BROMBERG J
99 I have had the benefit of reading a draft of the reasons for judgment of Tracey and White JJ. I respectfully agree with their Honours on all questions raised by the appeal, other than one. I respectfully depart from their Honours' conclusion that the primary judge erred in finding that a picket which included Messrs Spernovasilis, Reardon, Christopher, Beattie and Theodorou, and which physically obstructed attempts by Brinzi to drive a mobile crane onto a building site, did not contravene s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (the BCII Act). The pertinent facts have already been set out in the reasons of the majority. I adopt them without repeating them. My reasoning follows.
100 The fundamental question is whether the conduct of persons who physically obstruct another person from performing building work, by preventing that other person from driving onto a site, involves "a ban, limitation or restriction on the performance of building work" by the driver, within the meaning of para (c) of the definition of "building industrial action" in s 36(1) of the BCII Act. A literal reading of the words "limitation or restriction" would clearly support an affirmative answer.
101 However, there are two contextual considerations and an important historical consideration which are against the view that the words "limitation or restriction" were intended to have their literal meaning.
102 First, those words are preceded by the word "ban". In Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441 at [90], in relation to the same phrase found in paragraph (b) of the s 36(1) definition of "building industrial action", Jessup J said:
The next issue which arises under par (b) of the definition of "building industrial action" is whether the workers engaged in a "ban, limitation or restriction" on the performance of their work. In NMHG Distribution Pty Ltd (t/as Yale Asia Pacific) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158, a Full Bench of the Commission said the following of the word "ban" in a statutory context indistinguishable from that with which I am presently concerned (at [11]):
The New Shorter Oxford English Dictionary includes the following meaning for the word "ban": "a formal or authoritative prohibition (on or against something)". This meaning accords with the use of the term in industrial relations discourse.
Regarding the contribution made by the words "limitation or restriction" to the composite phrase, in Commonwealth Steel [Co Ltd v Federated Ironworkers' Association of Australia (1952) 74 CAR 84] Kirby J said (74 CAR at 94):
The word "ban" seems to me to have been obviously chosen to refer to a total prohibition of all the work described, whilst the draftsman has been careful that his widely spread net should also catch any lesser interference by the addition of the words "limitation or restriction."
As the Full Bench said, there is something formal or authoritative about the concept of a "ban". I would add that that the concept involves a prohibition which is absolute or categorical, and not merely a matter of inclination or preference. When Kirby J referred to a "lesser interference", I consider that his Honour had in mind a limitation or restriction which did not involve a total prohibition of all the work described, such as a refusal to use a particular machine or tool. There would still be, in my view, be the need for the refusal to have the qualitative dimension of being absolute or categorical that is required in the case of a ban as such.
(Original emphasis.)
103 On that view, with which I respectfully agree, a "ban" is a total prohibition or interference, imposed absolutely or categorically, on work. A "limitation or restriction" is a partial or lesser prohibition or interference, though again imposed absolutely or categorically. That must be so if the word "ban" is to be given work. If (for example) a "limitation" on work includes at least a partial interference with work, there could be little doubt that, on its ordinary meaning, it would also extend to a total interference with work. Expressed in reverse, it would not be a persuasive argument that to partially interfere with work was prohibited by a proscription on the "limitation" on work, but that the same proscription would allow for a total interference with work. The word "ban" would be unnecessary if all that it did was to extend "industrial action" from partial interferences to total interferences. It connotes something more. That something more, in my view, is the incorporation of the notions of "authoritative," "formal," or "categorical" interferences. And, if the three words are to be read as a composite phrase, then the words "limitation or restriction" take some colour from the word "ban" and are to be read in the same way. That, I think, is consistent with the views expressed by Jessup J in Williams v CFMEU.
104 An authoritative prohibition on the performance of work can only be conduct engaged in by a person with some authority (whether actual, apparent, or ostensible) over the performance of that work. Clearly, an employer has such authority in relation to the work of its own employees, as do the employees themselves. By reference to rules which its members are obliged to observe, unions can also authoritatively prohibit the performance of work by their members. In ordinary parlance, that would be described as a ban, limitation or restriction imposed by a union. As a matter of ordinary language, it would be odd to describe an obstructive picket as a "ban" on the performance of work of employees trying to enter their workplace. Thus, if "a ban, limitation or restriction" was intended to mean a total or partial authoritative prohibition on the performance of work, it is unlikely the words were intended to extend to the physical obstruction by one person of the work of another.
105 Second, the words "a ban, limitation or restriction" are not only applied to the "performance of building work", they are also applied in para (c) (and (b)) to the "acceptance of or offering for building work". Again, it is possible but not especially natural to say that the offering (for example) for work was "banned" by an obstructive picket line. When used in relation to that subject, the words "a ban, limitation or restriction" are more naturally directed to the imposition of a prohibition rather than any conduct involving physical obstruction.
