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Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union [2009] FCA 86 (6 February 2009)

Last Updated: 13 February 2009

FEDERAL COURT OF AUSTRALIA


Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union [2009] FCA 86


ANDREW WILLIAMS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING KINDRED INDUSTRIES UNION, CONSTRUCTION FORESTRY ENERGY AND MINING UNION and MICK POWELL
VID 83 of 2009


JESSUP J
6 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
First Respondent

CONSTRUCTION FORESTRY ENERGY AND MINING UNION
Second Respondent

MICK POWELL
Third Respondent

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

THE COURT ORDERS THAT:


  1. Until 4:30pm on 12 February 2009, the respondents be restrained, whether by themselves, their servants or agents, from:
  2. The further hearing of the applicant’s claim for interim relief be adjourned to 10.15am on 12 February 2009.
  3. Each party have liberty to apply on two hours’ written notice to each other party.
  4. 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:
ANDREW WILLIAMS Applicant
AND:
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING KINDRED INDUSTRIES UNION First Respondent CONSTRUCTION FORESTRY ENERGY AND MINING UNION Second Respondent MICK POWELL Third Respondent

JUDGE:
JESSUP J
DATE:
6 FEBRUARY 2009
PLACE:
MELBOURNE

REASONS FOR JUDGMENT

  1. An application has been filed today by Andrew Williams, an investigator in the employ of the Australian Building and Construction Commission (“the ABCC”), for penalties to be imposed for contraventions of ss 38 and 44 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”). The respondents to the application are the Automotive, Food, Metals, Engineering, Printing, Kindred and Industries Union (“the AMWU”), the Construction, Forestry, Energy and Mining Union (“the CFMEU”), and an official of the CFMEU, Mick Powell.
  2. The application is supported by three affidavits, which make it clear that the application relates to the early stages of a construction project on the West Gate Bridge. The head contractor for that project is John Holland Pty Ltd (“John Holland”) and the project itself is described as the West Gate Bridge Strengthening Alliance Project (“the project”). It is concerned with an upgrade of the West Gate Bridge, and the current stage of construction is said to be the mobilisation period, which means that the project is in the set-up stage.
  3. The applicant has brought the matter on for urgent interim relief under ss 39(2) and 49(3)(a) of the BCII Act, alleging that the respondents have organised, and are maintaining, a picket line at the entrance to the site of the project (“the site”) which has prevented those who would in the normal course be working there from having access to the site, and has prevented other persons and vehicles from having recourse to the site in the normal way.
  4. I was informed that the third respondent, Mr Powell, has not been served. To the extent that the applicant seeks interim relief against him, I am obliged to treat its application as being made ex parte. The first and second respondents, the AMWU and the CFMEU respectively, have been served and they appeared today by counsel. However, he made it clear, and I accept, that his clients have had very little notice of the application and of the facts upon which the interim relief is sought, and that, in those circumstances, he was unable to advance any argument or to organise any evidence in opposition to the application. I think it would be fair and just, in those circumstances, if I were to proceed in relation to the first and second respondents also as though the interim application were, in effect, an ex parte one.
  5. The first affidavit upon which the applicant relies is that of Bradd Hamersley, sworn on 6 February 2009. He is the Human Resources and Industrial Relations Manger for the Southern Region employed by John Holland. He says that John Holland is currently engaged in negotiations with the Australian Workers Union (“the AWU”), for an enterprise bargaining agreement to cover the project. He has also had preliminary discussions with representatives of the CFMEU, including Mr Powell, with regard to entering into an enterprise bargaining agreement with that union. An official of the AMWU, Tony Mavromatis, has been part of those discussions.
  6. Mr Hamersley says that a subcontractor presently working on the project is Civil Pacific Services (Vic) Pty Ltd (“Civil Pacific”), a labour hire firm employing workers from mixed trades during the mobilisation period. Mr Hamersley understands that Civil Pacific presently has an enterprise bargaining agreement with the AWU. He also understands that about 30 employees of Civil Pacific are working on the project.
  7. Mr Hamersley says that, on 3 February 2009, the CFMEU conducted a meeting outside the gates of the site with employees of Civil Pacific. On the same day he received a letter from the CFMEU in the following terms:
Following our telephone conversation earlier today, I am writing on behalf of ourselves and the AMWU to request a meeting with John Holland regarding a West Gate Bridge Strengthening project agreement.

It is our intention to report back to our members on Thursday 5th February, at 10.00am.

