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Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No. 2) [2009] FCA 103 (17 February 2009)

Last Updated: 20 February 2009

FEDERAL COURT OF AUSTRALIA


Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No. 2) [2009] FCA 103


ANDREW WILLIAMS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING KINDRED INDUSTRIES UNION (AMWU), CONSTRUCTION FORESTRY ENERGY AND MINING UNION, MICK POWELL and TONY MAVROMATIS


VID 83 of 2009 JOHN HOLLAND PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICK POWELL, TONY MAVROMATIS and MICK BULL VID 89 of 2009


JESSUP J
17 FEBRUARY 2009
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 83 of 2009

BETWEEN:
ANDREW WILLIAMS
Applicant
AND:
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING KINDRED INDUSTRIES UNION (AMWU)
First Respondent

CONSTRUCTION FORESTRY ENERGY AND MINING UNION
Second Respondent

MICK POWELL
Third Respondent

TONY MAVROMATIS
Fourth Respondent

JUDGE:
JESSUP J
DATE OF ORDER:
17 FEBRUARY 2009
WHERE MADE:
MELBOURNE

THE COURT ORDERS THAT:


  1. Until the hearing and determination of this proceeding or further order, the first, second and third respondents be restrained, whether by themselves, their servants or agents, from:
  2. Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 89 of 2009

BETWEEN:
JOHN HOLLAND PTY LTD
Applicant
AND:
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION
First Respondent

CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Second Respondent

MICK POWELL
Third Respondent

TONY MAVROMATIS
Fourth Respondent

MICK BULL
Fifth Respondent

JUDGE:
JESSUP J
DATE OF ORDER:
17 FEBRUARY 2009
WHERE MADE:
MELBOURNE

UPON the applicant by its counsel undertaking:


(a) to submit to such order (if any) as the court may consider to be just for the payment of compensation, to be assessed by the court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interim order below or any continuation (with or without variation) thereof; and
(b) to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:


  1. Until the hearing and determination of this proceeding or further order, the respondents be restrained, whether by themselves, their servants or agents, from:
  2. Costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 83 OF 2009

BETWEEN:
AND:

DATE:
PLACE:

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 89 OF 2009

BETWEEN:
AND:

DATE:
PLACE:

REASONS FOR JUDGMENT

  1. Before the court are applications for interim injunctions under ss 39(2) and 49(3)(a) of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”). The injunctions are sought in two proceedings:

(a) A proceeding commenced on 6 February 2009 by Andrew Williams, an investigator in the employ of the Australian Building and Construction Commission (“the ABCC”), in which the respondents are the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“the AMWU”), the Construction, Forestry, Mining and Energy Union (“the CFMEU”), an official of the CFMEU, Mick Powell and, since 12 February 2009, an official of the AMWU, Tony Mavromatis. I shall refer to this as “the ABCC proceeding”.

(b) A proceeding commenced on 10 February 2009 by John Holland Pty Ltd (“John Holland”) in which the respondents are the AMWU, the CFMEU, Mr Powell, Mr Mavromatis and another official of the AMWU, Mick Bull. I shall refer to this as “the Holland proceeding”.

  1. Each of the proceedings relates to a construction project at the West Gate Bridge in Melbourne known as the West Gate Bridge Strengthening Alliance Project (“the project”). John Holland is the principal contractor for the project. The project is concerned with an upgrade of the West Gate Bridge, and the current stage of construction is the “mobilisation period”. At present, there is only one subcontractor engaged on the project, namely, Civil Pacific Services (Vic) Pty Ltd (“Civil Pacific”). Employees of Civil Pacific engaged on the project are covered by an agreement certified under the Workplace Relations Act 1996 (Cth) (“the WR Act”) made between Civil Pacific and the Australian Workers Union (“the AWU”) (“the AWU agreement”). Until the events which have become controversial in these proceedings, that was the only industrial agreement which covered those employees.
  2. Recently, the AMWU and the CFMEU have approached both John Holland and Civil Pacific with requests that they make an industrial agreement, applicable at the project, with them. John Holland has declined, and continues to decline, to do so. Civil Pacific originally declined to do so, but has recently done so, in circumstances to which I shall refer further below.
  3. Apparently with a view to prevailing upon John Holland and Civil Pacific to make an industrial agreement with them, on 6 February 2009 the AMWU and the CFMEU established a picket line at the entrance to the Hyde Street Depot site of the project at Hyde Street, Spotswood (“the site”). Further, a majority of the employees of Civil Pacific who would otherwise have been working on the site were on strike from about 11 am on 5 February 2009, and remained on strike, it seems, for the whole of 6 February 2009. The applicants in both proceedings contend that the strike and the picket line were “unlawful industrial action” for the purposes of s 38 of the BCII Act, and amounted to action taken with intent to coerce John Holland and Civil Pacific (or with intent to apply undue pressure to them) to agree to make a building agreement under Pt 8 of the WR Act, in contravention of s 44(1) of the BCII Act.
  4. The present applications are for interim relief only, in which circumstances the questions which I need to consider are whether the applicants have established a prima facie case in the sense explained in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57, and, if so, whether the balance of convenience favours the imposition of the restraints which the applicants seek.
  5. The ABCC proceeding came before me for urgent interim relief on 6 February 2009, at which time I made the following order:
    1. Until 4:30pm on 12 February 2009, the respondents be restrained, whether by themselves, their servants or agents, from:
      • (a) preventing or hindering the access of any person or vehicle to the Hyde Street Depot site of the West Gate Bridge Strengthening Alliance Project at Hyde Street, Spotswood;
        • (b) counselling or procuring any person not to enter the said site;
      • (c) counselling or procuring any employee or agent of, or person contracted to, John Holland Pty Ltd or Civil Pacific Services (Vic) Pty Ltd, not to work upon the said site;
      • (d) placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance to the said site; and
      • (e) attending or organising or procuring any person or persons to attend, within 100 metres of any entrance to the said site, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders.

When the present application was heard on 12 February 2009, I extended that order pending the determination of the application. The Holland proceeding came before me for the first time on 12 February 2006, when John Holland sought the making of an interim order in substantially the same terms as those of the order made on 6 February.

