Concrete Constructions NSW Pty Ltd v Building Workers Industrial Union of Australia
[1989] FCA 849
•19 Oct 1989
* R B I S T F ( Z , ~ T ~ O ~ /
JUDGMENT No. ........ ....... /...R.- %W
| IN THE FEDERAL COURT OF AUSTRALIA | ) |
| NEW SOUTH WALES DISTRICT REGISTRY | ) NO. NG681 of 1989 |
| GENERAL DIVISION | ) |
BETWEEN: CONCRETE CONSTRUCTIONS NEW SOUTH WALES PTY
LTMTTED
Applicant
AND: BUILDING WORKERS INDUSTRIAL UNION OF AUSTRALIA (NEW SOUTH WALES BRANCH) and ORS.
Respondents
| CORAM: | Ryan J. |
| PLACE | : | Sydney |
| DATE : | 19 October, 1989 |
EX TEMPORE REASONS FOR JUDGMENT
By this application the applicant seeks interlocutory injunctions against the first respondent, the Building Workers Industrial Union of Australia New South Wales Branch, ("the BWIU"), an industrial union of employees registered under the Industrial Arbitration Act 1940 (N.S.W.). Interlocutory injunctions are also sought against the second respondent, Mr. Ashdown, who is a member of the executive of the BWIU and the third respondent, Mr. Miller, who is an organizer employed by the BWIU.
| The evidence discloses that since February 1988 the applicant has been engaged in the construction of a building, the |
Chevron Hotel, at the corner of MacLeay Street and Rockwell Crescent, Potts Point. On 9 October 1989, Mr. Ashdown was notified that his employment and that of 12 other employees of Concrete Constructions at the slte of the Carringbush project at 572 George Street, Sydney, would be terminated at 3.30 p.m. on 10 October 1989. On 10 October the applicant sent to Mr. Ashdown under cover of a certified letter, cheques totalling $1,663 by way of termination pay and on 11 October a further certified letter enclosing a cheque for $384 representing wages for ordinary hours of work from 7.00 a.m. on 11 October 1989 to 3.30 p.m. on 16 October.
On the morning of 11 October 1989 Mr. Ashdown was seen removing some personal possessions from the Carringbush site. He then showed Mr. Ambler, the project manager for Concrete Constructions, a small card and said words to this effect "I am now company delegate for Concrete Constructions New South Wales Pty. Limited and can visit any construction site of the company with this card. My election as company delegate was a stroke of genius". Shortly afterwards Mr. Ashdown left the Carringbush slte
| in a car driven by the third respondent, Mr. Miller. |
Later on the morning of 11 October, Mr. Ashdown was seen to be present at the Chevron Hotel site in company with Mr. Mlller and one Phi1 Smith. A conversation then occurred to thls effect between Mr. Miller and Mr. Baker, the lndustrlal relations manager for Concrete Constructions:
Miller: "John Ashdown has been terminated from the site at George Street. Yesterday at the union office a meeting of approximately 100 delegates and members voted unanimously to appolnt John Ashdown as a company delegate for Concrete Constructions. We are therefore informing you that John Ashdown will be working out his notice period of termination on this site."
Baker: "I do not accept your statement. John m w n is not an employee of Concrete Constructions and is trespassing on this site. He is to remove himself forthwith. He is not covered by workers compensation. He has no authority to be on this site."
Miller: "We will be calling a mass meeting of men on this site after smoko. Over there is Phil Smith who has been promised a job with one of your subcontractors. He is a bricklayer and will be staylng on site. He is also on the executive of the BWIU in New South Wales and will be staylng on the site until he gets a job."
