42 I think that general line of reasoning is arguably applicable to the present circumstances. In my judgment there is a serious question to be tried, by a parity of reasoning, that the conduct engaged in by the picketing was with the intent to coerce Auspine to agree to the making of an enterprise agreement. I consider that, although the immediate event which may have heightened the response of the respondents may have been the lockout of Mr Young, that lockout was itself in turn a step in the process of the exercise of negotiating power towards the making of an industrial agreement. It was not suggested by counsel for the respondents that there was any reason underlying the lockout of Mr Young, or the picketing, which was extraneous to the bargaining process. Counsel gave the example of industrial action in response to a safety issue. There is no such underlying issue here identified. The underlying circumstance is the process of negotiation with a view to achieving an enterprise agreement, and each of the steps in that process of negotiation, whether protected action under Div 8 or otherwise, is a step taking some form of action which had as its ultimate purpose the intent to procure an enterprise agreement upon terms acceptable to the persons or entities taking that step.
43 I share the views of Merkel J that it would add an air of unreality to the proper operation of s 170NC if the Court were to look only to the immediate step which preceded the picketing to see whether the intent of those taking that step of picketing was to coerce another person to agree to making an enterprise agreement, or if the Court was obliged only to identify the immediate preceding step in the negotiating process without regard to the ongoing process of negotiations. In addition, there is the evidence of the conversation which took place when one of the trucks was denied entry that the purpose of those participating at that time in the picketing was to further their interests in the negotiating process. Although it may be that an immediate purpose, or an immediate cause, of the picketing was to respond to the step of locking out Mr Young from the premises, I do not think that that is a sufficient reason not to be satisfied that there is a serious question to be tried that s 170NC(1) has been contravened in the terms in which the applicant Auspine alleges.
44 Accordingly, I am satisfied that there is a serious question to be tried that the conduct which is now sought to be injuncted, the picketing, is conduct in contravention of s 170NC(1) of the Act which is not protected by s 170NC(2) of the Act, and that the Court has power, if so minded, to make an interlocutory injunction at this stage of the proceedings in respect of that conduct.
45 I turn then to consider the balance of convenience.
46 It is necessary to endeavour to isolate the consequences to Auspine of the particular conduct sought to be injuncted on the one hand from the consequences of the more general strike action, or action of withdrawal of labour, on the other. It is obvious that the withdrawal of labour is causing Auspine significant loss but I do not think that is the relevant loss for the purposes of determining the balance of convenience.
47 Inevitably evidence on such matters cannot be really tested at this point of the proceedings. However, I am satisfied to the necessary degree that Auspine is suffering, and will continue to suffer, significant loss by reason of the picketing. That is simply because materials cannot be taken into its plant at Tarpeena or taken from its plant at Tarpeena.
48 I will mention but a few features of the evidence which, in my view, are able to be attributed to the picketing as distinct from the more general industrial action which is taking place. At the Tarpeena premises there are some $550,000 worth of logs which are debarked or undebarked, and which are vulnerable to deterioration due to what is called blue stain. On the evidence that condition can emerge to a significant degree within a period of about two weeks, and on the evidence of Mr Praolini, Auspine fears that that condition will now significantly adversely affect a significant quantity - in excess of 9,000 cubic metres of logs - within the next several days. To avoid that consequence Auspine will need to be able to transport the logs out of its Tarpeena premises so other operators can green mill the logs, or will be obliged to take into its premises machines that will convert the logs or parts of them to chips. At present in my view there is at least a serious question to be tried on the issue that the picketing prevents that conduct. That itself is a significant potential loss.
49 In addition, Auspine has at present some 5,200 cubic metres of finished product for dispatch. It is still operating on a small staff and is still continuing to produce finished product. It normally removes about 600 cubic metres of finished product per day. It has been unable to do so for some days. Unless some order is made, I am satisfied there is a significant risk that it will be unable to do so at least in the immediate future. Counsel for the respondents did not indicate that the respondents would permit the removal of finished product from Auspine's premises. Auspine's inability to remove that finished product means that its ability to service its customers is diminished to some degree, although ultimately I am not persuaded that the accumulation of finished product can not be removed over time and the anticipated levels of revenue from that finished product achieved. I do not think, therefore, that that particular factor is of great moment.
