Grocon Constructors (QLD) Pty Ltd v CFMEU - [2012] FMCA 245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GROCON CONSTRUCTORS (QLD) PTY LTD v CFMEU

[2012] FMCA 245

INDUSTRIAL LAW – Building and construction industry – picketing – obstructing and besetting – whether picketing is “protected action” – coercive protest – effect of industrial action on third parties – harassment of subcontractors by picketers – role of a union in industrial action – whether picketers were acting on behalf of a union.

Building and Construction Industry Improvement Act 2005 (Cth), ss.36, 38, 39, 44, 49, 69

Actors & Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23
Briginshaw v Briginshaw (1938) 60 CLR 336
Cahill v Construction, Forestry, Mining and Energy Union(No 2) [2008] FCA 1292
Construction, Forestry, Mining and Energy Union v Giudice (1998) 159 ALR 1
Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30
Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 1) [2009] FCA 86
Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 2) [2009] FCA 103

Applicant:

GROCON CONSTRUCTORS (QLD) PTY LTD

Respondent:

CFMEU

File Number:

BRG 259 of 2012

Judgment of:

Burnett FM

Hearing date:

23 March 2012

Date of Last Submission:

23 March 2012

Delivered at:

Brisbane

Delivered on:

23 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr Murdoch SC

Solicitors for the Applicant:

Freehills

Counsel for the Respondent:

Mr Friend SC

Solicitors for the Respondent:

Hall Payne Lawyers

ORDERS

An interim order pursuant to section 39, and/or 49(1)(c) and 49(3)(a) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) that the Respondent be restrained until further order of the Court, whether by itself, its servants or agents or officials or howsoever otherwise from:
(a)preventing or hindering the access of any person or vehicle to the building sites known as:
(i)“Soul” at Shop T130a and T130b-4-414 the Esplanade, Surfers Paradise, QLD, 4217;
(ii)“Common Ground” at 11 Hope Street, South Brisbane”; and
(iii)Elizabeth Street project at 55 Elizabeth Street, Central Brisbane;
(b)counselling or procuring any person not to enter the said sites;
(c)counselling or procuring any employee or agent of Grocon Constructors (QLD) Pty Ltd, or person contracted thereto, not to work upon the said sites; and
(d)placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance to the said sites; and
(e)attending, or organising or procuring any person to attend, within 100 metres of any entrance to the said sites, or save for such entry to the sites as may be authorised by law, or for the purpose of using a public road for reasons unconnected with the said sites, or for the purpose of complying with these orders;
(f)verbally abusing or threatening any person in the vicinity of any of the Sites;
(g)affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of any of the Sites.
This order does not apply to the organising or the taking by any person of protected industrial action in accordance with the Fair Work Act 2009.
Costs be reserved.
The matter be adjourned for final hearing to 10am on 8 May 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 259 of 2012

