The events of 11-13 March 2009 at the site facility and the corporate head office
55 As mentioned above, the respondent unions and Mr Powell had been restrained, since 6 February 2009, from preventing or hindering the access of any person or vehicle to the site facility and (with certain exceptions) from attending, from organising any person to attend, and from placing or leaving any vehicle, trailer, apparatus, equipment or thing, within 100 metres of any entrance to the site facility. A like restraint had been applied to Mr Mavromatis in the John Holland proceeding since 17 February 2009. These restraints are relevant to the inferences that may be drawn as to the events of 11-13 March 2009 at the site facility, particularly with respect to the involvement of one David Kerin, an official of a body known as "Union Solidarity". There is no real question but that Mr Kerin and his organisation were providing support for the respondent unions' campaign against John Holland. However, for reasons which will appear, it is necessary to refer to the evidence from which the applicant submits that I should draw certain inferences as to the nature of the relationship between Mr Kerin and those unions (and their officials).
56 On 18 February 2009, Mr Kerin contacted Mr Mavromatis by mobile phone. The call lasted about four minutes. Mr Stephenson rang Mr Kerin at 4:05 pm on 3 March 2009, the call lasting for 25 seconds. Mr Kerin contacted Mr Stephenson at 5:34 pm on the same day, the call lasting for 32 seconds. I think it unlikely that either of the communications between Mr Kerin and Mr Stephenson constituted a conversation of substance, and that the probabilities are that each represented a message left on a voicemail device. This inference is consistent with the fact that Mr Stephenson again contacted Mr Kerin at 6:09 pm on the same day, this time the call lasting 16 minutes. That was clearly a conversation of substance. On the following day (4 March 2009), at least one of the protesters outside the project head office was wearing a garment with words "Union Solidarity" conspicuously displayed on it. At 6:10 pm on that day, Mr Stephenson rang Mr Kerin, the call lasting for 5 seconds only. At 6:56 pm, Mr Kerin rang Mr Stephenson, the call lasting 20 seconds. Again, I would not infer that either instance represented a conversation of substance. I would say the same thing about an 18 second call from Mr Kerin to Mr Stephenson at 9:41 am on 6 March 2009. However, it seems that contact was finally made as between these two men, for at 9:45 am on 6 March 2009, Mr Stephenson called Mr Kerin, and the call lasted for about four minutes and 20 seconds. The contacts referred to in this paragraph are not directly relevant to the events of 11-13 March 2009, but they provide a basis for inferring that Mr Stephenson was Mr Kerin's main point of contact at about this time.
57 There were more telephone contacts as between Messrs Stephenson and Kerin on 10 March 2009. There were two brief calls, and two SMS messages, passing between them between about 1:50 pm and 2:13 pm that day. Again, I infer that these were attempts at contacts, rather than conversations as such. Then, at 7:53 pm, Mr Kerin rang Mr Stephenson, and the call lasted about two minutes and 24 seconds. On 11 March 2009, Mr Kerin rang Mr Mavromatis at 5:24 am, the call lasting 39 seconds. It may not be safe to draw any inference about the nature of this call from the length thereof, but it is significant that contact was made, or attempted to be made, with Mr Mavromatis at that time. Mr Stephenson rang Mr Kerin at 6:30 am, the call lasting two and a half minutes. The same occurred at 7:21 am, this time the call lasting one minute and 40 seconds. These two spoke again for about the same length of time at 8:17 am and at 8:47 am. Shortly after the latter call, Mr Kerin sent an SMS message to Mr Stephenson. On Mr Stephenson's call, the two spoke for more than three minutes at 12:17 pm. There was a further call from Mr Stephenson to Mr Kerin at 1:24 pm, but it lasted only 33 seconds, and may not have been a conversation of substance. There was a short (19 seconds) call from Mr Stephenson at 6:08 pm, followed by a call (I infer a return call) from Mr Kerin at 6:18 pm, which latter call lasted eight minutes and 25 seconds. An oddity of the telephone records on which the applicant relies is that, after only about six and a half minutes of this call, it is shown that Mr Kerin again rang Mr Stephenson from a different area of Melbourne, this second call lasting about three minutes. I think there is enough in the telephone records to infer, however, that Messrs Stephenson and Kerin conversed at some length on the evening of 11 March 2009.
