Evidence
Evidence Before The Court
Counsel for the applicant submits that, by reason of the matters deposed to in these affidavits, there is a serious question to be tried that the respondents have engaged in contraventions of ss 38 and 43 of the Act; and that the balance of convenience favours the grant of the injunctions sought. Counsel for the respondents responded that the evidence did not establish the applicant’s case and, in any event, the injunctive relief sought was too wide.What the evidence presently shows For the purposes of this interlocutory application, the affidavits filed on behalf of the applicant showed the following: A company called Transit Joint Venture Pty Ltd (TJV) began construction work at the site in December 2003. TJV employed construction workers through another company called Melbourne Transit Pty Ltd (“Melbourne Transit”) under a certified agreement made with the first respondent (“the union”). The sole director of TJV and Melbourne Transit is Mr Goss. When work began on the site in December 2003, the union-appointed shop steward was Frank Villa. In February 2004, a union representative told Mr Goss that Melbourne Transit should appoint Ms Roslyn Singleton as the union-recognised shop steward or O H & S officer. Melbourne Transit subsequently employed Ms Singleton. In August 2004, Bob Mates, who is one of the union’s organisers, told Mr Goss that it would be “in Melbourne Transit’s interest” to employ Shaun O’Hara as the shop steward. Mr O’Hara was subsequently hired by Melbourne Transit as a labourer, but he left the site in December 2004 for health reasons. In January 2005, Mr Mates told Mr Goss it would be “in Melbourne Transit’s best interests” to employ Jason Deans as the replacement shop steward. Melbourne Transit later hired Mr Deans. On 22 December 2005, Melbourne Transit made 38 construction employees redundant. 26 of them had worked at the site. Melbourne Transit made redundancy payments. Melbourne Transit retained 23 workers, who until 25 January 2006 worked on small jobs for it, other than at the site. The site was closed over part of December 2005 and January 2006. ACN 117 918 064 Pty Ltd, trading as Hardcorp, was incorporated on 17 January 2006. Mr Goss is also the sole director of this company. In late January 2006, TJV contracted with Hardcorp to perform construction work on the site, predominantly for the supply of labour. On 25 January 2006, Melbourne Transit made its remaining 23 employees redundant but Hardcorp has employed them since this date. Melbourne Transit went into voluntary administration on 25 January 2006. 2 Hardcorp employees commenced work at the site in late January. The site workforce is now about 20. Hardcorp has paid employees at the site in accordance with the rates of the certified agreement made with Melbourne Transit, which went into liquidation on 23 February 2006. On 15 February 2006, Mr Goss invited Mr Mates to a meeting, during which Mr Goss told Mr Mates that the project at the site was recommencing. Mr Mates told Mr Goss that he wanted the former employees of Melbourne Transit to be re-employed on the project, but Mr Goss replied that this would not be economically possible because the size of the required workforce was unknown at that stage. Mr Mates also told Mr Goss that he wanted the union’s former shop steward and O H &S officer as well as the FEDFA shop steward (Aengus O’Donnell) to be employed by Hardcorp and reappointed as shop stewards and O H & S officer. Mr Mates said that he would not accept anything less. Mr Goss replied that there was no need for Hardcorp to employ a FEDFA shop steward because Hardcorp would not be employing a crane crew. Mr Goss said that, initially, Hardcorp was going to hire a crane with staff and then have a crane company use their manpower on TJV’s crane. Mr Goss and Mr Mates did not agree on shop stewards for the site. Mr Mates told Mr Goss at the end of the meeting that the site was “not going to happen” without his people on the site. On 16 February 2006, the workers at the site elected Robert Van Senten as their O H & S representative and shop steward. On 17 February 2006, at the request of the union, Mr Goss, Bryan Palmer and Michael Malbourne attended the union’s offices. Mr Palmer was Hardcorp’s site supervisor and Mr Malbourne was the finance executive of the relevant group of companies. They met with Mr Mates and a FEDFA organiser called Chris. According to Mr Goss, Mr Mates told the Hardcorp people that there were two issues: (1) the re-employment of his people; and (2) the payment of subcontractors who had previously worked for Melbourne Transit. According to Mr Goss, he said: (1) that he viewed the debt as owed by Melbourne Transit and not Hardcorp but he would nevertheless attempt to have these debts paid at some time in the future; and (2) he was not prepared to engage more employees because of the workforce size required to recommence the project was unknown. Also according to Mr Goss, Mr Mates told Mr Goss that if he did not agree to employ the shop steward and the OH & S representative that had been previously employed at the site, then he (Mr Mates) would ensure that the project would never recommence and that he (Mr Mates) would cause trouble at the site. According to Mr Goss, Mr Mates also said that there would be a picket line of subcontractors organised at the site. Mr Palmer’s account of this meeting did not corroborate Mr Goss’s account in important particulars. Mr Palmer said that Mr Goss had stated that TJV now employs 23 employees and that this number of employees was the only way that the job could be continued, and that he could not re-employ all of the employees that were previously employed on the site. Mr Palmer added that Mr Goss explained that it would not be financially possible to re-employ all the previous employees and there was some further discussion about the position of shop steward and O H & S representative on site but at the end of the meeting this was not resolved. Mr Palmer said nothing about any threats from Mr Mates. On the next working day, which was 21 February 2006, a crane crew and a crane from Independent Cranes Pty Ltd (“Independent Cranes”) attended the site. The crane crew began setting up the crane for work. According to Mr Palmer, at about the same time, he was told by men at the site that they heard Mr Mates tell the crane crew to shut down the crane. Accompanied by others, including the site supervisor, Mr Palmer went to ask Mr Mates why he had shut down the crane. According to Mr Palmer, Mr Mates said that he had done this because there was no shop steward or O H & S representative on site. When Mr Palmer told Mr Mates that this was not so, Mr Mates replied with words to the effect of “No you don’t and I have shut down your crane. You can write that down.” Mr Palmer and another man reiterated that there was a shop steward and O H & S representative on site and Mr Mates replied “I have sent the crane crew away”. Mr Palmer produced diary notes of this conversation. Mr McMahon and Mr Moresi corroborated his account. Mr Palmer telephoned Mr Goss, who contacted the offices of Independent Cranes. A representative of Independent Cranes told Mr Goss that the crane had left because the union had directed the crew to go and, if Independent Cranes wanted to continue to work in the industry, they had to withdraw from the site. Mr McMahon also deposed that a representative of Independent Cranes told him that “he was removing the crane … [and] if he did not follow instructions, Independent Cranes would not be able to work on other sites”. Mr Goss caused inquiries to be made of other crane companies. These inquiries did not result in a crane being made available at the site. Mr McMahon deposed that he called 8 crane hire companies that day and that all said that they had no crane available. Mr McMahon said that he asked one company (Sergi Cranes Pty Ltd) whether the union had contacted it and was told that it had not. Mr McMahon said that Campbell Cranes agreed to send a manager to inspect the site the following day. On 22 February 2006, there was a picket line constituted by about 20 (according to Mr Palmer) or 30 (according to Mr Goss) men in front of the south end of the site. According to Mr Goss, the picket line included a former union shop steward. The picket line dispersed at about 11:00 am. In the meantime, in view of the picket line and Hardcorp’s inability to hire a crane, Mr Palmer cancelled deliveries to the site. On the same day, Barry Campbell of Campbell Cranes attended the site for assessment purposes. Mr Campbell told Mr Goss that he was intimidated by the picket line and he did not want to run the risk of his crane being damaged. Mr Campbell told him that he was fearful of the site as he did not want his staff to be put in the situation of having to deal with the picketers. Mr McMahon also deposed that Mr Campbell said that “he was not willing to get involved on the … site” and that when leaving, Mr Campbell “asked if there was a back entrance because he was scared that the picketers would see someone with a Campbell Cranes polo shirt had been on site”. Other efforts to obtain a crane were unsuccessful. Mr McMahon deposed that each time he called a crane company he told them that “there was a picket line in front of the site and that if you came on site there may be some pressure from the CFMEU”. Two companies indicated that they wanted no further involvement after they were told about the picket line, whilst the other three said that they had no available cranes. On 23 February 2006, the picket line was about 10 (Mr Palmer) or 40 (Mr Goss) or 30-35 (Mr McMahon) including a former FEDFA shop steward. The line dispersed at about 11am. Mr McMahon said that he saw Mr Mates and others outside a shop about 50 metres from the site. Mr Palmer said in his affidavit that, on account of events at the time, he was “feeling uneasy and was concerned that the situation could escalate into violence”. According to Mr Goss, he contacted Mr Mates by telephone and told him that certain behaviour was inappropriate and, a short time later, Mr Palmer told Mr Goss that this behaviour had ceased. Mr McMahon also said that he continued to call crane companies that day and told each company he called about “the pickets and the union difficulties”. The crane companies’ responses were much the same as the day before and once again his efforts failed. On 24 February 2006, the picketers were again at the front of the site, although they were less in number (about 7 to 10). Mr McMahon’s evidence was that he saw Mr Mates, Mr O’Donnell and a FEDFA organiser whose name he could not recall at the front of the corner shop. They dispersed at about 10:30-11am. On 27 February 2006, the picket remained. Mr McMahon said that some people from the picket line had parked their cars in the drive way entrance. On this day, the applicant faxed a request to the union for an interview with Mr Mates in respect of any grievances he may have against Hardcorp and the applicant’s investigation of possible contraventions of the Act. The applicant received no response. On 28 February 2006, the picket (of about 10-12) remained. Mr McMahon’s evidence was that he arrived at the site at about 6:50 am and “placed some water barriers and barrier tape in the work zone to about five metres directly in front of the site”. He said that “[w]hen the picketers arrived, one of the picketers ripped the tape off, moved the water barriers and drove into the work zone area”. Also on this day, the union brought proceedings before the Australian Industrial Relations Commission seeking an order that Hardcorp is a “successor” employer to Melbourne Transit pursuant to s 170MB of the Workplace Relations Act 1996 (Cth). The Commission has adjourned the matter. On 1 March 2006, the union responded to the applicant’s solicitors’ letter of the same date denying any wrongdoing and declining to give the undertakings sought by the applicant. There were also about 10-12 people in the picket line. Mr McMahon said that he again sought to hire a crane and crew, including from Independent Cranes, without success. On 2 March 2006, the site supervisor told Mr Goss that he heard one of the picketers on a mega-phone, state that the picket line was to make sure that it stopped all deliveries of concrete panels coming onto the site and that the picketers would remain at the site all weekend to make sure this did not happen. Also on this day, further attempts to obtain a crane proved unsuccessful. Mr McMahon booked a crane with a crane company (Sergi Cranes) for the next day, without mentioning “the picket line or union troubles”. He cancelled the crane booking with this company on the morning of the next day. Mr Goss explained: “On 3 March 2006, I arrived at the Mount Street site at about 7:15am. At that time there were 3 people across the road wearing hardhats who made rude gestures at me. I also saw the Second Respondent, Bob Mates, Aengus O’Donnell (former Shop Steward for the First Respondent on the Mount Street site) and a CFMEU (FEDFA) Organiser by the name of Chris, sitting together in a café near the site. I believed that, if a crane did turn up from Sergi Cranes, there was no way it would cross the picket line. At this point, we were also commencing retrenchments …. For these reasons, even though I had very little confidence that Sergi Cranes would attend with a crane at 11:00 am, I told McMahon to cancel the booking with Sergi Cranes.” On 3 March 2006, Michael McKenzie, articled clerk, spoke by telephone to Mr Goss, who told him that he went to the site at 7:15am in the morning and saw 3 people across the road wearing hard hats and making rude gestures to him. Mr McKenzie also said that Mr Goss told him that he saw Mr Mates, a former union shop steward, and a FEDFA organiser sitting together in a café near the site.
Ratio Decidendi
Legal Principle Established
Established by:
KENNY J
In relation to s 43 of the Act, the respondent submitted that, for conduct to amount to coercion, it must be compulsive in the sense that the pressure brought to bear by the conduct from a practical perspective negates choice and is unlawful, illegitimate or unconscionable. The respondents’ counsel submitted that there was no evidence that any action had been taken against anyone in this case. Save, perhaps, for Mr Mates’ direction to the Independent Crane crew, there was no coercive conduct, or threat of coercive conduct, against any crane operator. Counsel noted that pickets per se were not industrial action nor unlawful and there was no evidence that anyone was being stopped from going onto the site. The evidence was, he said, consistent with the fact that crane operators had made a commercial decision not to work on the site. Further, the evidence did not establish any CFMEU presence on the picket; but rather the evidence was consistent with the picket being a protest picket by subcontractors. They were advertising the fact that the builder (Mr Goss through one or other of his companies) did not pay those who worked on the site. The evidence was, so counsel said, that the builders’ employees were able to go on and off the site. Moreover, the evidence was that Mr Goss himself cancelled a crane booked for the site. Consideration Before an interlocutory injunction will be granted, the court must be satisfied that there is both a serious question to be tried in the proceeding and that the balance of convenience favours the grant of an injunction: see, e.g., Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1. These two issues are not necessarily considered in isolation from one another. Thus, an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim, which nevertheless raises “a serious question be tried”, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: see Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 (“Mobileworld”) at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. This latter consideration assists in the resolution of the present question. Further, the threshold for “a serious question to be tried” is not particularly onerous. As Weinberg J said in Mobileworld at [23]:“Sometimes, on an application for interlocutory relief, a court is sufficiently able, on the evidence before it, to reach a conclusion as to particular facts or matters in dispute. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved: ICF Spry, The Principles of Equitable Remedies (6th ed, 2001) ("Spry") at 466.”.