Our position regarding right of entry is that where the CFMEU seeks to enter the site pursuant to the relevant provisions of the Workplace Relations Act, we will continue to comply with the Act.

I have attached a copy of today’s resolution.

According to Mr Hamersley, the resolution read as follows:

This meeting of AMWU (Metals) and CFMEU members calls on John Holland Pty Ltd to enter into immediate and meaningful discussions with our two unions regarding a West Gate Bridge Strengthening project agreement.

Furthermore, having heard a report from the AWU regarding their discussions with the company, we completely reject the notion that the AWU have any rights of representation on this job.
  1. Mr Hamersley understands that, on 5 February 2009 at about 10am, Mr Powell and another CFMEU official, together with Mr Mavromatis and another AMWU official, conducted a meeting of about 24 Civil Pacific employees outside the gate at the site. The first half of the meeting was held during the employees’ meal break, from 10am until 10.30am. Three employees from the meeting returned to work at 10.30am. The others returned at 11am. Upon their return to the site, these employees were advised that the representative of John Holland would be speaking to Civil Pacific about their conduct. According to Mr Hamersley, about 21 Civil Pacific employees then left the site and did not return to work the remainder of that day.
  2. Later on 5 February 2009 it came to Mr Hamersley’s attention that a picket line might be set up at the site. The same subject appears to have come to the attention of the HR/IR Manager of Civil Pacific, Mr Jamie McHugh (which appeared in Mr Hamersley’s affidavit as “McKew”). At about 4pm that day, Mr McHugh asked Mr Hamersley what was going on from their point of view. He said that they were trying to get in contact with the men, by which I understand he intended a reference to the employees of Civil Pacific, to find out what was going on. He, that is Mr McHugh, did not want his business to suffer, and wanted to know what contractual action John Holland might take. Mr Hamersley said that it was not his decision, but that the site was open, and that John Holland expected Civil Pacific to be there. Mr McHugh expressed concern for the wellbeing of his employees, and asked Mr Hamersley what they could do. Mr McHugh said that he was concerned for the safety of the employees, and that they would not want to go through a picket line. Mr Hamersley responded that he understood how Mr McHugh felt, but that the site would be open and John Holland expected Civil Pacific to be there for business.
  3. At about 6.25am on 6 February 2009, Mr Hamersley was advised that 100 to 150 protestors were outside the gate to the site. He himself arrived at about 7.30am and saw a motor vehicle blocking the front gate. He saw about 35 to 40 protestors at that gate. He saw a Kennard’s hire truck, which would have been attempting to undertake a delivery, being turned away from the gate after the driver was spoken to by the protestors. Mr Hamersley entered the site by another gate, and later proceeded to a position from which he was able to identify Mr Powell as one of those who was present at the entrance to the site where the protestors were collected. He also saw a person who was identified to him as Mr Mavromatis from the AMWU. He also saw a mobile cooking or camping trailer in the vicinity.
  4. Mr Hamersley was witness to an exchange between Gary Marshall, the Operations Superintendent for John Holland Southern Region, and Mr Mavromatis. Mr Mavromatis said to Mr Marshall:
We are here to sort it out. It’s up to you guys. Just remember you brought this on yourself.

Mr Marshall responded:

We’re not worried.

Mr Mavromatis said:

Big project like this bad media this will be the last project you get.

Mr Marshall said:

We’re not going anywhere.

Mr Mavromatis said:

You’re colluding with the AWU and doing bad deals. You guys are breaking the law – freedom of association. It’s going to be more than what you guys can handle.

  1. The second affidavit upon which the applicant relies is that of Andrew Colin Williams, the applicant, sworn on 6 February 2009. At about 3.30pm on 5 February 2009 he spoke to Mr McHugh. Mr McHugh told him that Civil Pacific was a labour hire company, that the employment of their staff was covered by an enterprise bargaining agreement between Civil Pacific and the AWU, and that Civil Pacific had 32 employees on the site that day. Mr McHugh said that six of those employees did not attend the meeting held by the CFMEU that day, that three of those who did attend returned to work at 10.30am, and that the remaining 23 employees did not leave the meeting until 11am. Mr McHugh told Mr Williams that, when these 23 employees returned, they were informed that they would be “docked” four hours’ pay and that the ABCC would be notified. Soon thereafter those 23 employees left the site. Mr McHugh had tried to contact them to determine whether they would be returning for work the following day, but he was able to speak only with a small number, and was unable to find out whether they would return to work.
  2. According to Mr Williams, Mr McHugh said that he had spoken with someone called “Tony Mav”, an organiser with the AMWU. In the absence of any material from the respondents, I am inclined to infer that Tony Mav was the same person as referred to by Mr Hamersley as Tony Mavromatis. However that may be, Mr McHugh asked Tony:
What can I do?

