Downer Engineering Power Pty Ltd (ABN 53 000 983 700) v Atkinson [2005] FCA 149 (1 March 2005)

Downer Engineering Power Pty Ltd (ABN 53 000 983 700) v Atkinson [2005] FCA 149

INDUSTRIAL LAW – application for interim relief against employees – order made by Australian Industrial Relations Commission under s 127(1) Workplace Relations Act 1996 (Cth) directed to Unions – failure of employees to return to work – alleged contraventions of s 127(5) and s 170MN of the Act – whether serious issue to be tried – whether "employees" fall within terms of the Commission’s order – balance of convenience – whether grant of interim relief would have a practical effect

PRACTICE AND PROCEDURE – whether discretion should be exercised to omit endorsement from order warning of imprisonment or sequestration

Federal Court of Australia Act 1976 (Cth) ss 21, 22, 23, 32
Judiciary Act 1903 (Cth) s 39B(1A)(c)
Workplace Relations Act 1996 (Cth) ss 3(b), 3(f), 4, 126, 127, 127(1), 127(1)(c), 127(3), 127(5), 127(6), 127(7), 170LD, 170LJ, 170LT, 170LX, 170M(1), 170M(2), 170MA, 170MC, 170MI, 170ML, 170MN, 170MN(1), 170MO, 170ND, 170NF, 170NF(1), 170NF(4), 170NG, 412

Federal Court Rules O 7 r 1, O 37 r 2, O 37 r 2(3), O 40
The Constitution ss 75, 76, 77

ACI Operations Pty Ltd v Automotive, Food Metals Engineering, Printing and Kindred Industries Union (2000) 173 ALR 109 cited

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCAFC 386; (2002) 125 FCR 529 cited

Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCAFC 183; (2003) 130 FCR 524 cited

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 cited
Gordon v Gordon (1946) P.99 cited

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 cited

The Original Juice Co Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 cited

Transfield Construction Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 cited

DOWNER ENGINEERING POWER PTY LTD (ABN 53 000 983 700) v CHRISTOPHER PETER ATKINSON, KEITH STUART BIRCH, LYALL BROWN, ALFONSO CAMBREA, MICHAEL JOHN COLBEY, PAUL COMMISSO, CHRISTOPHE LOUIS COUANON, STEVEN PETER COVERDALE, DANIEL ROBERT CURCHIN, JOHN DIXON, DAVID DOUST, HUGH DUFFY, ANDREW DUNCAN, DANIEL FRY, BRIAN EDWIN GARDINER, PETER GIANFRANCESCO, BRADLEY ROBERT GILES, JOHN PAUL GOODWIN, STEPHEN GRAY, WAYNE ASHLEY GRIMES, AARON HARPER, JAMES EDWARD HICKS, BJ HILIER, NATHAN HITT, KEVEN HOMDEN, RUSSELL HOWELLS, WILLIAM ROBERT HUGHES, GLENN ALAN JONES, GORDON JONES, AARON DAVID KING, RICKY JOHN KING, RAYMOND KOHLMAN, WARREN PETER LEWIS, BRADLEY MASLIN, KIMBERLEY JAMES MASLIN, PAUL DOUGLAS MAY, SHANE MCGILL, SIEGFRIED MENZEL, GRANT MILES, COLIN MORGAN, BRENDAN MORRIS, WILLIAM MORRISON, ROBERT MORTON, RICHARD MUNCE, ROBERT JAMES PACE, DANIEL ROBERT PENNEFATHER, DAMON MICHAEL QUICKE, GRANT LEE RAYNER, ANTONIO RECHICHI, MICHAEL BRUCE REYNOLDS, JEFFREY ROBERTS, STEPHEN ROGERS, KENNETH SATONICK, JARROD ALFRED JAMES SAWARD, BRETT MANE SMITH, GRAEHAM WILLIAM STONE, MICHAEL JOHN STRAND, CHAD STUDSOR, STUART GEOFFERY SWANN, MALCOLM TARGETT, PHILLIP TUCKEY, DARREN SCOTT VON BIBRA, HAROLD GORDON WHITWELL, PHILIP WOODCOCK
WAD 25 OF 2005

TOTAL CORROSION CONTROL PTY LTD (ACN 008 994 616) v STEPHEN ARMSTRONG, ADAM BIRCH, BRYAN CORBETT, JOHN DUNCAN, TERRY ERNST, PETER FALLO, JOHN FELTHAM, REG FITZPATRICK, JOSEPH FOSTER, GEOFF GATHERCOLE-SMITH, RYAN HARRISON, DARREN HATA, WILLIAM JEFFERY, DALE JONES, JOE KEIRNAN, GARRY KEMP, DUNCAN KERR, HUGH KERR, SHANE KIRKPATRICK, JOHN LEVER, JOHN MCCANN, CALLUM MACLEAN, DAVID MOOAR, JAMES MORTON, BRIAN PETERSEN, PAUL PIAVANINI, SHANE JACKSON, KANE JAMES, BRUCE ROUSE, PETER RUSSELL, BARRY RYAN, PAUL SHEWARD, PAUL SIDON, NIRAI TAIAPA, JASON WIGGERS, TREVOR WILLMOTT, PAUL WHITTON, STEPHEN KILMARTIN, LESTER GEAR, NATHAN HARTLEY, PAUL STINGEL
WAD 27 OF 2005

