REASONS FOR JUDGMENT
HIS HONOUR:
1 The applicant manufactures and distributes fruit juices. Its manufacturing plant is at Mill Park where it employs fifty to sixty employees in production roles. The terms and conditions of employment of those employees are regulated by the Food Preservers Award 2000 and The Original Juice Co Pty Limited/AMWU Agreement 1999 to which the first respondent ("the Union") is a party. The second respondent ("Mr Clow") is an organiser with the Union. The nominal expiry date of the agreement is 31 December 2001. Twenty‑three employees of the applicant were added as respondents in the proceeding on 1 June 2001.
2 The applicant seeks the imposition of penalties, damages and injunctive relief against the respondents in the following circumstances. On Monday, 28 May 2001 the applicant terminated the employment of three employees, Mr Steven Sutera, Mr Guiseppe Crupi and Mr Nhat Minh Mai, because they had been absent from work on the previous Friday, 25 May and were found on the same day to be at the Epping Plaza Hotel. Material has been placed before the Court explaining why each of the three employees was at the hotel but the explanations are not relevant for present purposes. Around midday on Monday, 28 May Mr Clow met with employees of the applicant to discuss the dismissals. At the meeting, the employees resolved to stop work for the remainder of the day in support of the three dismissed employees. Mr Clow told the applicant's operations manager, Mr Adam Thyssen, that the employees wanted the three men reinstated. Shortly afterwards, employees started leaving the plant and, in all, thirty to thirty‑five employees walked off the job.
3 At about 5.35pm on the same day, the applicant filed two documents in the Australian Industrial Relations Commission ("the Commission"), an application pursuant to s 127 of the Workplace Relations Act 1996 (Cth) ("the Act") for an order to stop industrial action, and a notice of intention to take action in tort pursuant to s 166A of the Act. Both applications were listed to be heard by a Commissioner at 11.30am on Wednesday, 30 May. Next morning, when Mr Adam Thyssen arrived at the plant around 6.30am about twenty people were standing outside the gate of the plant. A number of employees had not turned up for work but were standing outside the gate. Representatives of the employees who were on strike met with Mr Adam Thyssen at around 7.30am. Mr Thyssen was prepared to discuss a package for the dismissed employees but said that the applicant would not reinstate them and, according to Mr Thyssen, he said he would not consider a package while other employees remained on strike.
4 The picket at the front gate of the plant expanded during Tuesday, 29 May. There is evidence that at approximately 10.30am a toilet was set up at the front gate and at approximately 12.30pm a caravan was moved into place at the front gate by striking employees. Deliveries to the plant were prevented and trucks were not able to gain access to the plant. The evidence discloses that the picket was manned by persons including striking employees and Mr Clow.
5 On Wednesday, 30 May the strike and the picketing continued. The applications before the Commission came on for hearing before a Commissioner. The Union sought reinstatement of the three employees and the applicant's position was that it would not reinstate them. It was agreed at that time that the matter would be put to a vote of the employees, the vote being that they would agree to return to work if unfair dismissal hearings were expedited. However, the employees voted that the strike and picket would continue unless the three employees were reinstated.
6 At approximately 7.15pm on Wednesday, 30 May, Commissioner Whelan made the following order pursuant to s 127 of the Act:
"A. Pursuant to an application under section 127 of the Workplace Relations Act 1996 (the Act), the Commission orders as follows:
- TITLE
This order shall be known as the Original Juice Company Order 2001 (No. 1).
- PARTIES BOUND
The parties bound by this order shall be:
(a) the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU);
(b) Neil Clow;
(c) delegates of the AMWU employed by Original Juice Company Pty Limited at its operation at 20 Heaths Court, Mill Park;
(d) employees employed by Original Juice Company Pty Limited at the Mill Park Plant whose terms and conditions of employment are regulated, in whole or in part, by the Original Juice Company Pty Limited/AMWU Agreement 1999 and who are identified in the Schedule to this order; and
(e) Original Juice Company Pty Limited.
- INDUSTRIAL ACTION TO STOP
(a) All Employees must cease the industrial action in relation to, or in connection with, or arising out of the termination of employment of Mr Steven Sutera, Mr Guiseppe Crupi and Mr Nhat Minh Mai.
(b) All Employees must not engage in industrial action in relation to, or in connection with, or arising out of the termination of employment of Mr Steven Sutera, Mr Guiseppe Crupi and Mr Nhat Minh Mai.
