DHL Supply Chain (Australia) Pty Limited v United Workers' Union (No 2) [2021] FCA 1401

DHL Supply Chain (Australia) Pty Limited v United Workers' Union (No 2) [2021] FCA 1401

It is in the interests of justice to vary the interlocutory orders nunc pro tunc to regularise the respondents' inadvertent and non-material non-compliance, thereby enabling the Union to satisfy the requirements of s 413(5) of the Fair Work Act 2009 (Cth) and organise protected industrial action, as the consequences of not varying the orders would be disproportionately unjust to the Union and its members.

Jurisdiction
Australia
Judgment Date
12 November 2021
Procedural Posture
Interlocutory Application / Application to Vary Earlier Interlocutory Orders Nunc Pro Tunc
Outcome
Orders varied nunc pro tunc; most amendments sought by the Union granted; costs reserved.
Legal Topics
['interlocutory Orders' 'non Compliance With Court Orders' 'enterprise Bargaining' 'protected Industrial Action']
['practice and Procedure' 'industrial Law'] ['interlocutory Orders' 'non Compliance With Court Orders' 'enterprise Bargaining' 'protected Industrial Action']

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Procedural Posture

Interlocutory Application / Application to Vary Earlier Interlocutory Orders Nunc Pro Tunc

Legal Issues

  1. 1 ["Whether interlocutory orders should be varied nunc pro tunc to regularise respondents' non-compliance" 'Whether the interests of justice warrant variation of orders to enable protected industrial action under Fair Work Act 2009 (Cth)']

Ratio Decidendi

It is in the interests of justice to vary the interlocutory orders nunc pro tunc to regularise the respondents' inadvertent and non-material non-compliance, thereby enabling the Union to satisfy the requirements of s 413(5) of the Fair Work Act 2009 (Cth) and organise protected industrial action, as the consequences of not varying the orders would be disproportionately unjust to the Union and its members.

Court Disposition

Orders varied nunc pro tunc; most amendments sought by the Union granted; costs reserved.

Orders

  • ['Order 2 of the orders made on 24 June 2021 varied nunc pro tunc by replacing "4.30pm" with "5pm".' 'Order 3 varied nunc pro tunc by replacing "28 June" with "20 September".' 'Order 5 varied nunc pro tunc by replacing "Upon" with "After" and replacing "forthwith" with "shall".' 'Order 6 varied nunc pro tunc by...