Pacific National (NSW) Pty Limited v Australian Rail, Tram & Bus Industry Union [2005] FCA 1492

Pacific National (NSW) Pty Limited v Australian Rail, Tram & Bus Industry Union [2005] FCA 1492

The Court held that there was a serious question to be tried that the proposed industrial action would not be protected action. The notations purporting to limit claims to matters capable of certification were of doubtful efficacy because whether a matter can be included in a certified agreement is a question of law, and they arguably rendered uncertain the content of the agreement sought to be certified. There was also a serious question whether subcl 16.1 imposed a restriction or qualification on Pacific National's right to use independent contractors despite subcl 16.5. As the respondent did not contest the balance of convenience if a serious question existed, interlocutory orders...

Jurisdiction
Australia
Judgment Date
15 October 2005
Procedural Posture
Industrial Relations Proceeding Concerning Proposed Enterprise Agreement and Threatened Industrial Action / Interlocutory Application for Orders Restraining Industrial Action
Outcome
Interlocutory relief granted restraining the respondent from proceeding with the industrial action threatened for 18-19 October 2005; other issues in the notice of motion stood over for consideration by Madgwick J.
Legal Topics
['protected Industrial Action' 'enterprise Agreement Certification' 'matters Pertaining to the Employer and Employee Relationship' 'interlocutory Injunction' 'contract Labour and Labour Hire']
['industrial Relations' 'workplace Relations'] ['protected Industrial Action' 'enterprise Agreement Certification' 'matters Pertaining to the Employer and Employee Relationship' 'interlocutory Injunction' 'contract Labour and Labour Hire']

Case Brief

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Procedural Posture

Industrial Relations Proceeding Concerning Proposed Enterprise Agreement and Threatened Industrial Action / Interlocutory Application for Orders Restraining Industrial Action

Legal Issues

  1. 1 ['Whether the Draft Agreement is an agreement about matters pertaining to the relationship between an employer and its employees within s 170LI of the Workplace Relations Act 1996 (Cth).' 'Whether the Draft Agreement makes clear the terms intended to bind the parties upon certification, given notations seeking to limit claims to matters capable of inclusion in a certified agreement.' "Whether subclause 16.1 concerning contract labour or labour hire agency employees imposes a restriction or qualification on the employer's right to use independent contractors and therefore concerns a non-pertaining matter." 'Whether there was a serious question to be tried that the proposed industrial action would not be protected action.' 'Whether the balance of convenience favoured interlocutory relief.']

Ratio Decidendi

The Court held that there was a serious question to be tried that the proposed industrial action would not be protected action. The notations purporting to limit claims to matters capable of certification were of doubtful efficacy because whether a matter can be included in a certified agreement is a question of law, and they arguably rendered uncertain the content of the agreement sought to be certified. There was also a serious question whether subcl 16.1 imposed a restriction or qualification on Pacific National's right to use independent contractors despite subcl 16.5. As the respondent did not contest the balance of convenience if a serious question existed, interlocutory orders...

Court Disposition

Interlocutory relief granted restraining the respondent from proceeding with the industrial action threatened for 18-19 October 2005; other issues in the notice of motion stood over for consideration by Madgwick J.

Orders

  • ['Upon the applicants giving the usual undertaking as to compensation, the respondent shall not, until further order, commence, continue, engage in or threaten to engage in any industrial action, strike, stoppage of work or other ban on performance of work by members whose employment is subject to the Pacific...