(c) The AMWU, its officials, employees, agents and delegates, must not direct, procure or encourage employees to engage in industrial action in relation to, or in connection with, or arising out of the termination of employment of Mr Steven Sutera, Mr Guiseppe Crupi and Mr Nhat Minh Mai.
(d) For the purpose of this order, industrial action means:
(i) strike action;
(ii) a refusal to perform work in accordance with the Original Juice Company Pty Limited/AMWU Agreement 1999.
- EXCLUSION
This order shall apply to an action by an employee:
(a) that is authorised or agreed to by Original Juice Company Pty Ltd; or
(b) if such action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety.
- SERVICE OF ORDER
Original Juice Company Pty Limited shall serve a copy of this order on all persons and organisations bound by the order.
Service of this order on all persons and organisations bound by the order may be effected by Original Juice Company Pty Limited by:
(a) placing a copy of this order (including a facsimile copy) on a notice board at the Mill Park Plant;
(b) forwarding a copy of this order by facsimile to the Victorian State Office of the AMWU;
(c) endeavouring to provide all employees with a copy of the order.
B. This order it [sic] to take effect from 7.00 a.m. on 31 May 2001 and shall continue to operate until 31 August 2001 (inclusive)."
The Schedule to the order set out twenty‑seven names and addresses.
7 The order was sent by facsimile transmission to the Union on Wednesday evening and was given to the employees on the picket line around 10.00am on Thursday morning, 31 May. The picket was maintained throughout 31 May. There is evidence that there were a number of cars parked in front of the gate and, as a result of the obstruction caused by the cars, delivery trucks that had already entered the gates before 4.30 am were unable to exit from the plant carrying the applicant's products.
8 Further, there is evidence that delivery trucks which were seeking to enter the plant at that time to pick up fruit juice for delivery to customers were being obstructed from entering. During the course of the morning, members of the Victorian Police Force attended at the plant and sought to remove vehicles from obstructing the gateway and the driveway. Shortly after, one vehicle was moved from the entrance. At one stage, one car was removed to enable Mr Nick Thyssen, an officer of the applicant, to enter the premises but after he passed through, the car was moved back into a position of obstruction.
9 The industrial action, that is the strike and the failure of the employees to turn up for work, was having a significant effect on the applicant's production. There is evidence that since the industrial action commenced production has decreased by approximately 80% of its normal volume as most of the production employees have not been at work. Mr Adam Thyssen estimates that the financial damage caused to the applicant includes the loss of value of juice in production. The effect of the picket line is that the applicant has been unable to receive any deliveries of goods or make any deliveries of its products. The problem is exacerbated by the short shelf life which the juice products have. There is also evidence that there is a potentially substantial contract for the delivery of juice in existence and if that order cannot be met, the applicant believes it will lose repeat business which is estimated to generate revenue in the vicinity of $500,000 per annum. The applicant also contends that its reputation as being a reliable supplier has the potential to be substantially damaged if its inability to deliver its products continues.
10 On the afternoon of Thursday, 31 May the applicant filed an application with the Court seeking an injunction restraining the Union and Mr Clow from engaging in conduct which constituted a contravention of the Commission's order, the imposition of a penalty pursuant to s 178(1) of the Act for contravention of the Commission's order and the imposition of a penalty pursuant to s 170NF of the Act for contravention of s 170MN of the Act. The application, as filed, did not seek relief in relation to the picketing activities then being carried on. An urgent application was made for interlocutory relief on notice to the Union and Mr Clow. At the time that application came on for hearing, the Commission had not certified in writing pursuant to s 166A(6) of the Act in relation to the conduct in respect of which the applicant had given notice to the Commission on Monday, 28 May pursuant to s 166A(3) of the Act.
11 The applicant, at that time, indicated to the Court that it intended to file an amended application seeking injunctive relief in relation to the picketing activities. Shortly before 6.00pm on 31 May, the Commission certified in writing pursuant to s 166A(6) that the conduct in respect of which the applicant had given notice to the Commission had not ceased. After the certificate was given to the applicant, the applicant gave an undertaking to the Court that it would file an amended application in which it sought injunctive relief restraining the Union and Mr Clow from preventing or interfering with access to or egress from the applicant's plant and from interfering with the performance of contracts between the applicant and customers.