58 Over the period with which I am dealing, there were also numerous telephone contacts as between Mr Stephenson or Mr Powell of the one part and some of the former Civil Pacific employees of the other part. Here the applicant relies on the involvement of Messrs Slaven and Paterson. Mr Slaven was a member of both of the respondent unions. During the course of the Civil Pacific dispute, he was one of the spokespersons for employees who gave support to the position of the respondent unions. He was one of the more conspicuous participants in the protest at the project head office in the period following 3 March 2009. He and Mr Powell were in telephone or SMS contact on a number of occasions on 10 March 2009. Taking only those instances that indicated conversations of substance, there were calls of two and a half minutes at 12:09 pm, of about four and a half minutes at 4:37 pm and of nearly five minutes at 6:44 pm. On the following day, 11 March 2009, there were calls of one minute and 23 seconds at 5:42 am, of just over a minute at 5:54 am, of 43 seconds at 6:09 am, of just over a minute at 6:13 am, of just under a minute at 6:25 am, of about two minutes at 6:38 am, of just over a minute at 7.10 am, of about four minutes at 10:23 am, of about two minutes at 10:56 am, of about a minute at 11:43 am, of 40 seconds at 11:57 am and of 15 and a half minutes at 6:19 pm. A similar pattern continued on 12 March 2009. There were telephone calls as between Mr Powell and Mr Slaven of over two minutes at 5:41 am, of just under a minute at 5:49 am, of five and a half minutes at 6:39 am, of a minute and 19 seconds at 7:54 am, of 40 seconds at 7:59 am, of 47 seconds at 8:59 am, and of about three minutes at 1:47 pm. On 13 March 2009, there were calls between them of one and a half minutes at 6:15 am, of 40 seconds at 7:38 am, of about one and a half minutes at 9:17 am, of just over a minute at 9.28 am, of 46 seconds at 11:45 am, of about one and a half minutes at 5:12 pm, and of about two and a half minutes at 5:20 pm.
59 Dealing next with Mr Paterson, he was at relevant times a member of the AMWU. Like Mr Slaven, he had been a spokesperson for the Civil Pacific employees. He too was conspicuous amongst the protesters at the project head office in the period following 3 March 2009. On 10 March 2009, he spoke to Mr Powell by telephone at 4:59 pm, the call lasting for about one and a half minutes. On 11 March 2009, he spoke to Mr Powell for about five minutes at about 6:00 pm, and to Mr Slaven briefly (48 seconds) at 5:28 am and (44 seconds) just before 9:45 am. On 12 March 2009, after what appears to have been unsuccessful attempts to make contact, Mr Paterson spoke to Mr Powell by mobile telephone at 2:38 pm, the call lasting about three minutes. There was a brief call (48 seconds) between these two men at 9:58 am on 13 March 2009, and a call of one minute and 21 seconds' duration between Messrs Paterson and Slaven at about 11:03 am on the same day. Finally, Mr Paterson spoke to Mr Powell for just over two minutes at 5:44 pm, and to Mr Slaven for about the same time at 5:47 pm on 13 March 2009.
60 Returning to the narrative, by about 5:15 am on 11 March 2009, Mr Kerin's vehicle was blocking the Hyde Street entrance to the site facility. When asked to move it, Mr Kerin's response was, "No, this site is shut due to workers being sacked". At the Hall Street entrance, there were a number of protesters' vehicles parked across the gate. Some of the protesters present were former Civil Pacific employees. Messrs Paterson, Slaven and Padula were present. Mr Slaven said to Jim Wiadrowski, Safety Manager for John Holland, "All we're after are our jobs back, at the proper rates." Some distance away from the gate, there were two vehicles parked on the road. Mr Wiadrowski assumed that the occupants were workers who were to commence work on-site that day. Some of the picketers took photographs of the occupants of those vehicles, and said to them, "We want our jobs here. We don't have anything against you. This is a picket line and we don't want you to cross it." At about 5:50 am, these vehicles departed.
