REASONS FOR JUDGMENT
1 Transfield Construction Pty Ltd ("Transfield") and Basin Oil Pty Ltd ("Basin Oil") have applied to the Court pursuant to s 127(7) of the Workplace Relations Act 1996 (Cth) ("the Act") for interim injunctions requiring certain of the respondents to cease to engage in industrial action at the Patricia Baleen Onshore Gas Processing Facility at Newmerella, Victoria ("the plant"). The respondents against whom the orders are sought are the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU"), the Australian Workers Union ("the AWU"), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU"), Terry Lee an organiser of the AWU, Greg Warren an organiser of the AMWU, Peter Mooney an organiser of the CEPU and Steve Dodd an organiser of the AMWU.
2 The background to the industrial dispute which has arisen in relation to the plant, which is presently under construction, is as follows. Basin Oil is responsible for overseeing the construction, commissioning and operation of the plant. Transfield, which was engaged by Basin Oil to design and construct the plant, engaged its own employees and contractors to construct the plant.
3 Basin Oil engaged Upstream Petroleum Pty Ltd ("Upstream") to commission, operate and maintain the plant once its construction was complete. Upstream has engaged and proposes to continue to engage its employees at the plant under Australian Workplace Agreements ("AWA's"). The AWA's proposed by Upstream are alleged by the AWU, the CEPU and the AMWU ("the unions") to be unprecedented in the area and were strongly opposed by those unions, which lodged notices of initiation of bargaining periods on Upstream in August and September 2002. A stop work meeting of employees of Transfield and its sub-contractors was held at the plant on 23 September 2002 in protest at the AWA's, the proposed use of non-union labour and at Upstream's failure to enter into negotiations with the unions over an enterprise bargaining agreement. Since 2 October 2002 a picket has been maintained at the entrance of the plant. Warren, Dodd, Mooney and Lee ("the union organisers") attended at and were involved in establishing and maintaining the picket on 2 October. Mooney, Lee and Dodd were at the picket on 3 October. Warren and Lee were at the picket on 4 and 5 October and Warren was at the picket between 6 and 10 October. Since the commencement of the picket Transfield and its sub-contractors' employees at the plant have ceased working and have refused to cross the picket line. Consequently, the construction works at the plant have effectively ceased. As at 2 October 2002 the plant was approximately three weeks away from completion.
4 Transfield and Basin Oil claim that the unions, the union organisers and employees of Transfield and its sub-contractors have taken industrial action at the plant in order to pressure them to persuade Upstream to take its workers off AWA's. The unions and the union organisers deny that claim and allege that the picket is a "community protest" at the threat to local jobs and against the failure of the pipeline to pipe gas to Orbost.
5 Transfield and Basin Oil applied to the Australian Industrial Relations Commission ("the AIRC") for orders pursuant to s 127(1) of the Act to stop the industrial action being taken at the site. Relevantly, s 127 provides:
"127 Orders to stop or prevent industrial action
(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;
…
the Commission may, by order, give directions that the industrial action stop or not occur.
(2) The Commission may make such an order of its own motion, or on the application of:
(a) a party to the industrial dispute (if any); or
(b) a person who is directly affected, or who is likely to be directly affected, by the industrial action; or
(c) an organisation of which a person referred to in paragraph (b) is a member.
(3) The Commission must hear and determine an application for an order under this section as quickly as practicable.
(4) The powers conferred on the Commission by subsection (1) are in addition to, and not in derogation of, the powers conferred on the Commission by the rest of this Act.
(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)."
6 On 11 October 2002 the AIRC made separate orders in favour of Transfield and Basin Oil that the industrial action stop. The Transfield order was to come into effect at 7.00 am on 15 October 2002 and remain in force for a period of three weeks. That order was expressed to be binding on Transfield, the AMWU, the CEPU, the AWU, Warren, Dodd, Mooney and employees of Transfield and its contractors who are members of the unions and are employed at or in relation to the construction of the plant. The order was not expressed to be binding on Lee as the AIRC was not satisfied that "Lee had notice of the application or the proposed terms of the order sought". The Transfield order was as follows:
"3. INDUSTRIAL ACTION TO STOP
3.1 Each of the employees must immediately cease and refrain from engaging in industrial action as defined in clause 3.4 of this Order shall stop and must not occur.
3.2 Each of the employees must make themselves available for work and perform work as their employer may reasonably require.
3.3 The CEPU, AWU and AMWU (collectively 'the unions'), Warren, Dodd and Mooney (collectively 'the organisers') and the employees must, whether by themselves, their servants, their agents or otherwise howsoever, immediately cease and desist from any of the following conduct described in 3.4(b) with respect to the undertaking of Transfield at the site in relation to any of the following applicable AWA's and/or certified agreements:
(i) Transfield Construction (AWU) Construction Certified Agreement 2002;
(ii) Transfield Construction South East Region Construction Certified Agreement 2000/2003;
(iii) Corke Instrument Engineering (Australia) Pty Ltd Enterprise Agreement 2000-2003;
(iv) National Metal and Engineering On-site Construction Industry Award 1989; and
(v) National Electrical, Electronic and Communications Contracting Industry Award 1998; and
3.4 For the purposes of this Order:
(a) 'industrial action' means in respect of the members the refusal or failure to attend for work or to perform work in the manner in which it is customarily performed at the Site.
