Beating the Bush Blues

The Death of Dollar Sweets

Stuart Wood

Introduction

In recent times, the Federal Court(2) has rendered legislative provisions directed at unlawful industrial action largely ineffective. It has also, in a succession of cases, restricted employer attempts to bring their common law actions in the Supreme Court. This latter development quite possibly signifies the death of Dollar Sweets.(3)

To understand the death, one needs to understand the life. Before examining what has happened over the last few years, it is necessary to understand something about:

  • the legislative regime;
  • the unions;
  • the Federal Court and the State Supreme Courts;
  • s127 of the Workplace Relations Act 1996 ("WR Act");
  • the "Dollar Sweets" common law remedies.



The Return of Freedom:
The Shift from Arbitration to Bargaining

Over the last 20-odd years, the system of centralised wage fixing has been replaced by a system of enterprise-specific collective and individual bargaining. The specific remedies I have outlined, were just a part of the sweeping transition which bore significant legislative fruit under former Prime Minister Paul Keating and has been carried forward by Minister for Employment, Workplace Relations and Small Business Peter Reith.

It is useful to go even further back. In 1904, the Commonwealth Parliament enacted the Conciliation and Arbitration Act ("C&A Act").(4) This drew on the conciliation and arbitration power in s51(xxv) of the Commonwealth Constitution. Interestingly, s51(xxv) was included at the eleventh hour in light of the big strikes in the 1890s in the coal mines, the wharves and the shearing sheds. From 1904 until the early 1990s, conciliation, with ready access to arbitration, has been the backbone of the industrial relations system.

Initially, s6(1) of the C&A Act prohibited strikes and lock-outs. Section 6 of the C&A Act was repealed in 1930. From 1930 onwards, the Federal industrial relations system did not outlaw industrial action. Strikes and pickets were responded to with the Commission processes,(5) and if they were ineffective, recourse was made to common law injunctions and/or damages.

In 1993, the system of compulsory arbitration was replaced by a system of enterprise bargaining. This change was not supported by the union movement and the union movement dragged Mr Hawke out, in the 1995 dispute between unions and Comalco at Weipa, as a reminder to then Prime Minister Paul Keating, of the union movement's annoyance. Keating incensed the unions with a speech delivered on 31 August 1993 in Sydney to the International Industrial Relations Association, 9th World Congress, in which he called for an end to the old arbitration system and a beginning of enterprise bargaining:

For well over a century, Australia has attracted the interest and curiosity of practitioners and theorists of industrial relations. In the great constitutional debates of the 1890s our founding fathers gave the proposed Commonwealth a power to settle interstate industrial disputes by conciliation and arbitration. When we became a nation in 1901, one of the first things we did was to set up a Commonwealth Tribunal which could exercise its power to settle disputes---a power which rapidly became one of settling wages and conditions directly or by example for most Australian employees.

It was a system which served Australia quite well I think, but the news I have to deliver today to those of our visitors who still think Australian industrial relations is run this way, is that it is finished. Not only is the old system finished, but we are rapidly phasing out its replacement, and have now come to do things in a new way.

After making the speech, Keating delivered in part with a large package of IR reforms in the Industrial Relations Reform Act 1993 (the "IR Reform Act").(6) It was the IR Reform Act that shifted the focus to enterprise bargaining supplemented by a right to take protected industrial action in defence of enterprise bargaining claims. With the Coalition's support, it took effect from 30 March 1994.

After the change of government in 1996, Reith has simply carried the Keating template forward, with some minor amendments. The Workplace Relations and Other Legislation Amendment Act 1996 (the "WROLA Act"),(7) renamed and substantially amended the IR Reform Act. The WROLA Act was the result of a compromise between Reith and the then-leader of the Australian Democrats Cheryl Kernot. The Left called these 1996 reforms "the most draconian ever seen",(8) Reith stated that his mission had been accomplished with the introduction of the Act(9) and the Right quipped that the government's workplace reform mission had been abandoned.(10)

The real change introduced by the WROLA Act, so far as industrial action was concerned, was the introduction of s127 into the Workplace Relations Act 1996 (the "WR Act")(11) and the reintroduction of ss45D and 45E into the Trade Practices Act.(12) The substantive change from a compulsory arbitration system which disallowed strikes to an enterprise bargaining system that made strikes lawful, provided that they were taken to win an enterprise agreement, had already occurred with the earlier IR Reform Act---designed by Reith's Labor predecessor, Laurie Brereton. Similarly, the right to take protected action within a bargaining period, the provisions for the Commission terminating a bargaining period and the making of awards for persons who cannot win enterprise bargains without damaging the public, were also all introduced by Minister Brereton. Reith simply adopted the framework developed by Brereton and added sections 127, 45D and 45E. Unsurprisingly, the unions protested against Reith's amendments to the template, just as they protested against Keating's template.

Reith embarked on his "second wave" of industrial relations reform in late 1999. In September, the government introduced the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill(13) only for it to be defeated in the Senate in October.(14) Further reform was necessary, primarily because Reith's "first wave" of reform had been largely thwarted. The ways in which this occurred will be discussed at length.



The Unions

The unions, particularly those in Victoria, are itching for a return to the old days of centralised wage fixing. They have received some publicity for their victories in the construction industry 36-hour dispute and in their efforts to co-ordinate a return to industry-based bargaining through 'Campaign 2000', due to kick off on 30 June 2000. Not only have these unions had success in industrial terms, but in political terms as well. Opposition leader Kim Beazley has indicated that Labor intends to water down ALP IR policy and remove AWAs. This announcement was made as an interjection during Question Time early in April, ahead of the scheduled discussion of the issue by the Federal Executive and the national conference in July.(15)

"Campaign 2000" is a concerted effort to synchronise industrial action in support of better wages and conditions in manufacturing businesses. It will initially affect Victoria, with hundreds of businesses which signed up to common expiry dates for enterprise bargaining agreements to be hit with co-ordinated legal strike action from July this year. But the industrial action will be spread to other States next year.

This campaign denotes a resurgence of the notorious union 'Left' that has always been a forceful element in Victoria in which trade unions have tended to be more left-wing than in other States. For example, contrast the left-wing, atheist, Victorian-based Metalworkers Union with its great rival, the right-wing, Catholic, New South Wales-based Ironworkers Union. Over the last decade, the Metalworkers union has merged with the Food Preservers Union, the Confectionery Workers Union (of Dollar Sweets fame) and the Vehicle Builders Union, amongst others, to form the Australian Manufacturing Workers Union (apparently an "industry" union).

The Victorian branch of the AMWU has been taken over by Craig Johnson and his cohorts.(16) There are also rumblings that, having taken over the Victorian branch, Johnson's gang now has its sights set on a Federal takeover. Mr Johnson was involved in the 1996 Parliament House riot and has been involved in many violent pickets: he is not an apologist for the violence. His industrial agenda is a resurrection of the past, "industry-wide bargaining ... combined with a stated refusal to accept wage restraint or productivity trade-offs".(17) His campaign is "Worker's First" and is based upon taking "industrial action" in order to secure wage increases. No attempt is made to cover up the manner in which the "industrial action" is taken, and Mr Johnson is explicit about his tolerance of industrial militancy: "My view is that it would be better if it didn't happen but you can only push workers so far".(18)

Also under the auspices of the AMWU are the CEPU and the CFMEU, which together make up the Metal Trades Federation of Unions (MTFU). This strategic alliance between Johnson, Martin Kingham of the CFMEU and Dean Mighell of the Electrical Division of the CEPU (formerly known as the Electrical Trades Union) controls the construction industry, electricity and most manufacturing plants in which the Metalworkers union is strong. They therefore have a useful vantage point from which to take direct action to push for common outcomes across the industries in which they have coverage in Victoria. And they have shown on numerous occasions that they are prepared to ignore orders and undertakings in the AIRC and/or the Courts and frequently take industrial action during the life of certified agreements.(19) As I write this, Johnson and Mighell and their unions are facing contempt actions related to Campaign 2000.(20)



The Federal Court

The Federal Court has about 50 judges: nearly three-quarters of whom were appointed by the last Federal Labor Government.(21) Moreover, ten of the judges (all appointed by the last Federal Labor Government) were part of the previous Industrial Relations Court.(22) Many of these ten judges were also union barristers prior to appointment.(23) Despite the Industrial Relations Court having been effectively abolished, these ten judges have largely operated a 'de facto IR Court' through the administrative mechanism of the Federal Court "industrial" docket system.(24) Admittedly, this has changed somewhat in the last few months, with commercial judges, such as Goldberg, Finklestein, Merkel and Kenny sitting on industrial cases.(25) This change is so recent that the Federal Court internet page still reflects the system which has applied in Victoria since the disbanding of the Industrial Relations Court of Australia---namely, that Justices Ryan (Panel Co-ordinator), Marshall and North comprise the industrial docket. It is premature to ascertain whether these recent changes will disband the 'unofficial IR court'.

