The Griffin Coal Mining Company Pty Ltd v The Coal Miners' Industrial Union of Workers of Western Australia, Collie & Ors [2001] WASC 47 (12 February 2001)

Last Updated: 20 March 2001

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION : THE GRIFFIN COAL MINING COMPANY PTY LTD -v- THE COAL MINERS' INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA, COLLIE & ORS [2001] WASC 47

CORAM : WHEELER J

HEARD : 9 FEBRUARY 2001

DELIVERED : 12 FEBRUARY 2001

FILE NO/S : CIV 1152 of 2001

BETWEEN : THE GRIFFIN COAL MINING COMPANY PTY LTD
Plaintiff

AND

THE COAL MINERS' INDUSTRIAL UNION OF WORKERS OF WESTERN AUSTRALIA, COLLIE
First Defendant

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Second Defendant

GARRY WOOD
Third Defendant


Catchwords:
Injunctions - Interim injunctions - Serious question to be tried - Turns on own facts

Industrial law - Industrial disputes - Coal Industry Tribunal - Specialist tribunal - Jurisdiction
Legislation:
Coal Industry Tribunal Act 1992 (WA) s 18, s 19
Industrial Relations Act 1979 (WA) s 47K
Result:
Application dismissed

Representation:
Counsel:
Plaintiff : Mr T H F Caspersz
First Defendant : Mr D H Schapper
Second Defendant : Mr D H Schapper
Third Defendant : Mr D H Schapper
Solicitors:
Plaintiff : Blake Dawson Waldron
First Defendant : D H Schapper
Second Defendant : D H Schapper
Third Defendant : D H Schapper


Case(s) referred to in judgment(s):


Case(s) also cited:

Nil

1 WHEELER J: These are reasons which I now give for the order which I made on Friday, 9 February refusing to grant an interim injunction to the plaintiff in this matter. The background is that the plaintiff carries on the business of mining and extracting coal near Collie. It employs in that enterprise about 300 employees. Approximately 90 are engaged in maintenance activities and, generally speaking, are members of a union which I will call the AMWU.

2 Approximately 150 are engaged in production and are generally members of the first defendant, a union registered under the Industrial Relations Act of Western Australia and also of the second defendant, its Federal counterpart. The remainder of the employees perform clerical, supervisory and management work. The third defendant is the secretary of the first defendant and the state secretary of the second defendant.

3 The plaintiff and the production employees are bound by an industrial award known as the Coal Mining Industry (Miners) Award 1990 and by the Griffin Coal (Production) Enterprise Agreement 1996-2001. Each agreement is registered by the Coal Industry Tribunal pursuant to the Coal Industry Tribunal Act of Western Australia.

4 About one and a half years ago the plaintiff commenced a review of its operations. The review dealt with a number of matters which included productivity issues. In due course a report was produced which contained a variety of recommendations, including productivity matters. These included recommendations concerning the existing demarcation between unions in respect of certain work, and the use of contractors to perform work currently undertaken by employees.

5 The report was distributed to employees. A number of meetings of employees were held to discuss the report and a number of meetings were held between the plaintiff and representatives of the relevant unions. In due course, by letter dated 23 January this year, the plaintiff set out what was said to be its "final position" in relation to certain matters and requested a response from the first defendant by 26 January.

6 A meeting of members of the first defendant was in fact held on 30 January and on 31 January the plaintiff was advised that its final position had been rejected. On the same day the plaintiff wrote to the first defendant advising that the report would be implemented in four specific areas, they being (to use the lettering contained in the plaintiff's letter):

(a) all goods are to be delivered free into store;
(b) cleaning of the crib and bathhouse would be undertaken by contractors;
(c) the company to use the most appropriate and qualified person to operate the forklift; and
(d) the company to use contractors for exploration and water well drilling.

7 Taking them in reverse order, it appears that (d) has been implemented to the extent that there is a drilling contractor engaged by the plaintiff to perform work which, I understand, would generally have been performed by members of the first defendant. So far as (c) is concerned it is not clear to me how far that has been implemented to date. In relation to (b), it does not appear that there was a large workforce involved; and that matter does not seem to have been central to the dispute at the moment. In relation to (a) the stores truck previously operated by an employee who was a member of the first defendant is not now so operated. He has been instructed not to operate it, but to train on production equipment. That appears to have been the matter which sparked the action which I now describe.

