Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union

[2003] VSC 6

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4401 of 2003

GROCON CONSTRUCTORS PTY LTD	Plaintiff
v
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION and OTHERS	Defendants

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2003
DATE OF JUDGMENT:	5 February 2003
CASE MAY BE CITED AS:	Grocon Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union and Others
MEDIUM NEUTRAL CITATION:	[2003] VSC 6

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Torts – inducing employees to breach contracts of employment – injunction sought to restrain further proscribed conduct – sufficiency of evidence – utility of order.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Houghton QC and Ms O’Brien	Freehills
For the First Defendant	Mr T. Maddison

HIS HONOUR:

1. The plaintiff, Grocon Constructors Pty Ltd, seeks an injunction against the CFMEU and five individuals restraining them from counselling, inducing, procuring or encouraging the plaintiff’s employees to breach their contracts of employment by stopping work tomorrow to attend a rally in support of Martin Kingham, State Secretary of the CFMEU, and from counselling, inducing, procuring or encouraging contractors of the plaintiff to breach their contractual relationships with the plaintiff by failing to provide services or deliver goods by reason of the stop-work rally in support of Mr Kingham. 

1. The plaintiff relies on an affidavit of Katrina Hodgson sworn today and produced to the court only late this afternoon.  The affidavit at paragraphs 13 to 20 deals with things done or said on five of six major construction sites at which the plaintiff operates in Melbourne.  Whether the plaintiff employs all of the 650 persons to whom reference is made in paragraph 11 of the affidavit is not clear, but the position seems to be that it is the site contractor in each instance and employs a substantial number of those persons, as well as sub-contractors, the latter of whom employ persons who are or are eligible to be members of the CFMEU. 

1. The evidence that any of the defendants have counselled, induced, procured or encouraged employees of the plaintiff or of sub-contractors to act in the manner of which the plaintiff makes complaint, and, more importantly, that, unless inhibited, they are likely to do so in the interim period between now and 8.30 a.m. or thereabouts tomorrow morning, is of modest quality.  There is evidence that flyers were present or distributed on three of the six sites either yesterday or today.  There is very little to show what circulation the flyers have had, and there is no direct evidence that attempt will be made to distribute them tomorrow.  There is certainly evidence that a number of the individuals to whom Ms Hodgson’s affidavit refers have told individuals in the management structure of the plaintiff that a rally is to proceed tomorrow morning, that all the men will be involved in a march, and that the men will be told that the rally will take place, and that when it concludes they are to come back to work.  That is a summation of remarks made by named defendants at three of the six sites.  For the most part, those remarks are quite consistent either with the union and the individual defendants pressuring the workers to attend the rally or, on the other hand, the workers, having been informed that the rally is to take place, simply choosing to attend. 

1. The critical question, as I see it, is what is to be made of the flyers, which are Exhibits KH.1 and KH.2 to Ms Hodgson’s affidavit.  Each of them is headed “The Construction Worker”.  The banner headline contains the logos of the CFMEU and the FEDFA.  Also forming part of the banner is the identification of Mr Kingham as State Secretary of the CFMEU and Mr Watson as State Secretary of the FEDFA.  The two flyers are in similar form.  Under the general heading “Stop Howard’s War on Workers” there is a sub-heading “Construction Workers Rally on Thursday 6 February” followed by the words “to Support Martin Kingham who is up on contempt charges arising out of the Building Industry Royal Commission”.  Then, in bold black, there are the words “Meet at Trades Hall”.  An alternative meeting point, “at Freshwater Place, Southbank”, is specified in less bold type.  The document goes on: “March with Martin to the Melbourne Magistrates' Court”. 

1. Mr Maddison, who attended at short notice to represent the union but not the individual defendants, submitted that there was nothing to implicate the union in conduct, past or prospective, which would go beyond informing union members of the existence of the rally in support of Mr Kingham.  There were two elements to that submission:  first, that there was nothing to implicate the union; and second, that if there was, the union’s conduct did not go beyond providing information – a matter to which exception could not be taken. 

1. It seems to me a fair inference that the presence of flyers in a similar form at different work sites, headed in the way I have described, involved the union giving its imprimatur to whatever was set out in the flyers.  It is at least improbable that production and distribution of the flyers was the wildcat action of site delegates. 

1. As to the second aspect of Mr Maddison’s argument, it needs to be borne in mind that these flyers are directed to building workers, not lawyers or judges.  I should have thought that in such a context a flyer drawing attention to a rally and saying “Construction workers rally on Thursday 6 February to support Martin Kingham”, containing the words “Meet at Trades Hall”, and, “March with Martin to the Melbourne Magistrates' Court”, together with the imprecation – and I have not previously referred to it – “Defend Martin Kingham to Defend All Workers”, goes well beyond simply informing workers that a rally is to be held and involves, at the least, counselling or encouraging workers to down tools and attend the rally. 

1. Whilst I acknowledge, as I have already said, that the evidence is not strong, it seems to me probable that the meetings which, at least at some sites, are to be held tomorrow, will be likely to involve, if permitted, the union, through its officers, through persons such as the individual defendants, encouraging workers to down tools and attend the rally.  That conduct, compatible with the import of the flyers, would go beyond mere information and descend at least to counselling or encouraging the workers’ attendance at the rally, this causing those workers to breach their contracts of employment.

1. I have wondered whether there is any point to making an order, because, as it appears, the workers have already been contacted and, if the affidavit is to be taken at face value, decisions have already been made at various sites that all the workers will attend the rally.  None the less, I think the court should not stand by and do nothing if there is some prospect that by an appropriate order it can minimise the prospect that workers will be induced to break their contracts tomorrow. 

1. As to the form of the order, which in my opinion ought to be made, and looking to the draft handed up to me by Mr Houghton, on the first page, under “Attendance”, it will be necessary to refer to Mr J. Maddison as representing the first defendant.  Under the heading “Other Matters” there must be substituted for what presently appears “There was no appearance for the 2^nd to 6^th defendants”.  In paragraph 1 of the draft orders the words “and members” should be deleted.  In small paragraph (a) an “s” should be added to “contract” and in the second line the word “the” should be deleted before “support”.  In small paragraph (b), before the words “contractors”, the words “employees of” should be inserted.  The words “contractual relationships” in line 1 should be struck out and replaced by “contracts of employment”.  The word “the” at the end of the line should become “their”.  The next two lines should be struck out entirely and replaced by “employers by stopping work on 6 February 2003 to attend said rally”.  In paragraph 2 the word “that” first appearing should be deleted.  In line 4 the first word should read “defendants”.  The time to be inserted should be “8 p.m.”  Paragraph 3 should be deleted in its entirety, and paragraphs 4 and 5 renumbered.

(Discussion ensued.)

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