Baker: "I do not accept what you say about Phll Smith. He is not an employee of Concrete Constructions. He has no authority to be on the site and I do not speak for any sub-contractors and their choice of
employees. " A stoppage of work lasting about one hour occurred on
the Chevron Hotel site after the morning tea break on 11 October involving all of the workers directly employed by Concrete Constructions and employees of its sub-contractors. Later on the
| for the Chevron Hotel site attended wth Mr. Peter Smith at the | same day, Mr. Peereboom, Concrete Constructions' project manager |
| safety committee meeting room on the site where they met Mr. Ashdown, Mr. Phil Smith and four other men, Greg McEvoy, Tony Armstrong, Danny O'Shea and Warren Brown. The evidence reveals that Mr. Brown and Mr. Armstrong were site delegates of the BWIU and Mr. McEvoy was a site delegate of the Electrical Trades Union. The evidence does not disclose the occupation or union affiliation of Mr. OrShea. |
An exchange occurred between Mr. Ashdown and Mr. Peter
Smith to this effect:
Ashdown: "Are you here in an official
capacity?"
Smith: "Yes."
Ashdown: "I inslst upon professionalism. Danny, you take the minutes and we will all slt around the table."
Smith: "I believe that both parties understand each other's positions quite clearly as a result of discussions earlier in the day. Why are you continuing to remain on this site after you have been terminated from the employ of Concrete Constructions at another site?"
Ashdown: "I have been elected by Concrete Constructions Limited Building Workers Industrial Union members as the company delegate." (Mr. Ashdown then produced what appeared to be an Identification card.)
Smlth: "I do not know of such a positlon and I do not know what you mean.
Ashdown: "What is your position in the company and why are Peter Baker and Bill Stelmach not present?"
Smith: "I am the Concrete Constructions
Llmited industrial relations coordinator and I have been instructed by the person who is responsible for the slte and is here wlth me at the moment, Mr. Tony Peereboorn, to direct
you to leave the slte."Ashdown: "I am a labourer working out my week's notice on this job."
Mr. Peter Smith then handed Mr. Ashdown an envelope containing - a letter dated 11 October 1989 from Concrete Constructions to Mr. Ashdown which, omitting formal parts, reads:
"Your services as an employee of Concrete Constructions New South Wales Pty. Limited on the 572 George Street site were terminated on 10 October 1989 due to the project having reached completion. Your assessment that you remain an employee of Concrete Constructions New South Wales Pty. Limited has no foundation. You are hereby formally advised that you are trespassing on the Chevron Hotel slte and that you are to remove yourself forthwith. Likewise you will be trespassong if you visit any other Concrete Constructions New South Wales Pty. Limited site. Failure to comply with this direction will result in legal action being taken against you forthwith."
Mr. Ashdown threw the letter back at Mr. Peter Smlth saying, "You can shove this up your arse and tell them not to send a boy to do a man's job next time."
As he left the Chevron Hotel site on the afternoon of 11 October 1989, Mr. Ashdown intimated to Mr. Peereboom and Mr. Peter Smith that he would return on the following morning. Mr. Ashdown was again seen to be present at the Chevron site on the morning of 12 October and while in the safety committee room on that site was handed another copy of a letter from Concrete Constructions, the
| of that letter, Mr. Ashdown remained on the Chevron Hotel site for | text of which I have already set out. Notwlthstanding his receipt | |
| the whole of the morning of 12 October. | ||
| The presence of Mr. Ashdown on the Chevron Hotel site apparently provoked a strong reaction from subcontractors engaged there. As early as 11.00 a.m. on 11 October, the site manager for the electrical contractor, at a subcontractors1 meeting, said, in | ||
| effect, "Unless you can keep Ashdown off the project I wlll pull all the men off the site." The matter of Mr. Ashdown was raised at that meeting by Mr. Peereboom who said that he was worried about Mr. Ashdown being on slte. Later that day the site manager of the bricklaying subcontractor said in substance to Mr. Peereboom, "What is the point of my men coming to work on this project. We are sick of the dlsruptlon that Ashdown is maklng to our work. If you cannot get rid of Ashdown then we may as well pull the men off the job." | ||
