Saint-Gobain Warehousing Pty Ltd v National Union of Workers & Ors [2006] NSWSC 1210 | Case summary

1 The plaintiff conducts a warehouse operation at premises at Wetherill Park. In the ordinary course of its business, the plaintiff receives deliveries of merchandise by truck at those premises and despatches merchandise from the premises also by truck. The premises have a frontage to Newton Road. The driveway and gate at the Newton Road frontage are the only means of ingress to and egress from the plaintiff's premises. 2 The plaintiff and its employees are engaged in an industrial dispute. Industrial action in the form of a strike by employees is in progress. It is conceded by the plaintiff that the industrial action is lawful having regard to the provisions of the Workplace Relations Act 1996 (Cth). 3 The plaintiff contends, however, that certain persons associated with the industrial action, including the first defendant union and certain of its officials, have, in the course of picketing activities at the Newton Road property, engaged in conduct which is tortious in such a way as to found a cause of action in nuisance by reference to what are described as obstruction and besetting. 4 Based on that contention, the plaintiff commenced proceedings on the afternoon of Friday 10 November. When the matter came before the court on that occasion, I granted leave for the plaintiff to file its summons and notice of motion together with affidavits. The affidavits filed and read were an affidavit of Ms Brookes, an employee of the plaintiff, and an affidavit of Mr Chirico, an employee of an associated company of the plaintiff. I also heard brief oral evidence from Ms Brookes. 5 It became clear that the course of events about which the plaintiff complained had commenced on 8 November, still in progress when the matter was before me and was expected to continue on Saturday 11 November, a day on which movement of vehicles into and out of the plaintiff's premises was scheduled to take place. It was also stated that there would be no such activity on Sunday 12 November but that activity would resume at 7am today, Monday 13 November, and that numerous vehicle movements into and out of the premises were expected to occur today. 6 In those circumstances, I granted limited injunctive relief against the first defendant union only, up to and including Sunday 12 November. I directed that further hearing of the notice of motion seeking interlocutory injunctive relief proceed on that day. 7 When the matter came before the court on Sunday 12 November, both the plaintiff and the defendants were represented by counsel and the interlocutory hearing was concluded. The plaintiff filed a further affidavit of Ms Brookes and I allowed certain evidence to be adduced from her orally. She was also cross-examined briefly. Two of the defendants, Mr Meaney, the assistant secretary of the New South Wales branch of the first defendant union, and Mr Seymour, the union delegate at the operations of the associated company of the plaintiff, also gave oral evidence. 8 At the end of the hearing on 12 November I reserved judgment and indicated that I would deliver judgment at 9.30 this morning, as I now do. The existing orders were continued up to 10.30am today. 9 It is the plaintiff's contention that there is a serious question to be tried as to whether the course of conduct that is in progress at its premises is of the tortious quality referred to by Bryson J in Barloworld Coatings (Aust) Pty Limited v Australian Liquor, Hospitality, and Miscellaneous Workers Union (2001) 108 IR 107. I quote paragraph 16 of his Honour's judgment: "The point at which picketing becomes tortious has been the subject of judicial consideration on a number of recent occasions. In the Court of Appeal of NSW significant observations were made by Mason JA (as his Honour then was) with the concurrence of other Judges in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] NSWLR 760 at 767; his Honour observed to the effect that picketing may become unlawful if it involves obstruction and besetting. See too Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 (Murphy J) at 389-399, Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 at 461-462, and David's Distribution Pty Ltd v National Union of Workers at 218-219 and at 223-224. 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. The evidence in this case shows that a number of persons have been subjected to threats, while it also shows that a number of persons have been subjected to insults which reasonable people would find very discouraging and would tend to avoid." 10 There was some debate before me as to the extent to which picketing is within the definition of "industrial action" in s.420 of the Workplace Relations Act, it being accepted that such "industrial action" is put beyond the reach of claims in tort by s.447(1) of that Act except where the particular conduct is as described in one of paragraphs (a) to (c) of s.447(1) or in s.447(2), something that is not suggested here. 11 Various observations in the Federal Court about the status of picketing are collected and discussed in the judgment of Finkelstein J in Communications Electrical Electronics Energy Information Postal Plumbing and Allied Services Union of Australia v Australian Postal Corporation, an unreported decision of 26 February 2004 to which no medium neutral citation appears to have been given. Those observations are concerned mainly with interference with the actions of employees, such as obstructing or deterring them from attending work. The observations recognise the possibility that actions of that kind with respect to employees may be within the aspect of the statutory definition of "industrial action" which extends to a ban, limitation, or restriction on the performance of work or on acceptance of or offering for work. 12 The complaints in the present case, by contrast, are concerned predominantly with alleged interference with actions of third parties, that is, not employees of the plaintiff but, rather, independent contractor carriers and drivers. 