And Tony replied:

Maybe tell John Holland that you want to negotiate an agreement with us.

  1. At about 8.05am on 6 February 2009, Mr Williams drove past the site and observed a group of about 40 people gathered at the front gate to the site. He saw a blue station wagon with AMWU markings parked on the nature strip between the road and the gate. He saw a truck unloading two portable toilets into the car park area, adjacent to the site. He noticed that one of the portable toilets had “Kennard’s Hire” markings. He saw that most of the workers in attendance were standing around the entrance gate to the site. At about 8.20am on the same day, he drove past the entrance again and saw that the blue station wagon was no longer there; but he noticed a utility with AMWU markings towing a trailer and turn into the site gate entrance and then drive on to the land between the boundary fence and Hyde Street. Mr Williams believed that the trailer was a barbeque. Mr Williams spoke with Mr Marshall, who informed him that when he arrived at the site that morning he found that a security lock on one of the gates had been cut.
  2. According to Mr Williams’ observation, the people standing around outside the site were involved in what he described as “picketing the site”. Among them he saw someone whom he recognised as Mr Powell. Mr Marshall told Mr Williams that at least two trucks had been stopped and turned away by the people standing by the gate and did not deliver their goods to the site. He said that he had received a call from a delivery company, whose representative stated that they would not be making any more deliveries as they feared retribution if deliveries were made.
  3. At the site at this time, Mr Williams also encountered Sergeant Mullins of the Victoria Police. He observed Sergeant Mullins talking to Mr Powell. Sergeant Mullins told Mr Williams that Mr Powell had identified himself as the organiser for the picket. Sergeant Mullins said that he believed it was a CFMEU picket line.
  4. Later that day (6 February 2009), Mr Williams attended at the premises of Kennard’s Hire at 440 Geelong Road, Footscray, and there served a requirement to produce documents. He was provided with a delivery docket which showed that the portable toilets, which he had observed at the site, had been ordered by Mr Powell.
  5. The third affidavit upon which the applicant relies is that of Rebecca Ruth Hounsell, affirmed on 6 February 2009. She is an undergraduate doing work experience with John Holland in the HR Department. She arrived at the site at about 7.30am on 6 February 2009. At the main entrance she noticed 35 to 40 people standing around. They were dressed in casual clothes rather than the clothes she would have expected people to wear to work. The entrance to the site was blocked by a car that had been parked perpendicular to the entrance. She noted the details of that car in her affidavit. She saw about another 10 cars parked near the main entrance, but they were not blocking access. Just to the side of the entrance there was a campervan with AMWU insignia on the side. On the campervan there were cooking materials including a few loaves of bread, eggs and parcels of food. Across the road from the main entrance, two portable toilets had been set up.
  6. Ms Hounsell and Mr Hamersley (in whose company she was at the time) were unable to enter via the main entrance at which they had arrived, so they went to another entrance to the site. They proceeded to a position in front of the site sheds. Save for themselves (Hounsell and Hamersley), four other staff of John Holland, and six security guards, there were no workers in the site sheds or on the site.
  7. Ms Hounsell refers also to the conversation between Mr Mavromatis and Mr Marshall, to which Mr Hamersley referred in his affidavit. Although slightly different in point of detail, the substance of the two reports of that conversation is substantially the same.
  8. As I have said, the applicant relies upon ss 38 and 44 of the BCII Act. Section 38 provides that a person must not engage in unlawful industrial action. Section 39(2) provides:
If, in the opinion of the court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1).

The question for me therefore is whether it is desirable for an interim injunction to be granted on the material to which I have referred.

  1. The applicant relies also upon s 44 of the BCII Act, in relation to which the interim injunctive power is contained in s 49(3). That subsection needs to be read with subs (1) of s 49, which provides:
An appropriate court, on application by an eligible person, may make one or more of the following orders in relation to a person (the defendant) who has contravened a civil penalty provision:

(a) an order imposing a pecuniary penalty on the defendant;
(b) an order requiring the defendant to pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention;
(c) any other order that the court considers appropriate.

