Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108

The Full Court (majority) held that, while 'picketing' involving obstruction is not 'industrial action' under the Workplace Relations Act and thus not 'protected action', the statutory presumption in s298V as to prohibited reasons for dismissal under s298K/s298L nonetheless established a serious question to be tried on whether the dismissals were for a prohibited reason (employees' dissatisfaction with conditions as union members). The Court had jurisdiction and power to grant interlocutory relief, and the balance of convenience supported interim reinstatement orders. The appeal was dismissed and interlocutory orders were upheld on this basis. The application for judicial disqualification...

Jurisdiction
Australia
Judgment Date
13 August 1999
Procedural Posture
Application for Leave to Appeal (interlocutory Injunction/industrial Dispute) / Appeal From Interlocutory Orders; Full Court Determination
Outcome
Appeal dismissed; leave to appeal granted
Legal Topics
['termination of Employment' 'industrial Action' 'protected Action' 'freedom of Association' 'interlocutory Injunctions' 'workplace Relations Act 1996']
['industrial Law' 'employment Law'] ['termination of Employment' 'industrial Action' 'protected Action' 'freedom of Association' 'interlocutory Injunctions' 'workplace Relations Act 1996']

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Procedural Posture

Application for Leave to Appeal (interlocutory Injunction/industrial Dispute) / Appeal From Interlocutory Orders; Full Court Determination

Legal Issues

  1. 1 ["Whether interlocutory orders restraining termination/requiring reinstatement were lawfully made; Whether there was a serious question to be tried about contravention of ss170MU and 298 of the Workplace Relations Act; Whether picketing constitutes 'industrial action' under the Act; Whether notice requirements for protected action were met; Whether Court has power to order interlocutory reinstatement; Whether primary judge should have disqualified himself for perceived bias"]

Ratio Decidendi

The Full Court (majority) held that, while 'picketing' involving obstruction is not 'industrial action' under the Workplace Relations Act and thus not 'protected action', the statutory presumption in s298V as to prohibited reasons for dismissal under s298K/s298L nonetheless established a serious question to be tried on whether the dismissals were for a prohibited reason (employees' dissatisfaction with conditions as union members). The Court had jurisdiction and power to grant interlocutory relief, and the balance of convenience supported interim reinstatement orders. The appeal was dismissed and interlocutory orders were upheld on this basis. The application for judicial disqualification...

Court Disposition

Appeal dismissed; leave to appeal granted

Orders

  • ["Leave to appeal granted against North J's orders of 1 December 1998." 'Appeal dismissed.']