The Federal Court of Australia, created by the Federal Court of Australia Act 1976, began to exercise its jurisdiction on 1 February 1977. It assumed jurisdiction formerly exercised in part by the High Court of Australia and the whole of the jurisdiction of the Australian Industrial Court and of the Federal Court of Bankruptcy. The Court's original jurisdiction is conferred by over 120 statutes of the Australian Parliament. The Court exercises appellate jurisdiction over decisions of single judges of the Court, decisions of the Supreme Courts of the Australian Capital Territory and Norfolk Island and certain decisions of Australian State Supreme Courts exercising federal jurisdiction.

The Federal Court is a statutory court as distinct from the State Supreme Courts which are common-law courts. Accordingly, the Federal Court has jurisdiction in s45D and s45E, and s127 matters but not, except in its accrued jurisdiction, in common law matters. Thus, cases like the Dollar Sweets, the Pilots Case and the Patrick picketing litigation, all of which relied upon the common law, were brought in the Supreme Court.(26)



Section 127

When introducing s127, Peter Reith stated that, "parties suffering from illegal industrial action will have access to effective legal redress, including injunctions and/or damages. Industrial action that continues in breach of such directions from the court will be in contempt of court."(27) Accordingly, the Industrial Relations Commission was granted powers to give directions to stop or prevent unprotected action and the Federal Court could enforce such directions by injunction.

Reith's legislation led the Commission to develop a test of when industrial action might be said to be illegitimate, such as to justify an order(28) and has since issued many of these orders---probably somewhere between 100 and 1,000 in the four years since s127 entered the federal legislation.

Similarly, the legislative changes prompted commentators to predict a return to the "golden age" of ban clauses in the 1950s and 1960s, during which time employers could obtain fines and imprisonment as a penalty for breach of an award or non-compliance with an injunction.(29)

Yet the reforms were largely unsuccessful in preventing illegitimate industrial action. Thus, Reith had to attempt to push through these reforms again. The defeated "second wave" of reform(30) was directed at objectives that should have been achieved by the first. There are two main reasons why this did not occur:

  • The attitude of unions;
  • The attitude of the Federal Court.

Attitude of Unions to Orders

Orders were granted in disputes in the maritime, coal and manufacturing industries with little effect. In the Patrick dispute, a s127 order in relation to Webb Dock had the effect of moving the strike to East Swanson Dock.(31) At the Hunter Valley No. 1 mine in the NSW coal fields, the picketing continued for weeks after a s127 order(32) until an injunction was granted by the NSW Supreme Court.(33) In the National Workforce case, s127 was ineffective and was used (unsuccessfully) as the basis of an argument against the Supreme Court granting an injunction!(34) These are just three of the many examples in which s127 order has been ineffective in stopping industrial action.

It should be remembered that s127(5) requires that a person "to whom an order under subsection(1) is expressed to apply must comply with the order". It does not require a Federal Court injunction under s127(6) or (7) to be effective. Yet many unions simply treat s127 orders as having no effect. It has been reported that Craig Johnson and other union officials have said in relation to applications for s127 orders, "employers have done this in the past" and that they "had a number of applications issued against them and were not worried."(35) Johnson has also challenged employer representatives, as late as February this year, with words to the effect that "I do not know why you are chasing a 127. I've got 100s of them and I just throw them in the bin. I don't give a fuck if I go to jail."(36) In other cases, I have read of Johnson's preparedness to be the next Clarrie O'Shea (the tramways official jailed for contempt of court in the 1960s).(37) As I have stated above, at present, he is facing an action for contempt of court in relation to one of the few s127 orders enforced by the Federal Court.

Given the right to strike, introduced by the ALP in 1993,(38) and maintained by the Coalition since 1996,(39) s127 orders should be unnecessary in most instances. However, as I have stated above, the unions on the Left have bound together to protect each other and act in unison. They prefer industry-wide settlements over enterprise bargaining, are generally uninterested in productivity trade-offs of "hard won rights" and are willing to use direct action to achieve their aims. If a statutory mechanism directed at illegitimate industrial action fails to deal effectively with those unions and those union officials who are most willing to flout the law, then it is of no real use.

The failure of s127 to curb the unlawful action of militant trade unions is apparent in the current dispute between employer groups and unions in the manufacturing industry. As part of Campaign 2000, it is a stated policy of the Victorian Branch of the AMWU to enter into certified agreements with a 30 June 2000 expiry date. The purpose of this campaign is to use the enterprise bargaining provisions of the federal legislation to bring an end to enterprise bargaining.(40) This attempt to obtain a common expiry date for certified agreements applying to hundreds of businesses has been very successful. In Victoria alone, some 700 certified agreements have been entered which expire on 30 June 2000.(41) This prompted a letter from Reith in August of last year to more than 500 leading companies which stated that "logic suggests that a common expiry date has the potential to create an unnecessarily difficult (and costly) bargaining period for your business and your industry in 2000".(42)

Section 127 orders have been wholly ineffective in attempting to stop the AMWU organising industrial action in support of this objective. The unions have treated the section 127 orders issued by the Commission with disdain. To date, the Federal Court has generally not assisted the Commission's attempts to prevent industrial action taken outside the protection of the Act, which the Commission itself regards as illegitimate.

Attitude of the Federal Court to Orders

In a number of cases, an overly technical procedural approach to the s127 process has been taken. For example, in Inner & Eastern Health Care Network v HSUA & Ors,(43) Marshall J refused to enforce an order against a federal body, in which a State branch was named. However, similar concerns did not bother Northrop J in Australian Postal Corporation v CEPU.(44) To take another example, in Metal Trades Industry Association of Australia v AMWU,(45) Marshall J prevented a correction to a slip in the order. North J indicated that he would not have taken so technical a procedural view, with his comments in a later case, criticising Marshall J's general approach.(46) In my view, in neither case would the Supreme Court of Victoria have adopted such an overly technical approach.

To some extent, the Government's "second wave" of legislative reform,(47) defeated in the Senate, was an attempt to overcome such a technical approach in some circumstances. The proposed section 127(1D) provided that, "In directing that industrial action stop, not occur and not be organised, the Commission does not have to specify the particular industrial action". That seemed squarely aimed at a non-enforcement of a s127 order for the reason that the "Commission's order is therefore too wide and uncertain and not directed to any particular industrial action".(48)

These difficulties are not as great as the problems arising as a result of the approach advocated in a leading case in the area. In Australian Paper Ltd v CEPU,(49) Justice North adopted an approach that severely limits the utility of the s127 process. To give three simple examples:(50) First, the Federal Court would consider the matter afresh, notwithstanding that the umpire has already ruled that the industrial action is illegitimate.(51) By doing so, the Federal Court relegates the Commission's determination that industrial action is illegitimate to a "mere fact" that the Commission has made an order. Second, the Federal Court would be reluctant to grant injunctions,(52) notwithstanding a parliamentary desire to have an effective remedy.(53) Third, the Federal Court would act on an assurance from the union that action would be protected, instead of granting an injunction with liberty to apply once the union can demonstrate that the new action is protected.(54) By contrast, in an action for an injunction relying upon, say the tort of inducing breach of contract, the Supreme Court of Victoria would take the opposite view on each of these three points.