COLLEX PTY LTD (ABN 20 051 316 584) v HARLEN ANDERSON, CHRISTOPHER BETSON, JOSEPH CALLEGARI, RUSSELL CLOUSTON, DENNIS COXALL, RAYMOND CROSKERY, GRAEME CULL, NEIL DAVENPORT, BRIAN DE GOOIJER, MICHAEL DEGRUSSA, RAYMOND DODD, CHRISTOPHER GOFF, FRANK GREENSLADE, MICHAEL GRIFFITHS, GORDON HAYES, ANDREW HEMPSTEAD, WAYNE HITCHCOCK, DION HOUSE, NATHAN LAKE, MATHEW LEE, KIM MARTIN, STEPHEN MATTHEWS, IAN MCLOUGHLIN, NICOLA MUSURACA, MAURICE NEWELL, MICHAEL O’DONOGHUE, JUDD PRENTICE, TYRONE BAYNES, JASON REEVE, VICTOR RONAN, ROBERT SHEASBY, BRENDAN SHERVINGTON, GREGORY SHINE, GAVIN SIMPSON, ALLAN TAYLOR, SIMON TAYLOR, JOHN TIPPER, LEO VANMARIS, PETER VISSER, SCOTT WHITE, MICHAEL WILLIAMSON
WAD 28 OF 2005

LEE J
1 MARCH 2005
PERTH

CHRISTOPHER PETER ATKINSON	First Respondent
KEITH STUART BIRCH	Second Respondent
ALFONSO CAMBREA	Fourth Respondent
CHRISTOPHE LOUIS COUANON	Seventh Respondent
STEVEN PETER COVERDALE	Eighth Respondent
JOHN DIXON	Tenth Respondent
BRIAN EDWIN GARDINER	Fifteenth Respondent
PETER GIANFRANCESCO	Sixteenth Respondent
STEPHEN GRAY	Nineteenth Respondent
AARON HARPER	Twenty-first Respondent
JAMES EDWARD HICKS	Twenty-second Respondent
BJ HILIER	Twenty-third Respondent
KEVEN HOMDEN	Twenty-fifth Respondent
RUSSELL HOWELLS	Twenty-sixth Respondent
WILLIAM ROBERT HUGHES	Twenty-seventh Respondent
GLENN ALAN JONES	Twenty-eighth Respondent
GORDON JONES	Twenty-ninth Respondent
AARON DAVID KING	Thirtieth Respondent
RICKY JOHN KING	Thirty-first Respondent
WARREN PETER LEWIS	Thirty-third Respondent
BRADLEY MASLIN	Thirty-fourth Respondent
PAUL DOUGLAS MAY	Thirty-sixth Respondent
GRANT MILES	Thirty-ninth Respondent
COLIN MORGAN	Fortieth Respondent
BRENDAN MORRIS	Forty-first Respondent
ROBERT MORTON	Forty-third Respondent
RICHARD MUNCE	Forty-fourth Respondent
ROBERT JAMES PACE	Forty-fifth Respondent
DANIEL ROBERT PENNEFATHER	Forty-sixth Respondent
GRANT LEE RAYNER	Forty-eighth Respondent
JEFFREY ROBERTS	Fifty-one Respondent
STEPHEN ROGERS	Fifty-two Respondent
KENNETH SATONICK	Fifty-third Respondent
MICHAEL JOHN STRAND	Fifty-seventh Respondent
STUART GEOFFERY SWANN	Sixtieth Respondent
MALCOLM TARGETT	Sixty-first Respondent
PHILIP WOODCOCK	Sixty-sixth Respondent

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

B. To pay the compensation referred to in (A) to the person there referred to:

THE COURT ORDERS THAT:

STEPHEN ARMSTRONG	First Respondent
ADAM BIRCH	Second Respondent
JOHN DUNCAN	Fourth Respondent
PETER FALLO	Sixth Respondent
JOHN FELTHAM	Seventh Respondent
JOSEPH FOSTER	Ninth Respondent
RYAN HARRISON	Eleventh Respondent
DALE JONES	Fourteenth Respondent
JOE KEIRNAN	Fifteenth Respondent
JOHN LEVER	Twentieth Respondent
CALLUM MACLEAN	Twenty-second Respondent
BRIAN PETERSEN	Twenty-fifth Respondent
SHANE JACKSON	Twenty-seventh Respondent
BRUCE ROUSE	Twenty-ninth Respondent
BARRY RYAN	Thirty-first Respondent
JASON WIGGERS	Thirty-fifth Respondent
PAUL WHITTON	Thirty-seventh Respondent