(b) 'industrial action' also means in respect of each of the CEPU, AWU and AMWU, their officers, employees and delegates, the authorisation, direction, incitement, persuasion or encouragement of any of the members to engage in any of the industrial action defined in paragraph 3.4(a)."
7 The Basin Oil order, which was expressed to be binding on Basin Oil, the CEPU, the AWU, the AMWU and delegates and officers of those Unions, was expressed as follows:
"4. INDUSTRIAL ACTION TO STOP
4.1 Industrial action as defined in clause 4.3 of this Order shall stop and must not occur.
4.2 The CEPU, AWU and AMWU must forthwith take all reasonable steps available to them to ensure that the members are made aware of and comply with this Order, and in writing shall notify the Company and Basin Oil, through their respective solicitors, of the steps they have taken in this regard.
4.3 For the purposes of this Order:
(a) 'industrial action' means in respect of the members the refusal or failure to attend for work or to perform work in the manner in which it is customarily performed at the Site.
(b) 'industrial action' also means in respect of each of the CEPU, AWU and AMWU, their officers, employees and delegates, the authorisation, direction, incitement, persuasion or encouragement of any of the members to engage in any of the industrial action defined in paragraph 4.3(a)."
8 The Basin Oil order came into effect at midnight on 11 October 2002 and was to remain in force for a period of three months. Both orders contained certain exclusions (which are not presently relevant) and provided for service of the orders.
9 The hearing before the AIRC took two days and involved documentary and oral evidence from a number of witnesses. In substance, the AIRC rejected the claim that the picket was a community protest and found that since the picket was established on 2 October 2002 Transfield's employees and employees of its contractors have engaged in industrial action by failing and refusing to work at the plant. The AIRC rejected the evidence that the reason for the employees ceasing to work was "because of their sympathy in any community concerns or protests about the construction or their gas supply". The AIRC also rejected the unions' submission that Mooney, Lee and Dodds were not acting on behalf of the CEPU, AWU and AMWU and found that, as organisers acting on behalf of their respective unions, they encouraged or advised their members employed at the plant not to attend for or perform any work at the plant. The AIRC was also of the opinion that, on balance, Mooney, Lee and Dodds, acting as organisers on behalf of their respective Unions, "organised or arranged the picket line at or near the [plant]". While the AIRC accepted that picketing, of itself, may not constitute industrial action it was satisfied that the picket in the present case was associated with the industrial campaign by the unions to secure a certified agreement with Upstream and was therefore industrial action that may be restrained by orders made under s 127(1) of the Act.
10 Notwithstanding the orders made by the AIRC the unions did not take any steps to request their members to return to work, to withdraw any authorisation, direction or encouragement they had given in respect of the picket line or to otherwise bring about the cessation of the industrial action. There is evidence that on 15 October Warren and Lee attended the picket. There is a suggestion that Warren may also have been in attendance on 16 October. Lee was at the picket on 16 October, 29 October and 6 November 2002, although the AWU and Lee claimed Lee was on long service leave and therefore was not attending the picket in his capacity as an AWU organiser.
11 On 6 November 2002 the AIRC, on the application of Transfield, made a further order under s 127 of the Act. The order was binding upon Transfield, the AMWU, the CEPU, the AWU, Warren, Dodd, Mooney, Lee and employees who are members of the CEPU, AWU or the AMWU and are employed at or in relation to the construction of the plant by Transfield or Transfield's contractors. The order was as follows:
"3. INDUSTRIAL ACTION TO STOP
3.1 Each of the employees must immediately cease and refrain from engaging in industrial action as defined in clause 3.4 of this Order and all such conduct shall stop and must not occur.
3.2 Each of the employees must make themselves available for work and perform work as their employer may reasonably require. Further the employees must cross any picket line (howsoever named or described) which is located at or adjacent to the entrance to the site in order that they make themselves available for work and perform work as required, unless they are physically obstructed by persons from crossing such picket line.
3.3 The CEPU, AWU and AMWU (collectively 'the unions'), Warren, Dodd, Mooney and Lee (collectively 'the organisers') and the employees must, whether by themselves, their servants, their agents or otherwise howsoever, immediately cease and desist from any of the following conduct described in 3.4(b) with respect to the undertaking of Transfield at the site in relation to any of the following applicable awards and/or certified agreements:
(i) Transfield Construction (AWU) Construction Certified Agreement 2002;
(ii) Transfield Construction South East Region Construction Certified Agreement 2000/2003;
(iii) Corke Instrument Engineering (Australia) Pty Ltd Enterprise Agreement 2000-2003
(iv) National Metal and Engineering On-site Construction Industry Award 1989; and
(v) National Electrical, Electronic and Communications Contracting Industry Award 1998.
