The Guardian August 18, 1999


A judicial demarcation dispute:
State Court intervenes in Federal Court industrial dispute

A union dispute over pay and conditions at Shell Oil's Geelong refinery 
has been complicated by an attempt by the Victorian Supreme Court to assume 
jurisdiction of the case from the Federal Court.

In an astonishing move, the Supreme Court last week granted the company's 
lawyers an order against planned union action in the Federal Court, after 
the presiding judge described the union's case as nonsense and accused the 
union of "trumping up" justification for picketing the plant.

The judge, Justice Barry Beach, subsequently issued an order against the 
three unions involved, which restrained them from: "commencing any 
proceeding in the High Court of Australia or taking any step in any 
proceeding already commenced in the Federal Court preventing ... (Shell) 
from bringing any action in the Supreme Court action relating to the 
industrial action taking place at or near the Shell refinery ... "

Although the dispute concerns the respective jurisdictions of the two 
courts, at the heart of the dispute is also the issue of legal enterprise 
bargaining strikes, which are protected from prosecution under Federal law.

Since the introduction of the Federal Government's industrial reforms, 
Federal Court rulings in disputes have generally been more favourable to 
working people and their families than those of State jurisdictions.

Rather than take the risk that the Federal Court might make a judgement 
favourable to the unions, the Geelong refinery dispute has now been taken 
to the State Supreme Court.

The company was well advised to do so, in view of Justice Beach's comments.

However, an indication of the involvement of other parties in the dispute 
came during a hearing in the Supreme Court last Tuesday, when the Shell 
company's solicitor was forced into the embarassing revelation that he did 
not actually have specific instructions from the company to seek a Supreme 
Court injunction against the union action proceeding in the Federal Court.

Justice Beach subsequently dismissed this line of questioning by the 
union's counsel, on the grounds that the company was being targetted by the 
unions, rather than the subcontractor who actually employed the workers.

An appeal by the unions against the Supreme Court ruling will be heard this 
Friday. In the meantime the picket at the Shell plant continues.

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