Coercion
228 Both ss 348 and 355 provide that a person must not take action against another person with the intent to coerce that person or a third person to do or not do certain things.
229 An intention to "coerce" forms an element of the statutory proscription in three of the sections appearing in Part 3-1 of the Act. These sections are 343, 348 and 355. Some of these provisions are the successors of earlier provisions such as ss 170NC and 789 of the Workplace Relations Act 1996 (Cth). In State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 the Full Court considered that the meaning to be accorded to the phrase "intent to coerce" had become settled (see at 187). The Court referred, with approval, to Merkel J's statement in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at 388 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."
230 The first of these elements was explained in greater detail by Weinberg J in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114. Speaking of this element his Honour said (at 143) that:
"The approach to the expression 'intent to coerce' taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or persuade or induce. Coercion applies a high degree of compulsion, at least in a practical sense and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply."
231 The second element was considered by Buchanan J in Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436. His Honour pointed to the common law origins of this element in the torts of coercion and duress. In doing so he referred (at 443) to the judgment of McHugh J in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46 where McHugh J had equated the three categories saying (at 46) that:
"Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed …".
232 The Full Court's decision in State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 involved the construction of s 343 of the Act. In Fair Work Ombudsman v Maritime Union of Australia [2014] FCA 440 at [304] Siopis J held that the phrase "intent to coerce" in s 348 should be construed in the same manner in which it had been read by the Full Court. I respectfully agree with his Honour that same words in the same Part of the Act should be construed consistently. For this reason I consider that the Full Court's construction should be applied to both ss 348 and 355.
233 The substance of the Director's case was that each of the actions, which were taken by the various individual respondents, was taken with the intention of coercing Grocon to comply with certain demands made by the CFMEU. The central demand was that Grocon should employ persons nominated by it at the Myer Emporium Site and other Grocon sites throughout Victoria so that those persons could then perform the duties of union shop stewards on the sites. In addition there were subsidiary demands which had been made relating to the wearing of CFMEU logos on apparel, the posting of CFMEU material on sites and the provision of unfettered access to sites by CFMEU organisers. There was also a negative demand that certain persons such as Messrs Hewett, Daniel Van Camp and McMahon should not perform the duties of safety representatives on Grocon sites.
234 It was for the purpose of securing compliance by Grocon with these demands that the blockades in which the individual respondents participated (and in some instances organised and controlled) were implemented and prosecuted.
235 As to the first element the Director contended that an indefinite picket at the Myer Emporium Site which interfered with normal business operations was coercive in the necessary sense. He argued that the size and composition of the crowds which had assembled at the Myer Emporium Site on 22, 23, 27, 28, 29, 30 and 31 August and 4 September 2012 and the distribution of those present adjacent to all functional entry points ensured that, for practical purposes, the entry of vehicles, goods and workers on to the site was rendered potentially dangerous and impractical. The Director pointed to the resistance which was encountered when workers and staff sought to enter the site with the assistance of the police on 28 and 31 August and 4 September 2012.
236 The Director also relied on some specific instances of direct obstruction and besetting at both sites.
237 The instances on which he relied at the Myer Emporium Site were:
The blocking of Messrs Van Camp and O'Hara when they sought to enter the western door to the Lonsdale Street gantry on 22 August 2012.
The blocking of the utility vehicle driven by Mr Porco when he tried to drive it into the Little Bourke Street loading bay on 27 August 2012.
The physical interference by picketers on 28 August 2012 when police sought to create a safe passage for Grocon employees to enter the site.
The besetting of workers as they made their way towards the site with the assistance of police on 31 August and 4 September 2012.
238 The specific instances relied on by the Director in relation to the McNab Site were:
The obstruction, on two occasions, of deliveries of crane tower sections on 17 August 2012.
The obstruction of the mini bus driven by Mr Andrew Brinzi as it attempted to drive away from the site on 17 August 2012 and the besetting of Mr Brinzi on that occasion.
The obstruction of the delivery truck outside the site on 5 September 2012.
239 As to the second element the Director characterised each action as being unlawful or illegitimate. This was because each formed part of conduct which amounted to obstruction and besetting and which interfered with Grocon's enjoyment of the sites which it had a right to occupy. The obstruction and besetting also directly interfered with the contractual relations between Grocon and its clients, employees and sub-contractors. This, it was submitted, was illegitimate in a practical business and commercial sense, if not also in a legal sense: cf Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at 478-80 (Jessup J). The Director further submitted that the blockade at the Myer Emporium Site on 28 to 31 August 2012 constituted a public nuisance because, at times on those days, some of those in the crowd spilled on to the footpath and roadways abutting the site thereby interfering with the free passage of people and vehicles along Lonsdale Street and Little Bourke Street.
240 It is clear from the history of the dealings between representatives of Grocon and the CFMEU, in the year leading up to August 2012, that both sides held strong and conflicting views about a number of issues. Foremost amongst them was whether Grocon should employ persons, nominated by the CFMEU who would then be assigned to particular sites where they would perform the duties of union representative or "shop steward" on a full time basis. Other building contractors in Victoria had acceded to this demand on their projects. In the course of renegotiating enterprise agreements to which Grocon companies were to be party, the CFMEU seized the opportunity to renew this demand and also to further other claims such as the wearing of logos and the flying of flags on site. The dispute became progressively more acrimonious. Grocon was prepared to consider nominees proposed by the CFMEU but reserved the right to determine whether or not those nominated were suitable. The CFMEU, on the other hand, was asserting an entitlement to have its "own people" on Grocon sites at Grocon's expense. The CFMEU's position was made clear by Mr Setka when he said that he could not drive past a Grocon site "knowing that there is no CFMEU representative that I [have] nominated or the CFMEU nominated operating on that project." The problem was exacerbated when Grocon employees did not leave work to attend a rally on 4 July 2012 and the CFMEU was chided at the Trades Hall Council for not ensuring their attendance at the rally.