3.4 For the purposes of this Order:
(a) 'industrial action' means in respect of the members the refusal or failure to attend for work or to perform work in the manner in which it is customarily performed at the Site.
(b) 'industrial action' also means in respect of each of the CEPU, AWU and AMWU, their officers (including their organisers), employees and delegates, the authorisation, direction, incitement, persuasion or encouragement of any of the employees to engage in any of the industrial action defined in paragraph 3.4(a).
3.5 Each of the unions and the organisers must take any and all steps necessary and available under the rules of their respective unions to ensure that the employees comply with this Order.
3.6 Without limiting the generality of paragraph 3.5, each of the unions and organisers must:
(a) cease and/or refrain from engaging in any action for the purpose of maintaining or establishing a picket at or in the vicinity of any entrance to the Site (irrespective of whether the picket purports to be for the purpose of a 'community protest' or for some other purpose or purposes);
(b) cease and/or refrain from authorising, inducing, directing, organising, encouraging or inciting any person to participate in and/or maintain a picket at or in the vicinity of any entrance to the Site;
(c) forthwith take all reasonable steps available to them to advise their members employed by Transfield and/or by Transfield's contractors both orally and in writing of the following:
(i) that the current refusal of employees of Transfield and/or by Transfield's contractors to attend for work at the Site is not authorised or encouraged by it;
(ii) the picket and participation and/or maintenance of the picket currently in place at the entrance to the Site is not authorised or organised by it and participation in such picket is not encouraged by it; and
(iii) members are advised that they should comply with this Order and that in compliance with such orders that they should cease any industrial action and not commence any further industrial action.
3.7 Each of the unions and organisers advise Transfield's solicitors in writing by facsimile transmission at or about 12 noon on Thursday, 7 November 2002 of the steps they have taken to comply with paragraph 3.6 of this Order, including by way of the provision of the name of each member notified, the form of notification including if written, its contents and the further steps they intend to take (if any) in order to comply with the Order in respect of any relevant member who by that time has not been notified."
12 The new Transfield order commenced at 7.00 am on 7 November 2002 and remains in force until 6 February 2003. The order contained certain exclusions (which are not presently relevant) and also provided for service. In its reasons for making the orders the AIRC stated:
"[45] I have concluded on the basis of all of the material before me, including the findings I have made in my earlier decision, that the action of the employees of Transfield and those of Transfield's contractors is a continuation of the industrial action that was commenced on 23 September and/or 2 October 2002. There is no evidence before me to suggest that the action that was initiated on the specified dates has been called off or otherwise changed in its nature.
[46] I find there is force in the submissions of Mr Bourke to the effect that the industrial action was commenced on the specified dates by the unions acting in association with one another through their respective officers or employees in Messrs Dodd, Mooney, Warren and Lee. Although there is no evidence to connect any of Messrs Dodd, Mooney and Warren with the facility site since 15 October 2002, I infer from the association of those persons with Mr Lee in initiating the industrial action and Mr Lee's continued presence at the site being, as he was, the only one of the group against whom no order was issued on the previous occasion, that Mr Lee is continuing the action in his own behalf and on behalf of his associates.
…
[48] I accept the substance of Mr Bourke's submissions to the effect that the presence of Mr Lee at the site in the context of his employment and his early involvement in the industrial action, clothes him with the authority of the AWU and that of his associates, despite his leave of absence from the AWU.
[49] The industrial action is constituted by the employees refusing or failing to attend for work and/or refusing or failing to perform any work at all when they have so attended. The employees who have refused or failed as aforesaid have done so as members of one or other of the unions in accordance with a direction of officers or employees of the unions given on 22 September and on or about 2 October 2002. Furthermore, the employees have done so in connection with an industrial dispute.
[50] The industrial dispute is about terms and conditions of employment of the employees of Upstream."
13 Notwithstanding the new Transfield order the unions and the union organisers did not take any steps to bring about the cessation of the industrial action, the cessation of any authorisation, direction or encouragement they may have given in respect of the picket or to bring about the return to work of their members at the plant who were employees of Transfield and of its contractors. Lee attended at the picket on the morning of 7 November but has not reappeared at the picket since that date. Although the AWU wrote to its members on 8 November 2002 to inform them Lee was on long service leave and was not acting in his capacity as an AWU organiser, it cancelled his leave on 11 November and redeployed him to another site. Thus, it appears that the unions have finally taken steps to ensure that Warren, Dodd, Mooney and Lee cease to attend at the picket.
14 Appeals were lodged to a Full Bench of the AIRC against the s 127 orders made on 11 October 2002 but no stay was granted in respect of those orders.