  1. These reasons should be read in conjunction with the reasons which I gave on 6 February 2009: see Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union [2009] FCA 86.
  2. Since 6 February 2009, the applicant in the ABCC proceeding has filed a further affidavit sworn by himself on 11 February 2009, and, in support of its own application, John Holland has filed three affidavits (of substance) by David Cassells, Gary Marshall and Bradd Hamersley, each sworn or affirmed on 11 February 2009. They were all read on 12 February 2009, in addition to which the applicants relied on the affidavits which formed the basis of the order made on 6 February. The respondents have not filed any affidavit. I shall commence by referring to significant aspects of the evidence given in the applicants’ recent affidavits.
  3. Mr Cassells is the General Superintendent for the project. He says that, eventually, the project will involve work across the entire area of the West Gate Bridge. The cost of the project is about $240 million, and the scheduled completion date is October 2010. The work currently being carried out consists of what Mr Cassells describes as “enabling works”, namely, opening up access through the steel section of the bridge through diaphragms and webs, and introducing walkways and mono-rail systems to enable strengthening to be performed.
  4. In late January 2009, Mr Cassells had discussions with Mr Powell and with Mr Mavromatis about the project. He provided them with some details of the project.
  5. Mr Cassells says that none of the employees of Civil Pacific attended for work at the project on 6 February 2009. He said that a picket line was in attendance at the entrance to the site until he left there at about 10 am. From about 6.45 am that day, there were about fifty people on the picket line, including about half of the Civil Pacific workforce. Mr Powell and Mr Mavromatis were, apparently, taking a leading role in the organisation of the picket.
  6. 7 and 8 February 2009 were not working days on the project.
  7. At about 6.30 am on 9 February 2009, Mr Cassells learnt that there were 30-40 people meeting outside the entrance gate to the site. At about 6.40 am that day, Mr Cassells received a call from the HR/IR Manager of Civil Pacific, Jamie McHugh. Mr McHugh told him that Civil Pacific had signed an agreement with the AMWU and the CFMEU. He told him that the workforce had voted (at the meeting outside the gate to which I have referred) to accept the agreement, and to return to work. Mr McHugh said that the resolution of the workforce was to return under the AWU agreement for three days only to allow John Holland to review the new AMWU/CFMEU agreement, and to decide whether to accept it. Mr Cassells understood this comment to be a reference to John Holland’s preparedness to agree to an increase in the contract rate paid to Civil Pacific to account for the circumstance that, apparently, rates of pay in the agreement negotiated with the AMWU and the CFMEU were about $10 per hour higher than the corresponding rates under the AWU agreement. I shall refer further to Mr McHugh’s own version of these events below.
  8. Mr Cassells arrived at the site at about 6.50 am on 9 February 2009. He was approached by three employees of Civil Pacific, namely, Toby Paterson (Trades Assistant), Barry Slaven (Rigger/Scaffolder) and Collin Faulds (Boilermaker). Mr Paterson told him that the three of them had been appointed as spokespersons for the Civil Pacific workforce, and that he should deal through them.
  9. At about 1.10 pm on 10 February 2009, Mr Cassells met with Mr Paterson. He said that he needed an understanding as to what took place at the meeting on 9 February 2009, and what the intentions of the workforce were. Mr Paterson told Mr Cassells that the workforce had voted to return to work, but he could not provide any further details.
  10. Mr Cassells then met with Mr Slaven, and asked him what happened at the meeting on 9 February 2009. Mr Slaven said that the workers were informed that Civil Pacific had signed an agreement with the AMWU and the CFMEU over the weekend. The workers were asked to accept this agreement and to return to work for a period of three days under the AWU agreement. According to Mr Cassells, Mr Slaven also said that, if John Holland did not agree to employ the workforce under the terms of the new agreement within the next three days, there would be “big trouble”. When Mr Cassells asked what this meant, Mr Slaven said that the unions intended to “go national with this issue”, and that the workforce fully supported it. He added that there were people involved that had young children and mortgages, and that he hoped that John Holland would take the matter seriously. He added that he had been offered work on another project nearby, but had refused that offer because of his involvement “in this action on this project”, and said that he could not just walk away from something which Mr Cassells recalled was described as “this issue” or “industrial action”.
  11. Mr Marshall is the General Superintendent for the Southern Region of John Holland. In his affidavit, he describes a conversation which he had with Mr Powell at the picket line on 6 February 2009. He saw a motor vehicle parked in front of the entrance to the site, and was concerned that vehicles making deliveries to the site, being unable to pass by the parked vehicle, might block the road, since the entrance to the site was on a blind corner. He asked Mr Powell to move the vehicle, adding, “You are stopping the workers from going to work and deliveries from entering the site”. He also pointed out that, if it was necessary to get an emergency vehicle into or out of the site, that would not be possible. Mr Powell said that there was enough room to get an ambulance through, adding “that is all you will be getting in”. Mr Powell said that if John Holland wanted “this to end”, it had better sign an agreement with the CFMEU. Mr Marshall asked why John Holland would make an agreement with the CFMEU, “considering what you are doing to us today”. He referred to a conversation two months previously in which Mr Powell had, apparently, told him that the CFMEU was changing its approach to develop relationships with the “bosses”. According to Mr Marshall, Mr Powell responded that “all that went when you wouldn’t talk to us.”
  12. Early in the morning on 6 February 2009, Mr Marshall saw a truck from a company called “Cape” arrive at the front entrance to the site, apparently to deliver scaffolding. He observed that the driver was spoken to by Mr Powell, Mr Mavromatis and some other members of the picket. After that discussion, Mr Marshall saw the truck reverse away from the entrance to the site, and drive off. He instructed a supervisor on the site to contact Cape and to arrange to have the delivery of scaffolding received through another gate at the site. Within about five minutes, Mr Marshall received a telephone call from the general manager of Cape. The manager told Mr Marshall that he had been telephoned by “the union” and told that “it was in his best interests not to make that delivery and nobody would be on-site to unload him”. The manager said that he made deliveries to over 50 construction sites in Melbourne, and that it would ruin his business if he were to enter the site through the back gate. Other than may be inferred from what the manager told Mr Marshall, there was no evidence as to what Mr Powell and Mr Mavromatis had said to the driver of the truck from Cape.
  13. Mr Marshall confirmed the general substance of the conversation to which I referred in par [11] of my reasons of 6 February 2009.
  14. On the morning of 9 February 2009, Mr Marshall was advised of the making of the agreement between Civil Pacific and the AMWU and the CFMEU. He exhibited to his affidavit a copy of a letter from Civil Pacific to the “West Gate Bridge Strengthening Alliance” dated 9 February 2009. The letter was headed “Rates for Supply of Labour”. The writer said that, as a result of that morning’s meeting with the AMWU, the CFMEU and the workforce, Civil Pacific had reached agreement with them upon a document described as the “West Gate Bridge Project Agreement 2009”. The writer enclosed a copy of the new agreement, and submitted the rates in it as a basis for adjusting the contract rate paid by John Holland. The agreement itself contained the following provision:
This Agreement operates from its lodgement until replaced by another agreement. The Agreement’s nominal expiry date is 30 June 2010.

I was informed by counsel for the respondents that it is proposed to lodge the agreement under Pt 8 of the WR Act.