GROCON CONSTRUCTORS (QLD) PTY LTD

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This application came on urgently on the afternoon of Tuesday 20 March 2012 when the applicants sought interim injunctive relief in respect of conduct alleged against the respondent concerning the three building sites which I will particularise in a moment. An order was made on that date on an ex parte basis, before the matter came back before me on Wednesday 21 March 2012, at which time it was adjourned in order to enable the applicants to collect and regularise further material and place it before me. It was ultimately argued before me yesterday, Thursday 22 March 2012.
Although the application commenced as an application for an interim injunction, the respondents had, in the meantime, filed material and, given the nature of the issues that have been identified in the material, I have proceeded on the premise that the orders that are being sought today are in the nature of interlocutory orders that will tide matters over until the trial of this matter. I foreshadow that it will take place in early May. In any event, if that proves not to be the case, it is open to the respondent to return to court in accordance with orders that will be made.
By way of background, the applicant is a building contractor and is the principal contractor in respect of a number of projects in the Greater Brisbane region. The respondent is a union which covers the employment of a number of workers employed by the applicant and various contractors. In about February 2012, Fair Work Australia authorised a protected action ballot for the workers employed by the applicant.
Following the protected action ballot, protected industrial action was authorised by the workers. Notices were provided by the union to Grocon regarding the fact that members of the union that are employed by it intended to take indefinite protected industrial action at various sites and, in particular, the sites that I will refer to today. The protected industrial action has been taken by the union as well as by the Queensland Construction Workers Divisional Branch of the Construction, Forestry, Mining and Energy Union (CFMEU).
Since the commencement of the protected action on 13 March 2012, there has been a protest organised by the union on the various sites. The protests have involved the parking of vehicles, the erection of marquees, in one instance the provision of a barbecue, and the provision of various union flags and signs in close proximity to the various sites in support of the workers who have decided to take protected industrial action.
The action, as I have noted, relates to three sites. The first site is what is referred to as the ‘Soul’ site which is a site on the Gold Coast. The applicant employs 13 employees including three apprentices on that project. They currently perform or engage in works including internal lift driving, fork lift driving, traffic control and nipper duties. There are approximately 140 subcontractors also employed on that site by the applicant. The works and duties cover the full panoply of works that would be expected during a high rise construction project, which is the subject of this particular part of the application.
Presently, the due date for practical completion of the Soul project, which is a multi-storey level building, is 5 June 2012. At this stage, the structural shell of the building has been completed with internal finishes up to level 60 (of 73) also complete. Outstanding works include the façade balustrading, painting works, installing a pool and spas to the penthouse, podium hard and soft scapes, ground floor external works and the external final clean.
In respect of this project, certain matters appears to have come to light from about 14 March. On that day, a complaint was made concerning what was entitled in an affidavit as “conduct at the picket.” The relevant project manager of the project, Mr Paul Murphy, complained that employees of the applicant had been present at work from about 5:30am, which was the usual work commencement time, and were due to remain there until 2:30pm each day, which is the usual time work would finish. In addition to those employees, a number of union organisers of the respondent, who are identified as Bud Neiland, Andrew Temoho, Steve Toyer, Tim Jarvis, Mike Davis, Tony Stott, and several subcontractors, were also noted on the site.
There were also noted to be organisers of the respondent in attendance at pickets. Also organisers of the Builders Labourers Federation (BLF) including Mr Mike Davis were noted as being in attendance. It was also noted that Mr David Hannah, the secretary of the BLF, had attended pickets, and also Mr Tim Jarvis, who was an organiser for the BLF.
It was complained that on 13 March 2012 organisers from the respondent and the BLF stopped cars which they thought belonged to subcontractors from entering the car park at the Soul project. Mr Levy says that he formed that view because the personnel involved were wearing uniforms of the respondent and the BLF.
A complaint is made that the conduct involved interference with the work of the subcontractors. As far as those complaints are concerned, there is included in the material information from various subcontractors, including from a manager of Stegbar, who has corresponded with representatives of the applicant. In an email of 14 March 2012, addressed to the applicant, Mr Darren Glen of Stegbar wrote in these terms:
“Further to your email yesterday with regard to the industrial action and our workers onsite, after we waited for the hoist for an hour past our booked in time our boys were verbally abused by the crowd that had gathered as they loaded and unloaded their materials.
They feared for their safety and left site as the threats and verbal abuse escalated over your supervisors radio who was escorting them at the time.
Kerrie [Rintoule, of Grocon] our workers safety onsite is a huge concern to us and being the only three workers who turned up to work yesterday it is a bit of a worry, we will keep trying to work at this stage, we are booked in tentatively for Friday to return to site hopefully with no threats and abuse.”
There is, of course, no reference in that email to any involvement by representatives of the respondent. Another subcontractor, Pryme Pty Ltd, wrote to the applicant on 15 March 2012 in an email in these terms:
“Hi Dayne,
“Please update us as your progress in resolving the current dispute Grocon are having with the BLF and CFMEU Unions.
Progress on the two contracts, Soul and Elizabeth St is halted. We are very concerned that we have already lost 3 days of production on your sites and the loss to our cash flow for our current claim is to date is in excess of $350,000.00. Our workforce do not believe this is their fight but they are being told by the Unions not to cross the picket line at the entry of the sites. They find themselves in a very compromised position where they want to work but do not want to alienate their relationship with the Union. We have 62 men onsite and 12 off site workers that are affected by this action by the Unions. If this action continues our company will suffer irreparable damages to its cash position and no doubt have to look at stand downs or layoffs to the workforce.”
In that instance there was no particularisation as to the basis upon which a view was formed as to who was from the union, or who was of the union. More recently, according to Mr Sullivan, who is a lawyer within the applicant company, company information suggests that no work was performed on the Soul site on Monday 19 March, Tuesday 20 March, or Wednesday 21 March. It was noted that no subcontractors had attempted to enter the site, and the respondent and employees of the applicant had not blocked access to or egress to the site.
He said he was informed on the morning of 21 March by Mr Murphy that employees of the applicant were standing across the road from the Soul site and that this gathering was visible for any subcontractors attempting to enter the site. He noted that he had been further informed that, at 7:30am that day, the site manager from “Applicate” and “Coast Line” had advised the applicant site manager, Mr Prestridge, that their employees felt threatened by the applicant’s employees on the picket and the presence of the respondent. However I note that there is no reference to any direct involvement by members of the respondent in respect of that alleged conduct.
