Capricorn Coal Management Pty Ltd & Ors v Construction, Forestry, Mining & Energy Union [1999] QSC 280

a.8'O.:··" 5( ~~/~~@ -n'\~~,!37lJ6~ State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QU~ENSLAND CIVIL JURISDICTION WILLIAMS J CAPRICORN COAL MANAGEMENT PTY LTD ACN 010 037 564 and SHELL COAL (GERMAN CREEK) PTY LTD ACN 081 022 415 and CALLIDE COALFIELDS PTY LTD ACN 009 666 200 and SHELL COAL (CALLIDE) PTY LTD ACN 081 022 228 and MORANBAH NORTH COAL (MANAGEMENT) PTY LTD ACN 069 603 587 and MORANBAH NORTH COAL PTY LTD ACN 007 083 249 and MORANBAH NORTH COAL (NO 2) PTY LTD ACN 009 871 425 1 REVJSED COPfES ISSUED State Reporting Bureau Date;& / First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant Sixth Applicant Seventh Applicant II Flllllr, The I.:IW Courts, Cl·II'·ge Streel, Brisll:IIIC, Q. ·WOO Tclcphorll': (07) JZ ..p ·LlliO F:I:-<: (07) ..1247 5::32 -- 1 of 7 -- 120899 T8-9/MT1 M/T 5073/99 (Williams J) and - BHP COAL PTY LTD ACN 010 595 721 and MOUNT ISA MINES LIMITED ACN 009 661 447 and NEWLANDS COAL PTY LTD ACN 010 082 578 and OAKY CREEK COAL PTY LTD ACN 010 202 936 and COLLINSVILLE COAL PTY LTD ACN 009 948 172 and THIESS CONTRACTORS PTY LTD ACN 010 221 486 and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION BRISBANE .. DATE 12/08/99 JUDGMENT 2 Eighth Applicant Ninth Applicant T,enth Applicant Eleventh Applicant Twelfth Applicant Thirteenth Applicant Respondent 10 30 40 50 60 -- 2 of 7 -- 120S99 TS-9/MT1 M/T 5073/99 (Williams J) HIS HONOUR: This is an appJication by 13 companies each of which is involved as the owrer or manager of a coal mine in Queensland. Each of the aprlicants seeks an injunction against the respondent, The Construction, Forestry, Mining and Energy Union, in terms which would prevent that union from inducing its members who are employees of the applicants to breach their contracts of employment by engaging in a 24 hour strike from midnight, 12 August. There has been no appearance before me on behalf of the respondent union but counsel for the applicants seeks a finding that the union has taken steps to evade service such as would justify this Court in granting the injunction in the absence of any appearance on its behalf. I am satisfied on the material which has been placed before me that shortly before 5 p.m. today the union, primarily under the hand of its district president, A Vickers, notified its union representatives at the mine sites in question that the union had called a national 24 hour stoppage in the black coal mining industry commencing from midnight tonight. I am satisfied that the first intimation to any of the applicants was also shortly before 5 p.m. Many were not aware until much later. I am satisfied that at about 10 to 5 this afternoon Michael George Menzies, who is associated with the MIM group of companies, telephoned the office of the respondent and received no response; that is, he then 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 7 -- ----- .. ' ~ 120899 T8-9/MT1 M/T 5073/9~ (Williams J) telephoned the Brisbane offjce of the respondent. He followed that by seeking to telephone the Mackay office of the union and only received response from an answering machine. 10 He then personally went to the Brisbane office at about 5.15 p.m. The lights were on but the door was closed and there was a sign on the door indicating that the office was closed until Monday, 16 August. Knocking brought response from a female who stated that only cleaners were present. statements were made from the Bar table to the effect that cattempts were made by the solicitors for the applicants to contact the respondent's usual solicitors at about 6.30 p.m. That was ineffectual. 30 The evidence therefore establishes that a major industrial union called a 24 hour strike and almost instantaneously c with calling that strike closed its offices thereby effectively preventing employers from negotiating in any 40 way with the union; and further and more specifically c prevented employers from serving any material on the union with respect to Court proceedings dealing with the strike so recently called by the union. In the circumstances the only rational inference open is that the announcement of the strike was timed to ensure that service could not be effected; one could also reasonably infer that it was called at a time when it was GO 4 JUDGMENT -- 4 of 7 -- 120899 T8-9/MTI M/T 5073/99 (Williams J) hoped that no Judge would be able to convene a Court to deal with the matter effectively. In the circumstances I am satisfied that the respondent has been evading service and I am in consequence prepared to consider the application on its merits in the absence of the respondent. 10 The material, and in particular the urgent notice which is Exhibit I, clearly indicates that the respondent is calling the strike in consequence of a dispute which exists between r\ it and the operators of a mine in New South Wales ~ith 20 respect to which there have to date been unsuccessful negotiations with the Federal Government. The dispute at the Oakdale Mine does not directly involve 30 any of the applicant companies nor any of the employees of any of the applicant companies. In so far as the employees of the applicant companies are concerned they have been induced by the respondent to strike in support of the industry dispute in New South Wales. If that is not clear, 40 then at least it has to be said that there is a serious question about that to be tried. I am satisfied that there is sufficient evidence supporting the proposition that the respondent has induced breach of 50 contract of employment to warrant granting an injunction. I am conscious of the fact that because only a 24 hour strike is involved that any injunction would be tantamount to final relief but in the circumstances it seems to be that the Court ought not decline to grant an injunction 60 5 JUDGMENT -- 5 of 7 -- - ~~ ~-- ._------- 120899 T8-9/MT1 M/T 5073/99 (Williams J) because it would in effect te granting final relief in the - absence of the respondent. A matter which has caused me some concern is the question whether or not an injunction would be effectual. Given 10 that the respondent union has, as I have already found, evaded service, it may well be that the making of this order will not come to the notice of senior officials of the respondent union in time for them to take any action pursuant to the injunction. However there is evidence before me that employees of the applicant companies may well make a voluntary decision to o return to work if they are aware of the fact that a Court has granted an injunction. It is a situation where the 30 consequences to the applicants are serious. The material presently before me discloses that significant financial losses are likely to flow from a 24 hour strike as called. o In all circumstances I am satisfied that the balance of 40 convenience is in favour of granting the injunction. Even if it does not come to the know~~dge of senior union ", . officials within time, if an or~er of the type asked for is made then it may ~ell come toth~ knowledge of employees and they may in consequence resume work thus alleviating so the losses likely to be sustained by the applicant companies. [,0 6 JUDGMENT -- 6 of 7 -- 120899 T8-9/MT1 M/T 5073/99 (Williams J) In the circumstances I am plepared to make an order in - accordance with the draft wrich has been submitted and which has been amended to seme extent_ There will be an order as per the draft which I have initialled. 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 7 --