  1. In his affidavit, Mr Marshall refers to the effect of the industrial action by employees of Civil Pacific on 5 and 6 February 2009. He said that two days’ work had been lost and, because of concerns that the workforce would not attend on 9 February 2009, proper plans were not in place to use them effectively on that day. These things had “directly impacted on the critical path activities”. He considers that there will, as a result, be a delay in completing the project. He says that further industrial action would jeopardise the completion date of the overall project, which is already behind schedule.
  2. On 10 February 2009, John Holland’s solicitors wrote to the AMWU and the CFMEU requiring the provision of a written undertaking that those unions, and their officers, employees, agents and delegates, would comply with the terms of the orders which I made on 6 February 2009. No response was received to that correspondence.
  3. In his most recent affidavit, Mr Hamersley says that the Group Manager of Employee Relations for John Holland, Darren Nelson, had identified (from photographs supplied by Mr Hamersley) other AMWU organisers at the picket line on 6 February 2009. One of them was the fifth respondent in the Holland proceeding, Mr Bull.
  4. On 9 February 2009, Mr Hamersley spoke to Mr McHugh. Mr McHugh told him of the new agreement between Civil Pacific and the AMWU and the CFMEU. He said that the costs involved were “substantially more than under the AWU agreement”. Mr McHugh said he was not terminating the AWU agreement, but that the new agreement was “specifically for the project”. He said that he was not willing “to risk his relationships with the CFMEU and the AMWU for the sake of this project”. He said that he was told by “the unions” that they were “not dropping this and we were to expect a fight”.
  5. In his recent affidavit, the applicant in the ABCC proceeding, Mr Williams, says that, on the morning of 9 February 2009 at about 8.05 am, there was no picket line or assembly at the entrance to the site. However, the portable toilets previously observed were still there, about 50 metres from the entrance. At the hearing on 12 February 2009, counsel for the respondents assured me that that circumstance had been the result of an oversight.
  6. Mr Williams spoke to Mr McHugh at about 10.55 am on 9 February 2009. Mr McHugh said that he had met with Mr Dargavel from the AMWU and with Mr Edwards from the CFMEU, and signed an agreement on 8 February 2009. Mr McHugh said that this was his “only option”, and that he did not want to get caught up with a legal battle with John Holland and the ABCC. He said he was not prepared to expose his business outside the project, and that he was happy to sign the agreement of his own accord. He said that he was aware that John Holland may not continue with the contract (ie, I infer, the contract with Civil Pacific). He said that “the union” had not forced him into making the agreement.
  7. At about 1.26 pm on 11 February 2009, Mr Williams received a statutory declaration made by Mr McHugh. The text of that declaration was as follows:
I, JAMIE LEIGH MCHUGH, Employee Relations Manager of Jaida Court Unit 6/15 Emeri Street Stapylton in the State of Queensland DO SOLEMNLY AND SINCERELY DECLARE:
  1. I am have been employed by Civil Pacific Services Pty Ltd (“CPS”) since April 2008.
  2. I was an organiser for the Builders Labourers Federation Queensland from 1997 to early 2007. I resigned from that position on good terms and remain on good terms with the union.
  3. On or about 15 December 2008, CPS began supplying labour to John Holland Pty Ltd to work on the West Gate Bridge Strengthening Project (“Project”) starting with approximately six and rising up to forty with workers available to work Monday to Saturday.
  4. CPS entered into a Union Collective Agreement with the Australian Workers Union (“AWU”) in March 2008. The agreement is titled “Civic Pacific (Vic) Pty Ltd and the Australian Workers Union Civil Construction Agreement 2008-2010” (“AWU Agreement”). Clause 4 of the AWU Agreement states that it applies to civil and or mechanical engineering projects, road construction, freeways and over passes and under passes bridgework including road, rail and pedestrian bridges. Clause 4 also states that the AWU Agreement does not apply to company employees on Metal Construction Projects.
  5. As a result of discussions with Allan Foster (Employee Relations Manager for John Holland Pty Ltd for the West Gate Bridge Project), I understood that there would be a collective agreement between John Holland Pty Ltd (West Gate Bridge Project) and the AWU which would deal with the Project. That understanding was reconfirmed in discussions that I had with Phil Cormick (Construction manager for the Project).
  6. The scope of work we were asked to supply labour for included work by boilermakers. We therefore looked at the AWU Agreement to determine a rate for the boilermakers. I became very concerned when we could not find a classification or rate under the AWU Agreement for boilermakers. I was also concerned that the AWU might not have eligibility under its rules to represent boilermakers.
  7. In or around December 2008, I called Sam Wood (AWU organiser) to discuss my concerns about the lack of a classification and rate for boilermakers, the AWU’s constitutional coverage of boilermakers and what other Unions may do about coverage of the boilermakers. At that meeting, I understood that Sam was saying that the AWU Agreement could properly cover boilermakers on the Project. I expressed doubt about this and thought it was not correct. Sam told me not to worry about it as it will be covered by the project agreement.
  8. In or around mid December 2008, a few days after meeting with Sam Wood, I met with Tony Mavromatis (AMWU organiser). I was concerned about a potential demarcation dispute because our AWU Agreement did not cover boilermakers. Tony Mavromatis agreed with me and said that it was up to me as to what I do and he suggested we enter an agreement to cover boilermakers and fitters. He said that the AWU does not have coverage of boilermakers and fitters and that the AWU would not be covering “the boilermakers and the fitters”.
  9. Work on the Project was shut down for the Christmas period from 22 December 2008 and resumed on 5 January 2009. At this time the issue in relation to the boilermakers had not been resolved nor had a contract been finalised between CPS and John Holland Pty Ltd (West Gate Bridge Project). There were further meetings organised to finalise the contract.