Finally, I note Mr Temoho, an employee of the union, swears that in respect of events at the Soul project, that conduct occurred in conjunction with the protected industrial action, and that employees and people supporting them have conducted demonstrations outside the site. He says that he has been in attendance on the site every day to support those employees where their tents, tables and chairs are set up on the site.
It would seem, at least in respect of what is happening on the Soul site, that there is not much basis for complaint. However, that is not entirely consistent with the remainder of the other two sites. The second of the sites, the subject of the application, is what is referred to as the ‘Common Ground’ site. The Common Ground site is a building site at West End. It is a 14 level building with 146 apartments, together with a component that is to provide supportive housing services for people with long term homelessness. Presently, the applicant employs eight employees, including one apprentice, on that site and the employees are either currently performing or will be required to perform traffic control duties, lift operating duties, labouring, forklift driving, first aid, and clearing of amenities and access ways. The applicant employs about 90 to 100 subcontracted workers on the site and their duties generally include finishes, services, structural steel, glazing, roofing, landscaping and cleaning.
That site is due for practical completion at the end of April 2012. The applicant is concerned that delay in respect of that site is costing at least $30,000 per week. So far as that site is concerned, the applicant complains by Mr Bickham that the three entrances on that site are being picketed, including the main gate on Hope Street, which is approximately 10 metres wide. The conduct which is complained of is not that, during the pickets, employees of the applicant have been present on the site, but that there are other incidents occurring in respect of that particular picket line.
It is alleged that on 14 March 2012 an incident occurred involving a Mr Sutalo. He says, in broad terms, that at about 11:47am on that day he was speaking to Mr Mick Prestridge on his mobile phone. He says that Paul Craddon, who is identified as an official of the CFMEU, came up while he was on the phone and, “got right in my face bumped me and whispered “You’re fucked!” he did this in front of John Felicissimo and Mike Jolly,” who I take to be two other employees. Later, at about 12:30pm, he says he went up to Mr Craddon and asked if he knew where Mr Joe Myles was. Mr Myles is noted as being another organiser or official with the BLF. Mr Craddon, he says, would not tell him.
The issue appears to have involved the presence of a van. He asked Mr Craddon to move the van to which he says Mr Craddon “got right up in my face and ranted something along the lines how he will never move the van etc.” There are a number of photographs which illustrate a van being parked across the area where it is complained that a van was and it is to be noted from the photographs that the van contains a logo of the CFMEU.
He also complains of a further event which occurred on or about 15 March when Mr Burke arrived on the site. This matter involves an exchange that occurred between a number of personnel including himself and Mr Josip Sutalo, Mr Jack Cummings, Mr Mark O’Brien, Mr Mike Davis and Mr Paul Craddon. The conversation went along these lines. Mr Sutalo said, “Who’s [sic] vans are these?” To which he added, “Can you please move my vans.” To which he says there was a response, “No, I don’t know where the keys are.” He says Mr Craddon then asked, “How many photos are you going to fucking take of us?” To which he claims to have said, “Everyday.”
I should say that this is a transcript of something that was recorded on a mobile telephone so the transcript is not clear. But this appears to be the effect of it. He says that Mr Craddon said, “Go for it,” to which he says Mr Cummings added, “Why don’t yous [sic] take a leaf out of Elizabeth Street,” – that being a reference to another site that I will speak of shortly – “Because Mark Gaskin knows what the Fuck he is doing, Fucking Moron.”
Mr O’Brien then added, “Hey, Scabby, Gay Boy, Gay Boy, Gay Boy, Scabby,” directed at Damien, another employee, who was walking away. Mr Craddon then commented that, “Its [sic] amazing what people become, once a fucking union delegate ey, that piece of shit there.” At this point, Mr O’Brien intervened, “Your [sic] joking.” And then Mr Cummings said, “Start mouthing off now Damien.” Mark O’Brien then stated, “Come on Mate you had plenty to fucking say over there before in front, when it was just [there],” which was met with the reply, “You should fuck off back in side [sic].”
Mr Cummings then said, “Fucking Parasite – Unions got this prick a job, got him a job as a leading hand with Matrix.” And then Mike Davis said, “He used to run with us? Fucking hell.” To which Mr O’Brien then said, “Lowest sort of fucking dog ever.” Mr Craddon then said, “Think you would know better than to go against the unions.” Mr Davis then piped in, saying “You’ve seen fucking what we’ve done even as a delegate mate, what we’ve done for our,” – and although it is illegible I think the word would be “Boys.”
Mr Cummings then said, “He wouldn’t make it, he’s got no pride or nothing.” And then finally the conversation finished with Mr Craddon stating, “He’s got no fucking balls, backbone, piece of shit. You know when all this shit is over, its [sic] just beginning for you then isnt [sic] it, the union covers” – and the last word is obliterated. Needless to say, Mr Sutalo was concerned about the exchange which took place and the manner in which it did.
Not only have there been direct exchanges of that kind between employees of the applicant and the respondent, but the applicant complains that there has been interference with its subcontractors. In particular, it notes complaints concerning at least four subcontractors. The first is Fairfield Services, who corresponded with it in a letter of 19 March 2012, which complained that access to the site was being directly restricted as a result of the BLF and CFMEU personnel setting up a picket line on this project.
It noted that Fairfield Services personnel had attended for work, but had been denied access to the site because of intimidation from the union’s picket line. It observed that it was concerned about its employees being required to cross the picket line, which was, they say, obviously intended to restrict employees’ access to the worksite in the first place and, of course, they were concerned about the matter and maintaining a safe work environment. I note again that they are fairly general complaints and not specific beyond reference to the picket itself. Next was Coolmaster, who in an email of 14 March 2012, noted:
“Please be advised that we attended site on the 13th & 14th March only to be verbally told by the union that we were not permitted to access the site. Their conduct was found to be intimidating to our site personal [sic] and that at no stage were we to commence work.”
Of course, at this early stage, it is difficult to completely piece together all the facts, but that allegation would not be inconsistent with the evidence of the van, the banners and the union officials which are evidenced in the photographs attached to the affidavits. Another subcontractor, Danlaid, corresponded with the applicant on 15 March 2012 by email. It complained in these terms:
“We did have men turn up to site on both these days. Unfortunately, following intimidation from union reps, our men felt unsafe and did not enter site. We have had to pay our guys minimum four hours for each day without any productive labour. To date this has cost us in the vicinity of $1000, which we will need to recoup.”

