McDermott Australia Pty Ltd v Australian Workers' Union [2011] FCA 303

McDermott Australia Pty Ltd v Australian Workers' Union [2011] FCA 303

There was insufficient evidence to establish the Australian Workers' Union was responsible for encouraging or organising industrial action; however, a prima facie case existed that the second to fifth respondents encouraged or directed the industrial action and personally contravened the Fair Work Australia order. In view of the accumulating and substantial daily losses, the balance of convenience favoured the granting of short-term injunctive relief against the second to fifth respondents.

Parties
Applicant: McDermott Australia Pty Ltd (ACN 002 736 352); First Respondent: The Australian Workers' Union; Second Respondent: Jeffrey Sharp; Third Respondent: Joseph Pace; Fourth Respondent: James Gore; Fifth Respondent: Joseph Schembri
Jurisdiction
Australia
Judgment Date
13 April 2011
Procedural Posture
Application for Interlocutory Injunction / Interlocutory (interim) Relief, Reasons for Decision on Application
Outcome
Interlocutory injunction granted in part: relief against second to fifth respondents granted; relief against the first respondent refused.
Legal Topics
Interlocutory Injunction, Industrial Action, Enterprise Agreement, Contravention of Order, Section 417 Fair Work Act, Section 418 Fair Work Act
Industrial Law Interlocutory Injunction Industrial Action Enterprise Agreement Contravention of Order Section 417 Fair Work Act Section 418 Fair Work Act

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Parties

McDermott Australia Pty Ltd (ACN 002 736 352)

Applicant

The Australian Workers' Union

First Respondent

Jeffrey Sharp

Second Respondent

Joseph Pace

Third Respondent

James Gore

Fourth Respondent

Joseph Schembri

Fifth Respondent

Procedural Posture

Application for Interlocutory Injunction / Interlocutory (interim) Relief, Reasons for Decision on Application

Legal Issues

  1. 1 Whether a prima facie case exists for interlocutory injunctive relief against the second to fifth respondents to restrain industrial action
  2. 2 Whether the first respondent (Australian Workers' Union) should be injuncted based on involvement or encouragement of industrial action
  3. 3 Whether the evidence establishes that the second to fifth respondents have encouraged or directed industrial action in contravention of the Fair Work Act or an order of Fair Work Australia

Ratio Decidendi

There was insufficient evidence to establish the Australian Workers' Union was responsible for encouraging or organising industrial action; however, a prima facie case existed that the second to fifth respondents encouraged or directed the industrial action and personally contravened the Fair Work Australia order. In view of the accumulating and substantial daily losses, the balance of convenience favoured the granting of short-term injunctive relief against the second to fifth respondents.

Court Disposition

Interlocutory injunction granted in part: relief against second to fifth respondents granted; relief against the first respondent refused.

Orders

  • Until 4.15 pm on 29 March 2011, the second to fifth respondents must immediately stop organising or engaging in, or encouraging any employee subject to the enterprise agreement to engage in, any industrial action involving the Kipper Tuna and Turrum Project, and not organise or engage in, or encourage such...
  • Applicant to file and serve a statement of claim by 4pm, 1 April 2011.