  10. On 19 January 2009, Gary Samuel (CPS company accountant) and I met with Phil Cormick and Dave Cassells (General Superintendent for the West Gate Bridge Strengthening Alliance). During this meeting I raised my concerns about the lack of a boilermaker classification and rates of pay in the AWU Agreement. Phil Cormick said there was a site specific agreement being negotiated with the AWU which will be signed soon. He also said that it was a condition of our contract to supply labour that CPS entering into an agreement with the AWU in identical terms. To date I have not been provided with any agreement between John Holland Pty Ltd and the AWU. Nor has any labour supply contract between CPS and John Holland Pty Ltd been signed for the Project.
  11. In or about 22 January 2009, Cesar Melhem (AWU State Secretary) called me on my mobile and asked me if I was doing a deal with the AMWU for the West Gate Bridge. I said to Cesar that I had previously told him that I had concerns as to whether the AWU had jurisdictional coverage of boilermakers. He said that he could cover boilermakers. I told him that Sam Wood also told me that the AWU could cover boilermakers but I was not satisfied with that. Cesar then said to me “If you sign the agreement, you’ll fuck yourself and you’ll fuck us. If I was you I wouldn’t take the agreement any further because Gary Marshall is aware of it and you’ll find yourself off the fucking project”.
  12. On 27 January 2009, I called Tony Mavromatis and apologised if I stuffed him around and informed him of my conversation with Cesar Melhem. I also told him that I was not prepared to jeopardise losing the project and therefore I would sit and wait to see what would happen. Tony replied, whatever happens, happens.
  13. On 28 January 2009, Gary Samuel and I met with Cesar Melhem and another organiser. At that meeting, Cesar repeated what he had told me over the phone on the 22 January 2009. Cesar went on to say that the reason the boilermakers were covered was because it was resolved in an agreement with John Holland Pty Ltd that was about to be signed off. Cesar showed us this agreement but did not give us a copy or allow us to look through it.
  14. Later that day I met with Tony Mavromatis to ensure there were no ill feelings and in the spirit of good relationships.
  15. On 2 February 2009, I received an Entry notice from the AMWU notifying me of their intention to enter the site and have discussion with employees during their break. I sent an email to Dave Cassells saying that we don’t really have any strong objections with Tony Mavromatis speaking with our people during their meal breaks if they wish to. I said that I would leave the call up to John Hollands [sic] as our company does not have an agreement with the AMWU at this stage. Dave replied in an email saying that the ROE has been passed up to JHG corporate management, and he is awaiting their instruction and will keep me informed accordingly.
  16. On 3 February 2009, Dave Cassells called me and informed me that the AMWU met with the workers outside the gates during their meal break.
  17. On 5 February 2009, I received a call from Dave Cassells saying the guys have walked off the job. I then called Cesar Melhem to ask him if he knew what the situation was. Cesar said that he was with Gary Marshall and that they were very close to signing off on an agreement.
  18. At approximately 2pm-3pm on 5 February 2009, I received a call from Bradd Hamersley (Human Resources Manager southern Division John Holland Pty Ltd) asking me what I was going to do about having a workforce tomorrow (Friday 6 February 2009). I said it wasn’t our issue, it was an issue between John Holland Pty Ltd and the AMWU. I told him I was disappointed that the guys walked off however we couldn’t stop them. I also told him that our regional manager will be contacting our guys. Bradd asked me if I would be contacting the Australian Building and Construction Commission and I said that I already had done that. I told Bradd that I thought the argument was in relation to whether it was a civil or metal construction site.
  19. Later that afternoon, Andrew Williams of the ABCC called me.
  20. I caught an early flight from Brisbane to Melbourne on Friday 2 February 2009 departing Brisbane at approximately 5.00am Brisbane time and arriving in Melbourne at approximately 8.00am Melbourne time. Therefore, I was in transit and un-contactable at the time that work was scheduled to start on the Project that day.
  21. On 6 February 2009, I called Tony Mavromatis and suggested we catch up to discuss what was going on. Tony said that he will check it out with Mick Powell (CFMEU organiser) and get back to me. Tony also told me that Cesar Melhem had contacted the AMWU Secretary to discuss the West Gate Bridge Project. This indicated to me that he too was concerned about the coverage of the boilermakers under the AWU Agreement. Tony didn’t get back to me so I called Mick Powell and asked him if we could catch up.
  22. My motivation for meeting with the Unions was to resolve my concerns as to whether it was a civil or metal construction site and the issues in relation to the boilermakers.
  23. Mick Powell called me back and suggested we meet at the CFMEU office in Carlton at 2pm.
  24. At 2.30pm on 6 February 2009, Gary Samuel and I met with Mick Powell, Tony Mavromatis and several officials from both unions. During this meeting Gary and I asked them to give us the draft of an agreement that they and the workforce would enter into as a way of moving forward. We told the group that we could only implement the agreement if John Holland Pty Ltd gave us the ability to pay under the agreement. They said that they would talk about it. We took a short break.
  25. After the break, they offered to email us a draft agreement. We asked them to give us a hard copy. They said we could pick up a copy from the AMWU office, which we did immediately after the meeting at approximately 4.30pm. We arranged to meet again the following Sunday at 9am at the CFMEU officers to tell them if we will sign the agreement.
  26. By 2pm, the time of the meeting, there was no industrial action as the shift would have been finalised and I knew no work was required on Saturday as the weather forecast for Saturday was 45 degrees Celsius.
  27. Gary Samuel and I spent Saturday costing up the new agreement and made a commercial decision that we would sign the agreement.
  28. Sunday 8 February 2009, Gary Samuel and I met with Mick Powell and Tony Mavromatis. During this meeting we advised them that we would be signing the agreement however we would need three days to find out if John Holland Pty Ltd would agree to pay the rates.
  29. On 9 January 2009, I hand delivered a letter to the John Holland Group setting out our proposed rates and terms and conditions following on from the agreement with the AMWU and CFMEU. A copy of that agreement and the rate schedule were enclosed with the letter. At the time of making this declaration, I have not received a response from the John Holland Group.