241 It was, in these circumstances that the CFMEU embarked on what may fairly be described as a "campaign" against Grocon in August 2012 with a view to procuring Grocon's acquiescence in its demands. Each of the acts performed by each of the individuals occurred in the course of that campaign and may be understood to have occurred in furtherance of it. Their conduct, on each occasion, evidences an intention to negate Grocon's choice to maintain its long standing objection to the employment of persons nominated by the CFMEU regardless of Grocon's assessment of their suitability.
242 This was to be achieved by preventing Grocon from conducting planned construction work on the two sites. The blockades were organised and prosecuted by officials of the Union and others of its members who the officials arranged to attend the sites. Mr Edwards identified himself as the person organising the blockade of the Myer Emporium Site and Mr Reardon organised the obstruction of the vehicles on the roadway outside the McNab Site.
243 Statements made by CFMEU representatives to the media and statements made by officials such as Messrs Edwards and Christopher to the crowds assembled outside the Myer Emporium Site confirm the purpose of the various actions and the objective which the Union was seeking to achieve.
244 The impugned conduct of the individual respondents was both unlawful and illegitimate for the reasons advanced by the Director. The blockades obstructed the unimpeded passage of Grocon employees into the two sites or along public roads. There was actual obstruction constituting a nuisance. Proof of actual obstruction is not, however, necessary to establish the tort. As the Victorian Court of Appeal explained in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at 281-2:
"… As we say, we see no reason to doubt the judge's findings of fact, and therefore we proceed upon the basis that it was not established that any appellant or other member of the public attempted passage or was hindered in the endeavour. But obstruction may be proved without proof that a member of the public was in fact obstructed. As Griffith CJ put it in Haywood v Mumford, the question is simply whether what was done amounted to an obstruction:
'…it is not necessary that anybody should in fact be passing down the street while the obstruction is there. The question is whether the obstruction is there? As I pointed out in argument, it would be a very singular thing if, in the case of a log laid across a foot way, the person who put it there could be allowed to say that there was no obstruction because nobody fell over the log. In my opinion the conviction was right, and upon the facts the magistrate could not have come to any other conclusion.'
Equally, it is clear that an obstruction need not be total in order to amount to a nuisance. While the action for false imprisonment could not be maintained in Bird v Jones, Patteson J considered that an obstruction which prevented the plaintiff from proceeding in one particular direction on the public highway undoubtedly gave rise to an action on the case for obstructing the passage. Fullagar J took a similar view in Williams v Hursey.
More generally, any unreasonable or excessive use of a highway or activity on or near the highway which renders the highway less commodious to the public is enough to constitute a nuisance. So, for example, it is a nuisance to place logs on a public highway though it may remain possible for the public to steer a course around the logs; or for a merchant continuously to keep vans before the door of his shop in a fashion that practically appropriates part of the roadway for his business; or for a theatre to allow stationary crowds of patrons to block a substantial part of the street as they enter or exit the theatre; or to maintain a picket with a view to compelling persons not to do acts which it is lawful to do."
See also Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 275 at [332]-[335] (Cavanough J).
245 Whilst picketing, per se, does not necessarily constitute a nuisance "it becomes so if it involves obstruction and besetting": see Williams v Hursey (1959) 103 CLR 30 at 77-8; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 at 389. In Sid Ross Agency at 768 Mason JA (with whom Jacobs and Holmes JJA agreed) quoted with approval the observations of Stamp J in Torquay Hotel Company Ltd v Cousins [1969] 2 Ch 106 at 119 that:
"At common law a plaintiff is entitled to the lawful use and enjoyment of his property, and a substantial interference with that use and enjoyment is a nuisance. In my judgment picketing outside the entrance of a plaintiff's hotel, if persisted in, for the purpose of persuading tradesmen and their employees from delivering supplies vital to the running of the hotel in order to compel the plaintiff to submit to the defendant's demand is thus, prima facie, a common law nuisance. Sir Nathaniel Lindley M.R. in J Lyons & Sons v Wilkins [1899] 1 Ch 255 at 267, remarked with reference to watching and besetting a man's house with a view to compel him to do or not to do what is lawful for him not to do or do, 'such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset and such conduct would support an action on the case for a nuisance at Common Law.'"
The obstruction of the entrances to the two sites and the obstruction of vehicles on roadways adjacent to the sites was, in each case, unlawful.
246 When the obstruction of the sites was accompanied by threatening and abusive conduct, as it was when workers sought to enter the Myer Emporium Site on 28 August, 31 August and 4 September 2012, the picketing was thereby rendered unlawful for an additional reason. For similar reasons, the obstruction of the vehicle being driven by Mr Andrew Brinzi in McNab Avenue on 17 August 2012 was also undoubtedly unlawful because it was accompanied by verbal abuse.
247 Other unlawful acts were also identified. These included the assaults by Mr Setka and others on Mr Smith in Albion Lane on 22 August 2012 and the punching, by Mr Setka, of the windscreen of the vehicle driven by Mr Andrew Brinzi on McNab Avenue on 17 August 2012.
248 I am satisfied that the conduct relied on by the Director to support his allegations of contravention of ss 348 and 355, in each case, bespeak an intent to coerce.