Likewise, a subcontractor, KWA Blinds, corresponded on 16 March 2012. Its complaint was expressed thus:
“In response to your above notification, and as discussed over the phone, one of our installers actually tried to attend site yesterday 15/3/12 at approximately 1.00pm.
On pulling up to the front gates of the site in his vehicle, he was shortly confronted by a gentleman who identified himself as Mark O’Brien. Our installer was handed a business card from this gentleman, which identified him as the organiser with the CFMEU.
A conversation took place, in which our installer was advised by him that there was nobody on site, that they were there to support the Grocon employees, and he expected that we should also support this action, suggesting strongly that we not go on site, as it would not be worth our while.
To avoid any confrontation, as discussed with yourself, I then instructed my employee to leave the site.”
Finally, there was an incident involving Veolia Environmental Services, the waste management contractor. In an email to the applicant from representatives of Veolia, they wrote as follows:
“Lee Noland [the driver] called this morning and was told he could do the service. When he got to site the union approached Lee and told him to leave site or they will take action against Veolia.”
So much seems to have been corroborated by an email which was forwarded to the project manager, Mr Bickham, by Mr John Felicissimo, who sent out information concerning an event involving that driver on that morning. In his email, he more particularly outlined the events as follows: he noted that the vehicle arrived at about 10:00am and that the driver was approached by Jack Cummings. He says that he was then phoned and told over the phone by Cummings that if he emptied the bins all Veolia jobs would have industrial action and he would be photographed and those photos would be posted on union web pages.
After further conversation with the driver (who was told to proceed), he directed him to enter the loading area. He said the driver walked down and moved the witches hats and noticed that Adam Mancey, another worker from the job on the corner of Hope Street was talking to Spiro. He said, “Spiro rang me,” – that is, Mr Felicissimo – “and told him that he didn’t want to do the changeover because of the repercussions to Veolia.” He said that two workers threatened to throw him over the steel fence if he did the bins.
He said Jack Cummings approached Spiro while taking photographs of him, which clearly distressed him. Aside from those events, Mr Matthew Leonard, who is a security guard employed by Verifact, has been on site during the course of the last couple of days. He said that on 20 March 2012, he attended the site at about 5:00am. He was in company with a director of Verifact, Mr Dan Crowley. He said that at the time he arrived, he observed that there was a tent set up approximately 10 metres from the main vehicle entrance on Hope Street with signage, flags and a barbecue, and there was also a van with an awning with the CFMEU and BLF banners, signage, orange cones and chairs.
He said that he observed about 20 people at the tent on Hope Street and that the majority where wearing CFMEU shirts and jackets, and a small number were wearing clothing with a BLF insignia. He said that on that occasion at about 7:30am, he saw a twin-cab utility arrive oppose the main gate on the Hope Street entrance and that the driver got out of his vehicle and approached the CFMEU and had discussions. He saw the driver return to the vehicle and proceed to put on a high visibility jacket and hard hat and says that he then walked on to the site.
He said that he noticed that these events essentially took place where the person involved was able to progress through the picket line and remove, or at least take out or arrange to take out, a scissor lift without interference. He says then at about 10:30am, he saw a truck with the Veolia logo arrive at the site and he witnessed the truck set down the three skip bins. He said at that time, a group of three males wearing CFMEU clothing walked over to the rear of the truck where the driver was operating the controls and he witnessed a group having a conversation.
He said one of the people was a male wearing navy blue trousers and a dark t-shirt with a high visibility safety jacket with a CFMEU logo, and he appeared to him to be a senior union delegate. He formed that view because the jacket had CFMEU official emblazoned on it. He said another of the gentlemen who approached the truck was wearing grey long trousers and an orange safety shirt with the CFMEU logo on the shirt sleeves.
He said that although he didn’t overhear the conversation, he noted that after the conversation the truck driver reloaded the empty skip bins back on board of his vehicle and departed. Later in the day, he noted that a courier truck arrived at about 1:45pm with the word “Express” on the side. He said the vehicle arrived at the main entrance on Hope Street and that he then witnessed three people in CFMEU uniforms from the tented area on Hope Street speak to the person driving the vehicle.
He says that although he could not hear what the people said, he noted that the courier vehicle then departed the site without delivering any parcels. On the next day, 21 March 2012, he again attended the site from about 5:00am and he noticed that there were various photographs and posters stuck on a hoarding outside the Common Ground site and along the Hope Street frontage. A photograph, which is attached to his affidavit, clearly illustrates the effect of the posting of the photographs on the hoardage.
He said that, at about 10:00am on that day, he also noticed a truck with a Veolia logo arrive and stop about 20 yards from the main gate. He saw a man, who he was informed is called Bill, who was wearing plain clothes and who he believed to be a CFMEU shop steward, approach the driver of that truck and have a conversation with him. He then says he saw the gentleman known as Bill walk away from the truck to where he was standing across the road opposite the Common Ground site in the tented area and was subsequently informed by Mr Sutalo that the gentleman known as Bill said to the truck driver words to the effect of “don’t load up the truck.”
He then says that the truck driver was seen to be on his mobile phone calling his boss, one assumes, for instructions, and that at this time the truck was stationary. He says that at about this time a tow truck arrived and he observed it removing the scissor lift without any difficulty. He said that he observed the gentleman known as Bill take multiple photographs of the two trucks from the front, side, and rear of the vehicle at close range. He says that the earlier truck then left the site without picking up any bins.
So far as the respondent is concerned, in an affidavit from Mr O’Brien, they accept that they were present at the site on the day in question, and accept that there was delivery of window tracks, but maintain that it was not in any way hindered by the demonstration. Mr O’Brien says that apart from the delivery of the window tracks on the first day of the protest, which he says happened without incident, other deliveries have occurred. He, for instance, noted that “One guy came to pick up bins.” He says that he went and told him that the Grocon employees were taking protective industrial action, and demonstrating in relation to the negotiation of their agreement with their employer, to which he says the truck driver said something to the effect of, “No worries.”
He says, following that, the bins were then taken back, placed back on the truck, and driven away. He claims he did not threaten the man in any way. Of course, those matters seem to be very much in issue, having regard to the evidence which is placed before me by the applicant.
The third site is the Elizabeth Street project. That is a high rise project in the Brisbane central business district. On that project, the applicant employs seven employees, including one apprentice. There are 70 subcontractors, and the duties on that site include steel fixing, tower crane cruise, post tensioning, concrete place and finishing works, concrete pumping, hydraulics, and electrical works. The due date for that project is 24 March 2013.
In respect of that project, the estimated cost of the delay is about $16,000 per day. That project has two entrances – one in Elizabeth Street and one in Charlotte Street. The complaint is that the picketing has mainly been occurring at the gates to the Elizabeth Street entrance. Insofar as that project is concerned, the complaints are that all seven of the applicants’ employees have been present on site, but in addition, representatives of the respondent have been present each day, and it would seem, interfering with the performance of work.
The complaints include interference, particularly with subcontractors. The first concerns Fairfield Services, as I have earlier noted. They complained, in correspondence to the applicant on 19 March 2012, that their employees had attended the site, but had been denied access by way of intimidation from the CFMEU and Queensland BLF organised picket line, without necessarily providing further particulars as to how they formed that view.
Another subcontractor complaining of difficulties is Pryme Pty Ltd. As I have earlier noted, Pryme, through their CEO, wrote to the applicant on 15 March and outlined a loss in the amount of $350,000.00.
