Plaintiff v Defendants

2 The majority of Toll's employees at the Centre are represented by the National Union of Workers ("NUW"). There is an enterprise agreement covering most of the employees which was to operate until 1 July 2012. The NUW is bound by that agreement. Negotiations for a new agreement began in May this year but, at the date of hearing of this application, the negotiations had not resulted in a fresh agreement. The NUW participated in the negotiations.

3 A strike by Toll's employees who are members of the NUW began on 10 July 2012, and picket lines were formed at entrances to the Centre. This prevented trucks from entering and leaving the Centre such that Toll was not been to receive stock nor make deliveries to Coles. Some individuals were also prevented from gaining access to the Centre by the picket line. Empty pallets were stacked across the entrances. Most of Toll's employees at the Centre who are not union members were stood down from work and were not being paid.

4 Toll sought an interlocutory injunction until trial of the proceeding to restrain the NUW, six NUW officers, and 19 Toll employees from preventing access to and from the Centre. Each of the defendants has been served with the relevant documents in the proceeding, either personally or by way of substituted service. However, none of the defendants appeared to oppose the application.

5 Interim restraining orders were first made against the defendants on 16 July 2012. Those orders were extended on 18 July 2012 to remain in place until 4pm on 25 July 2012 pending determination of the interlocutory application. The matter was listed for 25 July 2012 for ruling on the interlocutory application. However, late on 24 July 2012, Toll's solicitors informed the Court that the picket at the Centre had been lifted and was no longer in place; that the parties had reached an in-principle agreement regarding the terms of a proposed enterprise agreement; that the NUW recommended to its members that they agree to approve the proposed agreement; that there are still a number of formal steps under the Fair Work Act 2009 (Cth) over the coming weeks which will need to be taken before the proposed agreement is approved by Fair Work Australia and, in turn, before this proceeding is discontinued. In those circumstances, Toll still pressed its application for an interlocutory restraining order.

6 For the reasons which follow, an interlocutory injunction should not be granted.

The Coles agreement, the Centre, the strike and the picket line

7 As I noted above, the Centre is a warehouse and distribution centre. Toll occupies the Centre under a licence with Coles which leases the Centre from third parties. There is significant Coles signage and promotional material at the Centre.

(a) operates 24 hours a day (other than between midnight and 6am on Sundays);

(b) receives approximately 2,500 pallets delivered by about 150 trucks each day;

(c) despatches stock labelled for Coles' stores on approximately 110 trucks each day;

(d) processes approximately 1.3 million cases of stock each week.

9 Over 700 people work at the Centre. More than 650 are employed by Toll and, as I have said, most are members of the NUW, which is the only union for employees at the Centre. There are about 140 non-union members who are paid hourly rates, with a smaller number of the Toll employees at the Centre being non-union salaried employees. The Toll In2store Somerton & National Union of Workers Enterprise Agreement 2009 applies to Toll's employees at the Centre, other than salaried employees. In addition to the Toll employees, there are other people who work at the Centre as cleaners, maintenance staff, catering staff, security personnel, subcontractors and Linfox staff.

10 As I previously stated, the negotiations for a new agreement to continue on from the 2009 Enterprise Agreement, began in May this year. The NUW's negotiation team included Matthew Toner, Cameron Stops and Kathryn Hilt, and NUW delegates including Frank Polemicos. They are all defendants to this proceeding.

11 On 4 July 2012, Tim Kennedy, the Victorian branch secretary of the NUW, gave notice to Toll that employees who were members of the union were going to engage in an indefinite work stoppage beginning at 6am on Tuesday, 10 July.

12 On 9 July 2012, Toll gave 24 hours' notice to its employees that if Toll was unable to provide them with work, then they would be stood down without pay.

13 There are five access points to the Centre from Union Road, Somerton. There is the Gatehouse, which is the only point where trucks can enter and exit, and four boom gate entry points where employees' and visitors' cars can enter and exit and which give direct access to the car-park and main office. The remainder of the perimeter of the Centre is fenced.

