AMEC Engineering Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia

Federal Court of Australia|2003-01-28|Before: Bryson J, Mason JA, Sundberg J

REASONS FOR JUDGMENT 1 HIS HONOUR: In this proceeding the applicant seeks a declaration that the industrial action and picketing activities it alleges have been organised or engaged in by the respondent unions at its Bangholme work site are not protected action within the meaning of section 170MT(2) of the Workplace Relations Act 1996 (Cth). It also seeks injunctions restraining the continuance of that action and those activities. 2 The claim for interlocutory relief contained in the Application filed on 23 January 2003 asked for an order restraining the respondents until the hearing of the proceeding or further order from maintaining a picket preventing or hindering any person from gaining access to or egress from or to the site. The applicant also sought orders facilitating the removal of the picket infrastructure and requiring the respondents to withdraw any prior authorisation to participants in the picket to prevent or hinder any other person from gaining access to or egress from or to the site. 3 However, when the application for interlocutory relief came on for hearing the draft orders handed up by the applicant sought only an order restraining the respondents, until 4.15 pm on Wednesday 29 January 2003, from preventing, hindering or interfering with free access to and free egress from the site. The applicant proposed that the application for interlocutory relief (that is relief to subsist up to the trial of the action) be adjourned until 10.15 am on 29 January. 4 The matter proceeded on the basis that all that was sought of me was a determination of the application for interim relief, that is until 29 January. A large number of detailed affidavits were filed, some, mainly those filed by the applicant, deal with issues that are not central to interlocutory relief. Having regard to the way the case was conducted, it is not necessary that I attempt to summarise the affidavit material. It is sufficient to say that the argument was mainly directed to two issues. The first was whether there was a serious question to be tried as to whether the activity at the picket line is actionable. Not all conduct that constitutes picketing in the ordinary sense of the word is tortious. 5 In Barloworld Coatings Australia Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 IR 107 at 112‑113, Bryson J, referring to the judgment of Mason JA in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] NSWLR 760 at 767, said: "His Honour observed to the effect that picketing may become unlawful if it involves obstruction and besetting …. Much behaviour which is ordinarily called picketing is not tortious at all. A great deal depends on detail, and generalisations are of limited use, but for persons to assemble outside a workplace and make known to others, including people going to and leaving the workplace, the fact that there is an industrial dispute, what their dispute is about, what they claim are the merits of the dispute and so forth is not unlawful or tortious; yet much the same behaviour would be tortious if in doing it they obstructed the passage of other persons, whether with vehicles or on foot. Obstruction may take many forms, such as standing in their way or moving about in some way which interfered with passage. The evidence in this case shows a number of very clear instances of obstruction, including sitting and standing in the driveway, imposing the need on others to move around and avoid picketers, when there was no occasion for the behaviour but to impede passage. Other instances of obstruction are leaving cars and other articles in the driveway, and not removing persons or cars for unreasonable times or until requested or repeatedly requested by police. 'Besetting' is a much less definite concept than 'obstruction'. Behaviour can constitute a nuisance to an occupier if the occupier or other persons attending the occupier's premises are watched continually or beset with insults or messages in ways or in circumstances which offer discouragement to attendance there and so impede the occupier's enjoyment of his property. When observing behaviour it would usually be easy to distinguish between making a point of view known by addressing other persons and discouraging the passage of other persons by besetting them with insults, offensive language and threats. The evidence in this case shows that a number of persons have been subjected to threats, while it also shows that a number of persons have been subjected to insults which reasonable people would find very discouraging and would tend to avoid."

The respondents relied on this passage, and the applicant did not suggest that it does not appropriately state the law. The respondents submitted that all the participants had done was to make known to those arriving at the picket that there was an industrial dispute and to request them to respect the picket. The material in the three affidavits filed by the respondents to some extent supports this submission, but the affidavits relied on by the applicant disclose incidents that, if accepted at trial, would constitute obstruction or besetting.