Concerning the Elizabeth Street site, Mr John Wilson, who is one of the project managers employed on the site, deposes to events that occurred on 19 March 2012. He says that at about 9:30am on that date he arrived at the Elizabeth Street site and saw a number of people wearing shirts and logos from the CFMEU and the BLF at the entrance of the Elizabeth Street site.
He formed the view that they were representatives of the respondent and the BLF. He says that after having had some discussions with Mr Gaskin, the project manager, at about 6:05am, he returned to the Elizabeth Street entrance and saw about 30 to 40 workers on the footpath. He noticed that there were a number of workers representing a Pryme formwork subcontractor, and that there were approximately 10 persons, who were wearing clothing with logos of the respondent and the BLF, visible to him.
He noted that they were gathered in close proximity to the pedestrian gate entrance on Elizabeth Street. He said that he also saw a person standing in the pedestrian entrance to the site. He said the door was approximately 2.5 metres high and 1.5 metres wide. This person was prominent because he was taller than those around him. He had a large build with short or shaved hair, a beard and moustache, and was wearing a grey-coloured hoodie with red writing on the front of it.
He noted that he did not appear to be wearing the same shirts as other union representatives, and that he would not move from the doorway, and was plainly presenting himself there as a physical barrier. He said that he started taking some photographs and he was then confronted by two men wearing shirts with the BLF logo. He noted that these men aggressively asked him who he was and why he was taking photographs of “our men.” He was told that the matters involved the workplace dispute, and that these persons were exercising their “constitution rights.”
He said he walked away from the men to the Elizabeth Street footpath on the north side, where he then met with representatives from Verifact, Mr Crowley’s organisation. He said that five or six men, some dressed in shirts with the logo of the BLF, including one of the BLF members who had confronted him on the other side of Elizabeth Street, surrounded him and the Verifact representatives. He said that most of the men did not say anything, “They stood in very close proximity all around us, talking to each other and about us without talking directly to us.” There was an inquiry as to whether Mr Wilson was in fact from the Australian Building and Construction Commissioner (ABCC).
Furthermore, a Mr Leonard, who is employed by Verifact, gave evidence which seemed to largely corroborate the events that Mr Wilson spoke of in his affidavit. He also corroborated other evidence concerning events that he had witnessed in relation to the Veolia truck and the appearance of those who appeared in the vicinity of the various building sites.
Mr Sullivan gave evidence of events on the building site at Elizabeth Street on 20 March 2012. He says that at about 6:07am he saw traffic controllers being stopped by approximately 35 to 40 people. He said that they were wearing construction site uniforms or shirts with CFMEU or BLF logos. He saw an attempt from this group of people to push and trip the traffic controllers, as well as yelling abuse and heckling.
In that regard, I note the observation by Mr Crowley that he was at the Elizabeth Street site on 21 March 2012 at 7:30am when he received a call from Paul Kelly, who was the general manager of the traffic division of Verifact and Men at Work. Men at Work provide traffic control services for, among other things, the Common Ground site and the Elizabeth Street projects. He said that Mr Kelly advised him that all six personnel refused to return to the site due to the abuse that they had received, including being called scabs. He said that the abuse was received from the people protesting on the site, including a number of persons that were wearing shirts branded with the respondent and BLF logo. I note that the evidence generally seems to be that the union organisers and other officials were those wearing logoed shirts.
For the respondent, Mr Kane Pearson gave evidence that he visited the Elizabeth Street project periodically and, at least on the occasions that he was there, he noted no difficulty. In fact, he noted the fact that a steel truck arrived and was able to unload steel. And although there was a disputation, the steel was able to be unloaded without interference. Likewise, Ms Wilson gave evidence that when she had attended the Elizabeth Street site on various occasions, none of the CFMEU members had threatened or abused the workers unloading the steel, nor did she see any attempt to prevent the workers from unloading the steel.
Of course, an issue arises in relation to whether or not the steel could be unloaded if there is not traffic control present on the site, because it is axiomatic that traffic control is required to ensure that during the course of uplifting materials from the trucks as they pull up on the street that traffic is controlled so as to permit the safe exercise of that activity. Finally, an incident was related in respect of events on the site involving the request of a number of the workers to remove themselves from stairs. The evidence from Mr Sutherland was that he made every reasonable effort. Notwithstanding Mr Crowley’s observations that workers would not remove themselves, he says that Mr Sutherland made every reasonable effort to have them remove themselves, ultimately resulting in an incident which had to be resolved by police.
They are the broad facts concerning the three sites which support the applicant’s application for relief. The applicant applies for relief on two bases: the first is for relief under s.39 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), or alternatively for relief under s.49 BCII Act, dealing with the first head of relief. The applicant contends that s.38 of the Act provides that a person must not engage in unlawful industrial action. That term is defined in s.37 to mean action which is “industrially-motivated” and is “constitutionally-connected action,” and is “not excluded action.”
In s.36, the terms “building industrial action,” “constitutionally-connected action,” “excluded action” and “industrially-motivated” are each defined. The applicant submits that the evidence satisfies or should satisfy the court that in this instance there is at least a serious issue to be tried in respect of whether or not there is indeed unlawful industrial action taking place which enlivens the court’s jurisdiction to grant the relief on the basis sought.
There appears to be no dispute between the parties that it is arguable that there is industrially motivated action, and secondly, that the action is constitutionally connected. However, there is an issue between the parties as to whether or not the action is properly excluded action. To be excluded action it must be building industrial action that is protected industrial action; the respondent has contended that the action here is not building industrial action.
In broad terms, the respondent contends that the relevant definition of building industrial action for this purpose is either that action included by s.36(1)(b) or (c). They submit that by reference to earlier authority those provisions have been plainly explained and in the context of a judicial explanation this conduct does not fall within the definition.
The definition is in these terms:
“s36 (1) “Building industrial action” means:
(b) a ban, limitation or restriction on the performance of building work … in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of building work … that is adopted in connection with an industrial dispute.”
The respondent relies particularly on the observations of the Full Court in Davids Distribution Pty Ltd v National Union of Workers[1] where specific observations were made. In that case, the majority of the Full Court, referring particularly to the Full Court’s decision in Construction, Forestry, Mining and Energy Union v Giudice,[2] made these observations at paragraph 52:
“Activity that merely involves communication of information to persons entering or leaving a site is not “industrial action,” within the meaning of the definition in the Workplace Relations Act. Such activity clearly cannot constitute a “ban, limitation or restriction on the performance of work” by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of “industrial action.” However, consistently with the tentative view of the Full Court in [Construction, Forestry, Mining and Energy Union v Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing the ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way.”
[1] [1999] FCA 1108.
[2] (1998) 159 ALR 1.
As I noted, in reaching that view, the majority had regard to the reasoning in CFMEU, the salient passages of which are quoted at page 484 of their Honours’ judgment. Their Honours also cited, with approval, the remarks of a number of single judge decisions addressing that issue.
However, as the Full Court observed, the matter is not one that is entirely without controversy in either fact or law. At its simplest, this is demonstrated, particularly in the context of this case, by the issue of whether or not the facts here, concerning prevention or impeding access, constitute picketing or other conduct – see generally Construction, Forestry, Mining and Energy Union v Giudice at page 213. Importantly, in this case, the status of the respondent to the application as a union not undertaking any building work does not appear to be contemplated within the narrow meaning approach to be adopted in s.36(1)(c). As the Full Court has said:
“It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.”