106 The construction of para (c) (and thus para (b)) which I prefer is consistent with the rest of the definition of "building industrial action." There is nothing elsewhere in the definition that suggests that the definition was intended to encompass the obstruction by one person of the work of another. Nor is there anything in the rest of the definition that suggests that the categories of person whose conduct may fall within its scope extend to persons who are strangers to the work with which the definition is concerned.
107 The historical consideration, which, to my mind, is determinative of the construction question at issue, is that in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, a Full Court of this Court determined that a literal construction of the words "limitation or restriction" was not intended. Consequently, a picket involving obstruction and besetting was not encompassed by the phrase "a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work". The provision in which that phrase appeared was the definition of "industrial action" in s 4(1) of the Workplace Relations Act 1996 (Cth) (the WR Act). The terms of the definition of "building industrial action" were obviously modelled upon the terms of the definition of "industrial action" in s 4(1) of the WR Act. Minor modifications were made to the wording of the definition, but most changes were not of substance, those that were of substance were not in relevant subparagraphs, and none suggest core conceptual differences from the WR Act definition.
108 The construction question dealt with by the Full Court in Davids arose in this way. Davids Distribution terminated the employment of 52 of its employees for engaging in picketing conduct that interfered with vehicles and persons accessing Davids Distribution's warehouses. Interlocutory injunctions restraining the dismissals were granted on the basis that, inter alia, there was a serious issue to be tried that Davids Distribution had contravened s 170MU of the WR Act. Relevantly, s 170MU prohibited the dismissal of an employee wholly or partly because the employee had engaged in "protected action". Section 170ML created an entitlement for unions and their members to "organise or engage in industrial action" during a bargaining period. Subject to various conditions being satisfied, such action was "protected action" (s 170ML) and, with some exceptions, immune from suit (s 170MT).
109 Before the Full Court, on an appeal from the interlocutory injunction, Davids Distribution contended that the picketing engaged in by the dismissed employees was not "protected action" because it was not "industrial action" within the meaning of s 4(1) of the WR Act. It was in that context that the Full Court in Davids came to consider whether the kind of picketing in which the dismissed employees had engaged could be "industrial action". That required paragraphs (b) and (c) of the s 4(1) definition of "industrial action" to be construed and in particular the phrase "a ban, limitation or restriction on the performance of work". The Full Court determined that the kind of picketing engaged in by the dismissed employees was not "a ban, limitation or restriction on the performance of work" and was not otherwise encompassed by the definition of "industrial action". Thus, it could not be "protected action". The critical reasoning in support of that conclusion of Wilcox and Cooper JJ (with whom Burchett J relevantly agreed), is at [52], as follows (emphasis in original):
Activity that merely involves communication of information to persons entering or leaving a site is not "industrial action", within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a "ban, limitation or restriction on the performance of work" by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within par (c) of the definition of "industrial action". However, consistently with the tentative view of the Full Court in CFMEU, we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely Parliament intended to confine the paragraph in this way.
110 Having considered the "history of the legislation and policy considerations" as well as the consequences of adopting one view or the other upon the capacity for orders to be made under s 127 of the WR Act to stop "industrial action", Wilcox and Cooper JJ at [71]-[73] concluded:
[71] As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of "industrial action"; it does not relate to the performance of work in the circumstances specified in par (a), (b), (c) or (d) of the definition. Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone. Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.
[72] Picketing which interferes with a person's liberty and freedom of movement infringes that person's common law rights; in particular, the right to free passage in public places and on public roads and footpaths: see Williams v Hursey at 78-79; Melbourne Corporation v Barry (1922) 31 CLR 174 at 196, 206; City of Keilor v O'Donohue (1971) 126 CLR 353 at 363; Fourmile v Selpam Pty Ltd (1998) 80 FCR 151 at 186. There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: Baker v Campbell (1983) 153 CLR 52 at 123.
[73] To interpret par (c) of the definition of "industrial action" in such a way as to include picketing infringing upon the rights and freedoms of others, would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also of other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that Parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property.
111 It is evident from the passages quoted, and in particular at [52], that the Full Court recognised that, if given a literal construction, a "limitation or restriction" on the performance of work could encompass a picket in which the picketers were obstructing the performance of work by others. That construction was rejected. It was only a limitation by the picketers on their own work which the Full Court determined was capable of being "a ban, limitation or restriction on the performance of work" and thus "industrial action".