Save that it provides an explanation of the circumstances in which Civil Pacific came to make its agreement with the AMWU and the CFMEU, it was not suggested by any party that Mr McHugh’s statement threw any light on the matters which I have to decide on this interim application.

  1. Mr Williams also sets out a table of the “man-hours and man power [sic] required for the project”, based upon information provided to him by Mr Hamersley. At the hearing on 12 February 2009, I was told that this table is intended to show the total labour requirement, not just that which would be in the direct employ of John Holland. There is an anomaly, in that the number of workers for February 2009 is shown to be 12, whereas it seems common ground that Civil Pacific has in excess of 30 employees presently working on the site. The applicants did not explain that anomaly. However that may be, the table shows that the numbers for February, March and April are and will be less than 20 workers. The number will rise to 225 in May, and will remain broadly in that region for some time thereafter.
  2. The applicants in both matters sought the making of interim injunctions in the terms of the order made on 6 February 2009. They said that, although the respondents may have achieved their objective of prevailing upon Civil Pacific to make an industrial agreement with the AMWU and the CFMEU, they remained determined to achieve the same objective with respect to John Holland. The problem, I was assured, had not “gone away”. Further, counsel for the applicants submitted that what had occurred at the site, and what presumptively would occur in the absence of a continuing restraint, was “building industrial action” within the meaning of s 36 of the BCII Act, and that I had been mistaken not to regard it as such in my reasons of 6 February 2009.
  3. Counsel for the respondents did not read any affidavits in opposition to the interim applications. However, he argued that a case for a continuing restraint had not been made out, or, if it had, that it should consist at most of subpar (a) of the order made on 6 February 2009. He submitted that the position with respect to s 38 of the BCII Act remained as previously, namely, that I should regard the case that what happened at the site constituted building industrial action as a weak one, and as insufficient to sustain the interim orders sought. He submitted that, to the extent that the applicants’ case under s 44 of the BCII Act depended upon the proposition that it was arguable that the respondents intended to coerce Civil Pacific to agree to make an agreement under Pt 8 of the WR Act, that proposition was now a “dead issue”, since Civil Pacific had now made such an agreement. With respect to the presumed intent to coerce John Holland into making such an agreement, counsel submitted that, on the evidence now before the court, I should not find that there is any conduct which could be thought to come within the terms of s 44(1), since the picket line no longer exists. He submitted that, if there were to be an order, it should not restrain the respondents from doing what was both lawful and legitimate, that is to say, from peacefully communicating information to those coming to, and going from, the site with a view to conveying to them the issues in the dispute between John Holland and the respondents, as the respondents saw them.
  4. The situation existing as between the respondents and Civil Pacific has changed in a material respect since 6 February 2009. I accept the submission made on behalf of the respondents that that situation no longer provides a basis for the imposition of an interim restraint. In due course, the court may be required to consider whether the respondents contravened s 44(1) of the BCII Act in relation to Civil Pacific. However, the making of an interim injunction is a forward-looking exercise. In the circumstances of the present case, the applicants rely upon the prospect of ongoing conduct by the respondents which is arguably unlawful as a basis for the relief which they now seek. Since an agreement between Civil Pacific and the AMWU and the CFMEU has now been made, I think it inherently improbable, to say the least, that the respondents would take, or threaten to take, any action with intent to coerce Civil Pacific, or with intent to apply undue pressure to Civil Pacific, to agree to make such an agreement. That is to say, to the extent that the applicants may have a cause of action against the respondents under s 44 of the BCII Act, the relevant events appear to be closed, and to provide no basis for an interim injunction.
  5. With respect to s 38 of the BCII Act in the context of Civil Pacific, I did not understand the applicants to propose that I should consider it likely that the employees of Civil Pacific would take further industrial action in support of an agreement which the AMWU and the CFMEU have already made with their employer.
  6. Counsel for the applicant in the ABCC proceeding did suggest, albeit rather faintly, that there was a prospect that those employees would take industrial action in support of those unions’ claims for an agreement between them and John Holland. It may be thought that what Mr Slaven said to Mr Cassells revealed a determination on his part – and possibly by association on the part of some of the other employees of Civil Pacific – to make a major issue of John Holland’s refusal to deal with the AMWU and the CFMEU, but there is nothing otherwise in the material to suggest that those employees would be used in effect as mercenaries in the respondents’ cause, or that the respondents have any responsibility for the words or actions of Mr Slaven. I take the view that, Civil Pacific now having entered into an agreement with the AMWU and the CFMEU, the realistic prospect is that its employees will work normally pursuant to that agreement.
  7. Turning to the axis as between John Holland, on the one hand, and the AMWU and the CFMEU, on the other hand, I should commence by saying that nothing put to me by counsel for the applicants has persuaded me to depart from the provisional view which I expressed in my reasons of 6 February 2009 that a picket line, as such, is not to be regarded as a ban, limitation or restriction on the performance of work within the meaning of the definition of “building industrial action” in s 36(1) of the BCII Act. It was submitted on behalf of the applicants that, in Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357, Kenny J had somehow qualified the conclusion of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 to which I referred in par [31] of my reasons of 6 February 2009. The kind of situation with which Kenny J was concerned in Cahill is apparent from her Honour’s exposition of the applicant’s case there, in the following terms (170 FCR at 362 [10]):
The applicant’s case was that, on 21 February 2006 at the Mount Street site, Mr Mates did three things that each constituted “building industrial action” within the meaning of paras (b) and (c) of the definition in s 36(1) of the BCII Act. He: (1) demanded the crane crew from Independent Cranes Pty Ltd (“Independent Cranes”) who had come to the Mount Street site to undertake crane work that day to shut down the crane and leave; (2) telephoned the office of Independent Cranes and said that its crew were not to work on the Mount Street project; and (3) telephoned the CFMEU’s offices or a representative of the CFMEU and instructed the person he contacted to instruct Maurie Hill (the CFMEU organiser responsible for mobile cranes in Victoria (FEDFA division)) to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site. The applicant also argued that Mr Mates breached s 38 of the BCII Act by organising a picket line at the Mount Street site (“the picket”) between 22 February 2006 and 10 March 2006.

According to her Honour’s judgment (par [13]), the respondents in Cahill argued (on a no-case submission) that what was alleged to have been done by Mr Mates could not amount to a “ban, limitation or restriction on the performance of work” because it was not the action of the employees themselves who would otherwise have done the work. The respondents there relied upon Davids Distribution. Kenny J rejected that submission. Her Honour held that a ban, limitation or restriction on the performance of building work, as referred to in the definition in s 36(1) of the BCII Act, was not “limited to a prohibition or restriction imposed by employees to whom the work relates and may refer to that which is imposed by a union...” (170 FCR at 380 [58]). Her Honour distinguished Davids Distribution, substantially because it was “much concerned with the nature of picketing, which...is a wider concept than industrial action” (170 FCR at 357 [43]). In other words, the very basis upon which Kenny J held that Davids Distribution was not dispositive of the question before her was that it was a picketing case, whereas in the instant case it was alleged that a union official had directly banned the performance of certain work, albeit that the employees concerned were not involved in the ban.