61 Some of the first WorkPac employees to arrive at the Hall Street entrance noticed the presence of the picket line, and their supervisor, upon being informed of that circumstance, arranged for them to meet near some shops some distance away. Instructed to do so by Mr Twentyman, the supervisor then directed the WorkPac employees to proceed to a McDonalds restaurant in Somerville Road, Yarraville. They did so, arriving there at some time after 6:00 am. One of the workers reported to the supervisor that, by his observation, the group had been followed. Some of the protesters had indeed followed the WorkPac workers to McDonalds, the former including Mr Padula in his silver VW registered "NEEROD". I am prepared to infer that Mr Padula's presence was not coincidental. At about this time, he seems to have been in regular telephone or SMS contact with Mr Slaven. He sent an SMS message to Mr Slaven at 6:06 am, he spoke to Mr Slaven by telephone at 6:22 am, 6:24 am and again at 6:26 am (for 37, 37 and 39 seconds respectively). There were also three other cars, apparently occupied by protesters, which arrived at McDonalds. Eleven men in total emerged from these cars. They were wearing jumpers or jackets carrying the Eureka flag emblem. Five of them walked into the restaurant, and as they walked past one of the WorkPac employees (who was standing outside), one of them said "Here's the fucking scabs".
62 The WorkPac employees filled out some paperwork for John Holland while they were at the restaurant, and then prepared to leave, intending to go to the corporate head office in Abbotsford. While walking back to his car, one of the employees was addressed by one of the protesters, asking, "Tell me mate, what are you getting paid on this job?" The worker said, "I'm not getting paid at the moment, I haven't started work yet. Look mate, I'm not against you and what you're doing. I need to work and I can't pass up this opportunity." The protester said, "Okay, I understand that, but you're getting ripped off because it should be under a metal agreement and you should be getting $10 more per hour." The worker replied, "Look, I don't want to talk about it." The protester replied, "Okay, have a nice day and I'll see you wherever you're going. I'll see you when you get there."
63 The WorkPac employees then proceeded to the John Holland corporate head office in Abbotsford, where they had all arrived by about 7:00 am. A short time later, Mr Padula drove his "NEEROD" vehicle back and forth along Trennery Crescent, past those standing outside the office. One of those was Mr Hamersley, to whom Mr Padula called out (from his vehicle) that he was a "fucking cunt". Mr Padula's front-seat passenger stuck his head out the window and yelled to the group of WorkPac workers standing there: "You fucking scabs are taking our jobs!". The same passenger called out to the WorkPac supervisor: "You won't get any work in Melbourne again".
64 Despite the absence of ostensible indications, I would infer that Mr Stephenson was at least aware of Mr Padula's general project at this point. There was a telephone call from Mr Stephenson to Mr Padula at 7:00 am, which lasted 38 seconds. Mr Stephenson rang Mr Padula again at 7:23 am, when the call lasted nearly two minutes. At 8:26 am, Mr Padula rang Mr Stephenson, the call lasting about a minute. Mr Padula was in "Collingwood" at the time (where he had been, according to the telephone records, at least since 7:21 am, when a very short call is recorded from him to Mr Stephenson), which I take to include, relevantly, the region where the corporate head office was located. Mr Padula made a number of calls that morning from Collingwood, nearly always to Mr Slaven. The last recorded call by Mr Padula from that area, however, was to Mr Powell at 11:48 am, the call lasting 48 seconds.
65 Meantime, at the site facility, it was Mr Kerin who was taking a leading role representing the protesters in their negotiations with the police (who had arrived, after having been contacted by John Holland). At the Hall Street entrance shortly after 6:00 am, he said to Sergeant Belle, of the police, "This is a peaceful community protest. There will be no violence but we don't want materials going on to the site." Mr Cassells told Sergeant Belle that no deliveries to the site facility were anticipated that day. Despite having been asked by Mr Cassells, Sergeant Belle said that he could not open both gates to the facility (ie Hall Street and Hyde Street) and keep them open all day. Mr Cassells asked Sergeant Belle to arrange for the Hall Street gate to be opened, at which point the picketers present began to chant, "What do we want? Jobs back! When do we want it? Now!". The police prevailed upon the picketers to remove their cars from blocking the gate, but it transpired that a padlock securing a chain on the gate had been disabled by having had a key broken off inside it. Mr Kerin addressed the protesters as a group, saying, "This union's got a good record on non-violence - we'll stick by that - the police have got their own union and we respect them". Mr Lee, who heard these words, considered that Mr Kerin's tone was calming, and that he was urging the protesters not to be violent. However, the gate remained closed, and it was not until later in the day that it was opened. It was as a result of being unable to open the gate that John Holland directed the WorkPac employees to meet that morning at Abbotsford, rather than, as arranged, to undertake their induction at the site facility.