12 Shortly after 6.00pm that evening, I made an order in the following terms:
"1. The Respondents be restrained, whether by officers, delegates, servants or agents or howsoever, until 4.30pm on 1 June 2001 or further order from directing, procuring or encouraging any employees of the Applicant to engage in industrial action for the purpose of supporting or advancing claims against the Applicant for the reinstatement of Mr Steven Sutera, Mr Guiseppe Crupi and Mr Nhat Minh Mai.
2. The Respondents whether, by themselves or by their officers, delegates, servants or agents or howsoever, until 4.30pm on 1 June 2001 or further order be restrained from:
(a) preventing, hindering or interfering with, free access to, and free egress from the premises of the Applicant at 20 Heaths Court, Mill Park ("the Applicant's premises");
(b) inducing, procuring, advising or persuading any employee of the Applicant not to enter or not to leave the Applicant's premises, or attempting so to induce, procure or advise or persuade;
3. The Respondents use their best endeavours to bring the terms of this order to the notice of those employees of the Applicant who are members of the First Respondent by 9.00am on 1 June.
4. The further hearing of the application be adjourned to 12 noon on 1 June 2001."
The amended application was subsequently filed with the Court. The picketing activities did not abate. At some time on 31 May, a hole had been cut in the perimeter fence of the applicant's plant, water and gas supplies had been turned off from inside the premises and some persons outside the plant had thrown glass bottles containing fire crackers at security guards stationed at the plant. Padlocks had been placed upon the gates and when security personnel came back to use keys which they had been given to open the padlocks, they found additional locks on the gates which had been placed there without the authority of the applicant.
13 Early in the morning on Friday, 1 June Mr Clow informed one of the officers of the applicant that the employees were still on strike. Later in the morning on Friday, 1 June deliveries to the applicant's plant were still being restricted as a result of the actions of the picket line. Persons were told that trucks would not be able to be loaded. From time to time different cars have been parked across the dispatch gate, obstructing access to and egress from it.
14 Mr Adam Thyssen has given evidence that as at Friday, 1 June the picketing was continuing and that no vehicles were being allowed to enter into, or exit from, the plant. There is one particular incident which occurred involving a delivery from Brickwood Holdings Pty Ltd where the applicant contends that the driver was impeded from entering the plant. This issue is disputed by the Union because it contends that the driver made his own decision not to enter the plant. In any event, I cannot determine that factual issue at this stage. Suffice it to say, there is certainly a serious question to be tried that vehicles are being impeded from entering into the premises. Twenty‑one striking employees have been participating in the picket line, according to the evidence.
15 The order made by the Court on Thursday evening was brought to the Union's attention shortly after it was made. In order to comply with its obligation under the order to use its best endeavours to bring the terms of the order to the applicant's employees who were members of Union, the Union arranged a meeting at the plant at 6.00am on Friday morning, 1 June. The relevant Union officers were unable to obtain access to the Union's membership records on Thursday evening and they did not have telephone numbers for the employees. A meeting attended by more than twenty Union members was held at 6.30am on Friday, 1 June. Mr Tom Hale, an industrial officer of the Union, distributed copies of the order made the previous day and explained its terms to those present. He moved a resolution that the Union members return to work immediately. The resolution was rejected unanimously.
16 At the hearing on Friday, 1 June the Union submitted that no Union official had been on the site since 7.00am that morning, 1 June, and that the Union's intention had been that the protest be peaceful. The Union had taken the view that persons who sought access to or exit from the site should be informed of the Union members' concerns and their reasons for being on strike.
17 When the matter came on for hearing on 1 June, the applicant sought and was granted leave to add as respondents those employees who have gone on strike and who have been rostered for work but who have not performed any work since the Commission made its order pursuant to s 127 on 30 May.
18 The applicant sought injunctive relief:
(a) restraining the respondents from engaging in conduct which contravenes the Commission's order made pursuant to s 127 of the Act,
(b) restraining the respondents from interfering with access to or egress from the applicant's plant or inducing or persuading people not to enter or leave the plant,
(c) restraining employees from engaging in strike action or refusing to perform work in accordance with the certified agreement in relation to the termination of the employment of the three dismissed employees.