14 Shortly after 6am on 10 July 2012, picket lines were established at the Gatehouse entrance and one of the employee entrances ("the Employee entrance"). Fencing was erected across the other three entrances. NUW marquees were set up next to the driveway leading to the Gatehouse entrance and the Employee entrance. NUW banners were attached to the fences next to the marquees, and a number of people on the picket lines were seen holding NUW flags. Many of the picketers were seen wearing NUW rain ponchos, NUW hats, their Toll work uniform or both. Throughout the strike, the police attended to monitor the pickets.

15 There is evidence of specific incidents that occurred after the picket lines were established. One of the first incidents happened on the morning of 10 July 2012 just after 6am. A Linfox truck was prevented from entering the Centre at the Gatehouse entrance by more than 40 people standing in front of it. Mr Lamaro (an NUW organiser and a defendant) directed the picketers to move forward to form a straight line in front of the truck and spoke to the driver. Ms Hilt (also an NUW organiser and defendant) then directed the picketers to sit down in front of the truck.

16 A separate incident involved a Toll truck which approached the Gatehouse entrance. Ms Hilt and Mr Toner (another NUW organiser and defendant) directed the truck to stop. Nineteen other defendants[1] were amongst a group of people that ran onto the street towards the truck. Some of them placed their hands on the front of the truck while it was still moving. The driver stopped the truck and Mr Stops (another NUW organiser and defendant) spoke to the driver. Following this, the truck driver reversed back down the street.

17 At some stage during the morning, Toll made a decision, in consultation with the police, that trucks should not try to force their way through the picket line. Truck drivers were told that they should not approach the Centre and that deliveries should stop for the time being.

18 There were other incidents that morning that affected people who wanted to gain access to the Centre by car or by foot. One such incident took place at the Employee entrance. When Toll's Payroll Manager drove up to this entrance, the picketers linked arm in arm and chanted "No-one in, no-one out". They formed a row one or two people deep across the 6 metre wide entrance and blocked it so that the car could not pass through. Some of the picketers placed their hands on the bonnet of the car and, after some time, the Payroll Manager reversed the car away from the entrance to park away from the Centre. Frank Polemicos (an NUW delegate and defendant) was part of this picket line. Subsequently, Toll came to an arrangement with the union so that the Payroll Manager (escorted by security guards ) was able to enter the Centre to perform her duties including running the pay roll for the previous week so that the employees could be paid.

19 There was another incident at the Gatehouse entrance. Two of the NUW organisers (Matthew Toner and Heath Lamaro, who are both defendants) directed other picketers to block the Gatehouse entrance to prevent Toll's Head of Human Resources and Risk, Ms Andrea Ryan, from entering through that entrance. When Ms Ryan was approaching the Gatehouse entrance, Mr Lamaro shouted into a megaphone 'Toll Management is here. Andrea Ryan. National HR. She's the one that's made the decision to not give us what we want. Shame on you.' Mr Lamaro then joined the picket line arm in arm, blocking the entrance and called out "Form a line, form a line, get onto the line". Ms Ryan saw a gap in the picket line and was able to get through that gap. However, Ms Ryan saw Mr Lamaro and other people she did not recognise coming towards her over the picket line and onto the Centre property. She saw hands reaching for her and at the same time, the police and security guards surrounded her. She was escorted safely inside.

20 There were other instances when cars were unable to enter the Centre because of the picket lines. Employees who had started work before the strike began were unable to leave the Centre because of the picket lines until an arrangement was reached with the NUW. Further discussions with the NUW resulted in Toll management personnel being permitted to leave the Centre by car late on 10 July 2012. Ms Ryan left with another colleague. When they approached the boom gate at the Employee entrance to leave the Centre, there was a crowd of people blocking their car. Belinda Jacobi (an NUW organiser and defendant) was holding a megaphone and leading the crowd who were shouting and pointing at the front and side windows, leaning on the front of the car and saying, "Shame on you" and "No one in, no one out" and "You are scum, You are scum." Although it could not do so immediately, with the assistance of the police, the car moved through the crowd. Other Toll management personnel experienced similar verbal abuse and difficulties when leaving the Centre that evening.