15 Transfield and Basin Oil commenced a proceeding in the Court, inter alia, for injunctions under s 127(6) and for the recovery of penalties under s 178 of the Act for breach of the terms of the orders. Transfield and Basin Oil applied for interim relief under s 127(7). Pending that application coming on for hearing the unions gave undertakings to the Court in Transfield's proceeding that they will not:
"by [their] officers, employees or agents, authorise, direct, incite, persuade or encourage any of [their] members to refuse or fail to attend for work or to perform work in a manner in which it is customarily performed at the Patricia Baleen Gas Processing Facility, located at Ewing Marsh Road, Newmerella, Victoria."
16 At the hearing of the application for interim relief the Minister intervened pursuant to s 471 of the Act. The unions offered to continue the undertakings until the trial of the proceeding or further order. The undertakings were given only in Transfield's proceeding, it being contended by the unions that the AIRC had no power under s 127 to make orders in favour of Basin Oil.
17 The argument that the AIRC had no power to make an order on the application of Basin Oil was as follows. The jurisdiction of the AIRC in the present matter arose because industrial action was happening or was threatened, impending or probable in relation to industrial dispute between the unions and Upstream (s 127(1)(a)). It is well established that an award (which would include an arbitrated order made under s 127(1)) can only bind the parties to the industrial dispute (see for example, Seamen's Union of Australasia v Commonwealth Steamship Owners' Association (1936) 54 CLR 626 at 646) and Basin Oil, which had no employees at the plant, was not a party to the dispute. The entitlement to apply for an order under s 127, whether by the AIRC under s 127(1), or by the Court under ss 127(6) or (7), does not extend beyond the parties to the industrial dispute or persons who are immediately and directly affected by the industrial action being taken or an order made under s 127(1). Persons who are merely consequentially or indirectly affected are not persons who are entitled to apply for orders under s 127. Basin Oil has no employees affected by or involved in the industrial action or the industrial dispute, is not a party to the industrial dispute and is, at best, a person indirectly or consequentially affected by the industrial action. Accordingly Basin Oil, not being a party to the industrial dispute (s 127(2)(a)), not being a person who was "directly affected" by the industrial action (s 127(2)(b)) and not being a person "affected" by the orders made under s 127(6), was not entitled to apply for or enforce orders made under s 127.
18 It is common ground that the AIRC had power under s 127(1)(a) to make the orders made by it on 11 October and 6 November and that Transfield was entitled to apply for those orders under s 127(2)(b) as a person that is directly affected by the industrial action. It is also common ground that under s 127(2) the AIRC was entitled to make the orders made by it under s 127 of its own motion. Thus, even if the unions' contention that Basin Oil was not a person directly affected, or likely to be directly affected, by the industrial action was correct, that would not preclude the AIRC from making an order of its own motion which was protective of the interests of Basin Oil, even if Basin Oil may not have been able to apply for such an order itself. Thus, ultimately the correctness of the unions' contentions concerning Basin Oil depend upon whether Basin Oil is a person "affected" by the orders made under s 127(1) (see s 127(6)).
19 Although the "ripples of affection may widely extend" (see Brennan J in Re McHattan and Collector of Customs (NSW) (1977) 18 ALR 154 at 157), as was pointed out in the joint judgment in the High Court in Allan v Transurban Citylink Ltd (2001) 183 ALR 380 ("Allan") at 384 the question of whether a person is affected by a particular decision is to be answered by reference to the subject, scope and purpose of the statute conferring rights on such a person. Section 127 was inserted by Act No 60 of 1996 for the purpose of conferring upon the AIRC power to make orders to stop industrial action and of conferring power upon the Court to grant injunctions on such terms as it considers appropriate if a person has engaged or is proposing to engage in conduct that constitutes or would constitute a contravention of an order made by the AIRC. In the Second Reading speech introducing s 127 (Commonwealth, Parliamentary Debates, House of Representatives, 23 May 1996, 1303) the Minister, after referring to the powers of the AIRC to "stop or prevent unprotected industrial action" and of the Court "to enforce such directions by injunctions", stated:
"Parties suffering from illegal industrial action will have access to effective legal redress, including injunctions and/or damages."
20 In s 127(2) the legislature has been careful to specify who may apply to the AIRC for orders under s 127(1). It appears to have taken a broad view of standing by not only providing for orders on the application of parties to an industrial dispute, persons likely to be directly affected by the industrial action, and their organisations, but also providing for the AIRC to make orders of its own motion. In s 127(6) the legislature has provided for any "person or organisation affected by an order" under s 127(1) to apply for an injunction to enforce the order. In using a different concept for standing to apply to the Court in s 127(6) the legislature must be taken to have intended that persons entitled to enforcement are not necessarily the same as or limited to the persons entitled to apply for an order under s 127(1). Indeed, the broad concept employed in s 127(6) ("affected by an order" rather than "directly affected…by the industrial action") is consistent with an intention that the persons whose interests may have been adversely affected by industrial action, thereby leading the AIRC to make orders of its own motion which protect those interests, may have standing to enforce those orders. It follows that persons other than the applicants for orders under s 127(1) can have standing to enforce those orders.