  1. Once questions of conventional industrial action by employees of Civil Pacific are put to one side (as, in my view, they should be), the present case involves picketing in the conventional sense. It is more like Davids Distribution in that respect, and less like Cahill. The allegations made against the respondents are not that they have imposed a ban upon any particular work, but that they have acted, and would continue to act, to prevent persons of all kinds having access to, or egress from, the site. At least in the circumstances of the interim applications before me, I consider that I am bound by Davids Distribution to regard the applicants’ case under s 38 of the BCII Act as a weak one. That is to say, I do not consider that the case has a sufficient basis in that section to justify the making of interim orders.
  2. That brings me to so much of the applicants’ cases as are based upon s 44(1) of the BCII Act. Here it was not suggested by counsel for the respondents that they did not desire to have John Holland make an industrial agreement with the AMWU and the CFMEU, to cover work at the project. Counsel said that his instructions did not go to the extent of permitting him to accept that his clients’ propose to make any such agreement under Pt 8 of the WR Act, but given the approach which the AMWU and the CFMEU took to the making of the recent agreement with Civil Pacific, I consider it to have been established, at the prima facie level at least, that it is a Pt 8 agreement which is proposed.
  3. I was concerned that the present absence from the site of any direct employees of John Holland (at least in the categories of work that the AMWU and the CFMEU might be concerned to cover by an industrial agreement) would undermine the applicants’ case that the respondents had a present, or reasonably imminent, intention to influence John Holland to make an agreement with the AMWU and the CFMEU. Counsel for the applicants submitted that Pt 8 of the WR Act contemplates the making of an agreement between an employer and a union in contemplation of a business which the employer proposes to establish. Although not referred to in terms, I gather that counsel were referring to s 329 of the WR Act. The affidavit material does indicate that, in the intermediate if not the immediate future, John Holland will have its own directly employed workforce engaged at the project, and in significant numbers. The difficulty with counsel’s submission, however, is that it is not self-evident that the project could be described as “a new business” apropos John Holland, as would be required by s 329. I consider that the more natural way in which the respondents’ present desire to have an agreement with John Holland might be accommodated within the provisions of Pt 8 is to see the respondents as presently engaged in attempts to have John Holland agree to make a union collective agreement under s 328, the contemplation being that, when John Holland does have employees on the project, the agreement would then be made. On the evidence as it stands, I would have no difficulty in finding it to be arguable that the respondents do have that objective.
  4. The respondents did not resist the suggestion that, unless restrained, they would seek to bring influence to bear upon John Holland by way of some kind of assemblage at an entrance to the site. Counsel did submit that I should find that, since 6 February 2009, there had been, and there now was, no conduct in the nature of a picket line at the site. I do accept that, but I also accept the submission made by counsel for John Holland that that circumstance reflected the respondents’ compliance with the orders that I made. The respondents’ counsel’s submission in the alternative – that any interim order should be confined to what was the subject of subpar (a) of the order made on 6 February 2009 – bespeaks an intention on the part of his clients at least to organise some kind of human presence at an entrance to the site for the purpose of making some kind of communication.
  5. The next question is whether it is seriously arguable that the intent of the respondents is not only that John Holland should agree to make an agreement under Pt 8 of the WR Act, but that its choice not to do so should effectively be negated. Nothing put on behalf of the respondents has caused me to depart from the view which I provisionally expressed in par [37] of my reasons given on 6 February 2009. The respondents’ alternative argument that, if there were to be an interim injunction, it should be confined to a restraint upon directly preventing or hindering persons from leaving or entering the site, and should not inhibit them from communicating with such persons, may bespeak an intention to give such persons a choice whether to enter the site, for instance, but there seems little doubt but that their intention likewise is that the persons should be persuaded not to do so. Although the persons entering may be given a choice, on the assumption that they act in accordance with the respondents’ communicated wishes, the economic impact upon John Holland would, at least arguably, be substantial. That is to say, along the axis between John Holland and the respondents, I consider it to be seriously arguable at least that the respondents intend that the effect of their conduct would be to give John Holland little or no choice but to comply with their demands.
  6. The applicants did not identify (save possibly with respect to s 38 of the BCII Act, where I have not accepted their arguments) any respect in which it should be regarded as arguable that the respondents’ conduct, or intended conduct, has been, or would be, unlawful. Rather, it was submitted that I should find it to be arguable that the conduct was, and would be, illegitimate, for the reasons which I expressed in my reasons of 6 February 2009. I did not understand counsel for the respondents to resist such a finding to extent that it related to conduct of the kind proscribed in subpar (a) of the order made on that day. Indeed, counsel submitted that that conduct, alone, was the “real vice” in the respondents’ overall conduct which the applicants had identified. He submitted that there was no basis upon which his clients should be restrained from merely communicating with those who might seek to enter, or to leave, the site.
  7. I am prepared to accept, for present purposes, that genuine peaceful picketing, in which picketers go no further than to use the occasion to communicate information or a point of view, should be regarded as unobjectionable under the general law. There are, however, two factors which render that generalisation inapplicable (or at least no more than a starting point) in the circumstances of the present dispute. The first is that s 44(1) of the BCII Act has introduced a new norm of conduct which regulates behaviour in ways not done by the general law. By invoking the concept of coercion, the section requires the court to consider whether conduct is (or in the present situation arguably is) illegitimate. The second is that, on the evidence led on the present application, there is cause for concern that, unless restrained, the respondents would be disposed to go a deal further than merely the communication of information or a point of view.
  8. As I have said, there is no direct evidence of what the respondents and their supporters have in fact said to the drivers of vehicles seeking to enter the site. The applicants are, of course, at something of an evidentiary disadvantage in this respect. However, I think there is sufficient to infer that the respondents have attempted, and would attempt unless restrained, to persuade drivers not to enter. There seems to be little doubt but that their objective is that there should be no ordinary commercial traffic into the site. Mr Powell told Mr Marshall that an ambulance was the only vehicle which John Holland would be getting into the site. An unnamed union official (but at least inferentially a representative of the AMWU or the CFMEU) told the general manager of Cape that it was in his best interests not to make a particular delivery of scaffolding. This was not said on the picket line, but it demonstrates the colour of the communication which the respondents would be disposed to make, given the opportunity. I am bound to say that I consider that a communication in such terms is naturally calculated to induce a certain apprehension into the thinking of managers of businesses which operate in the building and construction industry. It strikes me as a euphemism of rather sinister connotation, and a comment of the kind that those having ordinary dealings with John Holland should not have to endure.
  9. It is, in my view, quite clearly arguable that methods of the kind to which I have just referred should be regarded as illegitimate for the purposes of the concept of coercion under s 44(1) of the BCII Act. That is to say, I reject the respondents’ submission that the only “vice” in what they have done, and may be expected to do unless restrained, lies in conduct of the kind referred to in subpar (a) of the order I made on 6 February 2009. However, I do not base my conclusion that the respondents’ conduct is, and would be, arguably illegitimate upon such considerations alone.
  10. This is a major construction project, and the evidence led by John Holland suggests that the activities currently taking place are on the critical path. The Cape truck which was turned away from the picket line was delivering scaffolding. Whether or not the respondents propose to use direct, physical, impediments to entry to the site, and whether or not their conduct is in some respects unlawful, I consider it to be arguable that for them, as strangers to the commercial relationships pursuant to which people and vehicles come to the site, to procure those people, and the drivers of those vehicles, not to do so, is illegitimate. In this respect there is, in my opinion, a critical difference between a public protest which seeks to dissuade consumers, for instance, from having recourse to a particular retailer, on the one hand, and a public protest which seeks to interrupt the implementation of established commercial transactions. In the case of the former, the activities of the consumers, from which the protesters presumptively seek to dissuade them, would be highly discretionary, the retailers or businesses concerned having no legitimate expectation that any particular consumer would do business with him or her. In the case of the latter, by contrast, I would readily infer that persons seeking access to a building site, particularly those driving vehicles making deliveries, would do so pursuant to pre-existing business arrangements, if not contracts. I can think of no reason, for example, why a truck carrying scaffolding would have arrived at the site on 6 February 2009 unless there were such arrangements. It is sufficient for present purposes that I should conclude, as I do, that the applicants have a reasonable prospect of succeeding in their argument that the conscious and deliberate interruption, by whatever means, of the carrying out of such transactions should be regarded as illegitimate.