66 At about 10:45 am on 11 March 209, Baz Kaypakkaya, an IT/Systems Manager in the employ of John Holland Group Pty Ltd, arrived at the Hyde Street entrance to the site facility with John Mooney, the representative of a contractor engaged for the installation of cables for internet, telephone and like services there. About six or seven picketers were standing in front of the gate with their arms crossed. Mr Kerin, who was one of them, approached Mr Kaypakkaya's car and said to him, "What are you blokes doing here?". Messrs Kaypakkaya and Mooney got out of their car, and the former said to Mr Kerin, "We are here to check out the site huts, to see if we can cable them up and get some services in there". Mr Kerin said, "You can't have access to this site". Mr Kaypakkaya asked under whose authority Mr Kerin denied him access to the site, and the latter responded, "Union authority".
67 On 11 March 2009 on the application of John Holland, I made interim orders in the Holland proceeding restraining the respondents in that proceeding from preventing or hindering the access of any person or vehicle to, or the access of any person or vehicle from, the project head office; (with certain exceptions) from standing, sitting, lying or otherwise being present at or on the approach to any door, gate or entrance of or to the project head office; from threatening or abusing any person entering, approaching, leaving or departing from the project head office; and from engaging in certain other conduct. I restrained Mr Mavromatis (with certain exceptions) from attending or being within 100 m of the project head office.
68 On 12 March 2009, there was a substantial presence by picketers at both entrances to the site facility. Witnesses estimated about 40 people at each entrance. At the Hyde Street entrance, Messrs Lynch, Slaven and Cheney appeared to be in control. At some stage during the morning, Mr Slaven said to Mr Foster that there were others "above him calling the shots". About 100 m from the Hyde Street entrance, there was an orange caravan stationed, on which were displayed a CFMEU flag and an AMWU flag. A tent was erected next to the caravan. During the day, Mr Mavromatis was seen in the vicinity of the caravan.
69 At about 6:35 am on 12 March 2009, Mr Cassells and Steven Webb (industrial relations consultant to John Holland) approached the Hall Street entrance in their car, and stopped about 20 metres short. There was a large group of people standing at the Hall Street entrance. A man who identified himself as "Ray" told Mr Cassells, "No-one is going through the gate. Some blokes have been sacked and they are concerned for their future." Messrs Cassells and Webb then proceeded to the Hyde Street entrance to the site facility, where the gate was open but the path was blocked by a vehicle. Near the gate were signs on display which read "AMWU metal workers - Proud to be union" and "CFMEU - Touch one, Touch all". Another sign read "Award rates is all it takes - AMWU - CFMEU".
70 At about 7:45 am on 12 March 2009, Mr Webb, now in the company of Mr Foster, drove up to the Hall Street entrance to the site facility. There were about 30 people standing in the roadway in front of the gate. Although it was difficult to see what was happening, Mr Webb saw the type of sparks or flashes which he associated with welding activity. Shortly thereafter, Mr Lee entered the site facility through the Hyde Street gate (the police present having procured the driver of the vehicle blocking the way to move it away from the gate) and drove through to the Hall Street entrance. The gate there had been welded closed with two pieces of square tube, and some heavy steel mesh, so that it could not be opened.
71 Also on 12 March 2009, the WorkPac employees, and some direct employees of John Holland, were undergoing training at the corporate head office in Abbotsford. At about 12:30 pm, Mr Marshall, who was meeting with the new workers, heard yelling and the beeping of a car horn in the street outside. Looking out the window, he saw Mr Powell leading a group of about 12 men towards the entrance to the office. He went into the courtyard, where he had a good view of the main entrance. He saw that a picket had formed directly outside the entrance, which consisted of about 50 men. One of those present held a megaphone to his mouth and yelled things like, "Come down here you scabs, come down and talk to us you scab bastards, come and join the union" and, "We know you're in there, scabs." One of the WorkPac employees who was at the meeting heard the man on the megaphone say, "Come out scabs, we know you're in there. If you cross the picket, you'll always be a scab. When you get married, you'll be married in a church as a scab. When you have kids, we'll know who they are and they will be scabs and they will be the children of a scab worker. You're taking jobs that don't belong to you. They're our jobs and we have a right to be on the bridge." He then heard the man with the megaphone yell, "What do want?" at which the others would chant, "Our jobs back!" The man with the megaphone would then call, "When do we want it?", and the others would respond, "Now!" The man with the megaphone then said: "Ladies and gentlemen, this is a peaceful protest, we don't mean any harm, we just want our jobs back! Well, that's it, we've come to pass our message on to you and John Holland." By about 2:00 pm, those on the picket outside the Abbotsford office were leaving. However, Mr Mavromatis remained, waving a union flag. He saw Mr Marshall in the courtyard and yelled out, "You've cost the job a lot of money Gary, why don't you come out and have a go, you think you can beat us you dickhead. You think we give a fuck about the courts?".
