Tycan Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing... [2002] VSC 168 | Case summary

Supreme Court of Victoria|2002-05-08|Before: ASHLEY J

Injunction - interlocutory injunction - picketing of workplace by strikers - involvement of unions and union officials - disruption of employer's business - financial loss and damage to reputation - threatened continuance of picketing - likelihood of further loss and damage - serious issue for trial whether unions and officials liable to employer at common law - balance of convenience - injunction granted - need for injunction to be precise and no wider than the particular circumstances require.

The summonses, which follow upon the filing of a writ on 6 May, concern picketing which has taken place in the vicinity of the sole entrance to the plaintiff's premises at 269 Frankston-Dandenong Road, Dandenong, that picketing commencing on 25 April this year and continuing to the present time.

The background to the picketing established by the affidavit material is clear enough. There is a dispute between management and at least the large majority of the hundred or so employees of the plaintiff concerning wages and conditions. There was an industrial agreement in place. That agreement expired early this year. There were negotiations between management and the unions, by which I refer to the first and second defendants, in the period between February and April. Formal bargaining periods were established by notices given by the unions. The parties could not get together. In late April the unions gave notice of intention to take protected industrial action. A strike followed and, as I said a few moments ago, the large percentage of the workforce went out on strike and have been on strike since Anzac Day or thereabouts.

The proceeding is not concerned with the right of the workers to take strike action. The plaintiff's complaint is that the defendants have orchestrated and, in the case of the third and fourth defendants, taken part in the pickets, which have had an effect of disrupting in a serious way the plaintiff's business so as to cause it loss of income, loss of business and damage to its trading reputation. It is convenient to note at this point that there is no doubt that the plaintiff can bring the proceeding. It was granted a certificate under s. 166A of the Workplace Relations Act 1996 (Cth) on 4 May.

The overwhelming burden of the evidence is that what has in fact occurred has involved picketing with unlawful characteristics. I think there is really no doubt that the picket has been conducted in such a way as to impede access from time to time to the plaintiff's premises, both by the use of vehicles and persons. There is evidence, again, that employees attempting to cross the picket have at times been harassed and intimidated. There is evidence, again, that contractors desiring to visit the site have in effect been warned off and that access to the plaintiff's premises has been denied to customers of the plaintiff in robust language.

It is not unexpectedly the case that the material placed before the court does not, with any great specificity, identify either or both of the third and fourth defendants in particular actions or in saying particular things in connection with the picket. But having regard to the obvious involvement of the two unions in the picketing activity, having regard to the clear evidence of the presence of the third and fourth defendants on the picket quite frequently, and having regard to circumstances such as those where an employee of the plaintiff on one occasion said that he would need to take advice before permitting or refusing access to the premises, I think there is a pretty clear inference that the third and fourth defendants, and the unions in turn, have gone beyond that which is permitted. I draw that inference notwithstanding Mr Hayes' affidavit, affirmed this day, that he has counselled action which should be considered lawful in all respects.

It is, I think, clear from the material placed before me not simply that there has been unlawful picketing to date, but that it is the intention of the defendants that the pickets should continue into the indefinite future. It is very likely, in the event, that the plaintiff would suffer further damage of the kinds to which I have already referred.

I think there is really no doubt that the plaintiff must have relief. Indeed, Mr Bornstein, for the first and third defendants, and Mr Maddison, for the second and fourth defendants, did not argue to the contrary. They rather submitted that the orders proposed by the plaintiff's side were too wide, not being justified by the evidence and being such as, in one instance at least, could inhibit a lawful activity.

The reason, in short, why the plaintiff is entitled, in my opinion, to relief is that it has shown that there are serious questions to be tried as to whether the defendants have interfered with the plaintiff's contractual relations with third parties, whether the defendants have committed a nuisance, and whether the defendants have engaged in intimidation. Those matters, at least, are opened up by the evidence.

As to the balance of convenience, it seems to me, and it was not argued to the contrary, that the extent of damage thus far suffered and likely to be suffered by the plaintiff, not only financial but to its business reputation, is such that there is a strong basis for granting interlocutory relief.