STEPHEN ARMSTRONG	First Respondent
ADAM BIRCH	Second Respondent
JOHN DUNCAN	Fourth Respondent
PETER FALLO	Sixth Respondent
JOHN FELTHAM	Seventh Respondent
JOSEPH FOSTER	Ninth Respondent
RYAN HARRISON	Eleventh Respondent
DARREN HATA	Twelfth Respondent
DALE JONES	Fourteenth Respondent
JOE KEIRNAN	Fifteenth Respondent
GARRY KEMP	Sixteenth Respondent
HUGH KERR	Eighteenth Respondent
JOHN LEVER	Twentieth Respondent
CALLUM MACLEAN	Twenty-second Respondent
BRIAN PETERSEN	Twenty-fifth Respondent
SHANE JACKSON	Twenty-seventh Respondent
KANE JAMES	Twenty-eighth Respondent
BRUCE ROUSE	Twenty-ninth Respondent
BARRY RYAN	Thirty-first Respondent
PAUL SIDON	Thirty-third Respondent
JASON WIGGERS	Thirty-fifth Respondent
PAUL WHITTON	Thirty-seventh Respondent
LESTER GEAR	Thirty-ninth Respondent

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

B. To pay the compensation referred to in (A) to the person there referred to:

THE COURT ORDERS THAT:

CHRISTOPHER BETSON	Second Respondent
RAYMOND DODD	Eleventh Respondent
MICHAEL GRIFFITHS	Fourteenth Respondent
DION HOUSE	Eighteenth Respondent
KIM MARTIN	Twenty-first Respondent
MICHAEL O’DONOGHUE	Twenty-sixth Respondent
JUDD PRENTICE	Twenty-seventh Respondent
JASON REEVE	Twenty-ninth Respondent
VICTOR RONAN	Thirtieth Respondent
GAVIN SIMPSON	Thirty-fourth Respondent
ALLAN TAYLOR	Thirty-fifth Respondent
PETER VISSER	Thirty-ninth Respondent

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

1 These are three applications for interlocutory relief heard concurrently and at short notice. The principal applications were commenced by the applicants ("Collex", "Downer" and "TCC") under the Workplace Relations Act 1996 (Cth) ("the Act") and seek the issue of permanent injunctions against the respondents. The respondents are said to be persons employed by the applicants. In the application commenced by Downer the imposition of penalties against the respondents is also sought. The interlocutory relief sought on these applications is the issue of interim injunctions.

2 The applicants have contracted with the operator of the Worsley Alumina Refinery near Collie to carry out maintenance and cleaning work at the refinery. Other contractors have been engaged by the operator of the refinery to carry out work on the expansion of refinery infrastructure. Employees of these contractors receive a higher rate of pay than employees of the applicants. At least since October 2004 an industrial issue has been developing in respect of that disparity in pay rates. It appears that employees of the applicants contend that they have similar skills and do similar work to that performed by the employees of other contractors on the refinery site and therefore should receive parity in remuneration.

3 To an untutored observer it would seem that adequate time has passed for the applicants and their employees to have entered discussions, either directly or indirectly through representatives, to address and resolve the dispute.

4 On Friday 4 February 2005 employees of the applicants attended a meeting near their place of work. At the conclusion of the meeting the employees who were then on duty failed to return to work. With the exception of approximately six persons employed by Collex no employee of the applicants has resumed work since that day.

6 On the afternoon of 4 February 2005 the applicants, and another contractor, filed applications in the Australian Industrial Relations Commission ("the Commission") seeking a direction from the Commission under s 127(1) of the Act that the "industrial action", constituted by the failure or refusal of employees to attend work, stop. The principal respondents to the applications were The Australian Workers’ Union ("the AWU") and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the AMWU"). The AWU and AMWU are registered under the Act as organisations of employees. Schedules to the applications named a number of persons who were said to be employees of the applicants.

7 Pursuant to the obligation imposed on the Commission by s 127(3) of the Act to hear and determine an application made under that section as quickly as practicable, the Commission, late on 4 February 2005, gave notice that the applications would be heard at 10.00 am on Monday 7 February 2005.

8 At that hearing representatives of the AWU and AMWU appeared. No person named in the schedules to the applications appeared at the hearing. The number of employees named in the schedules was approximately 150 of which approximately 85 were employed by Downer, 40 by TCC and 25 by Collex. Whether the six employees of Collex referred to above were persons named in the schedule to the Collex application to the Commission is not clear. The Commission, constituted by a Deputy President, conducted a short hearing. No evidence was tendered. The Commission informed itself from the assertions set out in the applications and from statements made by representatives of the applicants. The Commission obtained further information from responses received to questions put by the Commission to representatives of the unions.

9 The Commission, adjourned to consider the matter and later that day made an order, the relevant terms of which were as follows.

7.2.1 The failure or refusal to attend for work at the usual times or any other times attendance for work is requested by the Employers; and

7.2.2 the failure or refusal to perform work at the times and in the manner in which it is usually performed or requested to be performed; and

7.2.3 any delay, restriction, ban or limitation on the performance of work; and

7.2.5 the preventing, obstructing or restricting of any other persons from performing their usual work or functions for or in connection with the operations of the Employer.