But what of the situation where the evidence might suggest that this conduct is done directly by the respondent union or at its instigation? Such a case is open on the facts in this instance, although, as I emphasise, those matters are all open to argument and highly controversial in the current context. Plainly, if the evidence was limited to demonstrating by the employees, the position would be much clearer and easier to resolve in the respondent’s favour on this point. However, here the facts, even allowing for the contest as to whether or not the union is involved, raise issues as to whether it is a lawful picket or something else. That matter was expressly considered and discussed in Davids Distribution at page 490 where their Honours stated:
“A “picket,” in the industrial relations setting, is a person who stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment. “To picket” is to post or serve as a picket at an establishment. A “picket line” is a line of persons acting as pickets. As French J pointed out in [Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Commissioner of the Australian Industrial Relations Commission (1998 159 ALR 73], picketing is unlawful only if it involves obstruction and besetting.”
Their Honours continued:
“Such conduct constitutes an actionable tort at the suit of the person who is denied entry to the premises of the employer in derogation of that person’s right to enter … or at the suit of the employer…
As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of “industrial action;” it does not relate to the performance of work in the circumstances specified in para (a), (b), (c) or (d) of the definition. Such conduct does not need the protection of [in that instance] s.170MT(2) [which has since been repealed] because it is not actionable by anyone. Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.
Picketing which interferes with a person’s liberty and freedom of movement infringes that person’s common law rights; in particular, the right to free passage in public places and on public roads and footpaths … There is a presumption in the interpretation of statutes that there is no intention to interfere with common law rights or basic common law doctrines unless the words of the statute expressly or necessarily require that result: Baker v Campbell (1983) 153 CLR 52 at 124; 49 ALR 385.
To interpret para (c) of the definition of “industrial action” in such a way as to include picketing infringing upon the rights and freedoms of others would be to confer statutory immunity on such conduct; provided only it was engaged in upon proper notice to the employer and for the purposes of negotiating a certified agreement or an AWA. It would authorise interference with the rights, not only of the employer, but also with other affected persons who, but for the immunity, would have a right of action at common law. The interpretation would substitute, for a remedy in common law courts of competent jurisdiction, a mere right to apply to the Commission for an order prohibiting the conduct. Bearing in mind the presumption mentioned in the last paragraph, we do not think the definition should be interpreted in that way. We do not discern a clear indication in the Act that parliament contemplated that picketing involving obstruction and besetting, and which therefore amounts to an actionable tort, may be protected industrial action, provided only it did not involve, or was not likely to involve, personal injury, wilful or reckless destruction of property or unlawful taking, keeping or use of property.”
The nature of obstruction and besetting was discussed by Murphy J in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia[3] where his Honour said:
“I am also satisfied that the acts of all the defendants which have now been repeatedly performed over many months cannot be considered to be a lawful form of picketing, but amount to a nuisance involving, as they do, obstruction, harassment and besetting. The form of picketing which the evidence discloses here is not peaceful but amounts clearly to an interference with the rights of a person wishing to enter or at least to proceed and make deliveries and take supplies to or from the plaintiff’s premises. In fact, so often as they are able, the defendants physically prevent persons and vehicles from approaching and entering the plaintiff’s premises. This, as I have said, is done by obstruction, threats and besetting, the latter meaning, in this context, to set about or surround with hostile intent. Besetting is appropriately a term applied to the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear for their own safety or the safety of their property.”
[3] [1986] VR 383.
I recognise that the observations made by the court in that context relate to an entirely different legislative scheme, but the scheme which presently exists is a scheme built upon that earlier scheme, and it would seem that there is good ground to argue about the way in which the conduct and nature of picketing is to be argued in the current context. So much, I think, can be seen by the approach of Kenny J in Cahill v Construction, Forestry, Mining and Energy Union (No 2),[4] a decision referred to by Jessup J in his consideration of the interlocutory application in Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 2)[5] where his Honour noted there, applying her Honour’s decision where she distinguished Davids Distribution:
“Her Honour held that a ban, limitation or restriction on the performance of building work, as referred to in the definition in s.36(1) of the BCII Act, was not “limited to a prohibition or restriction imposed by employees to whom the work relates and may refer to that which is imposed by a union …” … Her Honour distinguished Davids Distribution, substantially because it was “much concerned with the nature of picketing, which … is a wider concept than industrial action” … In other words, the very basis upon which Kenny J held that Davids Distribution was not dispositive of the question before her was that it was a picketing case, whereas in the instant case it was alleged that a union official had directly banned the performance of certain work, albeit that the employees concerned were not involved in the ban.”
[4] [2008] FCA 1292.
[5] [2009] FCA 103.
As I have earlier noted, these are not simple matters capable of ready resolution. There is plainly a serious issue for trial arising in relation to both matters of law and fact concerning all these issues. The evidence, while in its very early stages at the moment, demonstrates a number of events which involve something that appears to go beyond picketing and would seem to be something more than an attempt to simply communicate or inform persons entering or leaving the site. Instead, at least on the evidence which is placed before the court by the applicant and which is yet to be tested, it appears to have extended much beyond that, arguably amounting to an organised and coordinated attempt to interfere with the economic relations between the applicant and third parties in respect of these three sites.
So far as s.38 is concerned, it appears to me that there is a serious issue to be tried in accordance with the broad principles to be applied which are summarised in Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 1).[6] Those principles dictate that there must first be demonstrated a prima facie case, meaning that the plaintiff must show that it is more probable than not that a trial will succeed, and for that to occur it is acceptable for the parties to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.
[6] [2009] FCA 86.
In any event, were I wrong on that point and it was not excluded action, the next point arising on the part of the applicant concerns whether or not the conduct constitutes a contravention under s.44 of the Act. This provides that a person must not take or threaten to take any action with intent to coerce another person, or with intent to apply undue pressure to another person, to agree or not to agree to make or vary a building enterprise agreement.
There is no argument in this instance that, notwithstanding whether a contravention has been established, it is still very much a live issue in this case. The court has the power under s.49(3) to provide interim relief. The real question in this case is whether or not the evidence is sufficient to give rise to a serious issue to be tried in respect of the question of coercion, and also intent.
For the respondent it is contended that what needs to be established is that there was, in a practical sense – by reason of the pressure exerted – a negation of choice. Then it needs to be established that the exertion involves conduct that is unlawful, illegitimate or unconscionable.
I note the submission that the onus remains on the applicant to demonstrate the requisite intention, but I am mindful that, in the context of an application seeking interlocutory relief, there is significant scope for latitude in terms of onus. I bear in mind the Briginshaw[7] test which requires one to weigh up the consequences having regard to the relief that is being sought. This is significant in the context of an interlocutory application where the relief is for a short period. It seems that greater latitude may be had than might ordinarily be had compared, for instance, to that which would be necessary for final relief, where one would expect, as was submitted by the respondent, that intention could not be proved by inexact proofs, indefinite testimony or indirect inferences.