72 McElligot Partners Pty Ltd ("McElligot's") was in the business of abrasive blasting of paint, red lead removal, high pressure washing and industrial coatings in the protective coatings industry. It employed more than 250 people nationally, and about 50 in Victoria. All field employees worked under the terms and conditions of a collective agreement to which the CFMEU was a party. In December 2008, McElligot's was contracted to John Holland to carry out enabling works and red lead removal from the West Gate bridge openings on the north and south sides of the bridge and the inner webs. They commenced that work in February 2009. They had five workers on the bridge project.
73 At about midday on 12 March 2009, one of the directors of McElligot's, John McElligot, received a telephone call from Mr Stephenson. He asked Mr McElligot whether his employees were working on the West Gate bridge for John Holland. Mr Stephenson said, "Do you know that there is a picket on the job due to a dispute?" Mr McElligot replied, "I had heard of the picket, but what's that got to do with me, I have an agreement with your union and I have no dispute with John Holland." Mr Stephenson said, "It is a real slap in the face to the guys on the picket with your guys still working on the bridge. Can you get your guys to disappear for a few days, suddenly call in sick, whatever, until we solve the dispute." Mr McElligot replied, "I don't know about that, I would have to talk to the other directors in the company." Mr Stephenson asked Mr McElligot to call him back in half and hour.
74 Mr McElligot then rang a CFMEU organiser with whom he had had previous dealings, John Ayers. He asked Mr Ayers what was going on, and told him about the phone call from Mr Stephenson. He said that he did not want to stop his staff working, and did not want to see them without money. He said to Mr Ayers, "I'm not going to tell them to stop working. You can speak to them, it's up to them." Mr Ayers said that it was the first he had heard of it, and that he did not know what was going on. He said that he would get back to Mr McElligot. He did so at about 4:30 pm on the same day (12 March). He said that he had been in contact with Mr Stephenson, who said that the McElligot's crew were the only ones working on the job, and that "It wouldn't be right if your guys kept working." He said that Mr Stephenson wanted to have a meeting with the McElligot crew. It was subsequently arranged that that meeting would occur on 16 March 2009.
75 On 13 March 2009, there were five employees of McElligot's working on the bridge. Additionally, there were eleven other workers from two subcontractors engaged by McElligot's for specific functions: five from a subcontractor called ET Higham Pty Ltd, who were carrying out containment work to encase the scaffolding to prevent dust from the red lead escaping, and six from a firm called Bell Scaffolding (Vic) Pty Ltd, who were engaged to provide the scaffolding as such. It was their practice to take the morning break at the Vicroads compound situated in Cook Street on the east side of the West Gate bridge. On 13 March, the on-site supervisor for McElligot's, Damian McCourt, was informed that Mr Stephenson was in the vicinity, and wanted to speak to the workers on site.