8 A dispute generally arose about all of the matters and there were subsidiary disputes about whether stop-work meetings should be held to discuss the dispute which arose. Two things then occurred. On 2 February there was an application on behalf of the first defendant to the Coal Industry Tribunal, and a conference was listed for 6 February in Perth. The plaintiff's agent, the Chamber of Commerce and Industry, attended. There was also a stop work meeting of members of the first defendant on the morning of 5 February. Employees then returned to work, but there was a further meeting that afternoon and the members of the first defendant then withdrew their labour. I should note at this point that the plaintiff operates on a 24-hour basis all year round.

9 There was also a picket set up which prevented entry to the work site. On 6 February there was no work performed by members of the first defendant, but there was no picket in the afternoon and a truck was able to be unloaded at the work site.

10 On 6 February the chairperson of the Coal Industry Tribunal recommended effectively a return to the status quo, that is, that the employees return to work and that the reforms to be undertaken by the plaintiff be temporarily suspended and, to the extent that they had been implemented, reversed. On 7 February the plaintiff declined to accept that recommendation.

11 In the meantime the members of the first defendant continued to be on strike and to picket. As a result of the picket other employees have been unable or unwilling to enter the work site. The plaintiff sought an injunction which would restrain the first and second defendants from inciting or encouraging or assisting the strike conduct, that is, effectively the withdrawal of labour, and also the picket action. It also sought what was effectively a mandatory injunction requiring the first and second defendant to advise the employees who were their members that they did not support further industrial action. Relief was sought before me on an interim basis.

12 Some matters appear to be relatively non-contentious. It appears clear that there was at the very least, a serious question to be tried in respect of the alleged breach by the first defendant of certain provisions of the Industrial Relations Act which require pre-strike ballots before strike action can be taken. It appears to me that the evidence that there was no such pre-strike ballot is indeed stronger than that required for a serious question. There seems to be a prima facie case made out. Other unlawful conduct is also alleged. The extent to which that is made out on the papers may perhaps be problematic, but it is not necessary I think for me to consider it now.

13 Section 47K of the Industrial Relations Act confers a jurisdiction on this court to grant injunctions where conduct has been engaged in which is in breach of the pre-strike ballot provisions. That section, it appears to me, removes the possible argument which might otherwise have been open that it is inappropriate to grant an injunction to restrain a breach of penal laws, since failure to comply with the pre-strike ballot provisions is an offence attracting a significant fine. I do not think that the provision otherwise affects the principles which would govern the grant of injunctive relief.

14 It also seems clear enough that the plaintiff suffered damage from the action taken by the first and second defendants. Its production was affected. The affidavit of Mr Coleman sworn 8 February deposed to losses of $350,000 gross per day. That is a significant figure, although unfortunately there was in the time available no calculation able to be produced to me suggesting how that was arrived at, so that I was unable to assess for myself its reliability. It further was not clear how a loss of this magnitude would affect the overall operations of the plaintiff, so as to place it in context. Mr Coleman also deposed that it would be difficult to make up the production lost as a result of the strike. It did not appear at that stage that it would be impossible to make up the production but it is a relevant consideration that there would be some difficulty. In addition there was the intangible but real effect which continuing industrial action would have or could have on the plaintiff's reputation as a reliable supplier.

15 It was not sought to put before me any evidence of damage which the defendants might suffer if the injunction were granted. However, it was said on behalf of the defendants that I should not grant injunctive relief for other reasons, one of which I accepted. It is not, I think, necessary at this interim stage to deal with those arguments of the defendants which I did not find persuasive.

16 The two considerations which I did find to be persuasive amount to these, and they are interrelated. First, I was advised from the bar table by counsel for the defendants, without objection from the plaintiff, that at a meeting of members of the first defendant held that day, that is, Friday 9 February, they had resolved to return to work by 6.40 pm. This resolution was conditional, and the condition is best understood after I explain the second matter.

17 The second matter is that the Coal Industry Tribunal, which was then seized of the dispute, had made an order at 11.00 am on 9 February, which order dealt with the subject of the strike action and which would have the effect of requiring a return to work by the employees by 6.00 pm on Monday, at the latest. The background to the order is as follows: the Griffin Coal (Production) Enterprise Agreement 1996 to 2001 contains these clauses, portions of which I now read. Clause 21 reads:

"Where Griffin identify the need to utilise the services of a contractor within the scope of the mining operations at Collie the following procedure will be followed."