21 The next morning, there were cars parked in front of the five entrances to the Centre on Union Road. In addition, barriers made from a large number of pallets were erected at the Gatehouse and Employee entrances blocking access. Over the following days, the barricades remained in place and the picketers continued at the entrances to the Centre. There were a number of NUW flags that were stuck into some of the pallets used in the barricades. A sign near the Gatehouse entrance read "NUW official picket line do not cross." After the first day of picketing, a small number of Toll management personnel gained access to the Centre, but only after an arrangement was reached with the NUW and with the use of a police or union escort. No trucks were able to enter or leave the Centre.

22 Employees who did not vote to strike were not able to attend work at the Centre. They were stood down and were not paid. There is some evidence of financial and other hardship in this regard. There is also evidence that at least 150 employees wanted to return to work.

23 Further, under the distribution agreement that Toll has with Coles, Toll has to meet certain service target requirements or KPIs to receive quarterly incentive payments. If the picketing continued, Toll said that it may not be able to meet these targets. Toll was not able to receive stock at the Centre nor make deliveries from it to Coles stores once the picketing began. Consequently, Coles was affected by the picketing action and had to organise alternative sources of stock for delivery to its Victorian stores. Other third parties, such as independent truck drivers who would normally make deliveries to and from the Centre, were affected by the picketing. At least one had his truck marooned at the Centre and was not able to get it out because of the picket line.

24 Toll arranged for extra security to be present at the Centre to monitor the picketing at what Toll says is a cost of approximately $14,500 each day.

Should the defendants be restrained until trial from preventing access to and from the Centre?

25 To obtain an interlocutory injunction, Toll must establish that it has a prima facie case for the relief that it seeks and that the balance of convenience favours the granting of an injunction.[2] In determining whether to grant an interlocutory injunction, the Court will consider either separately or as part of the consideration of the balance of convenience, whether the plaintiff is likely to suffer injury for which damages would not be an adequate remedy.[3] In considering how strong the plaintiff's case needs to be, the Court will take into account "the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order [the plaintiff] seeks."[4] The Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong to grant or refuse the injunction.[5] Almost invariably, as Toll has offered in this case, the plaintiff will be required to give an undertaking as to damages.

26 Toll submitted that it has good claims against the defendants for the torts of nuisance and inducing breach of contract. In relation to the nuisance claim, Toll alleges that there has been an unreasonable interference with its entitlement, as licensee, to use and occupy the Centre for the purpose of providing distribution services to Coles. It also contends that as a result of the defendants' activities, there has been an interference with the safety, health or comfort of the public, that is, employees of Toll and other people trying to enter or leave the Centre.

27 Picketing will not always constitute a nuisance. However, if it involves "obstruction" and "besetting" it will.[6] As Bryson J said in Barlowworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union:[7]

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 could 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 presence 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.[8]

28 Based on the unchallenged evidence as it stood at the date of the hearing, Toll had established a prima facie case in respect of its nuisance claim. In this regard, I note that there are authorities which support the proposition that a licensee in occupation of property for business purposes in circumstances analogous to those of Toll, is entitled to bring a claim if the facts establish the elements of a nuisance.[9] I also note that in certain circumstances, a union can be liable for the conduct of its officials, organisers and delegates.[10] The untested evidence before the Court of the NUW's central role and involvement in the picketing and blocking of the entrances to the Centre is strong. Mr Kennedy, the NUW Victorian Branch Secretary, has spoken to the media on numerous occasions about the picket on behalf of the NUW and has attended the picket line. The six defendants who are officers of the NUW have been involved centrally in the incidents and have used megaphones to direct the picketers and to chant slogans. At the date of the hearing, safe access to and from the Centre was only possible with the approval of an NUW officer. In addition, there were the NUW marquees, signs and flags at the picket. The nineteen defendants who are NUW members have each participated in the picket.

29 In considering the strength of the nuisance case put by Toll, I have also had regard to the other uncontradicted evidence about the picket, the barricades and the verbal and physical conduct at the entrances to the Centre. Having formed the view that there was a sufficiently strong case in relation to Toll's nuisance claim, I will not consider whether a prima facie case in respect of the tort of inducing breach of contract was also established.