[7] BriginshawvBriginshaw (1938) 60 CLR 336.
The further matter submitted by the respondent is that, in order for the applicant to establish even a prima facie case, it must show that the respondent had the relevant intention and that the acts complained of were acts of the respondent. This, of course, leaves open a considerable amount to be resolved by reference to inference. Although the evidence plainly demonstrates that there were many officials from the respondent on site, the question remains as to whether or not their conduct can be sheeted home to the respondent.
Reference was made to a number of authorities which are best summarised by the extract in Actors & Announcers Equity Association of Australia v Fontana Films Pty Ltd[8] where the High Court said that:
“In the light of experience of Australian industrial relations, it cannot rationally even be presumed that the conduct in concert of two or more members of an organisation of employees is the conduct of the organisation. The conduct is often unsupported by or occasionally opposed by the organisation. Also such members are often members of other organisations and of industrial and non-industrial bodies which may sponsor the conduct. The fact is that hundreds of thousands of members of federal organisations (of employees) belong to trade or industrial unions registered under State Acts.”
[8] [1982] HCA 23.
There are a number of other authorities submitted to similar effect. However, it cannot be ignored that in the current context the evidence demonstrates the presence of officials, and I am mindful of s.69 of the BCII Act which provides, that:
“(1) For the purposes of this Act, the following conduct in relation to a building association is taken to be conduct of the building association:
…
(b) conduct of an officer or agent of the association acting in that capacity;
(c) conduct of a member, or group of members, of the association where the conduct is authorised by:
…
(iii) an officer or agent of the association acting in that capacity.”
This definition of itself gives rise to issues of authority and capacity. But, notwithstanding those matters, other assets were also deployed. I note the use of vehicles which carried the respondent’s logo, the use of other paraphernalia carrying the respondent’s logo and the use of cameras by the respondent’s officers. That material seems to suggest that there are good grounds to argue that the conduct is conduct that is sponsored by the organisation.
I note also that the observations made by the High Court about 30 years ago were made in a different era when there was a far different approach to issues of what could be described as good corporate governance. Irrespective of what might happen in the immediate environment concerning the conduct of an industrial dispute, corporate government principles have moved on, particularly in respect of corporations law and other areas such as workplace health and safety. Modern principles would not permit union officials, or officials of any organisation, to engage in conduct without some oversight, and it is a matter that may be explored in the context of this application.
It seems, having regard to all those matters, that there are serious issues to be tried in relation to whether or not in this case there was coercion exerted by the respondent. So far as the conduct itself is concerned, I think that it is plain from the nature of the conduct alleged, the purported intimidation, the circumstances in which it occurred, the alleged language used, the alleged numbers of people involved and the alleged way in which the processes were organised, that there is much to be argued in support of the claims made by the applicant. No doubt, all these things will be answered and addressed in evidence at trial but there is certainly, in my view, sufficient material to form the view that there is a strong prima facie case advanced by the applicant.
The conduct itself could, by contemporary standards, be seen to be illegitimate and unconscionable. It is not the sort of conduct that common society would tolerate, if indeed it is established to have occurred. It follows, in my view, that there is a serious issue to be tried in respect of whether or not the respondent has engaged in a contravention under s.44.
The next issue concerns the matter of balance of convenience. Insofar as the Soul project is concerned, the applicant contends that its liquidated damages are at about $59,000.00 per day, together with an additional $55,000.00 per day in preliminary costs. This amounts to a sum approaching $110,000.00 a day, together with the daily costs already noted in respect of the other projects, meaning that they are likely to suffer considerable damage if relief is not afforded. In this case there is ample evidence to indicate that the damage would go beyond the direct financial harm complained of by the applicant.
I am also mindful of the conduct complained of and, if proven, how it would occasion significant damage to third parties, including general economic dislocation. I am mindful of the effect that these sorts of events have as they ripple through the economy when subcontractors are put off and, in turn, have to put off their employees, and so it knocks on. That concern is an appropriate concern, as the High Court noted in the Patrick Stevedores case.[9]
[9] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30.
On the other side of the ledger, I note that, from the respondent’s perspective, there would be no direct impact upon the respondent at all. There is no suggestion, and nor is it submitted on behalf of the applicant, that the respondent and its members should not be permitted to continue with protected industrial action. All the applicant seeks is that it be enjoined to desist from continuing what arguably appears to be a case of unlawful action.
It follows that I am going to enlarge the injunctions until trial, unless further application is made based upon further evidence on the premise that the respondent considers that because of short notice it does not accept the present application to date as having disposed of the matter on an interlocutory basis. So far as the orders are concerned, I have considered the matters which are presently the subject of the order that was made on Wednesday. Two additional paragraphs are sought.
I have come to the view that it is appropriate to incorporate the two additional paragraphs. They are draft paragraphs (h) and (i), because the evidence plainly demonstrates the use of cameras by union officials. While I am prepared to accept that the evidence at this stage is certainly arguable and that others may have taken photographs and placed them on the wall, the fact remains that the only evidence in the material to date is evidence of the use of cameras by union officials, or those in authority with the union, and it leaves open the inference that the union, by the use of its equipment, has permitted either its agents or others to publish the photographs that were placed on the wall. Otherwise, as was debated with counsel on Thursday, I think it is appropriate to insert the adjective “offensive” before the word “photos.”
So in paragraph (g) after the word “any” and before the word “poster” I will insert the word “offensive.” Again, as was discussed with counsel yesterday, I do not think that by contemporary standards anybody would regard the sort of photographs which were posted with a picture and the caption “scab” underneath as anything but offensive.
I have considered also the question of the ambit of the injunction, and I have decided that I will delete the word “members” and insert the word “howsoever otherwise.” In having come to this view, I am satisfied from the material that there is more than ample evidence to demonstrate conduct on behalf of members of the union. That being said, it is less clear that members themselves have done so, except in respect of one matter involving a handful of members on the occasion of the stairs. Those members remain unidentified, but that incident is small in the overall scheme having regard to the totality of complaints. It is less clear that members themselves are engaging in conduct. One assumes that if the respondent is enjoined from engaging in this sort of conduct, the members will take the lead. Of course, if they do not, then the matter will, no doubt, come back before me and we will resolve that matter on further evidence.
Finally, in relation to the ambit, I am of the view that the injunction should continue in respect of the Soul building. Although, as I have noted earlier in the evidence, the case in respect of Soul is presently one that will otherwise fail. However, the fact of the conduct on the other two sites taking place concurrently with conduct on Soul gives rise to a reasonable apprehension that the focus of the respondent’s attention may move from those two sites to the Soul site, if it too is not be subject to any order.
I think, in order to maintain the status quo between now and trial and to ensure that the parties focus on preparing matters for trial and not on interlocutory issues, it is better that relief be left in place, bearing in mind that it will occasion no harm to the respondents who are always permitted, and will always be permitted, to engage in lawful protected industrial action in respect of that site.