21 In that context there is no reason for giving the words "a person or organisation affected by an order" under s 127(6) a narrow or restricted meaning. Although "any" ripple of affection is not sufficient (see Allan at 384), where an order is made by the AIRC under s 127(1) in order to protect the rights or interests of a particular person who will be adversely affected by the industrial action, in my view that person is likely to be a person "affected" by the order for the purposes of s 127(6).
22 The issue is whether, prima facie, Basin Oil is a person affected by the orders made under s 127(1) in relation to the stopping of industrial action at the plant. While the industrial action involved employees of Transfield and of its contractors, rather than employees of Basin Oil, that does not fairly or adequately describe the industrial action that the AIRC ordered to be stopped. Basin Oil is the operator of the plant and is responsible for its construction, commissioning and commencement as a gas processing plant. The picketing in support of the cessation of work of employees is being carried out at the entrance of Basin Oil's plant and is preventing, and is aimed at preventing, the completion of the construction of the plant. Further, the evidence is to the effect that the industrial action is for the purpose of bringing pressure on Transfield and Basin Oil to persuade Upstream to change its position concerning the AWA's. The object of all of the orders made under s 127(1) was to stop that industrial action and thereby enable the works at Basin Oil's plant to be completed without further delay. In the circumstances, I am satisfied, prima facie, Basin Oil is a person whose particular rights and interests were intended to be protected by the s 127(1) orders and it is therefore a person "affected" by those orders and is entitled to apply for an injunction to enforce them under s 127(6) of the Act. Further, Basin Oil is expressed to be bound by the Basin Oil order and being a party to that order, is entitled to apply for a penalty in respect of any breach of the order: see s 178(5). That fact constitutes an additional ground for concluding Basin Oil is a person affected by that order.
23 In any event, Basin Oil appears to be a person "directly affected" by the industrial action and would therefore be entitled to apply to the AIRC under s 127(2), as it did, for orders stopping the industrial action. As explained above, there is no reason for giving a narrow or restrictive interpretation to the persons who are intended to be entitled to the benefit of s 127 of the Act. The power conferred on the AIRC and on the Court to make orders under ss 127(2), (6) and (7) is an exercise of the incidental power under s 51(xxxv) of the Constitution, which is a grant of power extending beyond what is merely necessary and, at the very least, includes what is appropriate to effectuate the exercise of the power: see Victoria v The Commonwealth (1996) 187 CLR 416 at 548-549. Where there is unprotected industrial action being taken or threatened it seems to be consistent with effectuating the exercise of the legislature's power to enact s 127 for it to intend to confer on those who are being targeted by the industrial action an entitlement to apply for orders by the AIRC. Of course, a person who is affected by the industrial action indirectly, remotely or merely consequentially would not have standing under s 127(2) but I am satisfied that, on the material presently before the Court, that is not the case in respect of Basin Oil.
24 In the course of the hearing it became clear that the interim relief sought was, in effect, final relief. Transfield and Basin Oil were prepared to bring their applications on for final hearing forthwith but that course was opposed by the unions and the union organisers. Accordingly, Transfield and Basin Oil continued with their applications for interim injunctions under s 127(7). The orders sought by Transfield and Basin Oil are that until 4.30 pm on 6 December 2002 or further order the unions and the union organisers be restrained from:
(a) authorising, directing, inciting, persuading or encouraging any of their members who are employed by Transfield or its contractors at, or in relation to the construction of, the plant to fail or refuse to attend for work or to fail or refuse to perform work in the manner in which it is customarily performed;
(b) engaging in any action for the purpose of maintaining, supporting or establishing a picket at or in the vicinity of any entrance to the plant;
(c) authorising, inducing, directing, organising, encouraging or inciting any person to participate in or maintain a picket at or in the vicinity of any entrance to the plant.
25 Orders are also sought that the unions send a letter to members employed at, or in relation to the construction of, the plant on union letterhead in the following terms:
"[UNION LETTERHEAD]
Dear [Name]
You are advised that the [union] does not support or endorse your failure to attend for work at the Transfield Construction Pty Ltd Patricia Baleen On-Shore Gas Facility at Newmerella.
No union organiser has the authority to direct or encourage you to continue your failure to attend for normal work, or to assist you in remaining away from work.
You are also advised that Senior Deputy President Lacy of the Australian Industrial Relations Commission issued Orders under section 127 of the Workplace Relations Act 1996 on Wednesday, 6 November 2002. Those Orders require you to return to work, and to cross a community protest or picket line that may be in place, unless you are physically prevented from doing so.