Moreover, the decision in Australian Paper was slow---it took over three weeks from the date of application to decision.(55) By the time the decision was given, the dispute had finished. Presumably the reason the decision took a little while was the judge's reference to American experience, to which he was not referred by counsel for either side and which he did not ultimately rely upon in coming to his decision.(56) However, Justice North made no reference to Australian Paper and the need for "particular caution against granting interim injunction relief in industrial disputes", when granting broad ranging mandatory orders against Patrick(57) just three weeks later.

I have referred to Australian Paper in some detail because it is the leading case in the area, and it is symptomatic of the general approach that the Federal Court has taken in these matters. Richard Dalton, a partner at Freehill Hollingdale & Page, who has advised many of the parties to some of the major disputes in the coal industry, the manufacturing industry, the telecommunications industry and the oil industry has made similar criticisms in a paper delivered in Melbourne at the Leo Cussen Institute on Wednesday 29 March 2000:

If a s.127 order is finally issued, the Federal Court has the power to issue an injunction on application to enforce the order if it is being breached (see s.127(6) and (7)). In several cases, the Federal Court has:

    • shown a distinct reluctance to grant interim relief;(58)
    • adopted an overly technical approach;(59)
    • dealt with these applications slowly;(60)
    • re-hearing the "industrial circumstances" surrounding the breach of the orders as part of its general discretion;(61)
    • accepted assurances from the unions' counsel that the unions intend to take protected action in the future;(62)
    • preferred to adopt a conciliatory approach rather than issue interlocutory orders;(63) and
    • gave primary attention to the unions' and employees' bargaining position when assessing the issue of balance of convenience.(64)

This approach is not universal, and to some extent it is an approach that holds greater sway in Melbourne than elsewhere. Richard Dalton further said,

The perception of the Melbourne judges of the Federal Court being union and employee friendly has been the subject of journalistic comment.(65)Interestingly, this perception seems not to lie solely with employers. Indeed, unions seem to have gone out of their way in order to have their cases heard by these "specialist industrial judges" of the Federal Court in Melbourne.(66)

This type of approach has had three broad effects. First, it reduces the authority of the Australian Industrial Relations Commission. If the Commission's finding that industrial action is illegitimate is relegated to a "mere fact" by those who might have been expected to uphold the umpire's decision, the consequence is that the Commission's role as an umpire is degraded.

Second and relatedly, such an approach gives succour to and emboldens those unions and union officials who are willing to treat s127 determinations by the Commission with contempt.

Third and importantly, it encourages employers to move to the Supreme Court, to take proceedings in tort against unions and union officials who are breaking the law. Indeed, this is largely what has occurred since Australian Paper. It would be interesting to collect the statistics, but it seems to me that nearly all the important attempts to restrain union unlawfulness in the last two years have taken place in the Supreme Court. Because the 1996 reforms have largely failed, employers have ignored the s127 route and relied upon actions in tort.

Admittedly, to some extent, cases have always been taken in the Supreme Court in preference to the s127 route, even before Australian Paper. For example, in Ansett,(67) NationalWorkforce,(68) and Hansen Yuncken.(69) But since Australian Paper, almost routinely, the Supreme Court has been the preferred court(70) for dealing with industrial disputes. The first and best known example (after Australian Paper) was in the Patrick litigation, where the Supreme Court was used in preference to a s127 order in relation to the Webb Dock strike.(71) Once the dispute had gone national, the Supreme Court was used a second time(72), during a period in which the Federal Court was hearing a different aspect of the dispute.(73) Patrick did not place evidence of the blockade at the Melbourne Docks before Justice North, preferring instead an injunction in the Supreme Court directed at the blockade. In the Supreme Court, the MUA did almost nothing to contest the granting of the injunction, arguing primarily that the blockade injunction should be transferred to the Federal Court before Justice North. The transfer application was opposed. And the Supreme Court judge refused the transfer application and promptly granted the injunction against the blockade.(74)



Strangling the Supreme Court

The Supreme Court of each State is the superior common court in each State, having general jurisdiction. Its jurisdiction can only be removed by specific statutory provision and attempts to do so are usually controversial. For example, witness the effect that the restriction of the rights of "seriously injured" workers and those affected by the Grand Prix allegedly had upon the re-election of the Kennett government. As I said earlier, the Federal Court does not exercise a common law jurisdiction except in its accrued jurisdiction. Thus, an employer affected by industrial action cannot issue a bare common-law claim in the Federal Court. This must be done in the Supreme Court. As Beach J said in the Shell Geelong dispute:

It must be remembered that this is the superior court in the State. It has common law jurisdiction and the power to grant injunction relief to prevent unlawful actions of persons who are likely to cause damage to others.(75)

Many of the famous economic tort cases have been brought in the Supreme Courts of the various States. In Victoria, the PKIU(76), Dollar Sweets(77), the Pilots Case(78), the BLF picketing and Patrick picketing(79) litigation was heard and determined by judges of the Supreme Court. And attempts to exclude the jurisdiction of the Supreme Courts in these types of cases have recently failed.(80)

Traditionally, the rights of the plaintiff were to obtain a venue of his choice. This right has been recognised by Justice Deane in his statement in Oceanic that:

A party who has regularly invoked the jurisdiction of a competent court has a prima facie right to insist upon its exercise and to have his claim heard and determined.(81)

Although not explicitly stated, this is the rationale behind the recent refusals to exclude the jurisdiction of the Supreme Court by the Federal Court.(82) Returning to the traditional approach preserves the right of litigants to elect their own forum rather than having matters taken out of their hands by the opposition.

The motivation behind cross-vesting legislation is to preserve judicial comity between superior courts. The scheme is designed to preserve the traditional relationship of mutual respect between the courts and prevent forum shopping that perverts the administration of justice. For example, in Chapman v Jansen the court commented that:

What is critical is that the scheme does not create a universal, Australia-wide jurisdiction indifferently embracing the Supreme Courts of the States, the Federal Court and the Family Court so that a litigant can issue and proceed to judgment in any one of those courts whatever the cause of the action. The basic purpose is to end the barren jurisdictional disputes which have increasingly bedevilled litigation in Australia, especially between the Federal Court and the State Supreme Courts, and ensure that no proceeding failed for want of jurisdiction. But the mutual transfer powers are there to ensure that the jurisdictional balance between State and Federal courts is maintained. That is, the "ordinary" or "traditional" boundaries of jurisdiction continue to be recognised and supported. Or put more negatively, that "forum shopping" and "jurisdictional creep" are discouraged, subject always to the "interests of justice" in the individual case. This approach preserves the purpose and integrity of the scheme and recognises that within a federal system there are Federal and State courts with "traditional" areas of jurisdiction.... (83)

Despite these traditionally observed notions and legislation discouraging "jurisdictional creep", the Federal Court has reacted against the movement of business away from the Federal Court and into the Supreme Court over the last 18 months. The manner of dealing with disputes between courts hearing related proceedings used to involve asking the judge from whom jurisdiction was to be taken to stay or transfer his proceeding to another court. But in Victoria, in industrial disputes, to the best of my knowledge, this traditional method of transferring cases between judges in the Federal and Supreme Courts has not been used since the Patrick litigation.

Since that time, the Federal Court has used "anti-suit injunctions", the "coercion" provisions of the Workplace Relations Act and its inherent power to "protect the authority of the court" to prevent employers bringing effective actions against unions in the Supreme Court.