Subsection (3) then provides:

The orders that may be made under paragraph (1)(c) include:
(a) injunctions (including interim injunctions); and
(b) any other orders that the court considers necessary to stop the conduct or remedy its effects, including orders for the sequestration of assets.

  1. When I first looked at s 49 today, I was concerned that the power to make an interim injunction under subs (3) might be limited to circumstances in which the court had found that the defendant referred to had contravened a civil penalty provision, such as s 44. I held that concern because subs (3) does not empower the court to make an interim injunction in the broad in the way that s 39(2) does, but rather identifies the kind of injunction that may be made pursuant to the power to make other orders under par (c) of subs (1). And subs (1), in turn, is concerned with orders that may be made where the court finds that someone has contravened a civil penalty provision.
  2. However, I was referred by counsel for the applicant to the judgment of Gilmour J in CBI Construction Pty Ltd v Abbott [2008] FCA 1629, in which his Honour considered this point under s 49(3). His Honour said:
Section 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred.

His Honour relied upon 2 judgments of Le Miere J in the Supreme Court of Western Australia. It is sufficient if I refer to one of them only, namely, Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299. Dealing with the point with which I am presently concerned, Le Miere J said (at par [7]):

In my view, section 49(3) confers upon this court the power to grant an interim injunction without the court being satisfied that a person has contravened the civil penalty provision, that is, reaching a final decision that a contravention has occurred.

In the circumstances, and for the purposes of today’s interim hearing, I am prepared to proceed on the basis of the construction of s 49(3) which attracted itself to Le Miere J and subsequently to Gilmour J.

  1. I am also disposed, for the purpose of considering the question of desirability under s 39(2) of the BCII Act, and for the purpose of deciding whether an injunction should be made under s 49(3) of that Act, to apply the conventional approach which is taken by a court in the event that an interlocutory restraint on the conduct of a person is sought by an applicant. That approach has most recently been articulated in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57. Having referred to Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, Gummow and Hayne JJ said (at p 82):
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [118 CLR at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [118 CLR at 622]:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

  1. I am not concerned this evening with the question whether an order should be made which would run until trial. As I have said, the matter has been brought on at very short notice, and the respondents are in no realistic position to advance a serious case in opposition to an order that would have that effect. If I am to make any order at all, I consider that it should be in the nature of a holding order only that would protect the position of the parties until the respondents have an opportunity to gather such material together as they would wish to file, and to organise their arguments. Notwithstanding that, I think that the correct approach for me to take would be to consider first whether the applicant has established a prima facie case in the sense explained in ABC v O’Neill, and then to consider whether the balance of convenience is such as would justify the making of restraints of the kind sought by the applicant until the matter can be considered in a little more depth on an early occasion.
  2. The way the applicant put his case under s 38 of the BCII Act was as follows. That section refers to unlawful industrial action. That in turn is defined in s 37 as building industrial action, which is industrially motivated, constitutionally connected and not excluded. All of these terms have their own definitions in Pt 1 of Ch 5 of the BCII Act. Building industrial action is defined in a way which is somewhat similar to that which has traditionally been the definition of industrial action in the Workplace Relations Act 1996 (Cth) (“the WR Act”). Relevantly to the present matter, the applicant says that the failure of the employees of Civil Pacific to continue working on 5 February, and their failure to attend for work at all on 6 February, constituted a failure or refusal by persons to attend for building work, or a failure or refusal to perform any building work at all by persons who attend for building work.
  3. The applicant then relies upon s 48(2) of the BCII Act, which provides that, for the purposes of the enforcement provisions contained in Pt 1 of Ch 7, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. It is then provided that a person is involved in a contravention of a civil penalty provision if, and only if, the person has aided, abetted, counselled or procured the contravention, has induced the contravention (whether by threats, promises or otherwise), has been in any way, by act or omission, directly or indirectly knowingly concerned in or party to the contravention, or has conspired with others to effect the contravention.
  4. The way the applicant puts it is that the AMWU and the CFMEU have at least counselled and procured the failure of the employees of Civil Pacific to attend for work. As presently advised, I am disposed to think that this is a weak argument. The material suggests that the employees of Civil Pacific absented themselves from their workplace because of their discontent with the statement made to them that they would be docked pay for the time that they had been absent from work on 5 February; or, depending upon the particular detail of what was said to them, that their conduct would be reported to the ABCC.
  5. I am prepared to accept it as arguable that the employees of Civil Pacific would have a sense of reserve at least about coming to work when a picket line is in place. However, I cannot see in the material before the court anything which shows that either the AMWU or the CFMEU has taken any of the steps referred to in s 48(2) of the BCII Act with reference to the refusal by those persons to attend at work.
  6. The only other observation I would make about the cause of action arising under s 38 is to advert to the judgment of the Full Court in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463. After a lengthy examination of the corresponding provisions of the WR Act, and of the nature of picketing as it is commonly understood, Wilcox and Cooper JJ concluded (at p 486) that, when third parties establish a picket line which has the effect of stopping employees from coming to work, that does not constitute a ban, limitation or restriction on the performance of work within the meaning of a definition of industrial action which is relevantly indistinguishable from the definition of building industrial action set out in s 36 of the BCII Act. Counsel for the applicant did not seek to contend otherwise, but reference to that line of jurisprudence does tend to demonstrate how narrow is the path that the applicant must tread if he seeks to rely upon section 38 in the circumstances apparently existing at the site.
  7. Section 44(1) of the BCII Act provides as follows:
A person must not:

(a) take or threaten to take any action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree:
(c) to make, vary or terminate, or extend the nominal expiry date of, a building agreement under Part 8 of the [WR] Act; or
(d) to approve any of the things mentioned in paragraph (c).

It is provided that subsection (1) does not apply to protected action, as defined in the WR Act.

  1. On the evidence which has been put before me today, I would be prepared to hold that the applicant has established, at the prima facie case level, that the respondents have attended in the vicinity of at least one entrance to the site in sufficient numbers, and under circumstances of sufficiently serious intent generally, to dissuade persons who would normally be inclined to have lawful access to the site from doing so. Quite clearly the respondents have taken action within the meaning of s 44(1). The only question is whether it has been established at the prima facie level that that action had the intent of coercing another person, or of applying undue pressure to another person, to agree or not to agree to make a building agreement under Pt 8 of the WR Act.
  2. Here the first question is what the respondents apparently intend to achieve by their attendance at the entrance to the site. I think it has been established by the applicant, at least to the prima facie case level, that the respondents want John Holland to make an industrial agreement with them which would cover workers employed on the site. There is also evidence from which I would infer, again prima facie, that the respondents also desire to have Civil Pacific make an agreement with them for its workers on the site.
  3. The evidence, such as it is, does not make it altogether clear whether the respondents’ intent is that such an agreement, if made, would be made under Pt 8 of the WR Act. However, the applicant has invited me to accept that, realistically, if the respondents, particularly the AMWU and the CFMEU – being registered organisations under that Act – succeeded in making an agreement with John Holland or with Civil Pacific, they would most likely want it certified for the added protection and certainty which that would give. This is a difficult question factually, and perhaps in some senses legally, and it is better that I say little about it at this stage. I am, however, prepared to accept that it is fairly arguable, and in that sense prima facie established for present purposes, that it is the intent of the respondents that John Holland and Civil Pacific should make an agreement to be certified under Pt 8.
  4. The next question is whether the respondents intend not only that those agreements be made, but that the persuasion that they would apply, to John Holland and/or to Civil Pacific, would amount to coercion, or to the application of undue pressure. The concept of coercion has been considered on a number of occasions by the court, with reference to analogous but not altogether identical provisions of the WR Act. It is sufficient for present purposes if I refer to what Merkel J said in Seven Network Operations Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; (2001) 109 FCR 378, 388 [41].
The above cases establish that there must be two elements to prove “intent to coerce” under s170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable. The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s170MT of the Act, many forms of industrial action are unlawful ....