13 It is, in any event, not helpful to ask whether picketing as such is caught by the restrictions on exercise of common law causes of action imposed by s.447 of the Workplace Relations Act. The real question is whether particular forms of tortious behaviour are caught by those restrictions. It is sufficient for present purposes to say that the forms of tortious conduct referred to by Bryson J in the passage of his judgment in Barloworld I have quoted, being the forms of conduct alleged here so far as ingress and egress by independent carriers and drivers go, do not appear to be within the protection afforded by the Commonwealth Act, with the result that that aspect of the serious question to be tried issue should be determined in favour of the plaintiff. 14 The evidence led by the plaintiff is said to identify several instances in which conduct falling within the specifications stated by Bryson J was engaged in by persons either formally connected with the first defendant union or apparently acting in concert with persons so connected. The evidence is almost uniformly of a hearsay character. That, while not making the evidence inadmissible upon an interlocutory hearing, does mean that the evidence must be treated with care. That is something that was emphasised by counsel for the defendants. 15 I proceed to consider the aspects of the evidence upon which the plaintiff places greatest reliance. The first episode is deposed to in Ms Brookes' first affidavit. She is the plaintiff's warehouse supervisor at the Wetherill Park premises. In paragraphs 14 and following of her affidavit she refers to a telephone call received by her at about 8.15am on 8 November from a truck driver she knows as "Peeno" who works with McPhee Transport. He said that he had tried to come into the premises but "they won't let me in. I have parked the truck outside". Ms Brookes understood Peeno to be referring to a group of about eight persons she had earlier seen standing "near and in" the driveway of the premises. After receiving the phone call from Peeno, Ms Brookes watched him park his truck outside in the street and walk past the picket line into the warehouse. He said to her "I need to bring the goods inside but they won't let me come through". 16 I next refer to an episode on 9 November, also deposed to by Ms Brookes in her first affidavit. At about 7am on that day she was told by Mr Broudu, "The picketers including some people from Lidcombe are blocking a truck from entering the premises". Ms Brookes went to the scene with Mr Broudu and started the camera on her mobile phone. With that camera, she and Mr Broudu, to whom she later gave the phone, captured some images of what was happening. I have viewed the footage. It is very jumbled. It is difficult to make things out. It is clear enough that there is a stationary truck and a person identified by Ms Brookes as Mr Cody, a union official, standing in front of it, but whether the truck stopped because the person said to be Mr Cody was standing in its path as it progressed or whether that person began standing in front of the truck after it had stopped cannot be determined. 17 Ms Brookes deposes that the truck involved in the filmed incident in fact entered the premises shortly after the filming. She said that the driver said to her, "They abused me and shoved some sort of card in my face and said 'until you have one of these don't ever come back here again'". Clearly, therefore, that truck was allowed to enter albeit in a context that, according to Ms Brookes, was described in those terms by the driver. 18 I next refer to Ms Brookes' evidence of a telephone conversation with the driver Peeno at about 1.45 pm on 10 November. She said that he told her that when he tried to enter the premises, he was stopped by Mr Meaney in the driveway and that Mr Meaney said, "If I see you leaving here with goods on your truck you will be black banned". Ms Brookes also reported Peeno to have said that he was going to unload his truck at another location and, "I am not going to pick up any goods as scheduled; if you want someone to do your deliveries for you while this is going on you should try Allied; they don't use union labour". 19 Ms Brookes also deposed to something told to her by Sharon Kerr, another employee of the plaintiff, which is recorded in a note said to have been typed by Sharon Kerr soon after the relevant events on 9 November. That note is as follows: "When I entered the premises of 148 Newton Road this morning there was a truck parked in the driveway with union rep and members standing in front. After parking the car and getting out the union rep was talking to the truck driver most of the conversation I could not hear. When the truck started driving up the driveway to the receiving department I heard the union rep say to the truck driver 'make sure you do not come back'." 20 Ms Brookes deposes to telephone calls received from two persons connected with transport companies and one from the plaintiff's customer service officer during the period 8 to 10 November. 21 The customer service officer told her he had been told by drivers that "the people on the picket line are turning drivers away and not letting them enter the lot". One of the transport company people allegedly said to Ms Brookes, "Our driver has been told that he can not come into the premises because he can not pass the picket line". The other transport company representative allegedly said, "Our driver was in today and yesterday and was sent away and was told he could not do a pick up". 