Co-operative Bulk Handling Ltd v Maritime Union of Australia [2013] FCA 940 | Case summary

REASONS FOR JUDGMENT 1 I made injunctive orders on 2 July 2013. At that time I gave oral reasons but reserved the right to edit these but not so as to change their substance. These are my reasons. 2 The applicant, Co-operative Bulk Handling Limited (CBH), has instituted proceedings by an originating application dated 2 July 2013 against the Maritime Union of Australia (MUA), persons said to be officers of the Union, namely the second respondent, Linda Morich, the third respondent, Jeffrey Cassar and the fourth respondent, Rhyse Willis, an employee of CBH and a delegate of the MUA, as well as the employees named in the list of plant operators which is attached to the originating application. 3 CBH seeks the following interim interlocutory injunctive relief against the MUA and each of the other respondents: Until the hearing and determination of the proceeding or further order, the First Respondent (whether by itself, its officers, servants, agents, members or howsoever otherwise) and each of the other respondents be restrained from: (a) preventing or hindering the access of any person or vehicle to the Kwinana Grain Handling Facility ("the Site") located at Rockingham Breach (sic) Road Kwinana; (b) counselling or procuring any person not to enter the site; (c) counselling or procuring any employee or agent of, or person contracted to, Co-operative Bulk Handling Limited not to work upon the Site; (d) placing or leaving any vehicle, trailer, apparatus, equipment or thing within 500 metres of any entrance to the Site; and (e) attending, or organising or procuring any person or persons to attend, within 100 metres of any entrance to the site, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the site or for the purpose of complying with these orders. 4 The application is supported by several affidavits. The first is by Mr Brett Lindsay Jeffrey, who is the Kwinana zone manager employed by CBH. His affidavit was unsworn, but he gave oral evidence before me today in which he testified to the correctness of his unsworn affidavit. This was also the position in relation to Mr Justin Lee Bayles, who is the Kwinana terminal manager employed by CBH. There is a further affidavit by Ms Elizabeth Tacey Moran sworn by her on 2 July 2013. 5 The complaint of CBH, put shortly, is that a considerable number of members of the MUA, as well as, it is said, the second, third and fourth respondents, have been involved in a picket at the Kwinana grain handling facility. This action arises out of what it is apparent is a breakdown in negotiations between CBH and the MUA in relation to an enterprise agreement. Mr Jeffrey in his affidavit describes the background to the negotiations for this proposed new enterprise agreement. In particular, he refers to a discussion he had with Mr Cassar and a Mr Tracey which I understand to have occurred on or about 10 June 2013. 6 At this meeting Mr Cassar stated to Mr Jeffrey that the MUA would continue with the protected action ballot order, as this is what the plant operators wanted to do. Mr Jeffrey explained that an offer of annual salary increases of five per cent, four per cent and four per cent over three years respectively, was still available to the plant operators, but this drew the response from Mr Cassar that there was not much more to discuss. Mr Tracey then used an expression concerning, in effect, the union cooking sausages at the front gate of CBH. This, in the context of the other evidence, I take to be a reference to the imposition of a picket line. Indeed, on 1 July 2013, Mr Jeffrey received a copy of an MUA flyer regarding a picket that was to take place from midnight on that day. A copy of that flyer is annexed to Mr Jeffrey's affidavit. 7 The effect of the picket is that approximately 100 persons who are either contractors working for CBH or other employees carrying out work but who are not members of the MUA are unable to gain access to the facility. The effect of this, from the evidence before me, is that CBH confronts quite considerable potential damage, including demurrage charges as a result of not being able to load ships during nominated shipping windows, which might well lead to the loss of their not being able to load, at least timeously, 15,000 tonnes of grain for export by ship overseas. It is also likely to cause significant financial loss to CBH, particularly in relation to the recladding and ship loading projects that are currently underway at its Kwinana facility. 8 The ship loading refurbishment project involves two ship loaders being currently out of commission for the purposes of completing the refurbishments. This is a $30 million project, and it will be significantly impacted by the picket, given that access to the front gate of the facility is blocked and the relevant contract workers are unable to enter the facility to carry out the works. A substantial recladding project will also likely be affected by the picket blocking access to the facility. This too is likely to lead to considerable losses to CBH. In addition to direct financial losses to CBH, there are safety and security risks to CBH from their supervisors not being able to gain access to the facility as a result of the picket. 9 The affidavit material before me identifies the third respondent, Mr Cassar, and the fourth respondent, Mr Willis, as being involved in the picket. As to the second respondent, Ms Morich, she is apparently a safety officer with the MUA. However, no witness has been able to identify her by her surname, although there is a female person by the name of Linda who is apparently the holder of an access permit to the facility. However, I should say immediately that I am not satisfied that the "Linda" who is the permit-holder is the same Linda who is the subject of evidence as to conversations had in relation to the matters that have given rise to this application. 