The applicant submitted that:
· the action of the employees in not returning to work was a failure to comply with the order of the Commission made pursuant to s 127 and that an injunction should be granted restraining that conduct pursuant to s 127(6);
· as the Commission had given a certificate pursuant to s 166A(6), there was no bar to an action in tort in respect of the conduct of those persons involved in the picket line;
· the Union and Mr Clow were still involved in the industrial action being taken by the employees.
19 Although the applicant's employees were not returning to work and although there was evidence that the conduct of the persons on the picket line was going beyond peaceful protest, counsel for the Union and Mr Clow submitted that there was not a serious question to be tried that the applicant was entitled to any of the injunctive relief it was seeking.
20 Counsel submitted in the alternative that if any injunction was to be granted, it should not be directed to the Union or Mr Clow as the evidence showed that they were not encouraging the industrial action which was being taken and that they were not participating in the conduct on the picket line.
21 The injunctive relief sought by the applicant was based on three causes of action. First, the power in s 127(6) to grant an injunction if a person is engaging in conduct which constitutes a contravention of s 127(5). Secondly, the power in s 170NG to grant an injunction restraining a contravention of a penalty provision. Section 170MN is a penalty provision. Thirdly, the accrued jurisdiction of the Court, subject to s 166A, to grant an injunction restraining the continuation of a tort. It is helpful to set out the relevant statutory provisions. Section 127 provides:
"(1) 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.
…
(5) A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.
(6) The Court may, on the application of a person or organisation affected by an order under subsection (1), grant an injunction on such terms as the Court considers appropriate if it is satisfied that another person or organisation:
(a) has engaged in conduct that constitutes a contravention of subsection (5); or
(b) is proposing to engage in conduct that would constitute such a contravention.
(7) If, in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (6)."
Section 166A provides:
"(1) Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission:
(a) has certified in writing as mentioned in paragraph (6)(a) or (c) in respect of the conduct; or
(b) has certified in writing as mentioned in paragraph (6)(b) in relation to the person in respect of the conduct.
…
(5) If such a notice is given, the Commission must take immediate steps to try, or to continue to try, by the exercise of its powers under this Act, to stop the conduct.
(6) If:
(a) after the Commission starts to exercise conciliation powers in relation to the industrial dispute it forms the opinion that it is not likely to be able to stop the conduct promptly; or
(b) the Commission decides that it would cause substantial injustice to the person who gave a notice under subsection (3) in respect of the conduct if the person were prevented from bringing the action to which the notice relates while the Commission is exercising conciliation powers in relation to the industrial dispute; or
(c) the Commission has not stopped the conduct by the end of 72 hours after the notice was given under subsection (3) in respect of the conduct;
the Commission must immediately certify in writing to that effect."
Section 170MN provides:
"(1) From the time when:
(a) a certified agreement; or
(b) an award under subsection 170MX(3) (which deals with the exercise of arbitration powers on termination of a bargaining period);
comes into operation until its nominal expiry date has passed, an employee, organisation or officer covered by subsection (2) must not, for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement or award, engage in industrial action.
(2) For the purposes of subsection (1), the following are covered by this subsection:
(a) any employee whose employment is subject to the agreement or award;
(b) an organisation of employees that is bound by the agreement or award;
(c) an officer or employee of such an organisation acting in that capacity."
22 The Union and Mr Clow submitted that the Court had no jurisdiction to grant an injunction under s 127(6) of the Act as the order made by the Commission was defective in two respects and was therefore void. It was said that the order on its face was ambiguous and persons bound by the order could not identify the obligations imposed on them. The Union and Mr Clow contended that the order did not identify clearly the employees who were subject to the obligation imposed by the order to cease and not engage in the industrial action. The argument went this way. Paragraph 2 provided that the parties bound by the order included "employees" employed by the applicant, a lower case "e" being used in the term "employees". Paragraph 3 provided that "All Employees must cease the industrial action", and "All Employees must not engage in industrial action", with an upper case "E" being used in the term "all Employees". There was no definition of either "employees" or "Employees". Accordingly, it was not clear what persons were bound to cease and not engage in industrial action. The second defect was found in par 4 which was headed "Exclusion" but in which no action was excluded by the terms used in the paragraph. On a fair reading of the paragraph, it appears that the word "not" has been omitted in the opening words, "This order shall [not] apply to an action by an employee …".