The Anti-Suit Injunctions

To prevent employers suing in the Supreme Court, unions, not dissuaded by the Full Court's decision in Transport Workers Union v Lee,(84) have sought anti-suit injunctions. To my knowledge, there have been seven of these types of applications, reaching a crescendo during the 36-hour construction industry dispute---all of them in Melbourne:

  • CEPU v Telstra;(85)
  • AFMEPKIU v Manpower;(86)
  • AWU v ATCO;(87)
  • AMWU v Bonlac Foods;(88)
  • AWU v Shell Refining Pty Ltd;(89)
  • Construction, Forestry, Mining and Energy Union v Multiplex Constructions Pty Ltd and Ors;(90)
  • Construction, Forestry, Mining and Energy Union v Master Builders Association Of Victoria and Ors;(91)
  • Construction, Forestry, Mining and Energy Union v Mirvac and Ors.(92)

In the Manpower matter, the union was able to obtain an anti-suit injunction ex parte without even telephone notice, after a Supreme Court action was on foot. The essence of these anti-suit injunctions was to seek a declaration that the industrial action was protected under s170MT and thus give the Federal Court jurisdiction, via the Judiciary Act(93), to hear the "matter arising" under the Workplace Relations Act. As this "matter arising", so the argument went, would include the Supreme Court action, an anti-suit injunction was sought, on the basis that a Supreme Court injunction to restrain the industrial action would effectively deprive the union of its rights to take protected action, and that the Federal Court could hear the employer's application.(94)

In the six-odd years that the "protected action" provisions have been in the legislation,(95) I have neither seen nor heard of a union bringing an application that the industrial action is "protected", without seeking an ancillary "anti-suit" injunction. That is, the application for a declaration is simply a vehicle by which one can mount an "anti-suit" injunction application. This accords with common sense. Why would unions waste their members' money in attempting to learn, after the event, that the action they have taken is protected?

Assuming a union is attempting to take lawful protected action (not a safe assumption), what is the point of asking a court for a declaration which simply confirms what the union has tried to achieve? The best result for a union is to obtain such a declaration (after paying for a trial running for anything from two days to two months depending upon the nature of the industrial action), that the union had indeed achieved what they intended to do: take lawful protected action. The worst case is to learn that their industrial action was unlawful: thus leaving the union without any defence to an action in tort and thereby opening the union to bankruptcy. Is it any wonder that actions for "protected action" declarations have never been made without an ancillary application for an anti-suit injunction? And that of the seven applications for "protected action" declarations, referred to above, the unions have not prosecuted any of them through to finality?

But these actions are nevertheless effective. To give a simple example, in the dispute underlying the Esso Longford Restoration Case, the action was settled (in part) midway through the hearing of an anti-suit injunction and the employees reportedly earned wage increases that led to the project being referred to as "Treasure Island".

The Shell case, in Spring 1999, was the first case in which the employers reacted to the tactic of seeking anti-suit injunctions. It proceeded upon similar lines to the other cases in which anti-suit injunctions were sought. Maintenance employees of a contractor to Shell, Danum United, went on strike and picketed violently at Shell's Geelong Refinery. Whilst most of the legal profession was out enjoying lunch on the first sunny day for many months, Shell sought and obtained an ex parte anti-anti-suit injunction at lunchtime on Friday 6 August 1999 in the Practice Court of the Supreme Court of Victoria. As it turned out, the ex parte interim application was made in about 20 minutes, and only 15 minutes before the unions made an application to the Federal Court for an anti-suit injunction.

Shell's lawyers had received letters earlier that morning suggesting that an anti-suit injunction might be sought by the AMWU. An application made by the AMWU without notice on Monday 9 August 1999 to discharge the anti-anti-suit injunction was unsuccessful. An application for injunctive picketing orders was heard the next day and judgment delivered the following Friday. An appeal from the Supreme Court to the Federal Court was made and was to be heard expeditiously(96) on Thursday 26 August 1999, but the matter settled the day before.(97) Thus, there had been three appearances in the Supreme Court, one in the Federal Court and a Full Court appeal to be heard within 20 days of the Supreme Court's first interim anti-anti-suit injunction. All of which was necessary to protect what, just 18 months previously, appeared uncontroversial: namely, that persons had the right to bring common-law proceedings in the superior common-law courts of their States to protect themselves against alleged legal wrongs committed or about to be committed by others.

The Shell decision generated press comment(98) because it brought into sharp focus the fairly blatant "forum shopping" by unions over the previous 18 months. The events in the 12 months leading up to the Shell decision have been described by Richard Dalton as follows:

There are decisions of the Federal Court which suggest that at least certain of its judges regard that Court as the exclusive forum for industrial controversies. This has manifested itself through numerous "anti-suit" orders of the Federal Court, preventing recourse to the Supreme Court.(99) The s166A process is the red light which throws the union's lawyers into action on this, lodging their "anti suit" application in the Federal Court prior to or immediately following the employer or affected party getting the s166A certificate to enable recourse to the Supreme Court. In one extreme example, one of these orders was made ex parte despite the fact that solicitors for the employer were already on record in Supreme Court proceedings already issued and returnable a day or so later.(100)

Employers have tried to combat this by obtaining "anti anti suit" orders, with some early success.(101) As Beach J said in the Shell Geelong dispute:

It must be remembered that this is the superior court in the State. It has common law jurisdiction and the power to grant injunction relief to prevent unlawful actions of persons who are likely to cause damage to others.(102)

The Federal Court appears not to share His Honour's view on this in the industrial area, despite the clear words of the Act and intent of Parliament that access to common law be available.

The Federal Government's response to the wave of anti-suit applications was to introduce a new s170MTA, in the Second Wave Bill, headed, "Jurisdiction to determine if action is protected action", proposed to prevent the Federal Court from granting anti-suit injunctions and specifically enabled the State Supreme Courts to determine whether or not action is protected in the course of proceedings for an injunction. Though this still allowed unions to seek declarations that industrial action is protected (which is a largely theoretical benefit), the Second Wave Bill, seemed to require a return to the traditional way of dealing with disputes between courts: on the basis of stay applications and transfer applications under the cross-vesting legislation rather than anti-suit injunction.

The second Wave was rejected in the Senate, with the Democrats, saying that "there really isn't anything we can support". Thus, the Democrats' rejection of the new s170MTA, seemed to express a preference that jurisdictional fights determine the result of industrial disputes. And this is exactly what transpired in the industrial disputes that took place in the electricity and construction industries in late 1999 and early 2000.

Coercion

Throughout late January and early February this year, Victoria experienced widespread power cuts due to an industrial dispute between the trade unions (mainly the ETU, CFMEU, AWU and ASU) and Yallourn Energy. The dispute shut down the Yallourn plant which provides 20 per cent of the State's electricity. As the temperature soared and air-conditioners and lights were shut off, a sense of "industrial chaos" ensued.(103)

The AWU applied to the Federal Court for a declaration that bringing an action in tort against a union was coercive and therefore contravened the Workplace Relations Act 1996. On 8 February, Justice Merkel in the Federal Court appeared to find that indeed this action was potentially coercive.(104) This was a novel decision and no doubt the reasoning will require some refashioning once an employer brings a cross-claim suggesting that the union application claiming coercion is itself coercive. But this jurisprudence is extremely new (months old), the scope of the section(105) is potentially extremely broad and it is probably too early to express views about its ultimate interpretation.

What was problematic about the result in the Yallourn case, however, was that the undertaking proffered bore little relation to the detriment alleged. The undertaking proffered was not to bring an action in tort against the union, except in the Federal Court. The detriment claimed was that an action in tort was coercive. The implication seems to be that it is not coercive for unions to be sued in tort in the Federal Court. Unless the Federal Court and the Supreme court apply the law of tort in a different manner, why is it coercive to be exposed to a suit in tort in the Supreme Court, but not coercive to be exposed to the same suit in tort in the Federal Court?