112 Paragraph [52] of Davids can fairly be read as standing for the propositions that employees limiting their own work can be (and are) taking "industrial action", but if the work of others is prevented or hindered by a picket, that is not "industrial action". Paragraphs [71] and [73] seem to me to stand for the propositions (respectively) that picketing that does not involve obstruction and besetting is not "industrial action", and that picketing that does involve obstruction and besetting is also not "industrial action". Since pickets must either involve, or not involve, obstructing and besetting, those paragraphs seem together to stand for the proposition that picketing, per se, is never "industrial action".
113 Accordingly, I think that Davids stands for, or is consistent with, the following propositions:
(1) employees who limit or restrict their own work are, in so doing, taking "industrial action" (at [52]);
(2) if those employees also non-obstructively picket, the picketing is not "industrial action" (at [71]), but that does not alter that the underlying limitation or restriction is "industrial action";
(3) if those employees obstructively picket, the picketing is again not "industrial action" (at [73]), but again that does not alter that the underlying limitation or restriction is "industrial action";
(4) a union that procures a limitation or restriction by employees of their own work is engaging in "industrial action";
(5) a union that procures a picket to occur, whether obstructive or not, is not engaging in "industrial action";
114 So, picketers qua picketers (as opposed to qua employees self-imposing a limitation or restriction) are not taking "industrial action" and such picketing cannot, therefore, be "protected industrial action". And, unions that procure that employees limit or restrict their own work and engage in an obstructive picket are not engaging in "protected industrial action" in respect of the picketing, but may be in respect of the underlying limitation or restriction.
115 A few relatively recent cases have given consideration to Davids: Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357, Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2009) 184 IR 367, and Williams v CFMEU. I read the two Williams decisions as being consistent with what I have said above. Cahill is in a different category, and I will return to it below.
116 For present purposes, however, it suffices to say that Davids stands for the proposition that an obstructive picket that limits or restricts the work of other persons is not "industrial action." Where Parliament has repeated a phrase which has been judicially considered, it may be inferred that Parliament intended to adopt the judicially-settled meaning of the phrase: Electrolux Home Products Pty Limited v Australian Workers' Union (2004) 221 CLR 309 at [7]-[8] (Gleeson CJ); [81] (McHugh J); and [161]-[162] (Gummow, Hayne and Heydon JJ). That inference is strong in a case such as this, where, in the specialised field of industrial legislation, Parliament may readily be taken to have an awareness of the interpretations placed by courts "on pivotal definitions": Electrolux [162] (Gummow, Hayne and Heydon JJ), and see at [81] (McHugh J). The inference is further supported by the fact that there was a close relationship between the BCII Act and the WR Act. In particular, their fields of operation in relation to the taking of industrial action overlapped. In the absence of any countervailing considerations, I can see no reason to question the primary judge's conclusion at [44] that:
… the adoption, effectively unaltered, of the same definition by the draftsman of the [BCII] Act in 2005, six years after the publication of their Honours' reasons [in Davids], leaves no scope for misunderstanding Parliament's intention.
117 There are two countervailing considerations upon which the appellant (Director) relied. These were said to demonstrate that the phrase "a ban, limitation or restriction on the performance of … work" in the s 36(1) definition of "building industrial action" was used in a different context to its use in the WR Act and that, accordingly, it ought not be presumed that Parliament intended the phrase to have the meaning determined by Davids.
118 The first point of contextual distinction was said to be that the definition of "building industrial action" was not limited to the conduct of employees and that it extended to the conduct of unions.
119 It is clear that "building industrial action" (and also "industrial action" under the WR Act) is not limited to employee conduct, as "action by an employer" is expressly contemplated by the terms of para (f) of each definition. In any event, it may be accepted, as the Director contended, that the definition of "building industrial action" extends to the conduct of unions. The primary judge accepted that to be the case in relation to what his Honour called a "traditional work ban" imposed by a union, by reference to his reasoning in Williams v CFMEU. As already stated, I agree with the reasoning of the primary judge that the imposition of a prohibition by a union upon its members performing their work is conduct capable of constituting "a ban, limitation or restriction". It may also be accepted, as Kenny J in Cahill reasoned, that the capacity for union conduct to constitute "building industrial action" is confirmed by the terms of s 37 of the BCII Act which provides that "unlawful industrial action" must be "constitutionally-connected action," which, in turn, is defined in s 36(1) to include "action … taken by an organisation".
120 What is less clear is why it is that the Director contended that the definition of "building industrial action" extending to the conduct of unions should be regarded as a point of contextual distinction from the WR Act. The distinction contended for cannot be made good unless, under the WR Act and at the time that the BCII Act was enacted, union conduct was not capable of constituting "industrial action". There is no support for that proposition. It was well settled by 2005 that, under the WR Act, unions could both organise and engage in "industrial action": Kilpatrick Green Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [1998] FCA 559 at 14 (Ryan J); Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588 at [30]-[33], [35] (Kenny J); and see the authorities collected in Emwest at [31]. Emwest concerned precisely the submission, relying on Davids, that unions could not "engage in" industrial action. That submission was rejected.