  11. Neither do the respondents apparently have a concern about the propriety or appropriateness of anything which John Holland is doing, or proposes to do, on the site. This is not a case where it is proposed to draw public attention to some activity on the site which the respondents oppose, such as occasionally arises in the context of environmental or planning issues, for example. On the evidence as it stands, the respondents are not resisting anything: they are seeking to secure an advantage. The means which, arguably, they intend to adopt to secure that advantage involve the deliberate infliction on John Holland of economic damage which will be sufficient to cause it to change its mind. It may be said, I suppose, that this is the stuff of industrial disputes, but it is nonetheless arguable that it should not be regarded as legitimate for the purposes of s 44(1) of the BCII Act.
  12. Notwithstanding that I adjourned the application for interim relief in the ABCC proceeding for six days substantially to give the respondents a better opportunity to make some answer to the then applicant’s prima facie case, the respondents have read no affidavits to the court. They were uniquely well-placed to provide a benign explanation of the events to which the applicant then referred, and to which both applicants now refer. They have led no evidence of the terms of the communications which occurred on the picket line before the imposition of the restraint by the orders made on 6 February 2009. Although the affidavit of Mr Marshall, in which the conversation with the manager of Cape was referred to, was filed only on 11 February 2009, there was, I consider, a sufficient opportunity for the respondents to have said something about it, or at least to have explained how it might be given a benign interpretation. That was not done.
  13. The legal order which regulates the making of industrial agreements is also, I consider, relevant to the matter of the legitimacy of the respondents’ methods. That order is provided by the WR Act, particularly by Pts 8 and 9 thereof, and by certain provisions of the BCII Act itself. Part 9 of the WR Act deals with the options that are open to an organisation of employees which seeks to have an unwilling employer make an agreement with it. If such an organisation wants to try to make a “union collective agreement” under s 328 with an employer, it may initiate a “bargaining period” under s 423. During the bargaining period, the organisation may organise or engage in industrial action against the employer to support its claims for the agreement: s 435. Such action is “protected action”, and may not (with certain exceptions) be the subject of suit under any law in force in a State or Territory: s 447. There are, it is true, several qualifications upon, and exceptions to, what is protected action, but these provisions set out the broad markers of the legal order under which the application of direct pressure to an employer to have him or her enter into an agreement under Pt 8 is treated as legitimate.
  14. Subject to the operation of Pt 3 of Ch 5 of the BCII Act, s 44(2) of that Act provides that subs (1) does not apply to action that is protected action for the purposes of the WR Act. Part 3 of Ch 5 introduces some qualifications which are not, or at least are not obviously, relevant to the present circumstances. What s 44(2) shows is that the general scheme for taking direct action against an employer in an attempt to obtain a collective agreement is relevant in circumstances to which s 44(1) would otherwise apply. The significance of these provisions was barely touched on in the submissions made to me on 12 February 2009, in which circumstances I should be especially tentative in any conclusions which I express. However, I consider it to be seriously arguable that, for an organisation of employees to have recourse to direct action, other than protected action, against an employer to force that employer to make an agreement under Pt 8 of the WR Act should be regarded as illegitimate, and that the application of that force should in the circumstances be regarded as coercion. Or, to express the point in the framework of the proscription on the application of undue influence in s 44(1), the taking of protected action might be regarded as the application of due influence, while the taking of other forms of direct action might be regarded as the application of undue influence.
  15. What I have written in the two previous paragraphs does, however, need to be qualified to accommodate one particular, and perhaps rather unusual, dimension of the actual facts of the present case. Here, it seems that the AMWU and the CFMEU might have difficulty satisfying the requirement in s 328(a) of the WR Act that the organisation in question have “at least one member whose employment in a single business ... of the employer will be subject to the agreement”. On the supposition (which is consistent with the respondents’ position generally) that the agreement which the AMWU and the CFMEU seek to make with John Holland will be confined in its application to the project, and since it appears that John Holland presently has no direct employees engaged on the project, it is unlikely that either the AMWU or the CFMEU has such a member. For much the same reason, although I was not addressed on the point, it would seem not to be realistically possible for either union to take industrial action against John Holland; nor, therefore, for either of them to take protected action. An added difficulty, perhaps, is that the pursuit of an agreement under s 329 of the WR Act (assuming, despite my reservations expressed above, that the making of such an agreement were possible in the present circumstances) does not seem to attract the “protected action” provisions of that Act (because a “bargaining period” cannot be initiated in such circumstances: see s 423(1)(a)).
  16. Thus the position seems to be that the AMWU and the CFMEU do not have a means, sanctioned by statute, of applying direct pressure on John Holland to make an agreement with them to cover work at the project; at least not until the time comes when they have members employed there by John Holland. When I invited counsel for John Holland to indicate what “legitimate” steps were now open to those unions to achieve their objectives, he said only that they could approach his client with a view to discussing the matter. From the unions’ perspective, this does not seem very satisfactory, since they have already trodden that path, and achieved nothing.
  17. In the circumstances, I do not consider that the respondents’ conduct should be regarded as the more illegitimate by reason of them turning their backs on a more regular, legally recognised, means of imposing their will on John Holland. This conclusion does not, however, of itself dilute the considerations to which I referred in pars [40] – [45] above. In the result, I am satisfied that the applicants have established a prima facie case that the respondents have contravened, and propose to contravene, s 44(1) of the BCII Act.
  18. Turning to the balance of convenience, the factual position is, of course, quite different now from that which obtained on 6 February 2009. Then, the employees of Civil Pacific were not at work and, I infer, no productive activity was taking place on the site at all. Now, those employees are at work and, I infer, are working normally. The applicants relied upon the intimation which they were given after the meeting of Civil Pacific employees on the morning of 9 February 2009 that John Holland had three days in which to decide whether to accept the new industrial agreement made between Civil Pacific and the AMWU and the CFMEU. However, as counsel for the applicants appeared to acknowledge, that intimation was concerned with the acceptance by John Holland of the new Civil Pacific rates of pay, that is to say, with a problem which existed along the contractual axis between John Holland and Civil Pacific. I do not consider that the intimation could reasonably be construed as a threat (or the like) that the picket line would be re-established unless John Holland had made its own industrial agreement with the AMWU and the CFMEU within the three days then referred to. By the time I heard the present application on 12 February 2009, the three days had elapsed, and the applicants led no evidence, and made no suggestion, of the occurrence of any untoward event.
  19. I also think it unlikely that the respondents would seek to prevent the Civil Pacific employees, or even to dissuade them from, entering the site. Those employees are now covered by an agreement of the kind which the respondents sought. Having achieved their objective in relation to Civil Pacific, I am inclined to regard it as highly improbable that the respondents would then seek to deny Civil Pacific the benefit of that agreement.