The Construction Industry Dispute: The Death of Dollar Sweets

Victoria also withstood the recent and highly publicised construction-industry dispute. Since October 1999, through until early March 2000, the CFMEU and employer groups were engaged in a tussle for a 36-hour working week, a nine-day fortnight and a pay increase of 24 per cent over three years. The industrial action involved, inter alia, rolling bans which affected employers at construction sites across Melbourne. The construction industry dispute was a precursor to Campaign 2000---involving the Metal Trades Federation of Unions (AMWU, CEPU and CFMEU)and it is reasonable to assume that this is the type of industry-wide industrial action that we can expect.

The construction industry dispute, combined the "coercion" and the "anti-suit" injunction doctrines. It generated two Supreme Court and three Federal Court applications.(106) In the first of the Federal Court "anti-suit" injunction cases, Justice Marshall granted a broad anti-suit injunction preventing four major construction industry employers from approaching any court in relation to industrial action involving their subcontractors.(107) In the two later cases, the employers proffered undertakings, which did not restrict their abilities to bring urgent interlocutory relief in either the Supreme or Federal Courts.(108) As there is an appeal pending from Justice Marshall's decision, it may be preferable to refrain from commenting further.

The first Supreme Court case was the initiating superior court litigation in the dispute and involved the same four major construction companies. It was an urgent application to the home of a Supreme Court judge, Justice Nathan, on a Sunday afternoon. An injunction was granted by that judge restraining unlawful industrial action proposed the next day by the CFMEU. Justice Marshall's "anti-suit" injunction in the first Federal Court case followed from that Supreme Court proceeding.(109)

In the second Supreme Court case, three constructions companies obtained, on the morning of Tuesday 22 February 2000, ex-parte orders from the Supreme Court prohibiting the strike, a mandatory order requiring notification from the union that the strike was off and an "anti-anti-suit" injunction preventing the Federal Court from preventing the Supreme Court from exercising its jurisdiction.(110) By that afternoon, the Federal Court had stayed the Supreme Court's orders prohibiting the strike and the mandatory orders requiring notification that the strike was off. This decision was made without any evidence, even the evidence before Justice Beach that morning. It was made partly on the basis that "upon one construction of the orders they have the features of being at the same time ex parte, mandatory and arguably intended to be unappealable".(111)

The orders were ex parte. As many court orders generally, and almost all applications for anti-suit injunctions, are. In this case, the application was made ex parte on the well-founded fear that in the last couple of weeks of the construction dispute, the CFMEU had applied to the Federal Court for anti-suit injunctions and obtained broad-ranging orders preventing the Supreme Court from exercising its jurisdiction on at least one occasion. It is strange that this is ground for criticism. The obligations upon counsel for ex parte applications are onerous, including a stringent requirement of full disclosure.(112) The evidence in this case was voluminous. It is strange, then, that without evidence, a superior court judge would criticise another superior court judge for acting on an ex parte basis. Particularly given traditional notions of comity---the traditional respect shown between superior courts---and especially since the Federal Court and Supreme Court are perceived as being more-or-less equal in the court hierarchy.(113) Such views have led the High Court, for example, to indicate that the Federal Court and Supreme Court should generally apply the reasoning in each other's judgments, unless convinced it is "plainly wrong".(114)

As to the orders being mandatory---only order two was mandatory, requiring the union to notify its members that the strike was off. Moreover, the mandatory order has a long precedent. It was first applied, as far as I can ascertain, as far back as 1968.(115) It is common in industrial cases to obtain such an order. National Workforce(116) and Patrick(117) are recent examples of this type of mandatory order.

Furthermore, almost identical mandatory orders have been granted in the Federal Court against unions. Justice Wilcox has granted this type of order against unions in the construction industry to make it clear that the union is complying with the usual negative restraining orders on the grounds, "that it [was] important that effect be given to the court's orders ... there ought not to be a stalemate."(118) It is more likely that the wrong done (calling someone out on strike unlawfully) can be remedied, particularly in the construction industry, if the building workers concerned are told by their union to return to work. Clearly, order 1 was not mandatory---the injunction requiring the union to call off the strike---yet it was stayed as well. Also without evidence.

I simply do not understand the third reason given for granting a stay---that the orders are "arguably intended to be unappealable".(119) Surely the only basis for the stay was to enable an appeal to be heard. The overriding reason given for the stay was "so that the authority of this court can be maintained".(120) It is my view that, had the appeal from Justice Beach's decision been brought in the Victorian Court of Appeal, that the Court of Appeal may not have felt such need to maintain the authority of the court in such a manner.

Contrast the Patrick litigation two years ago in which Justice Beach and Justice North both heard different aspects of the dispute. Appeals from their decisions were heard in the Victorian Court of Appeal and the Federal Court then High Court respectively. Justice Beach was asked to transfer his application to the Federal Court. In the face of overwhelming evidence of a violent blockade, he refused to transfer and granted a broad injunction. There is no appeal from such a refusal to transfer under the cross-vesting legislation.(121)

However, the unions no longer use such traditional means to apply for a transfer or a stay to resolve questions of appropriate forum. They no longer bring appeals from Supreme Court judges in the Victorian Court of Appeal.(122) In the two years since the Patrick litigation, there has not been, to the best of my knowledge, one application for transfer or a stay before a Supreme Court judge in industrial cases in Victoria. Anti-suit injunctions, injunctions alleging "coercion" and now applications for a "stay" before a Federal Court judge, pending an appeal brought in the Federal Court, have replaced applications for transfer and a stay before the Supreme Court. All these applications have been brought before a Federal Court judge and not a Supreme Court judge. This is a substantial change in the administration of justice in relation to industrial relations in this State.

In effect, Justice Beach's decision in the construction industry on 22 February 2000 lasted no more than six hours. Justice Beach refused to make any orders when the matter returned to him the following Thursday. And in the two months since that decision, it has become very difficult to have the Supreme Court hear applications for injunctions in relation to industrial disputes. The upshot of these developments seems to me to be the death of Dollar Sweets. We have certainly come a long way since Justice Beach's comments---only six months ago---that the Supreme Court was, "the superior court in the State. It has common law jurisdiction and the power to grant injunction relief to prevent unlawful actions of persons who are likely to cause damage to others."(123)



Conclusion and Hope for the Future

Recent decisions emerging from the Federal Court indicate that there may be a shift back to a more traditional approach---respecting the comity of the courts and a litigant's right to the forum of his choice.

As I mentioned earlier, late last year the Federal Court refused to exclude the jurisdiction of the Supreme Court in an economic tort case.(124) Two decisions in March of this year have also been significant. In Mirvac Constructions, Ryan J emphasised that in applications for interlocutory anti-suit injunctions, "greater significance attaches ... to the preservation of comity where the courts concerned are both Australian courts and co-equals in the administration of justice in this country".(125) Justice Ryan went on to say, "I have not overlooked the fact that the relief which the CFMEU has foreshadowed it will seek ... is only available in this Court, but that, of itself, is not sufficient reason to deny the plaintiffs in the Supreme Court proceedings the right to have the issues which they have raised heard and determined, at least at first instance, in the forum of their choice".(126)

Also, Merkel J narrowed the potential scope of the comments by Justice North in Australian Paper that Courts were required to approach interim injunctions with "particular caution" in industrial disputes. Justice Merkel said that he did not believe that North J intended to, "state any rule that special principles apply in relation to the grant of interlocutory relief in industrial litigation".(127)

This is not naively to suggest that forum shopping will thereby be abolished. As long as there is a diversity of opinion on the bench (and no one is suggesting that this is a bad thing) there will be a certain degree of forum shopping. However, these questions can be resolved in a better and more polite manner than the brutal methods of anti-suit injunction, the intellectually unsatisfying solution to potential "coercion" or the catch-all rationale of maintaining "the authority of the court".