30 At the date of the hearing, the balance of convenience strongly weighed in favour of the grant of an interlocutory injunction. First, if the injunction was not granted, Toll's operations at the Centre would continue to be severely disrupted whilst the picket remained with trucks and employees being blocked from entering and leaving the Centre. If access to the site was restored, it would still have taken time for Toll's operations to return to normal.

31 Second, Toll's evidence was that it was suffering loss as a result of the conduct of the defendants and some of that loss may be difficult to quantify. Toll said that it was paying for additional security at the Centre at a daily cost of $14,500 whilst the picketing continued and the longer the disruption, the greater the risk that:

• Toll would not receive incentive payments under its contract with Coles because it would not be able to meet its KPIs;

• stock warehoused at the Centre would perish.[11]

32 Third, there were Toll employees who did not support the picket who continued to be stood down. As I have noted, some of them were suffering hardship of one kind or another. If they were able to gain access to the Centre, then their position may have improved.

33 Fourth, there were third parties who were affected by picketing such as Coles, independent truck drivers, maintenance engineers, catering and cleaning staff at the Centre, none of whom are parties to the dispute between the NUW, Toll and its employees.

34 On the other hand, if the defendants were restrained, such orders would not have prevented the strike from continuing nor would the orders have prevented the defendants from participating in lawful picketing.

35 However, as I noted at the outset, the Court was informed last evening by the solicitors for Toll that the picket at the Centre has been lifted and is no longer in place. Toll submitted that an interlocutory injunction would still have utility. Toll contended that there are a number of steps to be taken to implement the in-principle agreement that has been reached to resolve the dispute. If implementation runs smoothly, Toll contended the injunction would only be in operation for two to three weeks. However, if there are hurdles that are encountered in implementation, then Toll submitted, further industrial action might be expected and having the "discipline" of an injunction would help to keep the implementation process on course. Toll submitted that whilst the probabilities of picketing occurring have decreased, the prospect of further conduct by the defendants in the nature of the acts complained of could not be ruled out. Toll contended that the Court should take into account that the earlier conduct of the defendants had taken place in the context of a lengthy industrial dispute.

36 I am not persuaded that an interlocutory injunction should be granted. The conduct complained of has ceased and there is no evidence that it will resume or that there is a sufficient likelihood that it will resume that would warrant the grant of an injunction. If circumstances change, then Toll may choose to renew its application for interlocutory relief. Such an application would be dealt with on the basis of the facts at the time.

37 I will dismiss the application for an interlocutory injunction.

[1] Spiros Chechris, Trent Dunleavy, Ben Nissan, Giuseppe Gentile, Mouhamed Neshabe, Emad Shabo, Lee Simon, Vanch Bosevski, Sumeet Pathak, Salad Ali, Rahil Voraghanchi, Amar Aodish, Huseyin Chavoush, Troy Gomes, Paul Henderson, Alex Dukadinovski, Joe Ierianni, Hakan Saniyaman and Ozgur Kocabay.

[2] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.

[4] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622.

[5] Bradto Pty Ltd v State of Victoria [2006] VSCA 89; [2006] 15 VR 65 at [35].

[6] Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at [4]; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia & Ors [1986] VicRp 38; [1986] VR 383 at 388; Barlowworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union (2001) 108 IR 107.

[7] (2001) 108 IR 107.

[9] Vaughan v Shire of Benalla [1891] VLR 129; Deasy Pty Ltd v Montrest Pty Ltd (Queensland Court of Appeal,, 22 November 1996, Unreported BC 96055947, per Pincus JA). See also McLeod v Rub-a Dub Wash (Malvern) Pty Ltd (Unreported, 29 February 1972, Stephen J, Supreme Court of Victoria). Cf Oldham v Lawson (No. 1) [1976] VicRp 69; [1976] VR 654 where a wife and husband brought an action for nuisance, but it was held that the husband had no standing to sue because the house was owned by the wife and he was a licensee only.

[10] Qantas Airways Ltd v Transport Workers' Union of Australia & Ors [2011] FCA 470; (2011) 280 ALR 503 at [36]- [38] and the cases cited in those paragraphs.

[11] The stock at the Centre is not highly perishable but it does include products such as chips and biscuits which must have a minimum shelf life for distribution.