Yours faithfully,"
26 The orders sought include orders that the unions send a copy of the letters sent pursuant to the orders to the solicitors for the applicant in order to notify the applicant of compliance with the orders. Basin Oil sought additional orders that Lee, Warren and Dodd be restrained from attending at the plant, or in the vicinity of the entrance to the plant, for so long as the employees were failing or refusing to attend for work at the plant. Transfield did not seek any orders against its employees, or the employees of its contractors.
27 The unions and the union organisers opposed the making of the orders sought and contended that the undertakings in Transfield's proceeding that the unions had previously given and were offering to continue provided sufficient protection to Transfield and Basin Oil.
28 It is now well established that in considering whether an interim injunction is "desirable" under s 127(7) the Court is required to consider whether the applicant for the order has established that there is a serious issue to be tried in respect of its entitlement to a final injunction under s 127(6) and whether the balance of convenience favours the making of the orders sought. It is also well established that the strength of the prima facie case for relief of an applicant will be relevant to the balance of convenience: see for example Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 17-18 and ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 173 ALR 109 at 117. Further, the traditional reluctance of the Court to make interlocutory mandatory orders, including ordering employees to return to work, may not apply to conduct which, prima facie, is in breach of the Act: see Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering and Kindred Industries Union [2002] FCA 127 ("Amcor Packaging") at [11]-[12].
29 An issue commonly arising in the context of interim relief in an industrial matter is whether the interim relief is, in effect, the grant of final relief. However, it is also common for the refusal to grant interim relief to be, in effect, a refusal to grant final relief. For example in Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1998] FCA 1793 the AIRC had made an order under s 127(1) that a proposed national stoppage not occur. In that case the refusal by the Court to grant interim relief to enforce the order effectively meant the refusal of final relief to enforce the order as the national stoppage was to take place before the final hearing.
30 The present case is a good example of the problem. The s 127 orders obtained by Transfield and Basin Oil only continue for a certain period. The first Transfield order expired without a s 127 order being made by the Court. Notwithstanding the Basin Oil order and the new Transfield order the industrial action has continued. It is clear that the expeditious resolution of the dispute over the industrial action sought to be achieved by s 127(3) would be defeated if enforcement of the AIRC's orders is delayed.
31 There is substance in the submissions of Transfield and Basin Oil that any delay in the Court's enforcement of the orders of the AIRC will result in the irretrievable loss to them of the benefits of those orders, probably without any accompanying entitlement to compensation for any loss or damage suffered by reason of any breach of the AIRC's orders, for each day the industrial action continues. There is, however, also force in the unions' contention that the making of the interim orders sought by Transfield and Basin Oil effectively determines against the unions the issues which they wish to argue at the final hearing, because the interim orders require them to take positive steps to call off and bring to an end the industrial action which they contend is not being taken by them.
32 In N.W.L. Ltd v Woods [1979] 1 WLR 1294 at 1305-1307 Lord Diplock warned against the courts blinding themselves to the "practical realities" of interlocutory contests in respect of industrial disputes where the grant or refusal of an interlocutory injunction generally disposes finally of the action as, in practice, such actions "seldom if ever come to actual trial". In that context, Lord Diplock observed at 1307:
"Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."
33 The question under s 127(7) is whether the Court is of the opinion that "it is desirable" to grant the interim injunctions sought. As explained above, the answer to that question, even where the grant of relief is in effect final relief, requires consideration of the strength of the case of the applicants for relief and also of where the balance of convenience lies.
34 In considering the strength of the claim for interlocutory relief due weight is to be given to the fact that s 127(1) orders have been made by the AIRC and to the reasons given by the AIRC for making those orders. The legislature has reposed in the AIRC, as an expert industrial tribunal, the power to determine whether an order to stop industrial action should be made. While the Court has an undoubted discretion under ss 127(6), its role is essentially intended to be one of enforcement of an order that has been made where there has been a contravention or proposed contravention of that order. While I accept that there is no presumption or pre-disposition in favour of the making of an enforcement order (cf ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256-258 and 267-268), I would expect that, in the usual course, there would have to be good reason not to enforce an order of the AIRC, given that the legislature has reposed in the AIRC, rather than the Court, the question of whether an order under s 127(1) is to be made and has provided that when it has been made the persons to whom the order is expressed to apply "must comply with" it (s 127(5)). Good reason may be shown if, for example, the AIRC erred in law, the order is shown to be invalid for any reason or where subsequent circumstances have arisen that make its enforcement inappropriate or unjust. I doubt, however, that the legislature intended that the Court should be required to embark on a hearing de novo of the s 127(1) application.
35 In that context, while the weight to be given to the reasons of an expert tribunal, such as the AIRC, in a particular case will depend upon the circumstances (see Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 154-155) in a case such as the present there is no reason why substantial weight should not be given to the reasons of the AIRC. The AIRC heard the matter over some six days, received evidence from 8 witnesses, a majority of whom were cross-examined, and prepared two carefully considered reasons for making s 127 orders on 11 October and 6 November.