23 I reject the submission that the order made is defective and void. More appropriately, in terms of the language applicable to the determination of whether there is a case made for interlocutory injunctive relief, I am satisfied there is a serious question to be tried, that the order is not defective and is valid.
24 The Union and Mr Clow relied on the observations of Marshall J in Inner and Eastern Health Care Network v Health Services Union of Australia [1997] FCA 1252 and Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1977] FCA 1335. In the former case, the Commission made an order pursuant to s 127(1) of the Act against the branch of an organisation of employees registered under the Act and not against the organisation itself. The branch had no corporate status and was not an entity independent from the organisation. The order had been sought against the branch. Marshall J held that there was no obligation placed by the order on the registered organisation which was a respondent to the proceeding and he dismissed the application for an injunction to compel compliance with the Commission's order. His Honour reasoned:
"Mr Bell contended that the order of the Commission, being directed to the Branch, was not directed to a juristic person. He also submitted that the terms of the Commission's order were too wide and uncertain to be valid and were not directed to the conduct sought to be enjoined but to unspecified 'industrial action'. Mr Burchardt did not seek to contend that the Branch was a juristic person. Essentially he described the reference to the Branch in the Commission's order as a matter of 'misdescription'. He said that HSUA does exist but it was not properly identified in the Commission's order. He further submitted that the Court was able to redraft the order of the Commission in a way 'that seeks to advance the objects of the Act'.
The making of an order by the Commission under s 127(1) of the Act is a very serious step. Persons who are required to comply with such an order must know with certainty that it is directed towards their conduct. Furthermore, an order under s 127(1) of the Act is the foundation upon which an application may be made under s 127(6) and (7) of the Act. Failure to comply with orders of the Court under those subsections may lead to contempt of court proceedings.
It is critical for the purposes of proceedings in the Court pursuant to section 127(6) and (7) of the Act that the order made by the Commission under section 127(1) of the Act be a valid order. It is also critical that such an order clearly identify the persons upon whom it is binding and the precise conduct which it seeks to prohibit."
His Honour did not in express terms find that the order was void, rather he appeared to base his reasoning on the fact that the order did not place any obligation on the respondent to the application before the Court.
25 In Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (supra), the order made was binding on the Union, its officers and "members employed in Victoria on work subject to the awards (or any one of them)". No awards were identified in the order. His Honour held that the relevant clause of the order failed to identify the members of the Union to whom it was addressed and was therefore meaningless and void.
26 I have substantial reservations as to the proposition that if an order made under s 127 is not clear and unambiguous it is void and of no effect. I do not consider that Inner and Eastern Health Care Network v Health Services Union of Australia (supra) stands for that proposition. Marshall J did not state the proposition in those terms, rather he concluded that the order, on its proper construction, did not impose obligations on the respondents in the contravention proceeding. In Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (supra) Marshall J did conclude that the deficiency in the relevant paragraph of the order rendered the order meaningless and void. It appears from His Honour's reasoning that he considered that, on its proper construction, the order did not impose obligations on persons who could be identified in the order.
27 The applicant submitted that s 150(1) of the Act would deny the argument that an order, if vague, is void and of no effect. I did not hear full argument on whether an order under s 127 is an award or order for the purposes of s 143 and s 150 of the Act: cf Construction, Forestry, Mining and Energy Union v Comalco Aluminium Ltd (1998) 90 FCR 81. However, I consider the better approach to be that an order made pursuant to s 127(1) is to be construed strictly against the person seeking to take proceedings in respect of it under s 127(6) of the Act and that if it is ambiguous and not clear, that is a factor to be taken into account in considering whether an injunction should be granted pursuant to s 127(6) of the Act. For present purposes, it is sufficient to find that there is a serious question to be tried as to the effect of an order made under s 127(1) which is ambiguous.
28 However, I am satisfied that the order is not unclear or ambiguous in its terms when read in full and that there is no serious question to be tried as to the defects raised by counsel for the Union and Mr Clow. There is no substance in the distinction drawn between the lower case used for "employees" in pars 2(d) and 3(c) of the order and the upper case used for "Employees" in pars 3(a) and (b). Paragraph 2(d) makes it clear that the persons bound by the order are employees of the applicant who work at the Mill Park Plant, whose employment is regulated by the certified agreement and whose names are listed in the Schedule to the order. That order lists twenty‑seven names and addresses. Thus the specific employees who are bound by the order are set out in the order. The reference to "All Employees" in pars 3(a) and (b) can only refer in context to the employees who are bound by the order and listed in the Schedule.
