BGC Construction Pty Ltd v Construction, Forestry, Mining and Energy Union (Construction Division)
[2004] WASC 262
BGC CONSTRUCTION PTY LTD -v- CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CONSTRUCTION DIVISION) & ORS [2004] WASC 262
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 262 | |
| Case No: | CIV:2550/2004 | 7 DECEMBER 2004 | |
| Coram: | MASTER SANDERSON | 8/12/04 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Limited injunction granted | ||
| B | |||
| PDF Version |
| Parties: | BGC CONSTRUCTION PTY LTD (ACN 008 783 248) CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CONSTRUCTION DIVISION) JOSEPH McDONALD DAVID NOONAN JAMES LEGGO MICHAEL POWELL DARREN KAVANAGH |
Catchwords: | Injunction Application for interlocutory injunction against union officials entering building site Turns on own facts |
Legislation: | Industrial Relations Act 1979 (WA), s 49H, s 49I, s 49J(5), s 49R Workplace Relations Act 1996 (Cth) |
Case References: | Sedleigh-Denfield v O'Callaghan [1940] AC 880 Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR Cayne v Global Natural Resources Plc [1984] 1 All ER 225 Grant Match & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 Hole v Chard Union [1894] 1 Ch 293 CA Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1420 Latham v Singleton [1981] 2 NSWLR 843 Morgan v Fry [1962] 2 QB 710 National Coal Board v Galley [1958] 1 All ER 91 Rookes v Barnard [1964] AC 1129 The Siskina [1979] AC 210 Thomas A Edison Ltd v Bullock (1913) 15 CLR 679 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 38 CLR 479 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (CONSTRUCTION DIVISION)
First Defendant
JOSEPH McDONALD
Second Defendant
DAVID NOONAN
Third Defendant
JAMES LEGGO
Fourth Defendant
MICHAEL POWELL
Fifth Defendant
DARREN KAVANAGH
Sixth Defendant
(Page 2)
Catchwords:
Injunction - Application for interlocutory injunction against union officials entering building site - Turns on own facts
Legislation:
Industrial Relations Act 1979 (WA), s 49H, s 49I, s 49J(5), s 49R
Workplace Relations Act 1996 (Cth)
Result:
Limited injunction granted
Category: B
Representation:
Counsel:
Plaintiff : Mr G R Donaldson SC
First Defendant : Mr P G Laskaris
Second Defendant : Mr P G Laskaris
Third Defendant : Mr P G Laskaris
Fourth Defendant : Mr P G Laskaris
Fifth Defendant : Mr P G Laskaris
Sixth Defendant : Mr P G Laskaris
Solicitors:
Plaintiff : Hotchkin Hanly
First Defendant : Slater & Gordon
Second Defendant : Slater & Gordon
Third Defendant : Slater & Gordon
Fourth Defendant : Slater & Gordon
Fifth Defendant : Slater & Gordon
Sixth Defendant : Slater & Gordon
(Page 3)
Case(s) referred to in judgment(s):
Sedleigh-Denfield v O'Callaghan [1940] AC 880
Case(s) also cited:
Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR
Cayne v Global Natural Resources Plc [1984] 1 All ER 225
Grant Match & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375
Hole v Chard Union [1894] 1 Ch 293 CA
Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1420
Latham v Singleton [1981] 2 NSWLR 843
Morgan v Fry [1962] 2 QB 710
National Coal Board v Galley [1958] 1 All ER 91
Rookes v Barnard [1964] AC 1129
The Siskina [1979] AC 210
Thomas A Edison Ltd v Bullock (1913) 15 CLR 679
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 38 CLR 479
(Page 4)
1 MASTER SANDERSON: This is the plaintiff's application for an interlocutory injunction. The plaintiff seeks orders in the following terms:
"1. Until further order, the First Defendant be restrained and an injunction be granted restraining it whether by itself, its officers, servants, agents or otherwise, from permitting or causing more than two duly authorised representatives entering onto premises situated at and known as the Barrack Plaza Project on the corner of Barrack Street and Wellington Street, Perth ('the Barrack Plaza Project') during the same period of time in the purported exercise of rights of entry pursuant to Part II Division 2 G of the Industrial Relations Act 1979 ('the Act').
2. The Second, Third, Fourth, Fifth and Sixth named Defendants be restrained and an injunction be granted restraining them from behaving in a manner that could reasonably be expected to be intimidating or offensive, or that would in fact, intimidate or offend the Plaintiff's officers, servants or agents whilst exercising any rights of entry pursuant to Part II Division 2G of the Act at the Barrack Plaza Project or any other site occupied by or under control of the Plaintiff.
3. The Defendants have liberty to apply on 24 hours notice to the Plaintiff to dissolve or vary this injunction.
4. The costs of this application be costs in the cause."
2 The application is supported by three affidavits. The main affidavit relied upon by the plaintiff was sworn by Paul John Smedley ("Smedley") on 29 November 2004. The plaintiff also relies upon an affidavit of Grant Alan Smith ("Smith") also sworn 29 November 2004 and an affidavit of Andrew Walker Buchan ("Buchan") sworn 6 December 2004. In opposition to the application, the defendants relied on an affidavit of Darren Kavanagh ("Kavanagh") affirmed 6 December 2004 and an affidavit of Kevin Reynolds ("Reynolds") affirmed 6 December 2004.
3 The relevant facts can be summarised in this way. The plaintiff is a construction company which is undertaking a construction project known as Barrack Plaza. It is located on the corner of Barrack Street and Wellington Street in Perth. The first defendant is a registered union of employees. There are two unions with very similar names, one of which is State registered and the other of which is Commonwealth registered.
(Page 5)
- The Construction, Forestry, Mining and Energy Union, Construction and General Division (CFMEU) is registered under the Workplace Relations Act 1996 (Cth). The Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) is registered under the Industrial Relations Act 1979 (WA). Not much turns on the difference between these two registered entities, but the distinction is worth bearing in mind. For the purposes of this application, the relevant union is the CFMEUW ("the Union").
4 The second, fourth, fifth and sixth defendants are officers of the CFMEUW. The third defendant is the national assistant secretary of the CFMEU. It would appear that he has no role in the CFMEUW.
5 Smedley is an occupational, safety and health manager with the plaintiff. Smith is a safety officer employed by the plaintiff. Smedley says that on 10 November 2004 he received a telephone call at approximately 9.10 am from the site contract administrator at Barrack Plaza. He was advised that the Union, or at least certain officials of the Union, were on site. He then drove to the Barrack Plaza site, arriving at approximately 9.23 am.
6 When Smedley arrived at the site, he found that the second to sixth defendants were in attendance. The second, fourth, fifth and sixth defendants had entered the site pursuant to rights granted to them under the Industrial Relations Act 1979. I will deal with this Act and its effect further below. For present purposes, it is enough if I say that under the terms of the Act duly authorised individuals are permitted to enter a building site for certain specified purposes. Each of the second to sixth defendants, other than the third defendant, were so authorised. There is no dispute that the third defendant was a trespasser. He had entered onto the site without any notice to the plaintiff and he was not covered by any statutory authorisation.
7 It is unnecessary to go into detail as to the interchange which took place between Smedley and Smith on the one hand and the second to sixth defendants on the other. All of the material is set out in the affidavits of Smedley and Smith. Smedley took the precaution of recording the conversations and his and Smith's version of events is not contradicted by the second to sixth defendants. The exchange was characterised by foul language and aggressive behaviour, particularly on the part of the fourth and fifth defendants. Quite what the dispute was about does not emerge from the evidence. Smedley and Smith made efforts to have each of the second to sixth defendants produce authorisations which allowed them to
(Page 6)
- enter the site. This appeared to provoke in the fourth and fifth defendants the abusive and intimidating action. It is a limited picture which emerges from the evidence.
8 Of course, the genesis of the dispute is well-known. The plaintiff is a large construction company which employs a substantially non-unionised workforce. There has, over the years, developed a degree of enmity between the Union (in both its State and national guises) and its officers on the one hand and the plaintiff and its officers on the other. This interplay was clearly just another chapter in what may well prove to be an endless saga.
9 After the events of 10 November, the plaintiff's solicitors wrote to the Union, complaining about the conduct of its officers and asking for certain undertakings. A copy of this letter appears as annexure "AWB1" to the affidavit of Buchan. The undertakings sought from the Union were that:
(a) only authorised representatives as defined in the Act should attend on the plaintiff's site;
(b) such authorised representatives would present proof of their authorisation for the purposes of the Act when asked to do so by an employee of the plaintiff;
(c) no person would enter the site unless it was for a bona fide purpose under s 49H and s 49I of the Act; and
(d) no person would use terms of abuse or otherwise engage in intimidatory behaviour whilst on the site or any other site occupied by the plaintiff.
10 By letter dated 6 December 2004, the Union agreed to provide the first three of the proposed undertakings. It declined to provide the fourth undertaking - that is to say, it was not prepared to undertake that its officers would not use terms of abuse or otherwise engage in intimidatory behaviour whilst on the Barrack Plaza site, or any other BGC site. That is why an order is sought in terms of par 2 set out above.
11 The second and fourth to sixth defendants entered onto the Barrack Plaza site pursuant to rights under s 49H and s 49I of the Industrial Relations Act 1979. These two sections are in the following terms:
(Page 7)
- "49H. Right of entry for discussions with employees
(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.
(2) If an award, order or industrial agreement that extends to the relevant employees makes provision as to entry onto premises by an authorised representative and ¾
(a) does not require notice to be given by the representative; or
(b) requires a specified period of notice to be given by the representative,
the authorised representative is not required to give notice under this section.
(3) If subsection (2) does not apply, the authorised representative is not entitled to exercise a power conferred by this section unless the authorised representative has given the employer of the employees concerned at least 24 hours' written notice.
49I. Right of entry to investigate breaches
(1) An authorised representative of an organisation may enter, during working hours, any premises where relevant employees work, for the purpose of investigating any suspected breach of this Act, the Long Service Leave Act 1958, the MCE Act, the Occupational Safety and Health Act 1984, the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement or employer-employee agreement that applies to any such employee.
(2) For the purpose of investigating any such suspected breach, the authorised representative may ¾
(a) subject to subsections (3) and (6), require the employer to produce for the representative's inspection, during working hours at the employer's premises or at any mutually
(Page 8)
- convenient time and place, any employment records of employees or other documents kept by the employer that are related to the suspected breach;
- (b) make copies of the entries in the employment records or documents related to the suspected breach;and
(c) during working hours, inspect or view any work, material, machinery, or appliance, that is relevant to the suspected breach.
- (3) The authorised representative is not entitled to require an employer to produce an employment record of an employee if the employee ¾
(a) is a party to an employer-employee agreement; and
(b) has made a written request to the employer that the record not be available for inspection by an authorised representative.
(4) A written request under subsection (3)(b) ¾
(a) may be withdrawn by written notice given by the employee to the employer; and
(b) has effect until it is so withdrawn.
(5) An authorised representative is not entitled to exercise a power conferred by this section for the purpose of investigating a suspected breach of an employer-employee agreement to which a relevant employee is a party unless the authorised representative is authorised in writing by that relevant employee to carry out the investigation.
(6) An authorised representative is not entitled to require the production of employment records or other documents unless, before exercising the power, the authorised representative has given the employer concerned ¾
(Page 9)
- (a) if the records or other documents are kept on the employer's premises, at least 24 hours' written notice; or
(b) if the records or other documents are kept elsewhere, at least 48 hours' written notice.
- (7) The Commission may, on the ex parte application of an authorised representative, waive the requirement to give the employer concerned notice of an intended exercise of a power under subsection (6) if the Commission is satisfied that to give such notice would defeat the purpose for which the power is intended to be exercised.
(8) If the requirement for notice is waived under subsection (7) ¾
(a) the Commission must give the authorised representative a certificate authorising the exercise of the power without notice; and
(b) the authorised representative must, after entering the premises and before requiring the production of the records or documents, give the person who is apparently in charge of the premises the certificate or a copy of the certificate."