8.2.1. If such action was or is based on a reasonable concern by that person about an imminent risk to his or her health and safety; and

8.2.2 the relevant procedures, obligations, and requirements for dealing with disputes concerning occupational health and safety have been fully complied with; and

8.2.3 with respect to an employee where the employee has not unreasonably failed to comply with a direction to perform other available work, whether at the same or another workplace to the usual workplace, that was safe and appropriate for the employee to perform.’

10 The order was expressed to come into effect at 3 pm on 7 February 2005 and to remain in force until 7 March 2005. It may be argued that the terms of Item 5 of the Commission’s order went further than the Commission had authority to direct under s 127 of the Act, however, for the purposes of these applications the direction may be read as an order that the employees bound by the order stop failing or refusing to attend for work.

11 No reasons were provided by the Commission for the making of the order and the applicants rely on the transcript of the Commission hearing to explain the Commission’s decision. The Commission appears to have been satisfied under s 127(1)(c) of the Act that industrial action as defined in s 4 of the Act, was happening in relation to work regulated by a certified agreement. Paragraph (d) of the definition of industrial action appeared to be relied upon, namely, "a failure or refusal by persons to attend for work" being persons who "are employed by...a constitutional corporation". It is not in issue that the applicants are "constitutional corporations".

12 Each application to the Commission stated that the application related to work that was regulated by a certified agreement, that is to say, an agreement certified under s 170LT of the Act. In the application made by Collex the "nominal expiry date" (a term defined in s 170LD of the Act) of the certified agreement was 3 December 2004. That date had not been extended under s 170MC of the Act. With regard to the applications made by TCC and Downer the nominal expiry dates of the relevant certified agreements were 28 March 2007 and 14 June 2007 respectively.

13 In the application to the Commission made by TCC it was stated that the relevant certified agreement was a "Section 170LJ Agreement with the [AMWU]". Section 170LJ of the Act is part of Division 2 of Part VIB of the Act. Section 170M(1) of the Act (which appears in Division 6 of Part VIB) provides that if an application to the Commission for certification of an agreement states that the application is made under Division 2 the certified agreement binds, (a) the employer; and (b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement. Under s 170LJ of the Act, where the employer is a constitutional corporation the agreement may be made with an organisation of employees and pursuant to s 170M(2) of the Act the agreement also binds that organisation.

14 The Collex and Downer applications to the Commission did not state whether the applications to certify the agreements had been made under Division 2 or Division 3 of Part VIB. Section 170MA of the Act provides that an agreement certified pursuant to an application made under Division 3 binds: (a) the employer and the organisation of employees concerned; and (b) any member of that organisation.

15 Division 3 of Part VIB relates to agreements made between an employer and an organisation of employees for: i) settling an industrial dispute; ii) maintaining settlement of matters that were in dispute, where the settlement was made by, inter alia, a certified agreement; or iii) for preventing further industrial disputes arising between them.

16 Section 170LX of the Act provides that a certified agreement comes into operation when it is certified and ceases to be in operation, inter alia, if the nominal expiry date has passed and it is replaced by another certified agreement.

17 Sections 170MI and 170ML of the Act provide for negotiation of an agreement under Division 2 or Division 3 to be carried out in a "bargaining period" and for any industrial action taken during that period in support of claims made in respect of the proposed agreement to be "protected action", subject to notice of the industrial action having been given as required by s 170MO.

18 Section 170MN of the Act states that from the time a certified agreement comes into operation until its nominal expiry date an employee, or organisation of employees, must not engage in industrial action "for the purpose of supporting or advancing claims against the employer in respect of the employment of employees whose employment is subject to the agreement".

19 In respect of Collex employees the certified agreement had not been replaced by another certified agreement after the nominal expiry date had passed. Therefore, industrial action by employees of Collex whose employment was subject to the certified agreement would not constitute contravention of s 170MN of the Act even if that action was taken to advance claims against Collex in respect of the employment of employees whose employment was subject to that certified agreement.

20 In respect of the certified agreements referred to in the Downer and TCC applications industrial action taken by employees of those applicants within the period of the relevant certified agreements for the purpose of supporting claims against Downer or TCC in respect of the content of a future certified agreement to replace an existing certified agreement would not contravene s 170MN of the Act. (See: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCAFC 183; (2003) 130 FCR 524).

21 Industrial action that is taken in contravention of s 170MN(1) of the Act may incur liability to the imposition of a penalty by this Court. (See: ss 170ND, 170NF). Section 170NG of the Act also provides that the Court, inter alia, may grant an injunction requiring a person to cease contravening s 170MN.

22 I turn now to the grounds on which interim injunctions are sought by the applicants. In the case of Collex the application for an order is based upon s 127(6) of the Act. It is contended that the respondents to the application are persons to whom the order of the Commission is expressed to apply who have failed to comply with that order.

23 With regard to Downer and TCC the applications made by those parties also rely upon s 127(6) of the Act but in addition seek an injunction under s 170NG, contending that employees of those applicants have contravened s 170MN. The unions referred to in the order of the Commission are not joined as respondents to any of the applications filed in this Court.