29 Although the word "not" is omitted from the opening words of par 4, it is an obvious omission and even though it may cause the employees to wonder what the paragraph means, it does not detract from the clarity of the obligation imposed on them by pars 3(a) and (b). I have a discretion under s 127(6) whether to grant an injunction, and notwithstanding the principle that an injunction should be certain in its terms so that the parties enjoined may know precisely what they may or may not do, I am not disposed to refuse to grant an injunction because of the wording of par 4 of the order. Any potential ambiguity can be avoided in the wording of the injunction.
30 Having regard to the sequence of events which has occurred at the applicant's plant since Monday, 28 May and the unanimous decision of those employees present at the meeting early in the morning on Friday, 1 June to reject the resolution to return to work immediately, I consider it appropriate to grant an injunction against the Union and Mr Clow pursuant to s 127(6) restraining them from directing, procuring or encouraging employees of the applicant to engage in industrial action for the purpose of supporting the claims of the three dismissed employees. Counsel for the Union and Mr Clow submitted that an injunction under s 127(6) should not be directed to the Union or Mr Clow because the evidence disclosed that the Union had tried to get the employees to return to work as Mr Hale, the industrial officer, had moved a resolution for the return to work, and that there was no evidence that Union officials were participating in the picketing activities. In short, it was put that the Union had complied with its obligations under par 3(c) of the order of the Commission.
31 On one view that submission is correct. Paragraph 3(c) of the order provides that the Union and its officials must not direct, procure or encourage employees to engage in the specified industrial action. It is to be assumed that the expression "industrial action" has the meaning ascribed to it in the definition of that expression in s 4(1) of the Act. So defined, industrial action does not include picketing: Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 566‑575. If the Union has tried to get the employees to return to work, then it may be said that it is not directing, procuring or encouraging them to engage in industrial action, and that whatever it is doing or not doing in relation to the picketing activities does not fall within par 3(c) of the Commission's order.
32 However, there is force in the applicant's submission that the continuation of the picket constitutes the encouragement of employees to engage in industrial action; that is to say it encourages them to refrain from attending the plant for work and encourages them rather to absent themselves from work so that they can join the picket. It appears from the evidence that the Union and Mr Clow either established the picket line or, at the least, have encouraged its establishment and continuation.
33 I consider, therefore, that there is a serious question to be tried that the Union and Mr Clow are continuing to procure and encourage employees to absent themselves from work and remain on strike, that is, engage in industrial action, whilst they do not take any steps to terminate the picket or encourage or direct the employees to terminate the picket.
34 I turn to s 170MN of the Act and the cause of action relied upon in relation to it. The Union submitted that there was no serious question to be tried that it, Mr Clow or the employees were engaging in industrial action in contravention of s 170MN. The Union contended that s 170MN only proscribed industrial action where it was taken for the purpose of supporting or advancing claims for a certified agreement. The present industrial action, it was said, was not being taken for the purpose of supporting or advancing claims for a certified agreement as the current agreement did not expire until 31 December 2001. The submission has the support of the reasoning of Cooper J in Theiss Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [1999] FCA 407. His Honour exposed the issue in the following passages:
"14 Section 170MN(1) only prohibits industrial action 'for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement ...'. That is, where there is an existing certified agreement and there is in existence a bargaining period in respect of a new or further certified agreement, industrial action in support of the claims in the proposed agreement, although protected under s 170ML(2), must be postponed until after the nominal expiry date of the existing certified agreement. The claim referred to in s 170MN(1) is the same claim as that referred to in s 170ML(2)(e) of the Act.
15 If industrial action is taken supporting or advancing claims made in the proposed agreement prior to the expiry of the nominal termination date of the existing agreement by either the employees or the relevant organisation on the one side, or the employer on the other, two consequences follow. Firstly, the action is not protected action (s 170MN(1); s 170MW(5) and s 170MW(6)). Secondly, the contravention exposes the contravener to a penalty (s 170NF(1)).
16 The constructions of s 170MN(1) contended for by the applicants ignore the purposive nature of the industrial action required by the subsection and renders the requirement superfluous. They also ignore the context in which the section is placed and operates.
