DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331

DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331

The applicant established a prima facie case, though not a strong one, that productivity at the West Swanson Terminal had been adversely affected by a coordinated go-slow and that some employees had adopted that practice at the behest of the respondent. The respondent's evidence weakened but did not displace that prima facie case. The hearsay passages attributed to unnamed employees were excluded under s 135(a) of the Evidence Act 1995 (Cth). Because the orders restrained the respondent only from conduct it was not at liberty to do and caused no material prejudice beyond the ordinary incidents of coercive court process, the balance of convenience favoured interlocutory injunctive relief.

Jurisdiction
Australia
Judgment Date
13 August 2019
Procedural Posture
Industrial Law Application for Interlocutory Injunctive Relief / Interlocutory Application Heard on 12 August 2019; Orders Made on 13 August 2019; Written Reasons Published on 26 August 2019
Outcome
Interlocutory injunctions granted; respondent's objections to specified hearsay passages upheld; date for any application under r 35.13 of the Federal Court Rules 2011 (Cth) fixed as Monday, 9 September 2019.
Legal Topics
['interlocutory Injunctions' 'industrial Action' 'go Slow' 'protected Industrial Action' 'fair Work Commission Orders' 'hearsay' 'admissions' 'discretionary Exclusion of Evidence' 'balance of Convenience']
['industrial Law' 'employment and Industrial Relations' 'evidence' 'civil Procedure'] ['interlocutory Injunctions' 'industrial Action' 'go Slow' 'protected Industrial Action' 'fair Work Commission Orders' 'hearsay' 'admissions' 'discretionary Exclusion of Evidence' 'balance of Convenience']

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Procedural Posture

Industrial Law Application for Interlocutory Injunctive Relief / Interlocutory Application Heard on 12 August 2019; Orders Made on 13 August 2019; Written Reasons Published on 26 August 2019

Legal Issues

  1. 1 ['Whether the respondent should continue to be restrained from organising, encouraging, procuring or inducing employees at the West Swanson Terminal to engage in industrial action in the form of a go-slow.' 'Whether the applicant had established a prima facie case that a go-slow existed and that it was organised or encouraged by the respondent.' 'Whether the balance of convenience favoured interlocutory injunctive relief despite a weak prima facie case.' 'Whether hearsay passages attributed to unnamed employees were admissible under s 75 of the Evidence Act 1995 (Cth), as admissions under ss 81 and 87, or should be excluded under s 135.']

Ratio Decidendi

The applicant established a prima facie case, though not a strong one, that productivity at the West Swanson Terminal had been adversely affected by a coordinated go-slow and that some employees had adopted that practice at the behest of the respondent. The respondent's evidence weakened but did not displace that prima facie case. The hearsay passages attributed to unnamed employees were excluded under s 135(a) of the Evidence Act 1995 (Cth). Because the orders restrained the respondent only from conduct it was not at liberty to do and caused no material prejudice beyond the ordinary incidents of coercive court process, the balance of convenience favoured interlocutory injunctive relief.

Court Disposition

Interlocutory injunctions granted; respondent's objections to specified hearsay passages upheld; date for any application under r 35.13 of the Federal Court Rules 2011 (Cth) fixed as Monday, 9 September 2019.

Orders

  • ['Until the hearing and determination of the proceeding or further order of the Court, the respondent, whether by its officers, employees, delegates, agents or howsoever otherwise, be restrained from organising, encouraging, procuring or inducing any persons employed by the applicant to perform crane or straddle...