  1. I would readily accept it to be arguable that the intent of the respondents is to negate the choice that John Holland and Civil Pacific otherwise have to decline to enter into a Pt 8 agreement with them. The effect of what they have done at the site, on the material before the court, is to prevent work being done there and to prevent persons and vehicles from having access to the site. This should be regarded, if established at trial, as a very serious and potent form of direct pressure, in the face of which it would be in my view highly artificial to regard the object thereof as having any choice in the matter.
  2. The next question is whether the action engaged in to apply pressure is unlawful, illegitimate or unconscionable. For this evening’s purposes, I am prepared to consider only whether the action is illegitimate. I consider it to be strongly arguable that for the respondents to organise large groups of people to stand in the vicinity of the entrance to a workplace, and to prevent people having access to that site, is illegitimate conduct. Manifestly it is conduct which cuts across the normal industrial and commercial activities of people who are entitled to work and to carry on business.
  3. I take the view, therefore, that the respondents’ intent, within the meaning of s 44(1), was arguably not only to have John Holland and Civil Pacific make an agreement under Pt 8 of the WR Act, but to do so by coercion, and, if the evidence remains the same, that the applicant would prima facie be entitled to a conclusion in those terms.
  4. I have not said anything about the other sense in which s 44(1) of the BCII Act applies, that is to say, where someone takes action with intent to apply “undue pressure” to another person to agree to make an agreement under Pt 8 of the WR Act. That is, as far as I know, not a term which is used in the WR Act, or which has otherwise been the subject of judicial exposition. However, it will be apparent from what I have said that I take the view that the applicant also has at least a reasonably arguable case that what the respondents have done at the site does amount to the application of undue pressure to John Holland and to Civil Pacific.
  5. In the circumstances, I am satisfied that the applicant has established a prima facie case in the sense explained in ABC v O’Neill.
  6. I turn then to the balance of convenience. I commence by saying that the respondents, for reasons which I have explained, and in relation to which no criticism is warranted, have made no submissions at all on this application. The result is that I am left to distil from the material of the applicant whether there is any respect in which a restraint of the kind which he seeks would be prejudicial or detrimental to the respondents. I am bound to say that I cannot see any such factor. Save possibly for the disruption of such commercial arrangements as the respondents might have entered into in relation to the hire of barbeques, portable toilets and whatever else they may have, it is not apparent how a restraint – which would operate for a short period – on the respondents’ engaging in their picketing activities at the site would have any detrimental or harmful effect upon them.
  7. On the other hand, this is clearly an important project, both for the people involved and considered generally as a piece of infrastructure for the City of Melbourne. The employees of Civil Pacific have not returned to work. As I have said earlier, I am not prepared to go to the length of holding that their absence from work is necessarily a result of the picket line. But the presence of the picket line would be likely to generate in them a strong sense of reserve about attempting to return to work. The evidence also sustains the conclusion that other normal commercial deliveries that go to the site are being stopped by the picket line, and in a general sense that the result of the picket is – as one would expect was intended – that normal operations at the site have been curtailed.
  8. If the respondents wish to have John Holland and Civil Pacific enter into industrial agreements with them, there are well-trodden paths for them to follow under the WR Act. I cannot for my own part understand why it should be considered necessary to engage in the kind of conduct which is revealed by the affidavits relied upon by the applicant. The evidence referred to in those affidavits suggests a quite unashamed resort to direct action on the part of the respondents, which shows no concern for the legal rights of John Holland, of Civil Pacific, or of those who work for them. Neither, as I have said, does that conduct demonstrate any concern on the part of the respondents for what I would regard as the normal course of conducting industrial relations and obtaining industrial agreements, as regulated under the WR Act.
  9. I consider that, over the next few days – which is the only period with which I am concerned this evening – the status quo should be restored. At some stage, perhaps a fair way down the track, the court will have to decide finally what are the rights and wrongs of this matter. I propose to list the applicant’s application for interim relief on a day next week, as suggested by counsel for the respondents, at which time they will have the opportunity to resist the applicant’s application for an injunction running until trial. The question which I must now consider is what should be the practical regime regulating the conduct of the respondents for those few days, after which their counsel will have the opportunity to address me fully on the applicant’s interim application.
  10. For reasons which I have expressed, I think that John Holland and Civil Pacific, and those having legitimate business with them, should be entitled to operate normally. I cannot see any way in which the respondents’ rights or interests would be prejudiced by that being brought about. For that reason, I propose to make an injunction as sought by the applicant.
  11. That brings me to the terms of the order which I should make. As I indicated during the hearing this afternoon, I am not prepared to make an order in the broad, and in many respects argumentative, terms that the applicant proposed. I would be prepared to make an order that dealt specifically with the question of the respondents placing impediments in the way of people arriving at the site, and generally attending in the vicinity of the site. I shall discuss the terms of that order with counsel.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:


Dated: 12 February 2009


Counsel for the Applicant:
Mr N Green with Mr G Pauline


Solicitor for the Applicant:
Australian Government Solicitor


Counsel for the First and Second Respondents:
Mr E White


Solicitor for the First and Second Respondents:
Mr D Watson of CFMEU


Counsel for the Third Respondent:
No appearance on behalf of the Third Respondent

Date of Hearing:
6 February 2009


Date of Judgment:
6 February 2009

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