76 When the crew from the bridge arrived at the Vicroads compound for their break, Mr Stephenson was there with Messrs Paterson and Lynch. Mr McCourt did not then know Mr Stephenson, but he saw that Messrs Paterson and Lynch were pointing him out. Mr Stephenson introduced himself to Mr McCourt, and asked if he could "have a meeting with your men about what's been going on on the job." After the men had had their break, such a meeting took place under a tree outside the shed. Mr Stephenson addressed the meeting in the following terms (as recalled by Mr McCourt):
I'm Gareth from the CFMEU. I'm here to talk about what's happened on the job. John Holland signed an EBA with the AWU. The CFMEU and the AMWU went to have a meeting about also wanting to get in on the EBA. John Holland has turned their back on us and have signed up with the AWU. All the boys that worked for John Holland had a meeting with the CFMEU and AMWU over at Hyde Street about the EBA and what the AWU were selling them out for. This is what John Holland wants to enforce with its labour. The conditions you will be working under with the AWU, the week will start on a Wednesday and finish on a Sunday with no penalty rates. Our agreement now is working hours from six to six but John Holland and the AWU want you to start work from four in the morning and they don't want to pay into Incolink. We have a severance pay with Incolink but you won't get that with the AWU if you get sacked within 6 months. John Holland was the builders when the bridge first fell down. Now that they're back, re-strengthening the bridge, they're trying to screw the men with a new EBA. There is a picket over at Williamstown Road and outside Hyde Street.
Referring to Messrs Paterson and Lynch, Mr Stephenson said, "These guys were sacked and they're trying to hire scab labour." He said that John Holland was trying to bring in a labour hire company based in Queensland, and to make the workers commence work at 4:00 am. He said that, if the workers did not want to work on a Saturday, they would need to get a doctor's certificate or to obtain the permission of John Holland.
77 At one point, Mr Paterson addressed the meting. He said, "Our friends have been phoned by John Holland and asked if they wanted a job but they said that they won't cross the picket line and they won't be scab labour." He said that it would not take them long to get a bus load of angry men to picket the site. Mr Lynch said, "They were doing inductions for the men over at Abbotsford at their head office on Thursday and we went over there to picket them." He added that a lot of the intending workers had been intimidated by the picket and had left.
78 Mr Stephenson addressed the men again. A number of those who had been at the meeting gave evidence (by way of affidavit or statement admitted by consent), the result of which was, regrettably, that the court has about the same number of different versions of what transpired. None of these witnesses having been cross-examined, it is difficult, if not impossible, to resolve this uncertainty. However, certain things appear to be tolerably clear. First, Mr Stephenson had, and raised, a number of what he described as "OH&S reasons" why those present at the meeting should not work on the bridge. Mr McCourt recalls him saying: "The meter box is not up to date with the tagging, the RCDs are out of date with the tagging and there are not enough utilities." Secondly, Mr Stephenson called for a vote, in response to which he received some votes in favour of not working. It is less clear whether anyone voted in favour of continuing to work. It seems that several of those present at the meeting did not vote one way or the other. Thirdly, Mr Stephenson interpreted the result of the meeting as favouring a cessation of work, and he effectively so declared.
79 After the meeting, one of the workers from ET Higham heard Mr Stephenson say to the group, "Go and grab your tools, secure the site. We're not working on this site, we're on strike. There's a whole bunch of angry mother fuckers that will be picketing." The workers from Bell and from ET Higham collected their tools and immediately ceased work. The workers from McElligot's continued to work until the normal finishing time that day. None of these workers returned to work on the bridge on subsequent days. There was no suggestion in the evidence that Mr Stephenson ever raised his OH&S concerns with John Holland.
80 The applicant alleged that the ban imposed by the CFMEU upon contractors such as McElligot's working on the bridge remained in place until about 14 May 2009. However, there was no evidence directly to that effect and, save for the circumstance that the dispute as a whole was settled about then, there is no evidence from which I could infer as much. Indeed, in the particulars to this allegation in the applicant's Statement of Claim, it was said only that:
Upon McElligot making inquiries of Ayers on 16 March and 19 March 2009, Ayers told him that he (Ayers) would tell McElligot if he found anything out, and that the pickets were still ongoing.
These particulars do not make good the allegation that the ban remained in place until about 14 May 2009. However, as I have said, it seems clear, and I take it to be common ground, that the ban remained in place at least for some time after 13 March 2009. There is, for example, an affidavit sworn on 7 April 2009 by a carpenter in the employ of ET Higham, in which the deponent states that he has not been back to work on the bridge project since 13 March 2009.
81 On 13 March 2009, the pickets remained in place at the Hyde Street and Hall Street entrances to the site facility. At the Hyde Street entrance, those present were sitting in chairs across the gate. The CFMEU caravan remained stationed about 100 m away from the gate. Mr Padula's car was parked near the gate. At the Hall Street entrance, the gate remained welded shut.