36 The first question arising is whether there is a serious issue to be tried that the unions and the union organisers have engaged in conduct that constitutes a contravention of s 127(5). Section 127(5) requires that the respondents, to whom the orders of the AIRC are "expressed to apply", comply with those orders. The unions and the union organisers are persons to whom the orders were expressed to apply, although only the Transfield order of 6 November was expressed to apply to Lee. An argument was raised by Lee that he was denied procedural fairness, which the AIRC is required to observe in exercising its arbitral function under s 127, in respect of the s 127 order made against him in his personal capacity on 6 November 2002. One aspect of the requirement is that the parties intended to be bound by an order must be given an opportunity to be heard: see Re Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17 at 25.
37 It appears that Lee was not served with a copy of the application made against him on 6 November, was not present at the hearing and did not instruct anyone to represent him at the hearing. However, the AWU was represented at the hearing and Lee does not state that he did not have notice of that application. He was not cross-examined on his affidavit. Lee was closely involved with the industrial action being taken in the present matter and it is unlikely that he was unaware of the proceeding in the AIRC on 6 November 2002. Thus, it remains an open question as to whether the order is invalid as against Lee because there was a failure by the AIRC to comply with the requirements of procedural fairness. At this stage I need say no more than that there is a serious issue to be tried in relation to that matter.
38 I am satisfied that a strong prima facie case has been made out by Transfield and Basin Oil that the unions have engaged in conduct that constitutes a contravention of the s 127 orders made by the AIRC. There may be a legitimate dispute about whether the first Transfield orders requiring that the industrial action stop, required the taking of positive steps to bring about the cessation of that action, or merely the refraining from taking any further steps in pursuance of that action (see for example BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union (2000) 102 IR 275 at 289; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 at [10]-[17] and [99]-[107] and Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 629 at [35]-[51]). However, that is not an issue of any consequence in the present case.
39 The evidence in the present case, that was accepted by the AIRC and which is also before the Court, presents a compelling prima facie case that the picket at the plant was established, authorised and maintained by the union organisers as part of the industrial action being undertaken by them jointly on behalf of the unions in an endeavour to cause Upstream to renounce the AWA's it was proposing to use for its employees at the plant. The industrial dispute commenced with the initiation of a bargaining period by each union, continued with a stop work meeting held by employees at the plant and culminated in the employees' refusal or failure to attend for work at the plant since the picket line was established.
40 Although there might be an issue at trial about the actual authority of the organisers to establish or maintain the picket line on behalf of the unions, their involvement has been such that I infer that they were holding themselves out, and were to their and the unions' knowledge believed by employees, to be acting as organisers on behalf of their respective unions: see Hanley v Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union (2000) 100 FCR 530 at 549-550 and Amcor Packaging at [11]. The inference is compelling that the picket was established as a joint exercise by the unions, acting through their organisers, for the purpose of preventing, deterring or discouraging employees from attending and carrying out their work at the plant. The "joint exercise" aspect of the present matter is significant as it carried with it the consequence, as was found by the AIRC, that each of the organisers will be seen by the employees to be at the picket acting as an organiser, authorising the continuance of the picket on behalf of the unions and, until informed otherwise, the employees will be justified in believing that the picket remains jointly authorised by the unions.
41 While evidence was adduced by the unions that there was a "community protest" at the plant no person has come forward to give evidence on behalf of "the community" that was said to be protesting and the "community" protest only appeared to emerge after the picket was first established on 2 October. Further, I do not regard the unions as having denied that they or their organisers authorised, directed or encouraged the establishment or maintenance of the picket. Notwithstanding the adverse findings of the AIRC on that issue the unions and the union organisers did not adduce evidence before the Court that was in substance different in any significant respects to the evidence they had placed before the AIRC. The thrust of the evidence placed before the Court was to the effect that, whatever may have been the case at an earlier stage of this matter, the unions have taken steps to ensure that the union organisers no longer attended the site. That action, albeit somewhat belated, particularly in respect of Lee, falls a long way short of compliance with the orders of the AIRC.
42 In the context set out above I am satisfied on a prima facie case basis that:
· Cl 3.3 of the Transfield order of 11 October was contravened by the unions by reason of Warren's and Lee's attendance and activities at the picket on 15 October and Lee's attendance and activities at the picket on 16 and 29 October;
· Cl 4.2 of the Basin Oil order of 11 October was contravened by the unions by their failure to take any of the steps required to be taken under the order;
· Cl 3.3 of the Transfield order of 6 November was contravened by the unions by Lee's attendance and activities at the picket on 7 November and cll 3.5, 3.6(c) and 3.7 of the orders were contravened by the unions by reason of their failure to take any of the requisite steps.
43 The breaches of the Transfield order of 11 October may be of little consequence as the order expired and was superseded by the second Transfield order of 6 November. Nonetheless, the breaches form part of the history of the matter and provide the context for the making, and the subsequent breaches, of the order of 6 November.