That the Parliament's hopes for s127 may have been dashed and that access to the Supreme Court in tort have been frustrated by the Federal Court, might be seen, by some, simply to be an incremental development of case law by the Federal Court in accordance with a relatively new statutory framework. This view has some adherents. But, the events of the past 18 months to two years speak for themselves. They do not show a picture of incremental development but one of unions fighting to force employers to bring matters in the Federal Court, and employers desperately trying to prevent this and to exercise their rights in the Supreme Courts.

Industry groups are currently preparing for an elaborate legal, political and public relations strategy to tackle Campaign 2000. The Australian Industry Group has indicated that it is prepared to spend huge sums of money on legal fees to combat secondary boycott action, pursue contempt proceedings and even a possible class action in the Supreme Court for manufacturing businesses damaged by union strikes.(128) It seems that the recent construction-industry dispute was merely a precursor to an industrial relations showdown of massive proportions. These will be testing times for the courts. In a few short months, we should be able to determine whether Dollar Sweets has died or whether, just like the death of Mark Twain, the report of Dollar Sweets' death was an exaggeration.



Endnotes

(1) Victorian Bar.

(2) Obviously, I can only speak authoritatively of Victoria, and since in Victoria most of the industrial relations cases have been heard, until quite recently, by the "industrial docket judges" due to the "individual docket system" one cannot draw hard and fast conclusions about the attitude of the Federal Court as a whole. Similarly, the number of decisions in Victoria alone is quite small. However, subject to these necessary qualifications, the point is still able to be made.

(3) Dollar Sweets Pty Ltd v FCAA [1986] VR 383.

(4) 1904 (Cth)

(5) Apart from conciliation and arbitration, the Commission had the power to insert a bans clause into the award to increase penalties for breach.

(6) 1993 (Cth).

(7) 1996 (Cth). Commenced 31 December 1996.

(8) As cited in: Transcript of the Hon. Peter Reith, Doorstop Interview, Canberra, 30 June 1999, p.2.

(9) The HR Nicholls Society, Mission Abandoned! The Consequences of the Workplace Relations Act 1996, 20 November 1996, p.iv.

(10) Ibid.

(11) 1996 (Cth). The WR Act was the successor to the IR Reform Act, renamed and amended by the WROLA Act.

(12) 1975 (Cth). Considerable controversy surrounded the original inclusion of these sections by the Fraser government in 1977. They were motivated by concern at the use of certain trade unions of "secondary boycotts" that imposed impermissible constraints upon the operation of the market, and embroiled innocent third parties (suppliers or customers) in disputes in which they had no direct interest. Not surprisingly, they were vigorously opposed by the labour movement. In 1984, Hawke's attempt to deliver on his election commitment to repeal both foundered in the Senate. They were eventually repealed in 1993. The Coalition reinstated the sections in 1996 but they were narrowed in scope somewhat as part of a deal with the Democrats. See further, Breen Creighton & Andrew Stewart, Labour Law (3rd ed) p.416ff.

(13) (Cth) 29 September 1999.

(14) Paul Robinson, "Democrats sink workplace laws", The Age, 22 October 1999.

(15) The Hon Peter Reith MP, Minister for Employment, Workplace Relations and Small Business, Leader of the House of Representatives, Media Release 48/00, 5 April 2000.

(16) Doug Cameron, National Secretary, Address to Victorian State Conference of the AMWU, 25 May 1998 referred to the fact that the out-going State Secretary had a "burning desire to serve the working class (sic) of his country" and that "his working class (sic) credentials can not be challenged" and warned Johnson, "everyone with leadership responsibilities has to realise their own election comes around again in a few short years. They either deliver sensibly and effectively or the rash promises they make become boomerangs at their own head thrown by others".

(17) Hannan E, 'Warriors from Labor's great battles return to the fray', The Age, Saturday 30 May 1998, 12.

(18) Ibid.

(19) For example, see generally, the disputes involving Patrick Stevedores; Davids Distribution; Shell Geelong; Safeway; Toll Transport. Unions ignoring orders and undertakings in these disputes include the MUA, AWU, NUW, CFMEU, AMWU and CEPU.

(20) See AFR, Wednesday 3 May 2000, p.3; Hearings in the Federal Court to determine whether the three union officials and their unions breached Federal Court orders banning mass meetings about Campaign 2000 last November are expected to continue for the rest of the week.

(21) The complete list is: Black (CJ), Gallop, Beaumont, Wilcox, Spender, Gray, Burchett, Miles, Ryan, French, Einfeld, Nicholson, Lee, Olney, von Doussa, Hill, O'Connor, Higgins, Heerey, Drummond, Cooper, Whitlam, Carr, Moore, Branson, Mathews, Lindgreen, Tamberlin, Sackville, Kiefel, Nicholson, Finn, Sundberg, Marshall, Lehane, North, Madgwick, Merkel, Mansfield, Goldberg, Emmett, Finkelstein, Guidice, Weinberg, Dowsett, Katz, Hely, Kenny and Gyles JJ.

(22) Namely: Wilcox, Spender, Gray, Ryan, Lee, von Doussa, Moore, Marshall, North and Madgwick JJ.

(23) Relatedly, though he was not previously a "union" barrister, according to Dr John Forbes, comments were allegedly made by the Chief Justice of the former Industrial Relations Court of Australia, Justice Murray Wilcox in "a series of interviews" throughout February of 1996. Apparently Wilcox roundly criticised the Coalition's plans to amend unfair dismissal laws. His Honour's contribution to the political hurly-burly provoked Reith to express his "absolute amazement that a Federal Court judge ... should deem it appropriate to make a political entrance into the ... campaign on behalf of the Labor Party. In April, 1998 Wilcox presided at an appeal to the full Federal Court in the Patrick Stevedores-MUA litigation. It was an opportunity to rebuke journalists for mentioning the career of the trial judge (North J) as an advocate for trade union parties." Extracted from, Dr John Forbes, Chapter 6, "Just Tidying Up": Two Decades of the Federal Court' in Upholding the Australian Constitution, Proceedings of the 10th Conference of the Samuel Griffith Society, Vol 10, August 1998, pp166-167.

(24) See, Federal Court of Australia Victoria District Registry, Guide to The Individual Docket System, 14 October 1999.

(25) It is not quite correct to call some of these "new" judges "commercial" judges. For example, while at the bar, Justice Goldberg acted for Jeff Kennett in J.G.K. Nominees v Printing and Kindred Industries Union (1976) 2 VIR 73; and was Senior Counsel for Dollar Sweets in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383. Finkelstein QC acted for the Airlines in Ansett Transport Industries (Operations) Pty Ltd & Ors v Australian Federation of Air Pilots & Ors (No 2)[1991] 2 VR 636. North was junior counsel for the Pilots Federation.

(26) Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383; Ansett Transport Industries Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; Patrick Stevedores No 1 Limited and Another v Maritime Union of Australia and Others (1997-8) 79 IR 239; Patrick Stevedores No 1 Pty Limited and Another v Maritime Union of Australia and Others (1997-8) 79 IR 268;

(27) Peter Reith, Minister for Employment, Workplace Relations and Small Business, Second Reading 23 May 1996 p.1303.

(28) Coal and Allied Operations v AFMEPKIU (1996-7) 73 IR 311, per Munro J, Harrison SDP and Leary C, at 329:

    'That condition connotes a requirement that the character of the industrial action is evaluated for the purposes of establishing whether in the Commission's view the industrial action is illegitimate, to a degree that the commencement or continuation of it should be subject to a direction causing it to be unlawful.'

(29) Breen Creighton & Andrew Stewart, Labour Law (3rd ed) p384.

(30) See above n13.

(31) Patrick Stevedores No 1 Limited and Another v Maritime Union of Australia and Others (1997-8) 79 IR 239; Patrick Stevedores No 1 Pty Limited and Another v Maritime Union of Australia and Others (1997-8) 79 IR 268.

