Skilled Engineering Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

REASONS FOR JUDGMENT 1 There is a provision in the Workplace Relations Act 1996 (Cth) to the effect that between the certification of an agreement under Div 4 Part VIB and its nominal expiry date, employees whose employment is subject to the agreement, organisations of employees who are bound by the agreement, and officers of those organisations, must not "engage in industrial action" that is "for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is the subject of the agreement". The provision is s 170MN. It makes similar provision for awards. 2 Skilled Engineering Limited, the applicant, claims that two unions, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which are bound by a certified agreement that covers Skilled Engineering employees, engaged in industrial action in contravention of s 170MN. According to the evidence it is likely that the two unions procured employees of Skilled Engineering to go on strike because two employees were to be transferred from one work site to another, and also because there have been problems with the pay slips that are supplied to employees. When employees refuse to attend work at the direction of their union, that conduct is "industrial action" for the purposes of s 170MN: see para (d)(i) of the definition of "industrial action" in s 4. Section 4(8) says that in the Workplace Relations Act "a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct". The effect of s 4(8) is that if a union has procured workers to go on strike the union will have engaged in industrial action. 3 Three days ago, on the application of Skilled Engineering, I granted interim relief, restraining the unions from continuing to engage in industrial action. At the request of Skilled Engineering I also made an order requiring the AMWU to use its best endeavours to bring the terms of the restraining order to the notice of the employees of Skilled Engineering. 4 During the course of the hearing I queried whether it was desirable to make a "give notice" order. I was concerned that the workers on strike may not understand the precise scope of the restraining order. In particular I thought that some workers might believe the order had an effect which was wider than its actual effect. Regrettably, I was persuaded to make the order, largely because similar orders have been made previously by other judges. As events have turned out, I am now satisfied that I should not have made the order, at least not without qualification. I will explain what I mean after I have exposed the problem. To comply with the order, the AMWU had one of its organisers, Mr Robb, attend a meeting of the union's members to inform them that a temporary restraining order had been made against the union. Mr Robb told the workers that as a result of the order all industrial action had to stop and the workers were required to return to their normal duties. Mr Robb was asked whether the workers might be personally liable for breach of the court order, if they did not comply with it. Mr Robb said that he did not understand that to be the case because the order was directed against the union, but he said that there should be a return to work. 5 Of course Mr Robb was wrong in his statement that the order required all industrial action to cease, if he meant by that, as he plainly did, that the workers had been ordered to return to work. Mr Robb cannot be blamed for the mistake. It does not surprise me that someone in Mr Robb's position, or in the position of the workers on strike, might not understand the true effect of the restraining order. 6 As a general rule there will be few cases where it is necessary to make a "give notice" order in relation to persons who are not parties to the litigation. I accept that there may be some occasions when it might be necessary to make such an order, though those occasions are not likely to arise very often. When they occur, provided one can be satisfied that there is no likelihood of confusion about the effect of the restraining order (that is, if it is clear precisely what must be done or not done to comply with it), a "give notice" order may be made without qualification. However, if there be any risk of misunderstanding, the restraining order should be accompanied by a written explanation of its effect. That explanation should be approved by the court. 7 I can now turn to the issue that is presently before the court. The restraining order that I made three days ago was in the following terms: "[T]he Respondents be restrained (whether by their officers, delegates, employees, agents or howsoever otherwise) from further directing, organising, inducing, encouraging, authorising or procuring any employee of the Applicant at Godfrey Hirst Australia and Barwon Spinners, 7 Factories Road, Geelong South and Riverside Textiles Pty Ltd, 22 Corio Quay Road, North Geelong to stop work or fail to work other than in accordance with the Godfrey Hirst Australia and Riverside Textiles Maintenance Enterprise Agreement 2000 - 2003: (a) for the reason that two employees namely Terry Ruck and Terry Hotchins were directed to carry out their duties from the premises of the Skilled Geelong Workshop at Factory 1, Fitzroy Square, North Geelong instead of the premises at Godfrey Hirst Australia, 7 Factories Road, Geelong South; or (b) for the reason that there is or maybe some deficiency or irregularity in the pay slip provided to the Applicant's employees." I should mention that Skilled Engineering sought a restraining order in the following terms: "[T]he Respondents be restrained (whether by their officers, delegates, employees, agents or howsoever otherwise) from directing, organising, inducing, encouraging, authorising or procuring any employee of the Applicant at Godfrey Hirst Australia and Barwon Spinners, 7 Factories Road, Geelong South, Victoria to stop work or fail to work other than in accordance with the Godfrey Hirst Australia and Riverside Textiles Maintenance Enterprise Agreement 2000 - 2003 for purposes that include the purpose of supporting or advancing claims against the Applicant that all employees employed subject to the Agreement can only be employed at the Godfrey Hirst site and not at any other Skilled site, or claims against the Applicant relating to payroll."