10 I am satisfied that the MUA and a very significant number of its members, as well as the third and fourth respondents, are involved in the picket. The question is whether what they have been doing and, it seems, propose to do for at least the next 24 hours and possibly longer, is unlawful and a serious issue to be tried, and if it is, whether the balance of convenience favours the granting of the injunction. The injunctive relief as sought is pursuant to ss 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) (the FW Act). The relief is to prevent, stop and remedy the effects of the relative respondents' contravention of s 343 of the FW Act. Section 343 provides: Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. 11 The gist of the proscription in that section is that a person must not organise, take or threaten to organise or take any action against another person with intent to coerce the other person, relevantly, to exercise or not exercise, or propose to exercise or not exercise, a workplace right. A workplace right is defined in the FW Act at s 341. Relevantly, s 341(1)(b) provides that (1) A person has a workplace right if the person: (a) . . . (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument ... 12 Further, by 341(2)(e), it is provided that: (2) Each of the following is a process or proceeding under a workplace law or workplace instrument: . . . (e) making, varying or terminating an enterprise agreement. 13 So the thrust of the legal basis of the application is that the effect of the picketing is to seek to coerce CBH in relation to a workplace right, namely, its right to negotiate, without being coerced, the enterprise agreement. The industrial agreement previously existing between CBH and the MUA has expired, which of course entitles, subject to notice being given, the MUA to engage in protected industrial action. Such a notice, dated 26 June 2013, was indeed given, and it is accepted that it is, according to its terms, valid. It, in effect, gives notice across three separate periods of 48 hours of stoppage of work by members of the MUA employed by CBH, finishing at midnight on 3 July 2013. 14 The question is whether there is a serious issue in two respects, namely: whether the conduct of conducting a picket line is protective industrial action; secondly, even if it is, is it action contemplated by the statutory notice to which I have referred. The Full Court in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, albeit in the context of the Workplace Relations Act 1996 (Cth), considered those very questions. This consideration, nonetheless, is apt in the present context. Justices Wilcox and Cooper, in their joint judgment, dealt with this matter at length and concluded at [73] that it did not fall within the definition of industrial action, as to interpret it otherwise, so as to come within the definition of industrial action, would be to include picketing, infringing upon the rights and freedoms of others and would, in effect, confer a statutory immunity on such conduct, provided only that it was engaged in on proper notice to the employer. 15 I find that, in relation to the first issue, there is a serious issue to be tried. Moreover, as indeed was the case in Davids Distribution, so it is in this case that the notice does not, at least, arguably, refer to picketing. Accordingly, in relation to that question, there is also, in my opinion, a serious issue to be tried. 16 There is the further question, whether, for the purposes of s 343 of the FW Act, the picket line, arguably, amounts to conduct by the MUA and the other relevant respondents, as disclosing an intent to coerce CBH in the way that I have described. 17 Justice Jessup in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 178 IR 458 considered in some detail essentially the same question, albeit in the context of provisions of the Building and Construction Industry Improvement Act 2005 (Cth). They are sufficiently analogous to make his Honour's reasoning apt in the present case. 18 His Honour referred to and adopted what had been said by Merkel J in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at [41]: The above cases establish that there must be two elements to prove "intent to coerce" under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637. 19 I am of the opinion that Jessup J's reasoning in Williams at [38], in the circumstances of that case, which are very similar to the circumstances of this case, reflect my own view, that, again, there is a serious issue to be tried in relation to the question of coercion. It is not, by any means, a marginal case. It is very arguable on the material which is in evidence. There are other cases which support the approach of Jessup J in Williams: Mortimore v Construction, Forestry, Mining and Energy Union [2010] FCA 537 at [18]: Grocon Constructives (Qld) Pty Ltd v CFMEU [2012] FMCA 245. 20 I am satisfied that there are serious issues to be tried in relation to the questions that I have identified. The balance of convenience falls heavily in favour of CBH. Whether or not there will be picketing beyond midnight tomorrow remains to be seen. If there is no such picketing, then neither side confronts a loss. However, its continuance for tomorrow certainly could result in very considerable potential losses to CBH and possibly third parties which, at least arguably, would be difficult, with any precision, to assess. 21 However, quite apart from monetary considerations, I accept the evidence before me that there are also safety considerations, in relation to the plant at the facility, and that, in and of itself, in my opinion, would be sufficient to attract the relief which CBH seeks. 22 There is an undertaking as to damages, which has been signed by the solicitors for CBH on its behalf. 23 I am satisfied that there should be orders as sought by CBH with the exception of the orders sought as against the second respondent, Linda Morich. Should it be the case that the person named "Linda", who is the subject of affidavit evidence, transpires to be the Linda Morich who, it appears, is an employee of the MUA, then the order will capture her in any event, she being an officer of the MUA. 24 There will be orders in terms of the minute of proposed orders subject to the amendments which I identified at the hearing. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Co-operative Bulk Handling Ltd v Maritime Union of Australia

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