24 It was submitted by counsel for the applicants that the Court may dispense with the requirement of Order 7 r 1 of the Federal Court Rules ("the Rules") that personal service of the applications be effected on the respondents. Affidavits filed by the applicants deposed to some difficulties experienced by process servers in effecting personal service of the originating process. Notwithstanding that material, and bearing in mind that a proceeding for interim relief does not descend to findings of fact on such issues, the consequence of non-compliance with the orders sought by the applicants in this matter are of such significance that the Court should not make those orders unless satisfied that respondents to be bound by the orders have received the relevant papers and have had the opportunity to seek advice in respect of the orders sought against them and of the import thereof. At this stage I am not satisfied that is it appropriate to make such orders against respondents who have not been served personally with the originating process and given notice personally of the date of hearing.

25 The Downer application was filed on Friday 11 February 2005, and the Collex and TCC applications were filed on Monday 14 February. The date of hearing of the applications for interlocutory orders was fixed for Wednesday 17 February. The applicants seek an order abridging the time for service of the applications and the supporting affidavits upon the respondents. I am satisfied that such an order should be made in the circumstances. When the interlocutory applications came on for hearing on 17 February several respondents to the Collex application were represented by counsel instructed to oppose the application. Respondents who appeared in the Downer and TCC applications were represented by an officer of the AMWU. Appearances were filed on behalf of four respondents to the Downer application, fourteen respondents to the Collex application, and four respondents to the TCC application. No respondent appeared in person. The hearing of the applications continued until 23 February 2005.

26 It is appropriate first to have regard to the orders sought by the applicants pursuant to s 127(6) of the Act. For that purpose it is necessary to ascertain what direction was given by the Commission pursuant to the order made under s 127(1) and determine to whom the order is expressed to apply and, therefore, who was bound to comply with the order pursuant to s 127(5).

27 The application to the Commission filed by Downer included the terms of a proposed order. Neither the application nor the proposed order referred to employees named in the schedule to the application. The parties to whom the terms of the proposed order sought to bind, in addition to Downer, were the AMWU; employees who were engaged in work regulated by the certified agreement and who were members of the AMWU; and employees who had been served with the application and notice of the hearing.

28 The application to the Commission filed by Collex did not refer to the named employees in the schedule to the application but the terms of a proposed order filed with the application sought an order that the persons bound by the order be the AWU; employees of Collex whose work was regulated by the certified agreement and who were members of the AWU; and the employees named in the schedule.

29 The application to the Commission filed by TCC sought orders against the AMWU and persons named in the schedule to the application. The application did not include the terms of a proposed order.

30 It is apparent that the Commission was aware that there was no material before it that suggested that industrial action was happening in relation to work regulated by an award. The Commission restricted the terms of the order it made to work regulated by the certified agreements. Accordingly, the order did not extend, as may have been suggested in the proposed orders submitted by Collex and Downer, to all employees, without qualification by a requirement that the employees bound by the order be engaged in work regulated by a certified agreement.

31 It was not seriously in issue that the terms of the Commission’s order were ambiguous. Representatives of the respondents submitted that the order should be treated as meaningless and a nullity. Notwithstanding that an order of the Commission may be ambiguous no argument that the order is void can be seriously raised if an operative meaning can be given to the order properly construed. (See: The Original Juice Co Pty Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 per Goldberg J at [29]).

32 It is reasonably clear that the terms of the order reflect the Commission’s intention that it bind, as principals, the applicants and the unions, and bind derivatively employees of the applicants who are members of the unions and whose work is regulated by the certified agreements.

33 In respect of the orders sought by the applicants under s 127(6) of the Act it was submitted by counsel for the respondents who appeared in the Collex application that the order of the Commission was "ultra vires" in that the proceeding conducted by the Commission did not accord those respondents procedural fairness. It was submitted that the respondents had been denied the opportunity to be heard.

34 As noted above the applications to the Commission were directed to the unions as principal respondents. Although persons who were employees of the applicants were named in a schedule to each application only the TCC application stated that orders were sought against "persons named in the Schedule".

35 However, the application to the Commission filed by Collex and Downer did put on notice the persons named in the schedules to those applications that an order was sought from the Commission directed to and binding employees of Collex and Downer to stop failing or refusing to attend for work at their places of employment.

36 The Commission was bound by the Act to act with expedition. Accordingly, the Commission sought to find a satisfactory compromise between performing its obligation under the Act to act promptly and providing an opportunity for a party affected by a proposed order to be given notice thereof and to seek advice. The Commission, therefore, restricted the scope of the order to employees who were members of the unions named as principal respondents, representatives of which appeared before the Commission on the hearing of the applications, and conditioned "enforcement" of the order by requiring prior service of the order to be effected on any person against whom proceedings were sought to be taken under s 127(6) of the Act.

37 I do not consider the foregoing circumstances to be sufficient to sustain an argument that the Commission’s order was beyond the power vested in the Commission by the Act.

