Case: Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 127
Outcome: discussed
also make mention that whilst there may be a reluctance on the part of courts to make interlocutory mandatory orders, including orders involving employees to return to work, such a reluctance may not apply to conduct which is prima facie in breach of the Act: Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 127. The question then arises as to what relief to provide in the circumstances. The position arising in this proceeding is different from the position which confronted Merkel J in the Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2002] FCA 127. In this proceeding there is an application made to enforce the Order of Commissioner Eames, more particularly the order in par 4.3 set out above. I do not repeat the observations of Merkel J in relation to the situation where only the union is a party and the relevant employees are not joined in the proceeding. As he indicated, sometimes the appropriate course is to seek enforcement orders against the employees and not make orders against a union that it require, order or direct the employees to return to work. However, in this proceeding application is made to actually enforce the order of Commissioner Eames, in particular the order that the AMWU must take all reasonable steps available under its Rules to ensure the relevant members comply with the Order and not engage in industrial action. This part of the Order is one the respondent itself must comply with under s 496(10) and can be enforced under s 496(12). I do not consider that all reasonable steps have been taken by the respondent to comply with the Order. I am mindful that the respondent has urged and encouraged certain action on behalf of its members. However, it is apparent that the delegates have not adhered to that urging or encouragement and, in fact, there has been a period of industrial action extending now more than a short period of time and over a larger area than just the Preston Site. It is my view that further action under the Rules of the respondent could be reasonably availed of by the respondent. In these instances I would direct the respondent to take all reasonable steps that are available under its Rules to ensure the relevant members comply with the Order of Mr Eames. In light of these conclusions I propose to order, subject to hearing counsel as to any matters that may arise out of the proposed orders and their operation, the following: 1. Until trial or further order, the respondent (whether by any of its officers, delegates, employees, agents or howsoever otherwise): 1.1 be restrained from directing, organising, inducing, encouraging, procuring or authorising any or all of the employees of the applicant who work at its site at 29 Bell Street, Preston, in the State of Victoria ('the Employees') to stop work or fail to work other than in accordance with Amcor Flexibles Australasia (Preston) Enterprise Agreement 2005 ('the Preston Agreement'); 1.2 be required to take any and all steps reasonably available to it under its rules to ensure that the Employees: 1.2.1 cease and desist from engaging in industrial action or failing to work otherwise than in accordance with the Preston Agreement; and 1.2.2 make themselves available for work and perform work as the applicant may reasonably require; and 1.3 without in any way limiting subparagraph 1.2 above, be required to take all reasonable steps available to it to direct its delegates and members employed at the Preston Site, both orally, by holding meetings, and in writing, to list any and all bans, limitations or restrictions on the performance of work at the Preston Site, including ceasing any and all strike action. 2. The proceeding be listed for directions on a date to be fixed. 3. Costs be reserved. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 22 September 2006 Counsel for the Applicant: Mr N Green QC with Mr J Snaden Solicitor for the Applicant: Trindale Farr &amp; Pill Counsel for the Respondent: Ms A Gooley Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 10 and 11 August 2006 Date of Judgment: 11 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1265.html