United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 383 OF 2005

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

REASONS FOR JUDGMENT 1 This is an application for interlocutory relief and has been argued from 9.15 am to 3.15 pm, with very little interruption for any adjournments. It has, therefore, been meticulously and thoroughly argued, perhaps to a level more appropriate to final resolution. Nevertheless, that perhaps indicates the significance of the issues that are before the Court.

nature of relief 2 The interlocutory relief which is sought is under ss 38, 39 and 49 of the Building and Construction Industry Improvement Act 2005 (Cth) ('the BCII Act') and under s 127(6) of the Workplace Relations Act 1996 (Cth) ('the WR Act'). The orders sought are injunctions to restrain the first respondent, whether by itself, its servants or agents, or howsoever otherwise and the second and third respondents from directing, authorising, inducing, encouraging, aiding, or procuring (or continuing to do those things) any employee of the applicant engaged on work at the Alcoa Pinjarra Refinery, the Alcoa Kwinana Refinery, or the Alcoa Wagerup Refinery to fail to attend for work and/or to fail to perform work in the manner as is customarily performed for the applicant. That is the form of orders sought in respect of the BCII Act. In respect of the WR Act the injunctions sought are in respect of the same acts relating to any employee whose employment is subject to any of the Alcoa s 127 orders to the same end.

background circumstances 3 The background to the application appears from the affidavits filed on behalf of the applicant and summarised in the applicant's amended outline of submissions. The applicant is a company providing mechanical and electrical services, including the provision of labour to perform those services to Alcoa World Alumina Australia ('Alcoa') at three refineries, namely Kwinana, Wagerup and Pinjarra. The mechanical employees are employed in classifications such as boilermakers, pipe fitters, welders, trade assistants, riggers and mechanical fitters. The evidence is that the applicant employs approximately 436 mechanical employees at the Pinjarra Refinery on what is known as the Pinjarra Efficiency Upgrade ('PEU'). Twenty-one mechanical employees are employed for local services work at the Pinjarra Refinery; 23 are employed at the Wagerup Refinery; 45 mostly mechanical employees are employed at the Liquor Burner Project at the Kwinana Refinery; 24 mechanical employees are in a Calciner Crew which moves between the three refineries performing Calciner upgrades and overhauls as required. 4 It is significant that the PEU is a $440 million expansion of the Pinjarra Refinery. 5 It is also significant that the mechanical employees are covered by certified agreements. These are: the United KG Pty Ltd Alcoa Local Services Contracts and Associated Projects Certified Agreement 2003, which has a nominal expiry date of 1 July 2006 and the Pinjarra Efficiency Upgrade (United KG Pty Ltd) Project AFMEPKIU Certified Agreement 2004, which has a nominal expiry date of 31 March 2006. Each of those certified agreements contains in it grievance procedures and dispute resolution provisions. 6 The great majority, if not all, of the mechanical employees to whom I have referred, are members of the first respondent.