| On the morning of 12 October, the site manager of Purazzo Plastering, the plastering subcontractor, advlsed a representative of Concrete Constructions that Purazzo Plastering was removing its workers and would not bring them back onto the site until Concrete Constructions could guarantee that Mr. Ashdown would not be coming back. On 12 and 13 October, 19 employees of Permasteel, the subcontractor responsible for window installation on the Chevron site, failed to attend for work. At about noon on 13 October, Mr. McFarlane, the manager of Permasteel, told representatives of Concrete Constructions that, "As far as we are | ||
| ||
| into work." | ||
| Four Permasteel employees returned to work at the site last Tuesday, 17 October. On 14 October Mr. Ashdown was again pre;ent at the site. He was warned by Mr. Steenbeek, another executive of Concrete Constructions, against trespassing but remained there from 8.15 a.m. to 11.00 a.m.. | ||
| In the light of these facts, Mr. Cowdroy of counsel for the applicant has contended that a serious question to be tried has been demonstrated as to whether the BWIU and Mr. Ashdown in contravention of s.45D(l)(b) of the Trade Practices Act in concert engaged in conduct that hindered or prevented the supply of services by third persons, being the subcontractors, Purazzo, Permasteel and the bricklaying and electrical subcontractors, to Concrete Constructions. |
The relevant parts of s.45D provide:
"(l) Subject to this sectlon, a person shall not in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the flrst-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person) where -
(b)
the fourth person is a corporation and the conduct is engaged in for the purpose and would have or be likely to have the effect of causing
- (i) substantial loss or damage to the business of the fourth
person or of a body corporate that is related to that person; or
(ii) a substantial lessening of
competition in any market in
which the fourth person, or a body corporate that is related to that person supplies or acquires goods or services."
The conduct apparently relied on is the attendance by Mr. Ashdown at the Chevron site with the encouragement and approval of the BWIU through its officials or job delegates Mr. Miller, Mr. Brown, Mr. Armstrong and Mr. Phi1 Smith. That conduct has been proved, but I am not satisfied that the evidence as it stands at the moment raises a serious question as to whether that conduct has hindered or prevented the supply of services by the relevant subcontractors to Concrete Constructions.
In my opinion the phrase "hindered or prevented" connotes a causal relation between the conduct contemplated as being engaged in and the withdrawal or disruption of the supply of services by the fourth person. The evidence discloses that the site manager for the electrical subcontractor said that if Mr. Ashdown were to remain on the site he would pull all his men off. No reason was given for that intimation, and it is not possible to infer one from the rest of the evidence. The evidence in respect of the bricklaying subcontractor is slightly stronger in that its site manager's threat to remove his men from the site was accompanied by the statement, "We are sick of the disruption that
| Ashdown is making to our work." disruption on the Chevron Hotel site is that related to the two However, the only evidence of | stopwork meetings of 11 October and 12 October. As to the second | |
| of those, Mr. Peereboom seemed to accept, at page 33 of the transcript, that the meeting and the resolutions to impose bans on the acceptance of redundancy and on transfers to other sites were referable to a separate dispute about asbestos which dated from 3 or 4 October, and were not referable to Mr. Ashdown. | ||
| The evldence in relation to Purazzo Plastering is similar to that in respect of the electrical subcontractor in that a site manager for Purazzo intimated that the firm was removing its workers and would not bring them back until Concrete Constructions could guarantee that Mr. Ashdown would not return to the slte. On the evidence no reason was asslgned for that intimation. Likewise, no reason other than the presence of Mr. Ashdown and the site being in disarray was assigned by Permasteel for withdrawing its labour on 12 and 13 October. Nor can I discern from the evidence any explanation for the return to the site of four Permasteel employees on 7 October and why the return was limited to four out of the usual complement of between twelve and twenty. | ||
| In the light of the whole of the evidence as it presently stands I conclude that the applicant has not demonstrated a serious question to be tried as to whether the BWIU in concert with either or both of Mr. Ashdown and Mr. Miller has engaged in conduct that has hindered or prevented the supply of services by its subcontractors to Concrete Constructions. | ||
| ||
| Secondly, before one can lmpute to the BWIU and Mr. Ashdown the purpose of causing substantial loss and damage to Concrete Constructions there must be evidence that they were aware that his mere presence would cause or was likely to cause subcontractors or employees of subcontractors in significant numbers to suspend the performance of work on the Chevron slte. In my view of the material as it stands, evldence tendlng to prove each of the elements required by s.45D(l)(b), is totally lacking. | ||
| Accordingly, I decline to grant interlocutory relief on the basls of an actual or threatened contravention of s.45D. | ||
| Mr. Cowdroy for the applicant also sought interlocutory relief, presumably in the accrued lurlsdlctlon of this Court, | ||
| ||
| As Morllng J. observed in a somewhat slmilar case, Concrete Constructions New South Wales Pty. Limited v. The Australian Building Construction Employees and Builders Labourers Federation, | ||
|
"It is not in doubt that the unlawful entry by one person onto land in the possession of another is a trespass for which an action lies, see Halsburys Laws of England, 4th Edn., vol. 45. Nor is it in doubt that a person in possession of land, even if he does not have the legal title to it, may maintaln
proceedings in trespass, Flemlng, the Law of
Torts, 7th Edn. (1987) p.41. In my opinlon
the auulicant has established its riuht to .A bring proceedings in trespass. "
The only matter pointed to by Mr. Crawshaw of counsel for the respondents as clothlng Plr. Ashdown with any right to enter or remain on the Chevron site is an authority said to be conferred by c1.39 of the Natlonal Bulldlng and Construction Industry Labourers On-Slte Award 1986. That clause provides -
"39.1 An employee appointed as a job steward shall upon notification by the union to the employer be recognised as the accredited representative of the union to which he belongs and he shall be allowed time durlng working hours to submit to the employer matters affecting the employees that he represents and further shall be allowed reasonable time during working hours to attend to job matters affecting his union provided that the foregoing does not relieve the job steward of the obligation imposed upon him by his employer. A job steward shall notify
the principal contractor's
that the procedures laid down in clause the calling of any stopwork meeting so representative and his union prior to 47 Settlement of Disputes may be observed before any stoppage of work occurs.
39.2
Prior to dismissal or transfer, two days notice shall be given to any job steward and the unlon. Payment in lleu of notlce shall not be given. In the event of the unlon disputing the decision of management to transfer the job steward or terminate his servlce he shall remaln on the job during which time a Board of Reference as provided in clause 45, Boards of Reference, shall deal with the matter. The
appropriate unlon shall, wlthin three working days of notifying the management that it disputes the decislon to transfer or terminate the job steward request the Registrar or Deputy Registrar in wrltlng to appoint a Board of Reference to deal with the matter. The union and the employer shall do all things necessary to enable the Board to sit wlthin 10 working days of the management decision to transfer or terminate the job steward. If the Board cannot sit within 10 working days because of the employer's failure to nominate representatives or their unavailability to sit on the Board the decision to transfer or terminate the job steward shall be null and void. If the Board cannot sit wlthin 10 working days because of the union's failure to nomlnate representatives or their unavailablllty to sit on the Board, the job steward's transfer or termination shall automatically take effect at the expiry of the period of 10 working days. Provided nothing in this subclause shall prevent the partles proceeding by agreement to have the matter settled by the Commission or a local dispute board set up in accordance with clause 47.3 in lieu of the Board of Reference procedure. Provided further that nothing shall affect the right of the employer to dismiss a job steward without notice for misconduct or refusing duty."
It seems that Concrete Constructions recognised Mr.
Ashdown as a job steward or delegate in respect of the Caringbush
| morning of 9 October 1989, Mr. Ambler said to him: "I am on site | site because, when he was notifled of his termination on the |
| to advise you under the terms of the National Building and Construction Industry Labourers Award that as a delegate your employment with the company is terminated as at 3.30 p.m. on Tuesday, 10 October 1989". |
Had Mr. Ashdown not been, or not been regarded as, a
shop steward or delegate, his employment could have been terminated on only one day's notice in accordance with c1.38 of the Award. However, his status as a job steward did not confer on him, before or after the notice of termination, any right to enter any other slte of Concrete Constructions or make representations about matters affecting employees working on any other site.
By virtue of his appointment, he became the accredited representative of the BWIU on the Caringbush job. He was entitled to submit to Concrete Constructions "matters affecting the employees he represents", being members of the BWIU employed on the Caringbush site. Those matters I consider are compendiously referred to in clause 39.1 as "job matters".
Clause 39.2 I regard as predicated on the notion that a transfer in employment to another site of a job steward will operate to deprive him of the status of job steward. Accordingly, a machinery is provided by that sub-clause whereby the job steward whose termination or transfer is disputed should remain on the job until a Board of Reference can deal with the dlspute. However,
| happens to be under the control of the same employer in respect of | to, and remain on, some other job of his own choosing which that machinery does not confer on the job steward a rlght to go |
| which he is, ex hypothesi, not the job steward. | |
| I do not consider that any wider connotation of "job" is afforded by clause 15.8 of the award which provides that: |
"As required by the employer employees shall start and cease work on the job at the usual commencing and finishing times within which ordinary hours may be worked and shall transfer from site to site as directed by the employer. "
The construction which I have adopted of clause 39.2 may have the somewhat strange consequence of entitling a job steward to remain for twenty days or so on a non-existent job or one which may no longer be under the control of the relevant employer. However, that consequence is not so inconvenient as that involved in the construction which I have rejected. A possible consequence of the latter construction is that a job steward from one job would be entitled to go to, and remain for 10 days during which he would have to be paid by the employer on, a lob of his choosing on which the employer has no need or intention to employ him and which has another, existing, job steward.
There is evidence that the BWIU, on 13 October 1989, requested the establishment of a board of reference to deal with "the unfair dismissal of our job delegate, Mr. John Ashdown". It is unnecessary for me to decide whether that request was made within time or is otherwise effective to activate the machinery in
| clause 39.2 of the award because, even if those requirements be | satisfied, on the view which I have taken of the clause the |
| pendency of the Board of Reference proceeding does not clothe Mr. Ashdown with any right to enter on the Chevron Hotel site. | |
| I have been invited to decline, in the exercise of the Court's discretion, to grant any relief in respect of the cause of action in trespass. However, I do not consider that the failure of the applicant to obtain interlocutory relief in pursuit of its cause of action under s.45D of the Trade Practices Act, has the consequence that it should be refused interlocutory relief on some other ground to which it is otherwise entitled. | |
| Moreover, the consideration of the claim in trespass has involved questions of the Interpretation of a federal award, a matter customarily entertained in the exercise of the jurisdiction of this Court. Nor do I conslder that the fact that the trespass which I have found to have occurred, is connected with an industrial dispute which has been referred to a Board of Reference | |
| provides, in the circumstances of this case, a ground for refuslng | |
| interlocutory relief to which the applicant is otherwise presumptively entitled. The evidence does not reveal whether or when the Board of Reference will enter upon the reference to it. Nor, as I understand, does the Board have any coercive power to restraln the commission of the alleged acts of trespass pending the hearing and determlnation of the reference. | |
| |
| The evidence is all the other way. | |
| Accordingly, I conslder that on the applicant givlng the usual undertaking as to damages, the second respondent should be | |
| restrained until the hearing and determlnation of this application | |
| or further order from enterlng upon the premises known as the |
..
Chevron Hotel slte and the buildings being constructed thereon. I reserve the costs of all parties of this application for
interlocutory relief and I adjourn the directions hearing to 16
November this year.
I certify that this and the 15 preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Rvan.
Dated: 19 October, 1989
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