22 Mr Chirico deposes to a telephone conversation on 8 November with an employee of a distributor whose delivery man had gone to the premises on that day. Mr Chirico had seen the delivery man there in a motor vehicle he knew to be from the distributor. There was a person standing next to the passenger side of the vehicle which was stationary in the driveway. According to Mr Chirico, that person was, "waving his arms around" and the vehicle shortly afterwards turned around and left. In the subsequent telephone conversation the employee of the distributor said that the deliveryman had said that he was stopped by a union representative who had said, "There are no pick ups today". Mr Chirico himself later spoke to this driver ("David"). The conversation is at paragraph 9 of the affidavit of Mr Chirico: "Chirico: 'Are you going to come back to complete the delivery?' David: 'No I am not.' Chirico: 'Are you worried about the guys out front? They are not allowed to stop you. You should come in.' David: 'I don't want to.' Chirico: 'They turned you away? Or did you go of your own accord?' David: 'I don't want to get involved. I want to keep the peace. I will have to deal with these people at a later stage.'" 23 Mr Chirico also deposes to a conversation with an officer of another distributor on 8 November in which the officer said that his company had on that day twice sent trucks to the premises "and the people out the front have knocked us back". On the morning of 9 November the same person spoke to Mr Chirico and said another delivery had just been attempted "and we have been turned away". 24 The defendants emphasise non-satisfactory aspects of the plaintiff's evidence, particularly its hearsay quality and, in many areas, its conclusionary nature. Statements that a truck was turned back, or knocked back, or sent away, or was not let through are uninformative when it comes to determining precisely what happened and what was said. A truck driver engaged in conversation by a picketer may turn back because of some threat or intimidation or because rational, reasonable and courteous explanation of the situation causes the driver to make a decision to leave. 25 It is reasonable to infer from the evidence that some of the drivers were themselves union members. This may have been something that weighed in their own decision making. It may have been assumed by their superiors that they had, as it were, been driven back when in fact they had consciously and voluntarily decided to turn back. The second and, in some cases, third hand nature of the evidence leaves possibilities of this kind clearly available. 26 There are also other unsatisfactory aspects of the evidence. Ms Brookes referred in her affidavit to having seen Mr Meaney do certain things, then went into the witness box to say it was Mr Cody, not Mr Meaney, whom she had seen do them. Mr Meaney gave evidence that he was not there. Ms Brookes also gave evidence that she had seen Mr Seymour participating in particular activities. Mr Seymour testified that he had never been to the Wetherill Park premises, did not know how to get to them and had only seen them once when he was a passenger in a car that drove past about six years ago. 27 There is inconsistency between Ms Brookes' evidence and that of Mr Chirico with respect to an episode in which the latter was personally involved when he drove into the premises on 9 November. He says that as he drove through the driveway a person he identified by name called out "what a hero" or words to that effect. Ms Brookes' hearsay version has the person who spoke to Mr Chirico saying something that sounded like "slack bastard". 28 Upon this interlocutory hearing it is not the function of the court to make firm findings of fact where there are inconsistent versions. That said, I have sufficient presently uncontested evidence to conclude that picketing activity has been occurring at the Wetherill Park premises and that a number of drivers who would, in the normal course, have driven into the premises along the driveway have, in the face of this picketing activity, not done so. The question is, whether there is, on the evidence as it stands, a seriously arguable case to the effect that their non-entry has been produced by physical obstruction or by what is generally termed "besetting". 29 As to physical obstruction, I am not satisfied that there is a serious question to be tried. Two particular instances referred to in the evidence most relevant to this have not so far been mentioned. The first involved Ms Brookes herself and her arrival at work on 8 November. She says that about eight people were on the driveway but moved aside and - these are the operative words - "I was able to pass them in my car". The second matter involved a bus with a placard on it apparently parked by picketers inside the gate and to the side of the driveway. Of that, Ms Brookes says, "There was enough room for a truck to pass the bus but only with care". The incident that was filmed did not result in non-entry of the truck. In short, there is no clear evidence at all of physical obstruction. 30 When it comes to besetting, however, I am of the view that there is a serious question to be tried. The evidence shows numerous instances of failure by drivers to execute an intention to enter the premises in circumstances where they have been spoken to by persons participating in picketing activity. Although the evidence as to precisely what was said is somewhat scanty, there are elements of it indicating that the words spoken on some occasions went beyond reasoned argument and were likely to have been of a threatening kind, perhaps mostly by way of veiled or implied threat. 31 I refer in particular to the evidence concerning the driver who reportedly said, "They abused me and shoved some sort of card in my face and said 'until you have one of these don't ever come back again'". This indicates threatening conduct. A similar indication comes from the report by a driver that he was told that he would be "black banned" if he loaded. Black banning connotes isolation or ostracising, so that this too may be construed as a threat of adverse consequence. The same holds true in relation to the suggestion that a driver was told "make sure you don't come back". That could well be regarded as a threat of retaliation if he returned. 