relevant legislation 7 The legislation on which reliance is placed by the applicant may be summarised as follows. Section 38 of the BCII Act provides that a person must not engage in unlawful industrial action. That section is described by the legislation as a Grade A civil penalty. Its import is to be understood with reference to related definitions. Section 37 provides that 'building industrial action' is unlawful industrial action if it is industrially motivated, constitutionally connected action and the action is not 'excluded action'. There is no dispute that it is not excluded action. 'Building industrial action' is defined by s 36(1) of the BCII Act. There is no dispute here that the action of the employees of the applicant, is arguably building industrial action. That point has not been put in issue on this interlocutory application. Specifically it has not been contended that the exclusions from the definition of building industrial action, particularly those relating to health, have any applicability to preclude the application of the definition. 8 Section 36(1) of the BCII Act provides action will be industrially motivated where it is motivated by one or more of the purposes legislated in that definition, or by purposes that include one or more of those purposes. They include supporting or advancing claims against an employer in respect of the employment of employees of that employer; advancing an industrial objective of an industrial association; and disrupting the performance of work. Furthermore, those provisions are applied not necessarily in respect of only the employer of the employees whose action is in issue. It is clearly arguable on the evidence here that there was or has been disruption of performance of work so that the action may be characterised as industrially motivated. 9 It has not seriously been put in dispute that the action disclosed by the evidence is constitutionally connected action or arguably so. In particular par (d) of the definition of that description appearing in s 36(1) of the BCII Act, relates to action relating to work that is regulated by an award or certified agreement. On the circumstances before me that is beyond argument. 10 Section 39(1) of the BCII Act provides that: '(1) If … an appropriate court is satisfied that unlawful industrial action is: (a) occurring; or (b) threatened, impending or probable; then the court may grant an injunction in such terms as the court considers appropriate.' Further it is provided in s 39(2) that: '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 (1).' Subsection (3) provides that: 'The power of the court to grant an injunction restraining a person (the defendant) from engaging in conduct may be exercised: (a) whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the defendant has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.' 11 It is not contended by the applicant that unlawful industrial action is occurring nor is it contended that unlawful industrial action is either threatened or impending. The case the applicant brings is that unlawful industrial action is sufficiently probable as to require interlocutory restraint pending final determination. 12 There is also the provision in s 49(1) of the BCII Act that provides: 'An appropriate court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil penalty provision: (a) an order imposing a pecuniary penalty on the defendant; (b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention; (c) any other order that the court considers appropriate.' 13 I have already indicated that s 38 is so characterised. Specifically s 49(3) provides that '[T]he orders that may be made under paragraph (1)(c)', to which I have just referred, include 'injunctions (including interim injunctions)'. Again subs (4) provides that if a contravention is a contravention of s 38 then conditions governing the power of the court to grant injunctions, the same as those referred to in s 39(3), apply. 14 Section 48(2) of the BCII Act relevantly provides that: 'For the purposes of this Part, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is involved in a contravention of a civil penalty provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or …' 15 For that purpose the subsection continues by stating that: '(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or …' 16 Further they include conspiracy; that is not relevant on the circumstances here. 17 In the WR Act it is provided in s 127(1) that: '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.' 18 Subsections (5) and (7) provide that: '[5] A person or organisation to whom an order under subsection (1) is expressed to apply must comply with the order.' '[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).' 19 It is provided in s 127(6) that: '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.' 20 Here it is common ground that s 127 orders have been made in respect of work at Pinjarra and Kwinana. 21 It is also provided in the WR Act in s 4(8) that: 'In this Act, a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct.' 22 It is also relevant to have in mind that the BCII Act came into force in respect of the sections on which the applicant is relying, namely ss 39 and 49, on 12 September 2005. However, ss 36, 37 and 38 came into effect from 9 March 2005. 23 In applying the provisions of the BCII Act it should also be said that a further relevant consideration is that s 3(1), which came into effect on 12 September 2005 states its main object as: '… to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.' 24 That object is developed further by s 3(2) where it states that the BCII Act aims to achieve its main object by certain means. These include: '(a) improving the bargaining framework so as to further encourage genuine bargaining at the workplace level; … (d) ensuring that building industry participants are accountable for their unlawful conduct;' 25 Consideration of the main object is a relevant consideration to the construction and application of the provisions of the BCII Act.

evidence 26 The evidence brought by the applicant is derivative from a large number of affidavits. These are identified in the transcript of the hearing. They are also supported by an amended annexure to the applicant's amended submissions by what the applicant claims is a summary of evidence of strikes involving the first respondent and its members employed by the applicant at the Alcoa refineries. These cover a period from 10 March 2005 to 8 December 2005. The applicant says the annexure discloses as the evidence does, 22 instances of such industrial action. 27 It is important to bear in mind that the s 127 order relating to Pinjarra ('the Pinjarra order') was made on 20 September 2005 and the s 127 order relating to Kwinana ('the Kwinana order') was made 13 September 2005. 28 The evidence relied upon by the applicant in the 22 instances of industrial action to which I have previously referred evokes evidence at some or all of the sites of Alcoa. A substantial amount of the conduct occurs, at least in the earlier period, in relation to Pinjarra. The only conduct to have occurred within a recent period is that of 29 November 2005 and 7-8 December 2005. 29 The first respondent for its evidence has put on affidavits of Messrs McCartney and Tracey, to whom I have previously referred. Additionally, it has put in evidence affidavits of the State Secretary, Mr Ferguson and Mr Spartalis, the Shop Steward, for the first respondent at the Alcoa Liquor Burner Upgrade Project at Kwinana. The flavour of that evidence appears for instance, from the affidavit of Mr Tracey in par 6(f) where he says that he does not believe that the 'real reason for the work stoppages on 29 November 2005 at Kwinana and Pinjarra were the industrial legislation changes'. He deposed it appeared to him that the members were most worked up about site specific issues. The industrial relations legislation changes were discussed at both meetings but had been discussed at countless previous meetings. They were controversial and angered members, but they were not the primary reason, in his view, for the work stoppages. In his affidavit Mr McCartney describes that the meeting at Kwinana was broken up by the occurrence of rain and people started to walk away. He says that he said to the meeting that people should be protesting against the proposed legislation changes and needed to get neighbours and friends to protest as well. Mr Spartalis in his affidavit testifies that he attempted to get a motion for all employees to go off the job, removed from the floor, stating that there was a s 127 order against the first respondent. He claims to have attempted this at least five times. That was at a meeting on 7 December 2005. 30 Mr Ferguson, in his affidavit, testifies that the National Council of the first respondent had adopted a policy and procedure on the authorisation and notification of industrial action and had held training sessions with officials and delegates to publicise the policy. He said that neither the State Secretary nor State Council authorised the action taken on 29 November 2005. 31 I have spoken of that evidence fairly generally because it was subsequently thought to be summarised so far as its flavour is concerned, in a tabulation submitted as an aide memoire in support of the argument for the respondents. That was described as a chronology, isolating each of the events in which a strike was involved into the places where they occurred, namely, Kwinana, Wagerup or Pinjarra. In addition, I was taken in further development of that to the transcript references to the evidence which contained the evidence of those persons which was described as direct evidence of what had occurred, particularly in relation to 29 November 2005. It is sufficient for present purposes if I state that the flavour of that evidence was that it was the members of the first respondent who took industrial action, particularly on 29 November 2005 and that it was not any action of the first respondent, the second respondent, or the third respondent, which brought about that occurrence. Consequently it is said that there is not a prima facie case, or a serious issue to be tried from the point of view of an interlocutory injunction in relation to the involvement of those parties in the events at issue.