121 Davids does not stand for the proposition that union conduct cannot be "industrial action". Davids was not concerned with union conduct. No issue as to whether union conduct was "industrial action" or, in particular, whether union action could constitute "a ban, limitation or restriction on the performance of work" arose in Davids. True it is that, at [52], Wilcox and Cooper JJ said that, in relation to a picket, "a ban, limitation or restriction" could only be read as applying to "limitations on the work of those imposing the ban". But their Honours were not there determining the categories of persons (beyond employees) who might engage in such a limitation. I do not read that observation as declaring that a union could not engage in "a ban, limitation or restriction" on the performance of the work of its members. For the reasons outlined above, and by the primary judge in Williams v CFMEU and in the judgment below at [38]-[40], by issuing a formal or authoritative prohibition to its members upon performing their own work, a union can be engaged in "a ban, limitation or restriction" on the performance of work of employees.
122 Even if it was the case that the categories of persons whose conduct could constitute industrial action were extended under the BCII Act to include unions, it does not follow that a wider construction was intended for the kind of conduct encompassed by the phrase "a ban, restriction or limitation on the performance of … work". Unless the Director was prepared to submit that "ban, restriction or limitation" covered different kinds of actions when taken by different entities or organisations (and no such submission was made), the Director's construction requires that the obstruction of the work of another person by each and any of a union, an employee, an employer, and anyone else, be encompassed by the words "a ban, restriction or limitation". Yet it is clear from Davids that those words did not, under the WR Act, mean that in relation to an employee. The Director's points of distinction from the WR Act were targeted at showing that the BCII Act applied to unions. But, the Director failed to identify what it was that supported imputing to Parliament an intent to expand the categories of employee or employer conduct caught by the para (c) definition of "building industrial action" beyond those covered by the definition of "industrial action" under the WR Act. Such an intent is not supported by any increased focus in the BCII Act on union conduct.
123 The second contextual distinction relied upon by the Director was that there is no cognate provision in the BCII Act to s 170MT of the WR Act. Whilst that statement is strictly correct, the absence of a s 170MT equivalent is a matter of form rather than substance. It is perfectly clear from the provisions of the BCII Act that the immunity from suit conferred upon "protected action" by s 170MT of the WR Act was intended to continue undisturbed by the provisions of the BCII Act (other than as provided for in Part 3 of Chapter 5 of that Act). That objective could have been achieved directly by identifying and defining "protected action" and providing for an immunity in relation to it, as had been done in ss 170ML-170MT of the WR Act. Instead, the same outcome was achieved indirectly, by the BCII Act excluding action that was protected action for the purposes of the WR Act (as affected by Part 3 of Chapter 5 of the BCII Act) from being unlawful industrial action prohibited by the BCII Act: see ss 37 and 38 and the definition of "excluded action" in s 36(1). It was therefore unnecessary for a cognate provision to s 170MT to be included in the BCII Act and its absence does not provide a contextual point of distinction of any substance.
124 Lastly, given the prominence given to it in the Director's submissions, I should also briefly address the judgment of Kenny J in Cahill. Despite the concession made by the Director in oral submissions, I do not agree with the primary judge that Cahill was not concerned with picketing. The facts recounted at [10] and the allegation recounted at [11(d)] of Cahill suggest that it was. However, the main basis upon which her Honour distinguished Davids was that the focus of that case was on picketing (see at [49]). It is somewhat unclear to me how that was a point of distinction, unless her Honour meant that the second respondent to the action in Cahill was not himself alleged to have participated in a picket. Kenny J concluded at [58] that the words "a ban, limitation or restriction on the performance of building work" in the definition of "building industrial action" could extend to union action. That is a conclusion that the primary judge accepted, and one with which I agree. It seems to me that Kenny J also sought to distinguish Davids on that basis. There is room for thinking that, in that respect, her Honour's approach was based upon a premise with which I respectfully disagree, namely that the provisions under consideration in Davids did not extend to union action. For the reasons already given, I do not consider that the ratio of Davids includes the proposition that the definition of "industrial action" does not extend to union action and, I respectfully observe, Kenny J came to the same view in Emwest. In any event, it is not necessary to distinguish Davids, as the Director sought to do in reliance upon Cahill, to arrive at the conclusion that the definition of "building industrial action" can extend to union action.
125 For those reasons, the finding made by the primary judge that s 38 of the BCII Act was not contravened does not provide a basis for upholding the appeal. The appeal should be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.