38 The applicants submitted that the order of the Commission could be taken to apply to employees who are not members of the unions but whose work is regulated by the certified agreements. It was submitted that this meaning could be obtained from the words in Item 4.1 of the Order "parties to this order and their respective...employees". That submission has marginal prospect of success. The words relied upon in Item 4.1 are part of a description of persons, the conduct of whom is taken to be conduct of a party bound directly by the order, to wit, the unions or the applicants and to provide that those persons will be bound in the same manner as the principal. That cannot assist the applicants in their argument. Furthermore, there is no qualification attached to those words confining such employees to those whose work is regulated by a certified agreement and there is no direction to those employees as to what they must do under the order. The only direction to employees set out in the order is that in Item 5 which is confined to those employees who are members of the unions and whose conditions of employment are regulated by a certified agreement.

39 Counsel for the applicants also referred to Item 6.3 of the order, which sets out the terms of a notice the unions were directed to prepare and bring to the attention of members of those unions who were employed by the applicants and whose conditions of employment were regulated by a certified agreement. That paragraph specifies that the notice is to state that the order of the Commission applies to employees of the applicants who are eligible to be members of the unions. It was argued, therefore, that Item 5 of the order of the Commission was to be read as if it had that effect.

40 Item 6.3 of the order is a part of the Commission’s direction to the unions. It has no application to Item 5 of the order. Item 5 is a direction by the Commission to the persons defined therein as persons bound to comply with that direction.

41 It is apparent that the purported description of parties bound by the order set out in the pro-forma notice recited in Item 6.3 contains an error. Any argument that Item 6.3 of the order governs the construction of Item 5 has little prospect of success.

42 The material put before the Court by the applicants was sufficient to suggest that some of the respondents to the application filed by Collex were members of the AWU whose conditions of employment were regulated by the relevant certified agreement. Twelve of the listed respondents to that application were persons within that class and were persons upon whom personal service of the proceeding had been effected and to whom notice of the hearing of the application had been provided personally, or otherwise were persons within that class who appeared on the hearing of the application. The material presented in the TCC applicant was sufficient to suggest that sixteen of the respondents met the foregoing description. In respect of the application made by Downer, no material was presented to identify any of the named respondents to that application as a member of the AMWU and, therefore, there was no seriously arguable case that any respondent to that application had failed to comply with the order of the Commission and was a person in respect of whom the Court could consider making an order under s 127(6) of the Act.

43 Item 9.5 of the Commission’s order provided that service of the order was to be effected on employees of the applicants to whom it applied by, inter alia, providing a copy "by mail, or email or other means of delivery of, provision of, or by making available to take" to each employee before the applicants commenced any proceeding against any employee in respect of industrial action continuing after the order had been provided, or made available, to that employee.

44 There is sufficient material before the Court to support the argument that that requirement of the order was satisfied.

45 It is plain that there is a serious case to be tried that respondents who are employees of Collex and TCC and who are members of the AWU or AMWU failed to comply with the direction of the Commission as required by s 127(5) of the Act. At this stage there is no material that raises any contention that those respondents had cause or excuse for such non-compliance. It has not been suggested that the "industrial action" is "protected action".

46 I turn now to the question whether there is a serious issue to be tried that the respondents to the applications brought by Downer and TCC have contravened s 170MN of the Act. Counsel for Downer and TCC, directed their principal submissions to that issue.

47 It is apparent from the material submitted that an inference is available that the employment of the persons who are respondents to those applications is subject to a relevant certified agreement, the nominal expiry date of which has not passed, and that those respondents have failed or refused to attend their places of work.

48 The remaining question is whether industrial action has been engaged in by those respondents for the purpose of supporting or advancing claims against Downer or TCC in respect of employment of employees where employment is subject to those certified agreements.

49 It is seriously arguable that a significant element of the purpose of the industrial action taken has been engaged in to support or advance claims, express or implied, against Downer and TCC, for an increase in the rates of remuneration payable to the respondents for work performed under the certified agreements.

50 Although s 170NG of the Act does not specify who may make an application under that section for an injunction that a person cease contravening s 170MN, it is to be noted that s 170NF(4) provides that a person bound by a certified agreement may apply under s 170NF(1) for the imposition of a penalty against a person who has contravened s 170MN of the Act.

51 It would follow that a person able to apply under s 170NF(4) of the Act may be taken to be a person with sufficient standing to seek an order from the Court under s 170NG. (See: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [1971] HCA 49; 125 CLR 529 per Gray J at [44]-[47]; Goldberg, Finkelstein JJ at [74]-[81].)

52 Sufficient material has been presented to show that it is seriously arguable that some of the respondents to the Downer and TCC applications, being persons on whom personal service of the applications and supporting documents have been effected and to whom notice of the hearing of the applications had been given personally, have contravened the provisions of s 170MN of the Act.

53 The next question is whether it is appropriate and desirable that interim injunctions issue against respondents identified in the foregoing paragraphs as persons against whom such orders may be made.

54 Applications made to the Court under s 127(6) or s 170NG of the Act present particular difficulties in determining whether interim relief should be granted and, if so, the form that such relief should take. Invariably such applications are made on short notice and on limited material and relate to only one aspect of a state of affairs of industrial disputation consisting of competing contentions by employers and employees as to obligations, duties, rights and expectations arising out of an employment relationship to be performed or met.