(32) Coal and Allied above, n28.

(33) Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (1997) 76 IR 50. The judge was Justice Bruce, who appeared on Sixty Minutes during a report on his notoriety for not handing down judgments with alacrity.

(34) National Workforce Pty. Ltd. v. Australian Manufacturing Workers' Union [1998] 3 V.R. 241, 265.

(35) During a recent dispute involving Amcor.

(36) This was reported to the author by an employer representative involved in the proceeding against the AMWU.

(37) Above n29, p385.

(38) Industrial Relations Act 1993 (Cth), s170PA.

(39) Workplace Relations Act 1996 (Cth), s3(k) states that one object of the statute is to assist "in giving effect to Australia's international obligations in relation to labour standards"---see: Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights, which states: "The States Parties to the present Covenant undertake to ensure ... The right to strike, provided that it is exercised in conformity with the laws of the particular country"; see discussion in: National Workforce [1998] 3 VR 265 at 275.

(40) 'Australia's biggest employer group said unions had a year 2000 campaign to end enterprise bargaining and replace it with industry-wide 'pattern' agreements'. See A. Carson, 'Unions accused of stalling reform' The Age 2 October 1999, p.11.

(41) Stephen Long, "Metal unions plot centralised push", Australian Financial Review, 11 August 1999.

(42) Ibid.

(43) Inner & Eastern Health Care Network v Health Services Union of Australia & Ors (1997) 76 IR 420.

(44) Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, (unreported, Federal Court of Australia, Justice Northrop, 15 December, 1999).

(45) Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 77 IR 87.

(46) North J in Australian Paper Ltd v CEPU (1998) 81 IR 15 at 29 criticised Justice Marshall's approach in Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) IR 87. However, North wrongly cites the case of Marshall's judgment as Inner & Eastern Health Care Network v Health Services Union of Australia (1997) 76 IR 420.

(47) See above n13.

(48) See above n45 at 92.

(49) Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15.

(50) Moreover, these are just 3 important examples of a technical substantive approach. There are others of lesser importance, but still important. For example, in Australian Paper, Justice North indicated that he regarded the failure to call the subcontractors, as a matter against granting an injunction, rather than assuming that the subcontractor wants his employees to work, unless the subcontractor is heard to say different. Again the Supreme Court would make the assumption that the subcontractor wants their employees to work, without needing to hear from that subcontractor. In light of the damage that a union like the CFMEU can do to a (almost always small) subcontractor, if that subcontractor was to give evidence against the union, it is very difficult to get subcontractors to give evidence. The requirement that the subcontractor be heard has the effect of making s127 orders difficult to obtain on commercial building sites.

(51) See above n49 at 16-17.

(52) See above n49 at 24, where North J stated that, "justice will be best served if the Court approaches the grant of an interim injunction against industrial action with particular caution."

(53) See: Reith's desire to give "Parties suffering from illegal industrial action ... access to effective legal redress" Second Reading Speech, Thursday 23 May, 1996, House of Representatives Hansard, p.1303.

(54) See above n49 at 18.

(55) See Dalton, R, Industrial Relations---Are We Returning To The Law Of The Jungle?, Leo Cussen Institute, Wednesday 29 March 2000, Fn 11 (application filed 10 March 1998, decision handed down 2 April 1998, no interim orders made and interlocutory application eventually dismissed).

(56) See above n49 at 29; "It is unnecessary for me to exercise the particular caution against granting interim injunctive relief in industrial disputes referred to earlier in these reasons because I have formed a clear view, after balancing the factors discussed in these reasons, apart from those which are referred to as supporting the exercise of such caution, that the application should be refused at this time."

(57) MUA v Patrick Stevedores No 1 Pty Ltd (1998) 79 IR 281.

(58) See comments of North J in Australian Paper Ltd v CEPU (at 24): "justice will be best served if the Court approaches the grant of an interim injunction against industrial action with particular caution."

(59) See: Metal Trades Industry Assoc v AFMEPKIU (1997) 77 IR 87, where Marshall J prevented a correction to a slip in the order (North J criticised this move in Australian Paper Ltd v CEPU (1998) 81 IR 15, 29); see also: Inner and Eastern HCN v Health Services Union of Australia (1997) 76 IR 420, where Marshall J refused to enforce a s127 order against a union, in which a state branch of that union was named rather than the federally registered body.

(60) See: Mobil Oil v AMWU and Ors (the first s127 enforcement proceeding, application filed 3 February 1997, matter adjourned several times without orders, until 16 June 1997, when certain orders made); also Australian Paper Ltd v CEPU (1998) 81 IR 15 (application filed 10 March 1998, decision handed down 2 April 1998, no interim orders made and interlocutory application eventually dismissed).

(61) See: Australian Paper Ltd v CEPU (1998) 81 IR 15 "In performing its function, the Court will determine whether the respondents have contravened, or propose to contravene the Commission's order and will take into account the circumstances of such industrial action to establish whether the circumstances justify the grant of an injunction. The proceedings leading to the making of the order under s127(1), the positions put by the parties to the Commission, the decision of the Commission, and the responses of the parties to that decision may well be relevant facts bearing on whether the Court should grant an injunction."; see also: Fluor Daniel v AWU & Ors (unreported, Federal Court of Australia, North J, No V 73 of 2000).

(62) See: Australian Paper Ltd v CEPU (1998) 81 IR 15, where North J acted on assurance from the union that action would be protected, instead of granting an injunction with liberty to apply once the union felt that it could demonstrate that the new action was protected. A similar approach was applied by Duncan DP in the AIRC to refuse granting a s127 order in CEPU v Telstra (Print P7021). In that case, His Honour declined to make an order because (63) See: Fluor Daniel Process Plant Services v AWU (unreported, Federal Court of Australia, No V 73 of 2000, North J)His Honour stated: "I am of the strong view that a resolution driven by good sense and rationality as this has been to date, is far preferable to the invocation of the coercive powers of the court, because at the end of the day they depend upon the exercise of state strength, as distinct from good sense and cooperation. Good sense and cooperation in the end are what will necessarily govern future relationships at the work site. The state, the courts and the police cannot make a peaceful work site, but efforts such as have been demonstrated this afternoon can" (Transcript of Proceedings, Day Two, 25 February 2000, p.71).

(64) See: Australian Paper v CEPU (at 26-27), where North J stated that the issue of balance of convenience often "ignores the interest which employees have in furthering their industrial claims by taking direct action. When the Court prevents further monetary loss by granting an injunction to the employer, it concurrently deprives the employees of the means of advancing their industrial interests by direct action." His Honour then went into great detail on this issue, including reference to the 1930s Norris LaGuardia Act in the US.

(65) See: Alan Wood, "Menaced by Union Muscle", The Australian, 14 March 2000; Editorial, "Federal Court Needs Overhaul", Australian Financial Review, 7 February 2000.

(66) See: the Northern Spirit case, where a union representing NSW soccer players unsuccessfully sought to proceed in the Federal Court, Melbourne, before North J (see: Stephen Long, "Judge calls foul in soccer union case", Australian Financial Review, 29 February 2000); see also: AWU v BHP Iron Ore (unreported, Federal Court of Australia, Gray J, 31 January 2000), where the dispute related to BHP operations in the Pilbara, WA, and the AWU engaged Melbourne solicitors and counsel and issued in Melbourne. His Honour refused an application by BHP to transfer the proceeding to the WA District Registry of the Federal Court, due to the fact that "the Court has a panel of specialist industrial relations judges based in Melbourne"; see also: CEPU v Telstra (unreported, Federal Court of Australia, Ryan J, 26 August 1998) where Sydney union solicitors briefed Sydney counsel and issued proceedings in Melbourne.

(67) Ansett Australia Ltd v Flight Attendants' Association of Australia (unreported, Supreme Court of Victoria, 31 October 1996, per Hampel J).