32 These are particular instances where there is some evidence of the actual words spoken. Those words are capable of being found to involve something in the nature of threat or coercion going beyond reasonable explanation and persuasion. That being so, there is a clear likelihood that other, less specific instances, those where it is said merely that a driver was turned back or something similar involved like threat or coercion. 33 I must emphasise that the evidence contains no suggestion of physical threat or apprehended violence. The indications of future adverse consequences have all been verbal only. 34 The elements of verbal threat or verbal suggestion of adverse consequence are central to the concept of besetting as relevant to this part of the law of nuisance, involving, as Murphy J put it in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, action "to set around or surround with hostile intent" with the product being "fear to proceed". 35 On the evidence before me, there is an arguable case that the references to adverse consequences for a person entering the premises have been uttered in circumstances where several persons have been present with or have associated themselves with the expression of adverse consequences. The picket is of its nature a group or collaborative exercise. Therefore, as I say, I am satisfied that there is a serious question to be tried as to the besetting aspect of the plaintiff's case. 36 I turn to consider the balance of convenience. On the basis of what I have said to this point, the serious question, as I have found it, will support an appropriate interlocutory order restraining besetting conduct, that is conduct entailing coercion or threat or other indication of adverse consequence. I see no basis on which any of the defendants could assert any lawful right or legitimate expectation that would be prejudiced if that form of conduct were enjoined. In other words, the balance of hardship would not affect the defendants if any such restraint were imposed. 37 The plaintiff, by contrast, may suffer appreciable and ongoing hardship if such a restraint is not imposed, in that the flow of traffic to and from its premises in pursuit of its lawful commercial endeavours may be impeded in the absence of restraint. 38 I am conscious of the comments of Bryson J in the Barloworld case about the limited role that tort based injunctions ought properly to play in situations of industrial dispute and the limited utility of the sanction of contempt in such cases. In today's society, these matters are principally the concern of statute law and specialist tribunals. The fact remains that the legislation does not purport to be exhaustive or exclusive and, if a case for the issue of an injunction on equitable principles, having regard to apprehended invasion of common law rights, is shown, a court of equity may reasonably be expected to act in the usual way. 39 In this case the orders need to be framed with care. I am aware of and generally receptive to the limitations suggested by Hamilton J in Morris McMahon & Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2003] NSWSC 452. I am also of the opinion that the besetting conduct defined by the orders should emphasise two elements: first, action by several persons together or by one person in company with at least one other person, and, second, the use of words or gestures carrying a message of adverse consequence if the request or demand made is not observed. 40 There will be no order about physical obstruction. This is because an arguable case of physical obstruction has not been shown - not, I hasten to say, because the court intends to condone physical obstruction in any way. 41 The form of orders will also be shaped by the fact the picketing activity is obviously organised by the first defendant union. I do not say that in any critical way whatsoever. To the extent that it does not overstep the limits to which I have referred earlier, the picket activity is a perfectly lawful and proper means by which the union seeks to advance the cause of the workers at the site. I am of the opinion that it is the union that should be subjected to the orders. Particularly in view of the doubts that have been cast over Ms Brookes' identification evidence (I refer to the cases of Mr Meaney and Mr Seymour) and having regard to the fact that individual workers may be taken to be doing no more than engaging in union organised and union sponsored activity, I do not consider it appropriate to subject any individual defendant to interim restraint. The position will be held pending trial if the union alone is bound. 42 It is desirable that I hear submissions on the precise form of order to be made. I indicate, however, that my inclination is to make an order to the effect of the document which I will hand to counsel in a moment. 43 The quality of the material placed before the court by the plaintiff on the interlocutory application suggests strongly, to my mind, that there is a need for the plaintiff's case to be articulated and particularised with care. I therefore propose, subject to any submission to the contrary, to order that the matter proceed on pleadings. 44 The interim orders made last Friday and extended yesterday are in operation until 10.30 this morning. They should be replaced as soon as possible by the much narrower orders I have outlined. Counsel for the parties therefore should approach me in the duty list before 10.30am so those orders based on the document I now hand them may be settled and pronounced.

Saint-Gobain Warehousing Pty Ltd v National Union of Workers & Ors

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (1)

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