17 Notification of a dispute under clause 12 of the Alliance Mine Agreement on 1 April 1999 with respect to staff employees operating underground production machinery, without more, was not the making of a claim on behalf of employees employed under the agreement for the purposes of s 170MN(1) of the Act.
18 On the material filed by the applicants in support of the relief sought, even when regard is had to the more expansive material filed by the respondent, there was no industrial action organised by the respondent or taken by its membership at the Alliance Mine in support of, or to advance a claim made in a proposed agreement within the meaning of either s 170ML(2) or s 170MN(1). The stoppage at about 3.00 pm on 8 April 1999 was a protest by certain production employees present at the Alliance Mine at the time of the shift changeover at the refusal of the applicants' mine manager to direct a staff employee to cease operating production machinery underground.
19 For the above reasons, I am of the view that there is no serious question to be tried that the respondent has contravened s 170MN(1) of the Act and that there is no reasonable prospect, on the material presently before the Court, that the applicants will obtain final injunctive relief of the nature sought in the application under s 170NG of the Act. In these circumstances no question of the balance of convenience arises."
35 An application for leave to extend the time within which to apply for leave to appeal from the decision of Cooper J was refused by the Full Court: [1999] FCA 1205, as interlocutory relief was no longer sought. The applicant wished to put in issue Cooper J's construction of s 170MN. Two members of the Full Court appeared to regard Cooper J's construction of s 170MN as an open question. Moore J said at [3]:
"Cooper J's views about the construction of s 170MN, though strongly expressed, were tentative or preliminary only, and were made only for the purposes of determining whether interlocutory relief should be granted. I do not doubt that upon hearing further argument, Cooper J may be persuaded to a different view about the proper construction of s 170MN."
Marshall J said at [15]:
"The emphasised part of the trial judge's conclusion reveals that the trial judge was not foreclosing the possibility that he may be persuaded to a different view on further argument at the trial. Contrary to the submissions advanced by counsel for Theiss and Namoi the trial judge has not made a final ruling against their clients."
36 Further, in Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (unreported, SC of Vic, 29 October 1999), Beach J took a contrary view of s 170MN in the context of an application for an injunction restraining strike action during the currency of a certified agreement where the strike was not related to any bargaining for a further certified agreement. Beach J said at [53]:
"In my opinion it is strongly arguable that in taking the strike action the defendants and the first defendant's members have, they are in breach of the provisions of s.170MN of the Act and that their actions in that regard therefore are unlawful.
In that connection I do not consider that the decision of Cooper,J. in Thiess Contractors Pty Ltd v. Construction, Forestry, Mining & Energy Union (unreported 13 April 1999) is a correct statement of the law in regard to the matter. I am reinforced in that view by the doubts expressed by the Full Court of the Federal Court as to the accuracy of His Honour's findings when on appeal (unreported 17 August 1999)."
37 Madgwick J adopted a similar approach to Cooper J in Email Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1932. His Honour said at [12]:
"While s 170MN(1) is certainly not a catch-all provision in respect of all industrial action and, to mix the metaphors, certainly does not provide an employer who has an agreement with armour against any industrial action, it is within the reasonable meaning and spirit of the section, in its context, to interpret 'claims' as including claims which are actually in prospect within a reasonably proximate period, which I think July 2001 is. This conclusion is contrary to the submissions of counsel for the Unions who argued that s 170MN did not apply as no claim had been made and it has proposed that a claim would be made at some future time. Engaging in 'industrial action' has an extended meaning under s 4(1) and that term would include directly or indirectly being a party to a concern in the conduct. In the case of organisations, if they organise, incite or otherwise encourage industrial action it seems to me that they would be caught by the notion of engaging in industrial action under the Act."
38 Given this state of authority, I consider that there is a serious question to be tried whether s 170MN covers the type of industrial action and the purpose for that industrial action in this proceeding. That is to say, there is a serious question to be tried that the section is not limited to those types of cases considered by Cooper J in Theiss Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (supra) where the industrial action is engaged in for the purpose of negotiating another certified agreement.
39 The Union advanced a further submission that s 170MN had no operation in the present circumstances. It contended that the section only applied to industrial action taken in support of claims in respect of existing employees. As the industrial action related to the dismissal of three employees, the claims did not relate to employees whose employment is subject to the certified agreement at the time the industrial action is taken. Although there is some force in this argument, I consider, with some hesitation, that it is arguable that s 170MN also covers claims made in respect of employees whose right to employment and rights arising out of employment are to be found in the certified agreement.