(68) National Workforce Pty. Ltd. v. Australian Manufacturing Workers' Union [1998] 3 V.R. 241.

(69) Hansen Yuncken Pty Ltd v AFMEPKIU (unreported, Supreme Court of Victoria, March 1998, Beach J---note: case settled).

(70) Preferred by employers.

(71) Patrick Stevedore No 1 Pty Ltd v MUA (1998) 79 IR 268 (Beach J).

(72) MUA v Patrick Stevedores Operations Pty Ltd (1998) 79 IR 276 (Beach J).

(73) MUA v Patrick Stevedores No 1 Pty Ltd (1998) 79 IR 281 (North J).

(74) Above n72.

(75) As cited in: S Long and N Reece, "Clash of the courts over IR", Australian Financial Review, 8 October 1999, p3.

(76) JGK Nominees Pty Ltd v Printing & Kindred Industries Union & anor 2 VIR 73.

(77) Dollar Sweets Pty Ltd v FCAA [1986]VR 383.

(78) Ansett Transport Industries Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.

(79) Patrick Stevedores No 1 Limited and Another v Maritime Union of Australia and Others (1997-8) 79 IR 239; Patrick Stevedores No 1 Pty Limited and Another v Maritime Union of Australia and Others (1997-8) 79 IR 268.

(80) NUW v Davids Distribution Pty Ltd (1999) 91 FCR 463.

(81) Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197.

(82) See above n80.

(83) Chapman v Jansen (1990) 100 FLR 66, at p82.

(84) (1998) 84 FCR 60.

(85) Federal Court of Australia, 26 August 1998, Ryan J.

(86) (Unreported, Federal Court of Australia, V No 55 of 1999).

(87) (Unreported, Federal Court of Australia, V No 336 of 1999).

(88) (Unreported, Federal Court of Australia, V No 186 of 1999).

(89) [1999] FCA 1201 (18 August 1999) per Ryan J.

(90) [2000] FCA 101 (14 February 2000) per Marshall J.

(91) [2000] FCA 168 (25 February 2000) per Goldberg J.

(92) [2000] FCA 159 (22 February 2000) per North J; [2000] 341 (24 March 2000) per Ryan J.

(93) (Cth) 1903.

(94) Though in some cases the anti-suit injunction that was granted had the effect of preventing the employer taking any step in any court (including the Federal Court) to vindicate his rights, see for example CFMEU v Multiplex [2000] FCA 101 (14 February 2000) per Marshall J.

(95) These provisions were introduced by the IR Reform Act and remain in the WR Act. They are as follows: protected industrial action (s170PG in the IR Reform Act; s170ML in the WR Act); immunity of protected action against legal action (s170PM of the IR Reform Act; s170MT of the WR Act).

(96) AWU v Shell Refining Pty Ltd [1999] FCA 1201 (18 August 1999) per Ryan J.

(97) I have written about the failure of the police to clear the pickets in this case in a previous paper to the Society see, Stuart Wood, "Keeping Things Peaceful or Keeping the Peace: Police at the Pickets", Proceedings of the XIXth Conference of the HR Nicholls Society 31 July-2 August 1998, p103.

(98) See eg.: Nina Field, "Pickets may force Shell to close, court told", Australian Financial Review, 11 August 1999; Nina Field, "Shell unions fight injunction", Australian Financial Review, 20 August 1999.

(99) See: CEPU v Telstra (Federal Court of Australia, 26 August 1998, Ryan J); AFMEPKIU v Manpower (unreported, Federal Court of Australia, V No 55 of 1999); AWU v ATCO (unreported, Federal Court of Australia, V No 336 of 1999); AMWU v Bonlac Foods (unreported, Federal Court of Australia, V No 186 of 1999); AWU v Shell [1999] FCA 1201 (18 August 1999) per Ryan J.

(100) AFMEPKIU v Manpower (unreported, Federal Court of Australia, V No 55 of 1999).

(101) See: Shell Refining Pty Ltd v AWU, Victorian Supreme Court, 6 August 1999.

(102) As cited in: S Long and N Reece, "Clash of the courts over IR", Australian Financial Review, 8 October 1999, p3.

(103) See: E Hannan, "IR Chaos", The Age, 9 February 2000; N Field, "Power Cuts in Victoria after union talks fail", Australian Financial Review, 18 January 2000.

(104) Australian Workers' Union v Yallourn Energy Pty Ltd [2000] FCA 65 (8 February 2000) per Merkel J.

(105) Section 170NC.

(106) The Federal Court proceedings were: Construction, Forestry, Mining and Energy Union v Multiplex Constructions Pty Ltd & Ors [2000] FCA 101 (14 February 2000) per Marshall J; CFMEU v Mirvac Constructions Pty Ltd and ors [2000] FCA 159 (22 February 2000) per North J; Construction, Forestry, Mining and Energy Union v Master Builders' Association of Victoria (No 1) [2000] FCA 168 (25 February 2000) per Goldberg J.

The Supreme Court proceedings were not reported but are referred to in the Federal Court judgments, see, Construction, Forestry, Mining and Energy Union v Multiplex Constructions Pty Ltd & Ors; CFMEU v Mirvac Constructions Pty Ltd and ors.

(107) Construction, Forestry, Mining and Energy Union v Multiplex Constructions Pty Ltd & Ors [2000] FCA 159 (14 February 2000) per Marshall J.

(108) CFMEU v Mirvac Constructions Pty Ltd and ors [2000] FCA 341 (22 February 2000) per North J; Construction, Forestry, Mining and Energy Union v Master Builders' Association of Victoria (No 1) [2000] FCA 168 (25 February 2000) per Goldberg J.

(109) Multiplex See n107 above.

(110) See CFMEU v Mirvac Constructions n108 above.

(111) Ibid.

(112) See for example the requirements in Practice Note [1994] 1 VR 86 and Practice Note [1984] VR 320.

(113) To this one could add the traditional respect for seniority in the law.

(114) ASC v Marlborough Gold Mines Ltd (1993) 177 CLR 485, at 492.

(115) Daily Mirror Newspapers Ltd. v Gardner[1968] QB 762 at 770.

(116) National Workforce Pty. Ltd. v. Australian Manufacturing Workers' Union [1998] 3 V.R. 241.

(117) Patrick Stevedore (No 1) Pty Ltd & or v MUA & ors (1998) 79 IR 268 at 275. This was upheld on appeal Maritime Union of Australia & ors v Patrick Stevedores Operations Pty Ltd & Anor (1998) 79 IR 317.

(118) Concrete Constructions v Plumbers and Gasfitters Employees Union (1987) 71 ALR 501 at 533.

(119) See above Mirvac n108.

(120) Ibid

(121) See Patrick litigation notes 71, 72 & 73 above.

(122) The availability of the mechanism of appeal is not disputed. Indeed it has been recognised in TWU v Lee (1988) 84 FCR 60. However, it is important that the change in the traditional practice in relation to the route of appeal be noticed.

(123) See above, n75.

(124) NUW v Davids Distribution Pty Ltd (1999) 91 FCR 463.

(125) CFMEU v Mirvac Constructions Pty Ltd [2000] FCA 341 (24 March 2000) at paragraph 36, per Ryan J.

(126) Ibid at paragraph 39.

(127) ACI Operations Pty Ltd v Automotive Food Metals Engineering Printing & Kindred Industries Union [2000] FCA 393 (30 March 2000) at paragraph 62, per Merkel J.

(128) Nina Field, "AIG fights metal union plan", Australian Financial Review, Wednesday 3 May 2000, p.3.



Caveat

I should make clear that although I have acted for the employers in many of the cases referred to in this paper, including, for example, Patrick Stevedores, Telstra, Shell, ACI and all the major construction companies during the 36-hour week dispute, the opinions I express are clearly mine and mine alone.

Why HR Nicholls?

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