Pacific National (ACT) Pty Limited v Australian Rail, Tram & Bus Industry Union [2005] FCA 1383

Pacific National (ACT) Pty Limited v Australian Rail, Tram & Bus Industry Union [2005] FCA 1383

The applicants established a serious question to be tried that clauses 7 and 16 of the Union's Proposed Enterprise Agreement did not pertain to the employer/employee relationship, with the consequence that the proposed industrial action might not be protected action. Given the evidence of widespread harmful consequences if the industrial action proceeded and the absence of countervailing evidence of hardship to Union members, the balance of convenience overwhelmingly favoured interlocutory relief. The restraining orders were therefore continued with variations.

Jurisdiction
Australia
Judgment Date
27 September 2005
Procedural Posture
Industrial Relations Proceeding Concerning Threatened Industrial Action and Interlocutory Restraining Orders Under the Workplace Relations Act 1996 (cth) / Interlocutory Application; Ex Parte Orders Were Continued With Variations After the Respondent Applied to Vacate Them
Outcome
Interlocutory relief granted; the earlier ex parte restraining orders were continued with variations, costs reserved and liberty to apply granted.
Legal Topics
['protected Action' 'certified Agreements' 'matters Pertaining to the Employer and Employee Relationship' 'threatened Industrial Action' 'balance of Convenience' 'serious Question to Be Tried']
['industrial Relations' 'enterprise Bargaining' 'interlocutory Injunctions'] ['protected Action' 'certified Agreements' 'matters Pertaining to the Employer and Employee Relationship' 'threatened Industrial Action' 'balance of Convenience' 'serious Question to Be Tried']

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Procedural Posture

Industrial Relations Proceeding Concerning Threatened Industrial Action and Interlocutory Restraining Orders Under the Workplace Relations Act 1996 (cth) / Interlocutory Application; Ex Parte Orders Were Continued With Variations After the Respondent Applied to Vacate Them

Legal Issues

  1. 1 ['Whether there was a serious question to be tried as to whether the proposed industrial action was not protected action.' "Whether cl 7 of the Union's Proposed Enterprise Agreement, continuing unspecified local agreements, customs, practices or arrangements, pertained to the relationship between employer and employee." "Whether cl 16 of the Union's Proposed Enterprise Agreement, concerning contract labour and labour hire agency employees, pertained to the relationship between employer and employee." 'Whether the balance of convenience favoured interlocutory relief restraining the threatened industrial action.']

Ratio Decidendi

The applicants established a serious question to be tried that clauses 7 and 16 of the Union's Proposed Enterprise Agreement did not pertain to the employer/employee relationship, with the consequence that the proposed industrial action might not be protected action. Given the evidence of widespread harmful consequences if the industrial action proceeded and the absence of countervailing evidence of hardship to Union members, the balance of convenience overwhelmingly favoured interlocutory relief. The restraining orders were therefore continued with variations.

Court Disposition

Interlocutory relief granted; the earlier ex parte restraining orders were continued with variations, costs reserved and liberty to apply granted.

Orders

  • ['The Orders made on 21 September 2005 are continued, subject to Order 2.' 'Order 6 of the Orders made on 21 September 2005 is varied to require the Respondents before 3 pm on 22 September 2005 to discontinue and withdraw all authorisation and advice for industrial action or any stoppage of work between 6 am on 23...