In the recent case of Queensland Alumina Limited v The
Maritime Union of Australia  FCA 874 an application for
an order against the Maritime Union to stop industrial action was
denied by the Federal Court. It is an indication of how such orders
may operate and succeed under the new Fair Work Act 2009
(Cth). The Court reasoned that the fact Union members had taken
industrial action did not on its own justify an order against the
Queensland Alumina Limited's (Queensland Alumina) employees,
who were union members, held a concern that the currently
Australian-crewed ships used by the company in the transportation
of materials could, in the near future, be substituted by
foreign-crewed ships. This same concern had been expressed by the
Maritime Union (Union). As such the crew on one of the vessels on a
particular day refused to move the vessel from its berth until they
received some confirmation about their future employment. The
action taken by the employees amounted to a stoppage.
Section 417 of the Fair Work Act 2009 (Act) is
contravened if a person, including employees and a union, engage in
unprotected industrial action prior to the nominal expiry date of
an enterprise bargaining agreement. The definition of
'industrial action' in the Act includes stoppages of work
and a refusal to perform work in the ordinary way.
Industrial action is protected if the prescribed
procedure under the Act is observed and, amongst other things, the
action is approved by the workforce and the employer is given
notice of the action to be taken. Protected industrial action
provides immunity to those engaging in it from many types of civil
Any other type of industrial action is unprotected. An
employer that is subjected to unprotected industrial action is able
to bring an application before the Federal Court or Fair Work
Australia seeking orders that it not be organised, threatened or
Queensland Alumina brought an application before the Federal
Court seeking an injunction against the Union and two of its
officers that they be restrained from engaging in conduct said to
be in contravention of section 417 of the Act. It was alleged that
the Union and the two officers were knowingly involved in the
stoppage of work and so were subject to orders.
In this case, there was an enterprise agreement which had not
expired and so was operative. It seems that it was not disputed
that the crew of the ship had engaged in unprotected industrial
action. The question turned on whether the Union and its officers
had been knowingly involved.
The Union officers gave evidence that they had no knowledge of
the strike before it occurred. Queensland Alumina appeared to have
no evidence demonstrating that a clear connection existed between
the unprotected industrial action and the Union or its officers. In
those circumstances the Court rejected Queensland Alumina's
application for interlocutory relief on the basis that there was no
serious question to be tried. As such, Queensland Alumina's
application was denied.
This case is a reminder to employers that, in order to have
orders made against a union and its officers, there must be a clear
connection between the unprotected industrial action and the union
or its officers.
It should not be presumed that unprotected industrial action
taken by employees can be linked to a union even if those employees
are union members. Employers need to engage in a thorough fact
finding mission prior to filing such applications in order to
persuade a court that there is a serious question to be tried if
the matter proceeds to a substantive hearing. It needs to be shown
that the union's officers have been knowingly or actively
involved in the industrial action.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
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