44 The unions argued that picketing is not industrial action: see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 ("Davids Distribution") at 485-486 per Wilcox and Cooper JJ. However, their Honours at 486 [52] observed that picketing activity that "merely involves communication of information to persons entering or leaving a site" is not industrial action within the meaning of that term in the Act. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 ("Laing") at 31-32 French J stated at 32:
"To constitute 'industrial action' under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a 'ban, limitation or restriction on the performance of work'. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purposes of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127."
45 In David's Distribution at 486 Wilcox and Cooper JJ observed:
"…that activities falling within the general description of 'picketing' may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress."
46 In my view nothing said by Wilcox and Cooper JJ in David's Distribution detracts from the observations of French J in Laing to the effect that a picket line, established by unions or their organisers for the purpose of preventing and deterring or discouraging employees from attending at their employer's premises and from carrying out their work, could constitute industrial action for the purpose of s 127. See also The Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 at [32]-[33] per Goldberg J. As explained above, that is the purpose of the picket line in the present case.
47 The balance of convenience is strongly in favour of the grant of the interim relief sought by Transfield and Basin Oil. It is plain that Transfield and Basin Oil are suffering substantial economic loss as a result of the delay in the completion of the plant and the respondents were unable to point to any countervailing inconvenience, other than the inconvenience of having to go to the trouble of notifying employees of the matters set out in the pro forma letter proposed by Transfield and Basin Oil.
48 The respondents, however, relied on the relief being, in effect, final relief and also upon their undertakings being sufficient in all the circumstances of the case. The undertakings proffered by the unions, while ensuring compliance with some of the negative aspects of the s 127 orders, fail to deal with the object of those orders, which is that steps be taken to ensure that the industrial action "stops". The evidence is to the effect that the industrial action has continued as a result of the procedures set in place by the unions, or the union organisers acting on their behalf, prior to the making of the s 127 orders and that unless the positive steps required by those orders are taken the industrial action will not stop. Further the AIRC, in its reasons for making the orders, has outlined compelling reasons explaining why the industrial action should be brought to an end.
49 In my view the strong prima facie case for relief made out by Transfield and Basin Oil and the overwhelming balance of convenience in favour of the making of the orders sought against the unions justify the making of those orders, notwithstanding that they would be, in effect, final orders. In arriving at that conclusion I have taken into account that the relief sought is, in part, mandatory. However, the fact that an interim order is mandatory should not be a factor that prevents or inhibits the Court from making such an order if it is "desirable" to do so. Plainly, there will be many cases arising under s 127 where parties to an industrial dispute will have set in place industrial action that can only be brought to an end by the requiring of positive steps. To decline to make an order in such circumstances merely because it is mandatory in effect would undermine the purpose and objectives sought to be achieved by s 127.
50 The union organisers stand in a different position to the unions. While the action of each organiser might bind the unions it does not follow that those actions bind the other organisers. Further assuming in their favour, but without deciding, that the orders did not require the organisers to take positive steps, there is no evidence of a contravention of the s 127 orders of 11 October by Mooney or Dodd. Warren breached the first Transfield orders on 15 October but those orders have now expired. Further, it appears that he has not attended the picket since 16 October. Lee, who has attended at the picket line on 15 and 16 October, was not expressed to be a person bound by the first Transfield order and has an argument that the second Transfield order of 6 November was not valid as against him. Although Lee has been a particularly active protagonist at the picket it appears that he has finally been redeployed by the AWU and has not attended at the picket since 7 November. While the union organisers have probably breached cl 3.5 of the Transfield orders made on 6 November the mandatory orders I propose to make against the unions should result in compliance with cl 3.5.
51 In the above circumstances I have decided that it is not desirable or appropriate to make orders against the organisers at this stage. I will, however, reserve liberty to apply on short notice in the event that circumstances change. If the union organisers, or any other persons, intentionally engage in conduct which seeks to set "at nought" the injunctions granted against the unions and thereby obstruct the course of justice the Court has an undoubted jurisdiction to commit for contempt: see Seaward v Paterson (1897) 1 Ch 545 ("Seaward v Paterson") at 556.
52 For the above reasons I have determined that is appropriate to make the orders sought against the unions, but not against the union organisers personally. Further, substantially for the same reasons I am not satisfied that I should make the additional orders sought by Basin Oil requiring that the union organisers do not attend at the plant. Those interim orders go beyond the s 127 orders although that, of itself, is not a reason to refuse to make the orders: see s 127(6) and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 28 and 32. If the organisers continue to attend the picket line, depending on the circumstances, that may have serious consequences for the unions, as well as for the organisers if the principles in Seaward v Paterson were found to apply to them. As explained above, the reservation of liberty to apply will adequately protect the position of the Transfield and Basin Oil.
53 For the above reasons I have concluded that, subject to certain alterations, it is desirable to make the interim orders sought by Transfield and Basin Oil against the unions in their respective proceedings. As there was no opposition to dispensing with personal service