50 Apart from the deterioration question, the evidence also indicates to me that there is the prospect of Auspine further reducing the adverse consequences of the industrial action by engaging external labour to load logs onto transportation vehicles for transport to other milling operators to generate finished product in a more timely manner. The picketing process is preventing that from taking place. That inability is another aspect of the potential loss to Auspine if the picketing does not stop.
There are other significant features of the balance of convenience, in my judgment, affecting employees of Auspine at Kalangadoo and at Portland. To an extent, the evidence indicates that those effects are anticipatory, rather than presently being experienced, at least in Portland. The evidence is that the Kalangadoo plant requires dressed and untreated timber to be provided from Tarpeena, and that at present, because of a lack of such product from Tarpeena, the employees at Kalangadoo are at a significant risk of reduced hours due to the scaling down of those operations. That will cause a loss both to those employees and to Auspine at Kalangadoo. A similar, but perhaps less dramatic, state of affairs applies in respect of Auspine's premises at Portland. Certain of its activities are being wound down and its employees' hours are being reduced. In other aspects of its activities, there is apparently sufficient stock to last for another week or a little more before further reduced hours of its staff may occur.
51 On the other hand, the respondents have not asserted any particular disadvantage to them if the orders sought are made. I am mindful of the fact that if the orders sought are made, and if ultimately the claim made by Auspine is unsuccessful, they will have been deprived of the opportunity for a time to exercise what may ultimately be found to be legitimate industrial action in furtherance of their objective of endeavouring to reach an enterprise agreement in terms acceptable to them. To that extent, there is a significant prospect of disadvantage to them. Beyond that, no particular feature of disadvantage was identified other than the desirability of the court not interfering with what is called their right of freedom of public discourse. No orders which I propose to make are intended to interfere with that right of public discourse.
52 Accordingly, I am satisfied in all the circumstances that it is appropriate in the exercise of my discretion to make an order injuncting in an appropriate form the action of picketing.
53 I note that Auspine, by its counsel, is prepared to and does proffer an undertaking to the Court in terms of the usual undertaking as to damages, that is the undertaking in terms of Practice Note 3 published on 14 June 1999.
54 Upon that undertaking, I propose to make an order that the respondents, by themselves or their servants, members or agents, be restrained from engaging in conduct in concert with others and with each other that hinders or prevents the access to or exit from the premises of Auspine Ltd situated in Tarpeena in the State of South Australia.
55 So there is no scope for misunderstanding, in my judgment the conduct of standing on the roadway so as to force a vehicle to stop, even for the purpose of engaging in discussion with the driver or drivers of that vehicle would amount to the hindering of access to or exist from those premises. On the other hand, if vehicles or persons are not restricted in any way in their access to or exit from the premises of Auspine, it would not be a breach of that order for the respondents to stand by the roadside or to have signs or placards indicating the nature of their claim or other matters, provided that such communications did not convey any threat to those proposing to gain access to or exit from the premises as to consequences to those persons if they proceed to or from the premises.
56 I have made those comments because counsel for the respondents rightly urged me to make it clear what conduct was contemplated by any order I might make as being the subject of any such injunction. I do not regard the injunction, in the terms that I have indicated and in the light of those reasons, as preventing the respondents from engaging in their right to speak to such persons as they choose to, but they cannot for that purpose force truck drivers or others gaining access to or exit from the premises to stop to engage in such communications if those persons do not choose to do so.
57 I have also been asked to make an order that the respondents do not appear within 200 metres of the entry points of the premises of Auspine unless they are presenting themselves for work in accordance with their contracts of employment. I am not satisfied that an order in those terms is warranted. I decline to make it.
58 I make the following orders: