Herald & Weekly Times Ltd v AMWU

[2000] VSC 15

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 4111 of 2000

HERALD AND WEEKLY TIMES LIMITED	Plaintiff
v.
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION AND ANOTHER	Defendants

---

JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 JANUARY 2000
DATE OF JUDGMENT:	25 JANUARY 2000
CASE MAY BE CITED AS:	HERALD AND WEEKLY TIMES LTD. v. AMWU & ANOR,
MEDIUM NEUTRAL CITATION:	[2000] VSC 15

---

CATCHWORDS:      Industrial action – Picketing of employer's premises – Preventing access to and egress frompremises – Interlocutory injunction.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M.P. McDonald	Minter Ellison
For the First Defendant	Mr. E. White

HIS HONOUR:

1. Many of the employees of the Herald and Weekly Times Ltd working at its premises at 127 Todd Road, Port Melbourne, are members of either the AMWU or the CEPU.

1. At about 10:45 p.m. On Friday 21 January 2000 all members of the AMWU working at the premises stopped work, walked off the site, and gathered on an area of grass next to the entrance driveway to the premises.  They were later joined there by a number of employees of the plaintiff who are members of the CEPU.  The employees then established a picket outside the entrance.

1. Between 11 p.m. And 11:45 p.m. Three trucks were stopped by the picketers from entering the premises.  The drivers of the trucks were spoken to by members at the picket line.  Two trucks were turned away, the third entered the premises.  At 11:59 p.m. A truck was prevented from leaving the premises.

1. Between approximately 11:45 p.m. And 12:15 a.m. Members of the two unions placed motor vehicles across the driveway thereby preventing vehicles entering or leaving the premises.

1. A number of police arrived at the scene, including a police inspector.  When asked at about 1 a.m. By the general manager of the plaintiff to remove the vehicles and clear the driveway, thereby allowing trucks leaden with newspapers to leave the premises, the general manager was told that there were not sufficient police present to do so.

1. More police arrived and had discussions with the picketers.

1. At about 2:15 a.m. The police inspector informed the plaintiff's general manager that the union members would allow access to and egress from the premises at 3:30 a.m. At about 3:30 a.m. The picket line cleared away from the driveway and access was able to be gained to the premises by vehicles.

1. As a consequence of the picketing distribution of Saturday's edition of the Herald Sun newspaper was seriously disrupted.

1. Because the plaintiff feared a repetition of the behaviour the following night, at about noon on Saturday counsel for the plaintiff appeared before me in the Practice Court and sought (inter alia) an injunction restraining the members of the two unions from interfering with free access to and egress from its premises.  I acceded to the application and made what then appeared to me to be appropriate orders in the matter.  I then adjourned the further hearing of the application to Monday afternoon 24 January at 2:15 p.m.

1. Yesterday I heard argument in relation to the matter by counsel for the Herald and Weekly Times and the AMWU.  There was no appearance before me on behalf of the CEPU although it is clear that the union is fully aware of what is going on.

1. The plaintiff's application is for me to continue the injunctive relief granted on Saturday, albeit in a modified form to the trial of the proceeding.

1. It was readily conceded by counsel for the AMWU that there is a serious issue to be tried in the proceeding.  What he contended, however, was that in the circumstances of this case it was inappropriate to grant the Herald and Weekly Times further injunctive relief in the matter.

1. There were two arguments advanced by counsel for the AMWU in support of that proposition: 

1. In the first place he contended that the industrial action at the premises of the Herald and Weekly Times which is a subsidiary of News Ltd., was part of a much larger industrial dispute between members of the two unions and subsidiaries of News Ltd.  In New South Wales, for example, a subsidiary of News Ltd has refused to pay its employees who refused to work overtime even in respect of a normal day's work which they are prepared to perform.

1. In the second place any industrial dispute between the parties should be determined by the Australian Industrial Relations Commission not this court.

1. In my opinion neither of those arguments are sufficient to justify a refusal of the relief the Herald and Weekly Times seeks. A picket line which has the effect of preventing persons going about their lawful affairs is not protected industrial action within the meaning of the Workplace Relations Act 1996 and is therefore unlawful. If members of a union engage in activity which has the potential to cause significant damage to a company's business and reputation, as in the present case, then it is as much the responsibility of this court to take action in the matter as it is that of the Australian Industrial Relations Commission.

1. As to the form of the injunctive relief which should now be granted:

1. There has been no problem at the premises since the early hours of last Saturday morning, nevertheless it is clear that unless restrained there is a high probability that further picketing will occur.  Clearly in that situation the balance of convenience is in favour of granting injunctive relief in the matter.

1. The Herald and Weekly Times Ltd having given the appropriate undertaking as to damages, I order that until further order:

1.        The defendants whether by themselves or their servants, officers, delegates, agents or howsoever be restrained until further order from: 

(a)preventing, hindering or interfering with free access to, and free egress from the premises of the plaintiff at Westgate Park, 127 Todd Road, Port Melbourne;

(b)inducing or procuring any person not to enter or not to leave the plaintiff's premises, or attempting so to induce or procure;

(c)causing, inducing or procuring any person to breach any contract of employment with the plaintiff or any contract for the provision of transport services to the plaintiff.

I do not consider that there is sufficient evidence justifying the making of the further injunctive orders sought by the plaintiff.  If that situation changes hereafter the plaintiff can re-mention the matter to me or another judge of the court pursuant to the liberty to apply I propose to grant the parties.

2.        Service of this order on the second defendant is permitted by facsimile transmission to the State Office (ETU Division) of the second defendant at 516 Swanston Street, Carlton, Victoria, 3000 and by displaying it at the gate to the plaintiff's premises.

3.        I declare that service of the written summons filed 24 January 2000 upon the State Office (ETU Division) of the second defendant be valid service on the second defendant.

4.        I reserve the costs of the application.

5.        I reserve to the parties liberty to apply.

6.        I direct that the solicitors for the plaintiff prepare this order and bring it to me for authentication.

---