decision of australian industrial relations commission 32 On 15 December 2005 in the Australian Industrial Relations Commission, Deputy President McCarthy was required to consider an application lodged by the present applicant that a bargaining period initiated by the first respondent be terminated or suspended. It was submitted to him that the first respondent had not complied with the Kwinana order or the Pinjarra order, referred to above. He concluded at [32] that he was satisfied that there was non-compliance with the requirements of the Kwinana order by the first respondent's officials and/or delegates which was established by the evidence. In [34] he referred to the evidence of one official, Mr Tracey (the present third respondent) and that he told employees that they could not take industrial action because of the order that was in place. However, at [35] he found that the evidence of the employees conflicted with that of Mr Tracey. He considered that on 29 November 2005 neither Mr McCartney (the present second respondent) nor Mr Tracey, each of whom are officials, took all the steps necessary to comply with the order. He concluded at [37] that contrary to the terms of the order it was clear from the evidence that delegates were directly or indirectly concerned in, or party to, the taking of industrial action on 29 and 30 November 2005. 33 At [43] the Deputy President said: 'Given the propensity for employees of [the applicant] to take industrial action, the organising or help in organising the meetings I consider to be either conduct possibly directly but certainly indirectly concerning the taking of industrial action. Even if Mr Tracey and Mr McCartney did not openly encourage employees to take industrial action I consider they were both well aware of the likely consequences of their participation in what was clearly a coordinated effort. It is not credible that both Mr McCartney and Mr Tracey could coincidentally be at two meetings of their members at two different locations in one morning and for the outcome to be the same as another meeting that occurred at Mr Tracey's direction, namely, all three meetings resulted in employees of [the applicant] spontaneously taking industrial action. That conduct I also consider in the circumstances to be non-compliance with the orders I issued.' (footnotes omitted) 34 He then turned to issues of discretion and considered the nature of the non-compliance and the probability of there being further instances of non-compliance. He considered that there was a probability of further non-compliance with the Alcoa Kwinana order. He said, at [47]: 'In these circumstances I do not consider it appropriate that [the applicant] should be confronted with damage incurred as a result of protected industrial action by a negotiating party on one front in one part of its business yet confronted with other damage in another part of its business resulting from that same negotiating party not complying with orders of this Commission issued for the purpose of preventing industrial action. Nor do I think that the negotiating party here should consider it can isolate the rights it has to have protected action against [the applicant] and BP Kwinana from other actions taken against [the applicant].' Therefore, in all the circumstances the Deputy President considered a suspension of the bargaining period was appropriate. 35 The decision involved a consideration by the Deputy President of evidence which is the same evidence relating to the events of 29 November 2005 as is brought as part of the evidentiary spectrum relied upon by the applicant in the present application. The decision has not been appealed.

injunctive relief 36 It is of course common ground also that for the purpose of the interlocutory injunction I must look to find whether there is a serious issue to be tried and where the balance of convenience lies.