13 The writ in this matter was issued on 30 November 2004. The indorsement of claim says that the plaintiff's claim against the defendants "arises in respect of trespass, nuisance and intimation from events that occurred on 10 November 2004". To obtain an interlocutory injunction, the plaintiff must establish that there is a serious question to be tried and that the balance of convenience favours the grant of the injunction. Both parties accepted this as the applicable test. It was the defendants' position
(Page 10)
- that the facts in this case did not give rise to a serious question to be tried and, even if they did, the balance of convenience did not favour the grant of the injunction.
14 Given the conclusion I have reached, I do not propose to canvass the law in any detail. But in fairness to the defendants, I should deal briefly with their submissions in relation to each of the causes of action.
15 Dealing first with trespass, it was conceded that the third defendant was a trespasser. However, it was said that he was not domiciled in Western Australia and there was no evidence led by the plaintiff to indicate that he had threatened to enter the site again. With respect to the second, fourth, fifth and sixth defendants, it was said that they had a statutory right to enter the premises under s 49H and s 49I and they therefore could not under any circumstances be trespassers.
16 With respect, I think there is a question to be tried on this issue. It is true that s 49H and s 49I give authorised persons the right to enter a building site. But that right is given only for certain specific purposes. The evidence of Kavanagh indicates that he was on the site investigating alleged breaches of the Occupational Safety and Health Act 1984 (WA). That would be sufficient to justify his presence under s 49I. There is also some evidence that the second defendant was talking to employees. But whether these employees were "relevant employees who wished to participate in … discussions" as is required by s 49H(1) is a question for trial. It is by no means clear why the fourth and fifth defendants were on site. In saying all of this, I am not purporting to make any findings of fact. Given the events that occurred on 10 November, it is, in my view, arguable that the second and fourth to sixth defendants were not properly on site under the provisions of s 49H or s 49I. The matter is at least arguable.
17 Turning to the action in nuisance, it is clear, as counsel for the defendants submitted, that the plaintiff's claim must be for private nuisance. The jurisprudential foundation of a cause of action of private nuisance is the balancing of the right of an occupier to use his land without interference: see Sedleigh-Denfield v O'Callaghan [1940] AC 880 per Lord Wright at 904. The researches of counsel in the limited time available did not throw up any cases where entry onto a site by union officials has been held to be a private nuisance. But there is nothing to suggest that the principles could not extend to interference with a site by union officials. It is true that the interference must be "substantial" and "unreasonable": see Halsbury's Laws of Australia, vol 26 1997
(Page 11)
- (415 - 635). There must be a question as to whether or not, taken at its highest, the evidence establishes either of these two requirements. Once again, I am satisfied that the position is arguable.
18 Thirdly, there is the cause of action for the tort of intimidation. The essential elements of this cause of action are that:
1. The defendants must have intended to harm the plaintiff;
2. there must be a threat by the defendants to use unlawful means to compel the person threatened to obey the defendants' demand;
3. the person threatened must have complied with the demand; and
4. the plaintiff must have suffered damage as a consequence of the compliance.
19 It was the defendants' position that none of these requirements had been satisfied. I express no concluded view on this matter, save to say that if this had been the only basis upon which the plaintiff sought relief, I would not have granted an injunction.
20 On balance, then, I am satisfied that there is a serious question to be tried. It must be acknowledged that the plaintiff's claim is not without its difficulties. It may even be that the plaintiff does not have a strong case. However, I am satisfied that there is a serious question to be tried leading to consideration of whether or not the balance of convenience favours the grant of the injunction.
21 It was the defendants' position that there was no indication that there would be any repeat of the events of 10 November. Counsel made the point that the events complained of occupied a relatively short period of time and had not been such to warrant the intervention of the police who had been called. Counsel submitted that, as there was no apprehension of further such conduct, there was no need for the grant of an injunction.
22 In my view, that submission misses the point. There is no doubt that the actions of the defendants, particularly the fourth and fifth defendants, was such as to cause Smedley and Smith to fear for their safety. Given the virtually unfettered right of officers of the Union to enter onto the site, there is at least a possibility of a repeat of this disgraceful behaviour. In my view, it is better to take action to prevent that happening, rather than react after an event. It is also worth noting the Union has declined to give an undertaking that further abusive and intimidatory behaviour will not
(Page 12)
- occur. That hardly suggests the actions of the defendants will not be repeated.