6 The material in paragraphs 54 to 67 of Mr Peace's affidavit discloses the following. When he attempted to gain access to the site on 15 January, he was not successful because the gate was obstructed by a number of people and vehicles that had been parked in the driveway leading up to the gates, one of which was parked across the driveway and was blocking access to the site. When asked by Mr Peace on 15 January whether the picket was blocking access to all personnel, Mr Bradley, an organiser for the second respondent, said: "It looks like it." 7 On the same day, access was denied to various contractors and to Melbourne Water personnel, though later the latter only were allowed through. On 16 February, Melbourne Water personnel were again allowed through, but not the applicant's employees. On the same day, a considerable number of cars were blocking the driveway. On 17 January, Mr Peace was refused entry by Mr Roche, a site delegate of the second respondent, who said he could go on to the site: "Only if we all go on together -"

which Mr Peace took to mean that he would be permitted to go on only when the eight employees whose redundancy had cause the industrial action had been reinstated. On the same day, a subcontractor of the applicant was denied access by a Mr Terry, who told him that:

"No contractors could come on site, just Transfield -"

Immediately thereafter Mr Roche told him that only Transfield and Melbourne Water could come on. On 18 and 19 January, the weekend, cars remained parked across the driveway, blocking access to the site.

8 Those incidents show that there is a serious question to be tried on the first issue. 9 The second issue is whether there is a serious question to be tried as to whether the respondent unions are involved in those aspects of the picketing that give rise to the first serious question as to the nature of the picketing. The respondents submit they are not so involved. In my view there is a serious question on this second issue. Mr Peace deposes that on 15 January all three organisers, Messrs Bradley, Leane and Johns, and two of the three site delegates, were standing at the entry gate blocking access to the site. Mr Bradley told Mr Peace that access was blocked to all personnel. Mr Roche was present when access was denied to Mr Hutcheson, an employee of the applicant, on 16 January. 10 On the same day Mr Roche told Mr Elliott that no employees of the applicant, its contractors or of Connell Wagner would be allowed on site. On 17 January Mr Roche refused entry to Mr Peace. On the same day, a subcontractor was refused entry by Mr Roche. A banner bearing the words "ETU" was initially affixed to the site fence facing Thompson Road and was later moved to star pickets close to the main road, where there were three signs. Once of the signs said "Toot 4 support". Another said "Workers sacked" and the third said "For Xmas". Over the course of the period 15 to 23 January, the three organisers attended the picket. I have referred to some of these last mentioned matters when dealing with the first question. 11 In addition to these particular incidents, the background to the picket must be borne in mind - the redundancy of the eight employees. On the material now filed, it would be open for it to be found that it was the refusal of the applicant to reinstate the employees that led to the establishment of the picket. The many meetings and discussions about reinstatement that preceded the establishment of the picket involved representatives of the applicant and officials of the respondents. In those circumstances, it would be open on the material for it to be found, in the light of all the evidence, that the respondents arranged for the establishment of the picket and were, through their officials, aware of the conduct that was being engaged in at the picket. 12 The balance of convenience favours the grant of the temporary relief sought. The conduct of the picket has prevented the applicant from conducting its business and is likely to continue to do so unless a restraint is imposed. It is true that the losses itemised by Mr Peace cannot all be attributed to the picket line, but there is no doubt to my mind that the picket line, in the way it is being conducted, has caused the applicant loss. It is also likely to cause loss to Melbourne Water. 13 Further, the relief sought is of a very limited kind. On the material put forward by the respondents, they are not engaging in tortious activity, though there is of course other evidence to the contrary, as I have pointed out. On their account, the restraint sought will not prevent them doing what they say they have been doing. This is not to say that an injunction can properly be granted simply because it would do no harm to the party enjoined. Rather it goes to the balance of convenience that on the respondents' account, though not on the applicant's, the restraint will not prevent the respondents from doing what they say they have been doing. 14 I have referred in these reasons only to Mr Peace's affidavit, though various relevant parts of it are confirmed by other deponents. 15 I will order that the respondents in each of them, whether by their officers, servants or agents or howsoever otherwise, be restrained until 4.15 pm on Monday 3 February from preventing, hindering or interfering with free access to and free egress from the applicant's work site at Melbourne Water Eastern Treatment Plant, Thompson Road, Bangholme. Because the timetable proposed by the applicant was dislocated by my need to consider my decision over the weekend, I will adjourn the application for interlocutory relief until Monday 3 February before the Duty Judge rather than to the date proposed by the applicant. That will give the respondents time to consider their position and, if thought necessary, file additional affidavit material. I will direct that any further affidavits on behalf of the respondents be filed and served by 4.30 pm on Thursday 30 January and I will reserve the costs of the application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitors for the Applicant: Corrs Chambers Westgarth

Counsel for the First Respondent: G Borenstein

Solicitors for the Second Respondent: Maurice Blackburn

Date of Hearing: 24 January 2003

Date of Judgment: 28 January 2003

Workplace Relations Act 1996(Cth)

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Judgment (12 paragraphs)

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