40 I turn to the arguments addressed to the picketing claim. The Union challenged the basis on which injunctive relief was sought in relation to the picketing activities and the basis for the applicant relying upon the accrued jurisdiction of the Court. The Union submitted that the proceeding had been commenced before the Commission had given a certificate pursuant to s 166A(6). Accordingly, it was said that consistently with s 166A(1) the action in tort could not "be brought" by the applicant.
41 This challenge must fail having regard to the manner in which, and the time at which, the claim in tort was introduced into the proceeding. When the application was initially filed, it did not claim any relief in tort or assert a cause of action in tort. It was only after the Commission had given a certificate under s 166A(6) that the amended application was filed in which the claim in relation to the picketing activities was asserted. Accordingly, I do not consider that there is a serious question to be tried that the action or cause of action in tort was brought before the Commission gave its certificate.
42 I am therefore satisfied that there is a serious question to be tried that the respondents have not complied with the Commission's order, that the respondents have contravened s 170MN of the Act and that they have engaged and are engaging in tortious conduct. In relation to the tortious conduct, the evidence discloses that the picket is not limited to peaceful protest but has involved padlocking the gates of the applicant's plant and interfering with access which persons are seeking to gain to the plant. Vehicles are not being allowed by those manning the picket to enter or exit the plant. This is having a direct effect on the ability of the applicant to meet contractual obligations and complete orders for the supply of fruit juice. Thus there is a serious question to be tried that the picketing activities result in the commission of the torts of nuisance, besetting and interference with contractual relations: see Davids Distribution Pty Ltd v National Union of Workers (supra) at 574, Auspine Ltd v Construction, Forestry, Mining and Energy Union (2000) 97 IR 444 at 451.
43 I am satisfied that the balance of convenience is in favour of the grant of injunctive relief. The applicant is having difficulty in filling orders for the supply of fruit juice, its production activities have been disrupted, it cannot make deliveries of fruit juice to its customers, it is incurring financial losses and its reputation as a reliable supplier is at risk. No submissions were made by the Union to the effect that the balance of convenience was against the granting of injunctive relief.
44 It is therefore appropriate to grant an injunction restraining the Union and Mr Clow from directing, procuring or encouraging the applicant's employees from engaging in industrial action in contravention of the Commission's order. Although I earlier granted an injunction restraining the Union and Mr Clow from directing, procuring or encouraging the applicant's employees from engaging in industrial action for the purpose of supporting or advancing claims against the applicant for the reinstatement of the three dismissed employees, I have reflected on the form of that order. Having regard to the wording in par 4 of the Commission's order and what appears to be the omission of the word "not" and the desirability that an injunction specify the precise conduct which is enjoined, it is more appropriate to relate the injunction specifically to the definition of industrial action used in the Commission's order.
45 The injunction should therefore restrain the Union and Mr Clow from directing, procuring or encouraging any employees of the applicant to engage in strike action or a refusal to perform work in accordance with The Original Juice Co Pty Limited/AMWU Agreement 1999 for the purpose of supporting or advancing claims against the applicant for the reinstatement of the three dismissed employees. The injunction in relation to the picketing activities should only run against those employees who are shown by the evidence to be participating in the picket line. The evidence does not show that the nineteenth and twenty‑second respondents have been so participating.
46 The applicant also sought an order directing the Union to send a letter to the employees joined in the proceeding directing each of them to return to work. The applicant referred to a similar order made by Wilcox J in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (1987) 15 FCR 31 at 62. In that case, the letter from the Union stated that the Union had lifted a ban. It did not in its terms direct any third party to do any act or undertake any conduct. At the present time, I do not consider it appropriate to order the Union to send a letter to employees of the applicant directing them to return to work. The Union has no power to do so. At the most, it can recommend a return to work. Mr Hale proposed such a resolution on the morning of 1 June 2001, but the resolution was not passed.
47 As the striking employees have now been joined in the proceeding, they should be given the opportunity to be heard before any further orders are made which may affect them. I am satisfied that it is appropriate to restrain them from interfering with access to or egress from the applicant's plant and from advising employees not to enter or leave the plant. That is a negative injunction. However, I am not prepared to make an order in effect requiring them to return to work, breach of which order might have significant consequences, without giving them an opportunity to be heard on that issue.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.