serious issue to be tried 37 It follows from what I have said so far that the critical issue for the determination of the interlocutory application is whether the evidence adduced by the respondents in the broad outline which I have been given, is sufficiently strong to resist the applicant's case against it and to the contrary. There are three difficulties facing the respondents' evidence in my view. 38 In the first place the summary which I was taken to of the direct evidence did not address all the direct evidence. Furthermore it is not limited to the direct evidence. I am not required only to take into account direct evidence. It may be that on a final determination that point would become particularly important in the application of sections such as s 4(8) of the WR Act or s 69 of the BCII Act. 39 Secondly, I have before me the findings which I have endeavoured to include in my reasons of Deputy President McCarthy which as I have said, have not been appealed. They are a contrary to parts of the evidence which the respondent's submissions presently highlight. It is important I think in [43] of his reasons that the Deputy President who had the benefit of close consideration of the evidence before him, that he regarded the employees of the applicant as having a propensity to take industrial action and that while acknowledging the possibility of direct involvement, also found there was certainly indirect involvement in the taking of industrial action. In reaching that view he took into account the particular circumstances of 29 November 2005 and the coordination of the strike arrangements as he found them to be, between the three refineries. 40 Thirdly, the respondents' evidence does not address the entire history of relationships which is brought before me save for in the schedule of the 22 events. I do not consider that I can only look at the events of 29 November 2005 nor do I consider that the history of events which in themselves involved industrial action but did not lead to the making of any order are irrelevant to a consideration of the probabilities which I am required to consider. In my view it is appropriate that I should look at all the factual matrix. That must include the 22 events in addition to the events of 29 November 2005. 41 When I look at that wider context as I was urged to do by the intervener and in my view correctly so, the probabilities fall to be judged. For the purposes of s 39 of the BCII Act I consider that it is seriously arguable that unlawful industrial action is probable. I say that in the context where there is no dispute as I understand it that the elements of the definition potentially apply and it is the probabilities which are the central judgment to be made on this interlocutory application. 42 For the purposes of the WR Act the probabilities have already been assessed in some respects by the making of the relevant orders and the breach of those orders is certainly arguable as a serious issue in terms of satisfying the requirements of interlocutory relief. 43 As I have said, it may be that on final resolution the requirements of s 4(8) of the WR Act and s 69 of the BCII Act may require closer argumentation. For the reasons I've given in relation to the balance of the evidence adduced before me, I regard it as a fact that there is a serious issue to be tried that not only the first respondent but also the second and third respondents were involved or directly or indirectly concerned in what is alleged.

balance of convenience 44 The balance of convenience then requires consideration. I accept the submission that the strength of the case of the arguability of the serious issues to be tried does weigh to some degree in the balance of convenience. I am influenced by the reference to Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd. R. 634 at [22]-[30] particularly at [22], [28] and [30] which I will not repeat here. 45 I must also take into account the evidence of Ms Helen Spencer that since December 2004 at the Pinjarra Refinery alone the applicant has lost 43 181 hours or 5398 days of work representing about 8 per cent of ordinary hours of work. Approximately 84 per cent of that lost time is attributable to the mechanical trades employees. Ms Spencer calculated that the cost to the applicant of a one day stoppage on the PEU is about $126 750 in fixed costs alone. 46 The balance of convenience therefore favours the applicant. 47 The respondents raised other considerations for my consideration in these discretionary considerations. The first was that there is an absence of pending or threatened unlawful industrial action. That I have taken into account but it does not seem to me it can sway the balance. It does, however, cast an important onus onto the evidence upon ultimate resolution. 48 It was also suggested that any relief could be confined to the Kwinana site and not be applicable to Pinjarra and Wagerup. However, Deputy President McCarthy found a coordinated link between the three sites in the activities of the first respondent and I do not think it is realistic to seek to segregate the sites in that respect. 49 It was also put that the first respondent would be adversely affected in its freedom of association if the basis of my decision was that an injunction should issue in respect of the respondents on the basis they had not done enough in the circumstances. That is, that they had refrained from affirmative action. That is not the sole basis of my reasoning, as I have said. I have endeavoured to weigh the evidence brought by the respondents against the total matrix of evidence before me and I have found that the absence of affirmative action is but one feature of that evidentiary balance.

conclusion 50 For these reasons I consider that the applicant succeeds in its application for interlocutory relief. 51 However, I am of the view that it would be inequitable to enable such relief to continue for a time unrelated to the time which would properly be available to bring the matter to trial. In my view, therefore, some programming orders should be made to advance the hearing of the application in order that the interlocutory relief does not endure so as to ossify into the form of permanent and ongoing relief. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Solicitor for the Applicant: Blake Dawson Waldron