A procedure is then set out and par 21.4 provides that:

"Should there be no agreement at the general manager/district official stage, the contract will proceed unless the union applies to the tribunal within 3 days of the company formally notifying the union that it intends to proceed with a contract, it being the intention of the parties that this process is not to be used to delay unnecessarily the implementation of the contract."

18 Going back then to cl 20, which is headed Process for Preventing Disputes, cl 20.1(c) reads:

"Until a matter is resolved the status quo shall continue, being the historic position in an endeavour to ensure, wherever safely possible to do so, work will continue as normal and without prejudice to any arbitral procedures in the contested matter."

Then (c)(ii), dealing specifically with disputes within the meaning of cl 21:

"Where this dispute involves the utilisation of non-GCM resources which is not agreed in accordance with clause 21 the 'status quo' shall mean that the non-GCM resource work is suspended pending finalisation of the dispute resolution process."

19 On their face, those clauses suggest that to the extent that the dispute concerns the use of contractors, the plaintiff has not followed the procedures set out in the agreement.

20 The defendant submitted to me that for that reason the plaintiff did not come to the Court with clean hands. However, the plaintiff takes the view for reasons which were outlined briefly to me that the agreement does not apply in respect of the engagement of contractors in this particular case. That view appears to me at this stage at least to be arguable. I do not think it can be said that a party does not have clean hands merely because it acts in accordance with an arguable view of its legal rights.

21 Whatever the true position in respect of the application of the agreement in this case, however, the defendants did make application to the Coal and Industry Tribunal within the time provided by it. The chairman of the Coal Industry Tribunal took the view that the tribunal had jurisdiction and made an order which reads in part as follows. The preamble contains these two paragraphs, inter alia:

"And whereas the disputants are parties to an industrial agreement known as the Griffin Coal (Production) Enterprise Agreement 1996-2001, which makes provision for the orderly resolution of disputes, the spirit, if not the letter of which, is that matters in dispute are to be resolved either by conciliation or by arbitration and pending the outcome of that process the status quo, being the historic position, shall continue and in an endeavour to ensure work continues as normal without prejudice to the outcome of any arbitrated resolution of the matters in dispute"

and also -

"and whereas so long as the present state of affairs continues, there is little, if any, prospect of an orderly resolution of the dispute and the likelihood of serious deterioration of industrial relations in respect of the matter."

22 The body of the order then requires, to paraphrase it slightly for the sake of brevity: that as soon as practicable but in any event no later than 6.00 pm Monday, 12 February 2001 there be a return to the status quo pending further determination of the matters in dispute; that the parties recommence discussions as soon as practicable; and that either party on 24 hours' notice has liberty to apply to vary or cancel the provisions of the order.

23 If complied with, the effect of the order would be a cessation of any unlawful strike action in the near future. The Coal Industry Tribunal is a specialist body set up by Parliament under the Coal Industry Tribunal Act for the purpose of dealing with industrial disputes within the coal industry.

24 Despite some argument to the contrary, my preliminary view is that it is likely that a dispute of this kind would be properly considered as an industrial dispute for the purposes of that Act. The decision of the High Court in Re Cram [1987] HCA 28; (1987) 163 CLR 117, in particular at 135 - 136 lends support to that view.

25 The relevance of the existence of a specialist tribunal with jurisdiction over a matter of this kind was discussed by Kennedy J in Trident Construction Pty Ltd v the Australian Builders Labourers Federated Union of Workers [1984] WAR 245. Although in that case his Honour held that the existence of jurisdiction in a specialist tribunal was not a consideration which ought to lead him to refuse to grant interlocutory relief, his Honour considered and adopted the principles enunciated in Harry M Miller Attractions Pty Ltd v Actors and Announcers Equity Association of Australia [1971] NSWR 614.

26 Quoting from the passage from that case to which Kennedy J referred, in part it reads as follows:

"What, however, is put forward, and I concur in this submission, is that in the ordinary course of resolving an industrial dispute such as this, the parties should be left to pursue their remedies before the commission set up under the Commonwealth Act. It may well be that in particular circumstances, whether by reason of a shortage of time or by reason of some other consideration, the aid of this Court might be appropriately made available to prevent some irremediable infringement of the rights of some individual involved in an industrial dispute or otherwise to vindicate the due observance of the ordinary principles of law which must be in force throughout the community, but in point of the discretion, it is a well-settled approach in this Court that injunctive relief would not ordinarily be granted where it can be seen that there is another tribunal particularly suited to deal with the matter in issue and having the requisite power and authority to resolve the issues between the parties."