55 It has been acknowledged that the terms of an interim injunction made by the Court in such applications may have the effect, in all relevant respects, of a final order and that such a consequence is an issue that has to be addressed in determining how the Court’s discretion is to be exercised. (See: Transfield Construction Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 per Merkel J at [29]).

56 Pursuant to s 77 of the Constitution the jurisdiction of this Court is to be defined by laws of the Commonwealth Parliament "with respect to a matter" mentioned in s 75 or s 76 of the Constitution. Of course a law "with a respect to a matter" may be a law which does not give this Court authority to decide every legal right, duty, liability or obligation inherent in the controversy between persons that constitutes the matter. (See: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 per Gleeson CJ, McHugh J at 525).

57 Under s 412 of the Act jurisdiction is conferred on the Court with respect to matters in relation to which, inter alia, an application may be made to the Court under the Act. Pursuant to s 127(6) of the Act an application may be made to the Court by a person "affected" by an order made by the Commission under s 127(1) and under s 170NG of the Act the Court may "grant an injunction requiring a person not to contravene or to cease contravening" s 170MN of the Act. In addition to the jurisdiction conferred by s 412 of the Act, however, broad authority to hear and determine a controversy that constitutes a matter arising under any law made by the Parliament is conferred on the Court by s 39B(1A)(c) of the Judiciary Act 1903 (Cth). The import of s 32 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") which confers jurisdiction of the Court in respect of matters not otherwise within jurisdiction that are associated with matters in which the jurisdiction of the Court is involved, (see: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 per Mason J at 516) may be taken to be subsumed within the foregoing provision.

58 Provisions which describe the powers available to the Court in the exercise of its jurisdiction are contained in the Federal Court Act. Section 22 of the Federal Court Act provides that the Court "shall, in every matter before the Court, grant, either absolutely or on such terms or conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided". Section 21 states that the Court has power to make binding declarations of right in relation to any matter in which the Court has jurisdiction and s 23 empowers the Court to make orders of such kinds, including interlocutory orders and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. (See: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 480-481).

59 Having regard to the fact that the jurisdiction the Court may be called upon to exercise in the matters to which these applications relate may extend beyond that enlivened by the applications, the Court must exercise care in assessing whether it is desirable in all the circumstances that interim injunctions issue at such a preliminary stage. No doubt it was with the foregoing in mind, that Merkel J recognised the caution with which the Court must act in respect of the grant of interim relief in such matters when he stated that the Court "should take particular care to approach the question of interim injunction in respect of such disputes, conscious of the industrial realities". (See: ACI Operations Pty Ltd v Automotive Food Metals Engineering, Printing and Kindred Industries Union (2000) 173 ALR 109 at [62]. The ramifications of an order made on an application brought under s 127(6) or s 170MN of the Act may "travel far beyond" the interests in an industrial issue of the parties to that application. (See: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCAFC 386; (2002) 125 FCR 529 per Goldberg, Finkelstein JJ at [81]).

60 However, in the application now before the Court due significance must be given to the possibility that the withdrawal of labour by employees of the applicants has placed the applicants at risk of breaching their contracts with the operator of the refinery and that it is arguable that the applicants have suffered loss that may not be recovered and may suffer future loss if industrial action continues. In assessing the balance of convenience the degree of inconvenience that would be suffered, including the inability to obtain effective redress thereafter, if no order were made, makes it reasonably clear that the balance falls on the side of the applicants.

61 Although the Act states that it is the principal object of the Act to provide a framework for cooperative workplace relations by, inter alia, ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with those parties at the workplace, it also provides that the foregoing object is to be met by the Act providing a framework of rights and responsibilities for employers and employees which will ensure that they will abide by agreements applying to them. (See s 3(b) and 3(f) of the Act).

62 The object of s 170MN of the Act is to obtain adherence to a certified agreement for the term of the agreement. Of course the restricted confines of such an agreement cannot purport to provide for all contingencies and it would not be realistic to expect that mere execution of a certified agreement will prevent future disputes arising at the workplace, even in respect of matters for which the agreement may have included express provision, for example, levels of remuneration. The agreements, of course, are for limited periods with the intent that most foreseeable factors can be taken into account within the terms of the agreement but that alone will not prevent circumstances arising that carry the seeds of a genuine dispute.

63 Indeed each of the certified agreements applying to Downer and TCC and their employees has mechanisms for addressing disputes should they arise in the period of operation of the agreement and provide for such matters of dispute eventually to come before the Commission for conciliation or arbitration if not resolved by the parties. Notwithstanding that the certified agreements applicable to the Downer and TCC applications contain express provisions that there be no extra claims "for improvements in" (Downer) or "relating to" (TCC) terms and conditions of employment during the life of the agreement a genuine dispute with regard to those matters must be amenable to the dispute resolution process of those agreements. There is no evidence that respondents to the Downer or TCC applications have attempted to follow the dispute resolution procedures of the certified agreements.