Orders

An interim order pursuant to section 39, and/or 49(1)(c) and 49(3)(a) of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) that the Respondent be restrained until further order of the Court, whether by itself, its servants or agents or officials or howsoever otherwise from:
a)preventing or hindering the access of any person or vehicle to the building sites known as
i)“Soul” at Shop T130a and T130b-4-414 the Esplanade, Surfers Paradise, QLD, 4217;
ii)“Common Ground” at 11 Hope Street, South Brisbane”; and
iii)Elizabeth Street project at 55 Elizabeth Street, Central Brisbane;
b)counselling or procuring any person not to enter the said sites;
c)counselling or procuring any employee or agent of Grocon Constructors (QLD) Pty Ltd, or person contracted thereto, not to work upon the said sites; and
d)placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance to the said sites; and
e)attending, or organising or procuring any person to attend, within 100 metres of any entrance to the said sites, or save for such entry to the sites as may be authorised by law, or for the purpose of using a public road for reasons unconnected with the said sites, or for the purpose of complying with these orders;
f)verbally abusing or threatening any person in the vicinity of any of the Sites;
g)affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of any of the Sites.

This order does not apply to the organising or the taking by any person of protected industrial action in accordance with the Fair Work Act 2009.
Costs be reserved.
The matter be adjourned for final hearing to 10am on 8 May 2012.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date: 12 September 2012