That leads on to consideration of the terms on which relief might be granted. I have been much assisted by the submissions made by all those at the Bar table about that matter. It seems to me very important that injunctive relief not be granted on terms that are any wider than is necessary and as are justified by the evidence. It is not useful to be presented with pro forma orders that have been made in the past in different circumstances. Each matter must be determined on its own merits. It is very important that the terms of an order be clear, particularly in the context of an industrial dispute where passions will often run high and where it is critically necessary for the people on the ground, employer, employees and unions, to understand what may be lawfully done and what may not.

That said, and looking at the terms of the orders ought by the plaintiff in the draft handed to me today, I am satisfied, and there was no argument to the contrary, that an order should be made in terms of paragraph (a); that is, that "Until trial or further order, the defendants, whether by themselves, their officers, servants, agents or otherwise, be restrained from" - and then I go to (a): "Preventing, hindering or interfering with free access to and free egress from the premises of the plaintiff at 269 Frankston-Dandenong Road, Dandenong, in the State of Victoria (the premises) by any person or vehicle."

As to draft paragraph (b), as I mentioned in the course of argument, I am not satisfied that there need be any restraint against the causing of physical harm. It does not seem to me that the evidence fairly leads to a conclusion that that has been or that there is likely to be a risk of such harm. On the other hand, I do not accept the defendants' submissions that, having regard to all the material, their respective clients ought not be the subject of a preclusion generally in terms of paragraph (b). I therefore propose to make an order by paragraph (b) which would preclude "abusing, threatening, besetting, harassing or intimidating any person entering, leaving or about to enter or leave or who has entered or left the premises of the plaintiff".

I turn to paragraph (c). There I think that Mr Bornstein and Mr Maddison fairly raised concerns that the width of the draft order could preclude Unions or Union officials conversing with their own members or potential members in connection with the continuance of the strike. That problem can be addressed by narrowing the terms of the proposed paragraph (c). Beyond that, however, I am not persuaded by the argument advanced for the defendants that paragraph (c) would inhibit peaceful picketing. The concept of peaceful picketing is not necessarily inconsistent with conduct which would seek to induce the breaking of contractual relations. In the event, it seems to me that paragraph (c) ought to be permitted in this form: "Inducing, procuring, advising or persuading any person (not being an employee of the plaintiff who is or who is eligible to be a member of either of the first or second defendants) not to enter or not to leave the premises of the plaintiff or attempting so to induce, procure, advise or persuade".

Draft paragraph (d) of the orders was, after argument, sensibly abandoned by Mr Wood, counsel for the plaintiff. I put it to one side. The same thing can be said of draft paragraphs (f), (g) and (h).

Going then to draft paragraph (e), it seems to me that the evidence justifies an order being made generally in the terms of the draft; but that reference to damage or attempted damage to a vehicle should be removed. There is no evidence that any vehicle has been damaged to the present time. The only suggestion that a vehicle might be damaged involved a suggestion that a person's car would be lifted up if the person attempted to enter the plaintiff's premises. It seems probable that any such action would be more likely to damage the lifters than the vehicle. In the event, it see ms to me that paragraph (e) ought stand as follows: "Interfering with any vehicle or the contents or load of any vehicle entering or leaving or about to enter or leave, or which has entered or left the premises of the plaintiff, or attempting to so interfere".

I go last to paragraph (i). I do not accept the argument for the defendants that the evidence does not justify the insertion of such a paragraph. It seems to me, for reasons that I have previously indicated, a fair inference that what has happened and is likely to happen on the picket will very likely rest not simply with the workers but, importantly, with the defendants, and perhaps most particularly the third and fourth defendants. So it seems to me that paragraph (i) should stand in this form: "Causing, inducing, procuring or advising any person to do or attempt to do any of the things restrained by any one of the sub-paragraphs (a), (b) (c) and (d) of this order. Sub-paragraph (d) will be the draft sub-paragraph (e). It follows that sub-paragraph (i) will need to be re-lettered (e).

No application for costs was pursued today. I think the appropriate order is that there be no costs of this application.

Tycan Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Ors [2002] VSC 168

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