Judgment Delivery - Transcript of Video

Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 82

MARSHALL J
14 FEBRUARY 2013
MELBOURNE

In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment which will shortly be available on the internet at www.fedcourt.gov.au together with this summary.

The critical issue in this interlocutory application is whether there is a serious question to be tried as to whether an organiser employed by a Union has engaged in conduct in breach of a provision of the Fair Work Act which prohibits the taking of action to coerce a person not to employ a particular person. The applicant, who is the Director of the Fair Work Building Inspectorate seeks an injunction directed to the organiser and the Union. The applicant contends that the organiser has engaged in conduct in breach of the Act and that the Union is vicariously liable as a consequence of the organiser’s involvement in a protest at a construction site in Werribee. The protest has arisen from the employment on site by a contractor of four people who hold sub-class 457 visas.

This judgment is not about the rights and wrongs of the employment of such persons. It is also not about the rights and wrongs of the actions taken by community protesters. It is only concerned with whether the applicant Director has established that there is a serious question to be determined as to whether the respondents have breached s 355(a) of the Fair Work Act and whether the balance of convenience favours the grant of an injunction.

The Court has concluded, as the evidence currently stands, that there exists a serious question to be tried as to whether the respondents have breached the provisions of s 355(a) of the Fair Work Act. It has also concluded that the balance of convenience favours the grant of an injunction.

The practical effect of the injunction is that the Union, its organisers and employees are prevented, until the hearing and determination of the trial or further order, from being involved in the protest activities at the site with a view to supporting a claim that the sub-class 457 visa holders be dismissed. The injunction does not, and cannot, deal with the position of people at the site who remain protesting concerning the engagement of sub-class 457 visa holders at the site, but who are not employees of the Union or who are not encouraged or supported by the Union, its organisers or employees.

The substantive hearing will be referred to a directions hearing to be conducted at 10.00 am on 6 March 2013.

I now pause to read the formal orders of the Court.

The Court Orders:

1. That until the hearing and determination of the proceeding or further order, the Respondents are restrained, whether by themselves, their employees or agents or otherwise from:

(a) preventing or hindering access to or egress from the City West Waters West Werribee Dual Water Supply Project at William Thwaites Drive, Werribee, Victoria (“the site”) by any person or vehicle;

(b) counselling, procuring, encouraging or persuading any person not to enter the site;

(c) counselling, procuring, encouraging or persuading any person not to work at the site.

2. The directions hearing in the proceeding is adjourned to 10.00 am on 6 March 2013.

I publish my reasons. Adjourn the Court please.