64 It is to be understood that it is a principle of long-standing that orders directing a person to perform services under a personal contract are rarely made, the party seeking the order being restricted to damages for any alleged breach of contract, it being assumed that the acts of non-performance in such cases are usually calculated to bring any contractual relationship to an end. Such reluctance remains an appropriate consideration in these applications but an assumption may be made that it is the intention of all parties that sooner or later employment under the certified agreements is to be resumed.

65 In considering whether it is appropriate to make an order in the applications there is a further issue as to whether an order should be made that applies to no more than some of the employees who have withdrawn their services. That is a difficult question to resolve and involves a matter of judgment and degree. An order directed to an insignificant number of employees would be futile. I am satisfied by the material presented, however, that the number of employees to be bound by an order in these matters would be sufficient to restore satisfactory operations for each of the applicants.

66 Having regard to the objects of the Act; the provisions of the Act not availed of by the respondents; the dispute resolution provisions of the certified agreements not resorted to by the respondents; and the potential loss that the applicants may suffer if interim orders are not made, I am satisfied that orders for interim injunctions should issue.

67 The applicants requested that they be permitted to serve the orders on the respondents without inclusion of the endorsement required by O 37 r 2(3) of the Rules. That provision of the Rules is a common rule of practice in all superior courts of record. It exists to make clear to a person bound by an order of the Court, who may not have been represented in the matter nor a party thereto and may not have had any contact with the conduct of the proceeding, that failure to comply with an order of the Court may constitute a contempt of the Court to be dealt with under O 40 of the Rules and in respect of which serious penalties may follow.

68 Order 37 r 2 is concerned with the enforcement or execution of judgments by a party to the litigation. Failure to comply with the rule may limit the means of enforcement available to that party. (See: Gordon v Gordon (1946) P.99 per Lord Greene MR at 104). There is, however, a transcending public interest in an order of a court directing a person to act or refrain from acting not being treated with contumelious disregard. The endorsement on such an order required by O 37 r (2)3 serves, therefore, a public interest in avoiding contempt of court as well as by private interest in the enforcement of a judgment.

69 I am not persuaded that it is appropriate in this case for the Court to direct that the usual endorsement not be added to the orders to be served in this matter. (See: Moerman-Lenglet v Henshaw, The Times, (23 November 1992 per Chadwick J). With regard to service of the orders the applicants have sought an order relieving them from compliance with the requirements of the Rules in that regard. Given the serious consequences that may follow disobedience of the orders, I am not persuaded that service of the orders should be effected by other than personal service.

WAD 25 OF 2005 Counsel for the Applicant:	J B Blackburn

Solicitors for the Applicant:	Mallesons Stephen Jaques

Representative for the 23^rd, 31^st, 33^rd, 44^th Respondents:	L A Edmonds – By Leave

WAD 27 OF 2005 Counsel for the Applicant:	R P Collinson

Solicitors for the Applicant:	Minter Ellison

Representative for the 1^st, 9^th, 12^th, 25^th Respondents:	L A Edmonds – By Leave

WAD 28 OF 2005 Counsel for the Applicant:	J B Blackburn

Solicitors for the Applicant:	Mallesons Stephen Jaques

Counsel for the 16^th, 18^th, 20^th, 21^st, 26^th, 29^th, 32^nd, 34^th Respondents:	L Gandini

Solicitors for the 16^th, 18^th, 20^th, 21^st, 26^th, 29^th, 32^nd, 34^th Respondents:	Chapmans

Counsel for the 3^rd, 8^th, 10^th, 12^th, 31^st Respondents:	T R Kucera

Solicitor for the 3^rd, 8^th, 10^th, 12^th, 31^st Respondents:	Timothy Kucera

Dates of Hearing:	17, 18, 21, 22, 23 February 2005

Date of Judgment:	1 March 2005

BETWEEN:	DOWNER ENGINEERING POWER PTY LTD (ABN 53 000 983 700) APPLICANT
AND:	CHRISTOPHER PETER ATKINSON and Others RESPONDENTS
JUDGE:	LEE J
DATE OF ORDER:	1 MARCH 2005
WHERE MADE:	PERTH

BETWEEN:	TOTAL CORROSION CONTROL PTY LTD (ACN 008 994 616) APPLICANT
AND:	STEPHEN ARMSTRONG and Others RESPONDENTS
JUDGE:	LEE J
DATE OF ORDER:	1 MARCH 2005
WHERE MADE:	PERTH

BETWEEN:	COLLEX PTY LTD (ABN 20 051 316 584) APPLICANT
AND:	HARLEN ANDERSON and Others RESPONDENTS
JUDGE:	LEE J
DATE OF ORDER:	1 MARCH 2005
WHERE MADE:	PERTH

BETWEEN:	DOWNER ENGINEERING POWER PTY LTD (ABN 53 000 983 700) APPLICANTS
AND:	CHRISTOPHER PETER ATKINSON & Others RESPONDENTS

		WAD 27 OF 2005
BETWEEN:	TOTAL CORROSION CONTROL PTY LTD (ACN 008 994 616) APPLICANT
AND:	STEPHEN ARMSTRONG & Others RESPONDENTS

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 25 OF 2005

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 28 OF 2005