In the recent case of Queensland Alumina Limited v The Maritime Union of Australia [2009] FCA 874 an application for an order against the Maritime Union to stop industrial action was denied by the Federal Court. It is an indication of how such orders may operate and succeed under the new Fair Work Act 2009 (Cth). The Court reasoned that the fact Union members had taken industrial action did not on its own justify an order against the Union.

Background

Queensland Alumina Limited's (Queensland Alumina) employees, who were union members, held a concern that the currently Australian-crewed ships used by the company in the transportation of materials could, in the near future, be substituted by foreign-crewed ships. This same concern had been expressed by the Maritime Union (Union). As such the crew on one of the vessels on a particular day refused to move the vessel from its berth until they received some confirmation about their future employment. The action taken by the employees amounted to a stoppage.

Legislation

Section 417 of the Fair Work Act 2009 (Act) is contravened if a person, including employees and a union, engage in unprotected industrial action prior to the nominal expiry date of an enterprise bargaining agreement. The definition of 'industrial action' in the Act includes stoppages of work and a refusal to perform work in the ordinary way.

Industrial action is protected if the prescribed procedure under the Act is observed and, amongst other things, the action is approved by the workforce and the employer is given notice of the action to be taken. Protected industrial action provides immunity to those engaging in it from many types of civil claims.

Any other type of industrial action is unprotected. An employer that is subjected to unprotected industrial action is able to bring an application before the Federal Court or Fair Work Australia seeking orders that it not be organised, threatened or continue.

Proceedings

Queensland Alumina brought an application before the Federal Court seeking an injunction against the Union and two of its officers that they be restrained from engaging in conduct said to be in contravention of section 417 of the Act. It was alleged that the Union and the two officers were knowingly involved in the stoppage of work and so were subject to orders.

In this case, there was an enterprise agreement which had not expired and so was operative. It seems that it was not disputed that the crew of the ship had engaged in unprotected industrial action. The question turned on whether the Union and its officers had been knowingly involved.

The Union officers gave evidence that they had no knowledge of the strike before it occurred. Queensland Alumina appeared to have no evidence demonstrating that a clear connection existed between the unprotected industrial action and the Union or its officers. In those circumstances the Court rejected Queensland Alumina's application for interlocutory relief on the basis that there was no serious question to be tried. As such, Queensland Alumina's application was denied.

Implications

This case is a reminder to employers that, in order to have orders made against a union and its officers, there must be a clear connection between the unprotected industrial action and the union or its officers.

It should not be presumed that unprotected industrial action taken by employees can be linked to a union even if those employees are union members. Employers need to engage in a thorough fact finding mission prior to filing such applications in order to persuade a court that there is a serious question to be tried if the matter proceeds to a substantive hearing. It needs to be shown that the union's officers have been knowingly or actively involved in the industrial action.

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