27 I accept those principles. Here, the tribunal is not only inquiring into the matter but has dealt with the very subject matter before me - that is, the strike action - by the order which it has made.

28 The plaintiff submits that I should not place too much weight on the existence of that order. It informed me that it was seeking an order nisi to review the decision and to seek a stay of the order and it presented to me papers drafted for the purpose. So far as the stay of an order such as this is concerned, Ipp J discussed the relevant principles in Re Sharkey; Ex parte Burswood Resort (1994) 55 IRR 276. At 278, omitting most citations, his Honour said:

"The power to stay an award or order as opposed to a stay of proceedings under an award or order will rarely be exercised. Furthermore, as is observed in the authorities to which I have referred, the power to stay proceedings commenced pursuant to an order or award should also be exercised sparingly and with caution."

29 His Honour then cited a passage from a decision of the High Court from the reasons of Brennan J, explaining why a stay in industrial matters is exceptional and referred also to the observation of McHugh J in Re Australian Nursing Federation; Ex parte Victoria at 386:

"Ordinarily, the commission will have a far greater knowledge of the facts and circumstances affecting the dispute than a justice of this Court can hope to gain in an application for a stay of proceedings."

His Honour continued:

"In matters of this kind, the most important question generally is the strength of the applicant's case on the merits."

30 His Honour observed that a strong case needed to be shown before a stay will be granted and concluded:

"For the applicant to succeed, it must show that its arguments are sufficiently strong for the Court to take the exceptional step of interfering in orders or proceedings concerning industrial issues."

31 I accept those principles. I would add that the question of hardship which may flow from a failure to grant a stay is also relevant.

32 The short answer to the plaintiff's argument at the time at which I heard it was that there was at that time no order nisi granted and there was no stay granted. The longer answer, assessing as best I could the likelihood of a grant of stay on the materials before me at the time, was that the plaintiff did not appear likely to succeed in its application.

33 So far as hardship was concerned, the affidavit of Mr Coleman sworn 9 February deposed to a negative effect on the productivity and efficiency of the mining operations of the plaintiff, should it be required to return to the status quo. That was not quantified. Only a very few employees appear to be involved, on the facts presented to me, and it also appeared that inefficiencies of this type have characterised these mining operations for a number of years. Also raised are potential difficulties with a drilling contractor employed by the plaintiff, which appeared to be of a somewhat speculative nature at the time, and consideration at some stage of possible redundancies of staff which also appeared to be speculative at that stage.

34 So far as the merits were concerned, there appeared to be a number of difficulties. First, it would be necessary to persuade the Court that the ouster provision in s 19 of the Coal Industry Tribunal Act did not preclude the grant of certiorari. If available, it would be necessary to persuade the Court that it should grant the remedy as a matter of discretion when s 18 of that Act provides for a review of orders by the Full Bench.

35 Those hurdles being overcome, the challenge to the validity of the order essentially rested on three grounds. First, it was asserted that it was not an industrial matter within the meaning of the Coal Industry Tribunal Act. As I have already indicated, that does not appear to me to be a strong ground, although it may be arguable. Next, on the construction of the agreement, it was said that it was not directed to a restructure of the kind in issue here, so that jurisdiction could not be attracted under it. Although there are infelicities in the drafting of the agreement, the argument put to me on behalf of the plaintiff appeared at the time it was presented to me to suffer from the difficulty that no coherent interpretation of the relevant clauses was able to be put to me which excluded the application of the agreement to this situation while it seems, on its face, likely that it was intended to deal with all disputes concerning the use of contractors in the course of mining operations. The third matter was a failure of natural justice in that the plaintiff had inadequate time to prepare for the hearing at which the order was made. There was not sufficient information before me to make any sensible assessment of that matter, although I would note that the order was very similar in its effect to the recommendation made on 6 February which the plaintiff had, of course, had some opportunity to consider.

36 For all those reasons, it appeared to me that the plaintiff's case in relation to a stay was not a strong one. Therefore, it appeared to me that in the light of the order of the tribunal appropriate to deal with the matter and dealing directly with the subject matter of the dispute and with the relief sought by the plaintiff, I should decline the injunctive relief at the time at which the application was made.