  20. However, at the centre of the restraint which the applicants seek is a prohibition upon the respondents’ taking action to prevent or hinder persons, including persons in vehicles, from entering the site, or to persuade or procure those persons not do so. In other words, the proposed restraint would deal only with a circumstance in which the respondents, for whatever reason, intended to take action of the kind referred to. The evidence before the court, such as it is, satisfies me that the respondents do intend, unless restrained, to take action of this kind in relation to persons seeking to enter the site, probably not including the employees of Civil Pacific, but probably extending to everyone else. I would be slow to infer, even on an interim application, that the respondents do not intend that their conduct should be effective; and the only apparent means by which it could be so would be to inflict economic loss on John Holland. In the circumstances, I am not prepared to assume that, simply because the Civil Pacific employees have returned to the site and are prepared to work normally, there is unlikely to be any loss or detriment inflicted upon John Holland in the absence of a restraint upon the respondents’ activities.
  21. Although the project is yet at an early stage, the work presently being done, as I have said, is on the critical path. The value of the project, overall, is in the region of $240 million. Although the matter has not been investigated in any depth, I accept that John Holland would not reasonably have any confidence that the full extent of its loss and damage, should it eventually be shown that the respondents’ conduct was in breach of s 44(1) of the BCII Act, could be recovered from the respondents in these proceedings. Additionally, this case has a public interest dimension. This is particularly relevant under the ABCC proceeding. The project itself involves the construction of a significant piece of infrastructure for the Victorian road transport network. It would, in my view, be inappropriate for the court to take the view that delays and interruptions should be allowed to occur in the normal cut and thrust of industrial disputes, with the only legal consequences potentially available being the imposition of penalties (or, in the case of the Holland proceeding, the awarding of damages) in due course.
  22. Counsel for the respondents did not draw attention to any immediate, material detriment or prejudice which his clients would suffer if an interim injunction were made. This is not a case, for example, where employees have been dismissed, locked out or arguably underpaid. It was not submitted that the continuation of the existing restraint would hold the respondents, or any employees, out of the enjoyment of benefits or advantages to which they are arguably entitled. No case was sought to be made that the CFMEU and the AMWU would be to any extent prejudiced if their attempts to procure John Holland to make an industrial agreement were, in effect, put on hold for a few months. As I have said, the project is scheduled to run until October 2010, and evidence before the court suggests that, at least to the end of April 2009, there will be relatively few workers on the site. Indeed, the evidence, such as it is, probably justifies the inference that, until after that month, the only workers who might otherwise be covered by an AMWU or CFMEU agreement would be the employees of Civil Pacific itself.
  23. Nor was it suggested on behalf of the respondents that they were otherwise justified in continuing with a course of action which would have the manifest purpose of inflicting economic harm on John Holland. It was not suggested that John Holland was acting unlawfully or disgracefully, or that it had flouted some applicable convention of good industrial relations. It was not suggested that John Holland should regard itself as under any legal, moral or industrial obligation to make an agreement with the AMWU or the CFMEU. On the evidence as it stands, this seems to be a case in which John Holland is acting lawfully and regularly, but in which the respondents have it in mind to apply such pressure as would induce John Holland to act differently, and to their (the AMWU’s and the CFMEU’s) advantage.
  24. Counsel for the respondents submitted, in effect, that I should place considerable store by the respondents’ right to exercise free speech in their communication with persons coming to the site from time to time. This submission related not only to the balance of convenience as such, but also to the terms of any order that I should make. It was submitted that any order should not go beyond restraining the respondents from preventing or hindering the access of any person or vehicle to the site. It was said that the respondents should not be restrained from peacefully attending in the vicinity of the entrance to the site, and from communicating with such persons. The difficulty with this position, as I have indicated earlier, is that the evidence, such as it is, justifies the reasonable apprehension that the respondents would communicate in terms which could not be regarded as benign. I invited counsel for the respondents to offer to the court a form of words to which his clients would limit themselves in communicating with those seeking to have access to the site. He declined to contemplate such an expedient, upon the ground that it would realistically be unworkable in the practical dynamics of interchanges which may be assumed to occur in the conduct of this, like any other, picket line. I share counsel’s scepticism in this regard, but it means that the court is left only with the impression it has gained from the evidence to which I have referred above. In the exercise of my discretion, I am disposed to think that the safest course is one which would exclude the respondents from making direct communications with persons entering, or leaving, the site.
  25. I consider that the most satisfactory means by which to achieve that exclusion is to continue the orders which I made on 6 February 2009, subject to a minor variation to which I shall shortly refer. I appreciate that, in doing so, I may be imposing wider restraints on the respondents than might be available in a permanent injunction, but I do so for the sake of simplicity and clarity, and merely to preserve the status quo pending judgment. That status quo is that John Holland should be permitted to continue normal operations on the project, undistracted by attempts by the respondents to dissuade others from carrying out their conventional business obligations with regard to the project. I considered whether it would be feasible to restrain the respondents in the terms of subpars (a), (b) and (c) as made on 6 February 2009, and to allow the respondents to congregate, with their supporters, in the vicinity of entrances to the site for the purposes of making such communications with third parties as were not proscribed by those subparagraphs. However, given the practical impossibility of enforcing such a restraint in relation to the personal, and possibly quite subtle, interchanges between the respondents and drivers, for instance, who come to the site on normal business, I have come to the conclusion that the only feasible means of making my general intentions effective is by way of an order which includes something along the lines of subpars (d) and (e) as made on 6 February 2009. I need only add that it was not suggested on behalf of the respondents that they had any reason to be within 100 metres of any entrance to the site other than that which I have considered to be arguably illegitimate.
  26. For the above reasons, I am satisfied that sufficient grounds exist for the extension, pending the hearing and determination of the ABCC proceeding or further order, of the order which I made on 6 February 2009, and for making an order in similar terms in the Holland proceeding. Given the nature of the evidence led in relation to the scaffolding delivery from Cape, I now make it clear that there should be no assumption that those orders are implicitly confined to conduct occurring physically at or in the vicinity of an entrance to the site: they will operate according to their terms.
  27. Counsel for John Holland pressed me to add the words “or on the project” to subpar (c) of the order as made on 6 February 2009. The reason for this was that, in the context of the project as a whole, the restraint should not be limited to those who would otherwise work at the Hyde Street Depot site. This seems a reasonable proposal, and is consistent with my reasons generally. I shall adopt it.
  28. On 12 February 2008, I made a series of directions that would have the parties ready for trial (save as to the quantification of damages – if any – in the Holland proceeding) by 7 April 2009. I have, of course, had regard to the likelihood of the principal proceedings being finally heard and determined within a reasonable period thereafter in the decisions which are reflected in these reasons.
  29. The fourth respondent in the ABCC proceeding, Mr Mavromatis, was joined as a respondent only at the conclusion of the hearing on 12 February 2009, as the result of an application made by counsel for the applicant that day. I continued the then existing injunction (which, as I explained in my reasons of 6 February 2009, was effectively made on an ex parte basis) in terms that referred to the respondents generally, pending the determination of the present application. However, the order I now make is made after a contested hearing. Because he was not joined as a respondent until the end of that hearing, Mr Mavromatis was not represented, and did not have the opportunity to contest the applicant’s interim application. In the circumstances, it is appropriate that the order I make not be binding on him personally as a party. It will be binding on the first, second and third respondents only. Should the applicant desire to extend the order to apply to Mr Mavromatis, he is, of course, at liberty to apply in that regard. As should be apparent, what I have said in this paragraph relates only to the ABCC proceeding.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:


Dated: 17 February 2009


Counsel for the Applicant in VID 83 of 2009:
Mr N Green QC with Mr G Pauline


Solicitor for the Applicant in VID 83 of 2009:
Australian Government Solicitor


Counsel for the Applicant in VID 89 of 2009:
Mr J Bourke


Solicitor for the Applicant in VID 89 of 2009:
Herbert Geer


Counsel for the First, Second and Third Respondents in VID 83 of 2009 and the Respondents in VID 89 of 2009:
Mr E White


Solicitors for the First, Second and Third Respondents in VID 83 of 2009 and the Respondents in VID 89 of 2009:
Mr D Mason of CFMEU and Ms E McGrath of AMWU

Date of Hearing:
12 February 2009


Date of Judgment:
17 February 2009

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