23 The further submission by counsel for the defendants was that if the plaintiff has any complaint about the actions of the second and fourth to sixth defendants, it should apply to revoke their authority to enter the site. This can be done under s 49J(5) of the Industrial Relations Act1979. Counsel submitted that, in circumstances where no attempt had been made to invoke this jurisdiction, it was inappropriate to grant injunctive relief.
24 It is to be noted that s 49J(5) does not offer a person aggrieved by the conduct of an authorised person to obtain any interim relief. It would be necessary to have a full hearing after which the authorisation may or may not be withdrawn. In those circumstances, the grant of an injunction seems to me to be entirely appropriate.
25 The terms of the injunction as proposed by the plaintiff are, however, in my view, too wide. There is an obvious difficulty with the proposed order 1. There is nothing in s 49H or s 49R of the Industrial Relations Act1979 which limits the number of persons who may enter onto a site at any particular time. The requirement is that they be an authorised representative. So, if 10 authorised representatives were to enter a site at the same time, prima facie they would be entitled to do so. An order which purported to limit the number of persons entering the site would be at odds with the legislation and, in my view, no such order could or should be made.
26 With respect to order 2, the first question is against whom the order ought be made. As I have mentioned, the third defendant does not reside in the jurisdiction and it is unlikely that he would again trespass on the site. So, there is no need to make an order against him. The evidence of Smedley and Smith makes it plain that the fourth and fifth defendants were the main protagonists in this dispute. Clearly, an order ought be made against them. Neither Smedley nor Smith mention in their affidavits the sixth defendant acting in an offensive way. In his affidavit, the sixth defendant does mention discussions that he had with Smedley, but, perhaps not surprisingly, does not suggest that he behaved in an intimidating fashion towards Smedley, or anyone else. Given the lack of evidence, it would be inappropriate to make any order against the sixth defendant.
27 That leaves the second defendant. It is not easy to work out his role in the whole affair. He is mentioned a number of times in Smedley's
(Page 13)
- affidavit and it would appear that he was present while the unhappy interchange took place between Smedley and the fourth and fifth defendants. He does not appear to have used the foul language used by his comrades. There is no evidence that he encouraged either the fourth or the fifth defendants. However, nor is there any evidence that he attempted to restrain their behaviour. There is a suggestion that he had some measure of control over at least the fourth defendant: see par 110 of Smedley's affidavit. On balance, I am satisfied that the second defendant was intimately involved in the whole episode and that an injunction ought be granted against him.
28 The injunction seeks to operate not only with respect to the Barrack Plaza project, but to "any other site occupied by or under the control of the plaintiff". In my view, that restraint is too wide. There is no evidence of any improper or inappropriate behaviour by any of the defendants at any other site controlled or occupied by the plaintiff. Although the injunction ought run with respect to the Barrack Plaza project, it ought only run with respect to that project.
29 During the course of his submissions, I raised with counsel for the plaintiff the difficulty in enforcing an injunction in the terms found in par 2 of the proposed orders. Counsel acknowledged that difficulty. He indicated that the proposed wording was taken from legislation dealing with restraining orders. Be that as it may, I am satisfied that, on balance, the purpose and intent of the order is clear and it can be easily understood. It is true that if the plaintiff alleges that any of the parties restrained has breached the order, contempt proceedings might develop into a full-scale trial. That is a risk worth taking. In my view, the grant of an injunction is justified.
30 It is to be expected that, in the rough and tumble of industrial relations in the building industry, there will from time to time be robust exchanges between various parties. But a descent into thuggish behaviour cannot be tolerated. In the face of such behaviour, the Court must act to prevent a recurrence.
31 The order, then, will be in the following terms:
1. The second, fourth and fifth defendants be restrained and an injunction be granted restraining them from behaving in a manner that could reasonably be expected to be intimidating or offensive, or that would, in fact, intimidate or offend the plaintiff's officers, servants or agents whilst
(Page 14)
- exercising any rights of entry pursuant to Pt II Div 2G of the Industrial Relations Act1979 at the Barrack Plaza project.
- 2. The defendants have liberty to apply on 24 hours' notice to the plaintiff to dissolve or vary this injunction.
3. The costs of this application be costs in the cause.
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