stoppages is a matter to which I referred in my earlier reasons for judgment. The ban on the loading and dispatching of trucks did not commence on or about 15 September. 21 In the circumstances presently before me, I am satisfied that there is a serious question to be tried whether the industrial action which commenced on 17 October, the ban on the loading of trucks, is to be considered as the industrial action referred to in the notices dated 11 September. At this stage of the proceeding I am satisfied that there is such a serious question having regard to the following matters: lapse of time which has occurred since the giving of the notices dated 11 September; what was said to be the commencement date of that action, 15 September; the actions and activities of the parties in between; and the fact that the bans were imposed initially on 16 October, withdrawn then imposed again on 17 October. The lapse of time between 15 September and 16 October raises a serious question whether there is a relevant and appropriate correlation between the industrial action which has been taken and the notices dated 11 September. 22 I turn to the balance of convenience. The applicant submitted that it is suffering damage because it is not able to have its product delivered and because it does not have a clear three-day unimpeded period within which to take defensive action in relation to the indefinite strike. The policy lying behind s 170MO(5) was considered by Wilcox and Cooper JJ in Davids Distribution (supra) in the following terms (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." 23 The applicant submitted that the balance of convenience is in favour of the grant of relief because if there is a serious question to be tried that the bans activity is not covered by the notice dated 11 September, then it has not had the requisite three-day period within which to have the opportunity to consider, formulate and take defensive action as referred to by Wilcox and Cooper JJ in Davids Distribution (supra). The respondents submitted that, as an exercise of discretion on a consideration of the balance of convenience, I should take into account that it was open to the applicant to make application to the Australian Industrial Relations Commission pursuant to s 127 of the Act, that is to seek an order from the Commission to give directions that the industrial action stop or not occur. I do not consider in the circumstances of this case that this option is a matter that should cause me to conclude that the balance of convenience is not in favour of the granting of injunctive relief. 24 It was also submitted by the respondent that I should approach the granting of any injunctive relief in this case with caution, as referred to by North J in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 24. It was put that I should take that approach particularly where the injunction was sought for tactical reasons. So far as the injunction sought in relation to the ban on loading trucks is concerned, I do not consider on the material presently before me that I should conclude that the relief is sought for tactical reasons. 25 If injunctive relief is granted in relation to the bans on loading trucks it will give the applicant the opportunity to take defensive action as if a notice in relation to the ban on loading trucks had been given in relation to the ban which commenced initially on 16 October. I am satisfied therefore that an injunction should be granted restraining the industrial action involved in the bans on the loading of goods on trucks, insofar as the ban is based upon the notices dated 11 September. 26 I turn to the question whether there should be an injunction granted restraining the respondents from taking action pursuant to the notice of intention to commence the indefinite strike on 23 October unless the indefinite strike commences no earlier than 24 October. That issue does not depend upon whether there is a serious question as to the validity of the notices of the commencement of the indefinite strike on 23 October. It has not been submitted by the applicant that those notices are invalid; rather it is submitted that, as a matter of relief consequential upon an order made pursuant to s 170NG of the Act, it is appropriate to grant such relief. It is not a question of determining whether there is a serious question on the issue; it is rather a question of determining whether I should exercise my discretion along those lines. 27 This question raises the issue whether, having regard to the validity of those notices, I have the jurisdiction to interfere with their operation. The applicant submitted that it should be given three days unimpeded by any other industrial action within which to take defensive action in relation to the notices. There is nothing in the Act which leads to the conclusion that any notice given under s 170MO of the Act must give three days' notice which will be a period when there is no other industrial action taking place. One can test this proposition by considering a situation where industrial action has been taken lawfully and is operative as a result of a valid notice and then during that period another valid notice was given of different industrial action. In such circumstances, no relief would be granted in relation to the second notice. 28 The applicant has had notice of the indefinite strike since 17 October 2000, that is to say, it has had the three clear days' notice of the strike which will commence on 23 October 2000 which is required to be given by s 170MO(2). The applicant said that it has not been able to take appropriate defensive action because of the problems with deliveries which have occurred in circumstances of the bans on loading trucks to which I have referred. Nevertheless, there are other aspects of defensive action which have been available for the applicant to consider. In all the circumstances attending this issue, I do not consider that I should, as an exercise of discretion, assuming I have the jurisdiction, interfere with or extend the period of notice contemplated by the notice of intention to commence the indefinite strike on 23 October; nor should I interfere with the date on which the indefinite strike is said to commence. 29 Subject to the applicant proffering the usual undertaking as to damages, I would propose to make an order generally in terms of par 1 of the notice of motion but not in terms of par 2 of the motion, and otherwise in accordance with the draft minutes of proposed orders submitted to me in the course of argument. I certify that the preceding twenty‑nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.