John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union - [2005] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JOHN HOLLAND PTY LTD -v- THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2005] WASC 146

CORAM: LE MIERE J

HEARD: 10 JUNE 2005

DELIVERED : 1 JULY 2005

FILE NO/S: CIV 1441 of 2005

BETWEEN: JOHN HOLLAND PTY LTD (ABN 11 004 282 268)
Plaintiff
AND
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Defendant
THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Defendant
JOSEPH MCDONALD
Third Defendant
MICHAEL BUCHAN
Fourth Defendant
MICHAEL POWELL
Fifth Defendant

Catchwords:

Injunctions - Interlocutory injunctions - Industrial dispute - Whether serious question to be tried - Tort of interference with contracts - Tort of interference with trade or business by unlawful means - Whether industrial action was protected - Whether s 166A of Workplace Relations Act 1996 (Cth) bars plaintiff's claim for relief - Proceedings commenced without obtaining s 166A(6) certificate - Serious question to be tried that an application for an injunction to restrain the future commission of tortious acts is not "an action in tort" within the meaning of s 166A - Balance of convenience favours plaintiff - Whether sufficient case for quia timet injunctions is made out - Justice best served by grant of interlocutory injunctions restraining threatened unlawful interference with plaintiff's rights. Whether court should refrain from hearing the matter because another tribunal is seized of the dispute - The fact that an industrial tribunal is seized of a dispute between the parties is not a reason to refuse relief to a party that has made out a case that it is otherwise entitled to relief - Interlocutory injunctions granted

Legislation:

Industrial Relations Act 1979 (WA)

Workplace Relations Act 1996 (Cth), s 127, s 166A, s 170LJ, s 170MI, s 170MO, s 170MT(2), s 170MW

Result:

Interlocutory injunctions granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr M H Zilko SC & Mr J B Blackburn
First Defendant             :     Mr H Borenstein SC & Mr T J Dixon
Second Defendant         :     Mr H Borenstein SC & Mr T J Dixon
Third Defendant           :     Mr H Borenstein SC & Mr T J Dixon
Fourth Defendant          :     Mr H Borenstein SC & Mr T J Dixon
Fifth Defendant            :     Mr H Borenstein SC & Mr T J Dixon

Solicitors:

Plaintiff:     Clayton Utz
First Defendant             :     Slater & Gordon
Second Defendant         :     Slater & Gordon
Third Defendant           :     Slater & Gordon
Fourth Defendant          :     Slater & Gordon
Fifth Defendant            :     Slater & Gordon

Case(s) referred to in judgment(s):

ABB Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2002] FCA 1070
Australian Die Castings Pty Ltd v AMWU [2002] VSC 328
CGM Investments Pty Ltd v Chelliah (No 2) [2003] FCA 305
Construction, Forestry, Mining and Energy Union v Mirvac Constructions Pty Ltd [2000] FCA 341; 171 ALR 279
Fletcher v Bealey (1885) 25 Ch D 688
Harry M Miller Attractions v Actors & Announcers Equity Association (1970) 1 NSWR 614
Hazelwood Power Corp Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2000] VSC 477
Hooper v Rogers [1975] Ch 43
Keppel Prince Engineering Pty Ltd v Automotive Full Engineering Printing and Kindred Industries Union [2001] FCA 1637; 109 IR 436
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261
Melbourne Ports Corporation v Maritime Union of Australia, unreported; SCt of VIC, 5471/1998; 29 April 1998
National Workforce Pty Ltd v Australian Manufacturing Workers Union (1998) 3 VR 265
Outshine Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2004] VSC 72
Patrick Stevedores No 1 Pty Ltd v Maritime Union of Australia (1988) 79 IR 268
Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 237
Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87
Tenix Defence Systems Pty Ltd v Automotive, Food, Metal, Engineering, Printing & Kindred Industries Union [1999] VSC 40

Case(s) also cited:

Allstate Life Insurance Co & Ors v Australia & New Zealand Banking Group Ltd & Ors (1995) 58 FCR 26
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Coarse Grain Pool v Barley Marketing Board (No 1) (1982) 57 ALJR 425
Cayne v Global Natural Resources Plc [1984] 1 All ER 225
Construction, Forestry, Mining and Energy Union, Re; Ex parte Leighton Contractors Pty Ltd [2004] WASC 250
DC Thomson & Co Ltd v Deakin [1952] Ch 646
DG Whelan Rentals Pty Ltd v Australian Building Construction Employees' and Builders Labourers' Federation (1983) 67 FLR 472
Dimbleby & Sons Ltd v National Union of Journalists [1984] 1 WLR 427
Downer Engineering Power Pty Ltd v Atkinson [2005] FCA 149
Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691
Federated Sawmill, Timberyard & General Woodworkers Employees' Assoc of Aust v James Moore and Sons Pty Ltd (1909) 8 CLR 465
JT Stratford & Son Ltd v Lindley [1965] AC 269
Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570
Sanders v Snell (1998) 196 CLR 329
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106
Union Traffic Ltd v Transport & General Workers' Union & Ors [1989] ICR 98
Woolley v Dunford (1972) 3 SASR 243

LE MIERE J: The plaintiff applies for interlocutory injunctions restraining the defendants from interfering or attempting to interfere with the performance of:
(a)a number of construction contracts to which the plaintiff is a party;
(b)contracts between the plaintiff and subcontractors for the performance of different aspects of work; and
(c)the contracts of employment between the plaintiff and employees engaged on the construction projects,
by
(i)directing, inducing, procuring, advising or assisting any person employed by a subcontractor or the plaintiff to work on or in connection with the construction projects to breach their contract of employment by failing to attend or perform work;
(ii)imposing or maintaining any bans, limitations or restrictions on the performance of work by any person employed by a subcontractor or the plaintiff to work on or in connection with any of the construction projects; or
(iii)attempting to do or directing, inducing, procuring, advising or assisting any person to do or attempt to do any of those things restrained by pars (i) or (ii).
The plaintiff is a construction and rail contractor that operates in all Australian States and Territories. The plaintiff has the following projects underway in Western Australia:
1.The East Perth Power Station project;
2.the Qantas CPS project;
3.the Perth to Mandurah rail link ("Package A project");
4.the Tonkin Highway extension ("stage 6 project");
5.the CTA Building in the Perth CBD; and
6.the Perth barrier project at the Perth Railway station.
The first defendant, which I will sometimes refer to as the CFMEU, is an organisation of employees registered, or deemed to be registered, under the Workplace Relations Act 1996 (Cth). The second defendant is an organisation of employees that is registered under the Industrial Relations Act 1979 and is the Western Australian counterpart of the first defendant. The third defendant, who I shall sometimes refer to as Mr McDonald, is the Assistant Secretary of the second defendant and Assistant State Secretary of the first defendant. The fourth and fifth defendants are organisers employed by the first and second defendants.
The plaintiff has filed a large number of affidavits in support of its application. The following narration of events is based upon the evidence in those affidavits. This is an interlocutory application and the evidence in those affidavits has not yet been tested.
A four‑day strike at the CTA project commenced on 4 January 2005. There was industrial action from 5 – 10 January 2005 on the railcar service depot project. There was also industrial action from 4 – 7 January 2005 on the stage 6 project due to a dispute concerning the rail link project certified agreement initiated by the first defendant.
On 2 April 2005 an article appeared in the West Australian newspaper under the headline "Construction Union Bids to Beat Federal Reforms". The article said that the first defendant would attempt to get around tough new workplace laws by locking in a new three‑year deal before the Federal Government reforms start in mid‑year. The article said that Kevin Reynolds, the State Secretary of the first defendant and the Secretary of the second defendant, had said that the union would meet major employers over the next few weeks, months ahead of the October expiry of current agreements, to negotiate the deal. The article quoted the plaintiff's spokesman, Stephen Sasse, to have said that the company would not even consider negotiating a deal before its current agreement expired in October. After referring to spokesman [sic] for two other major builders, the article said: "The upcoming legislation is going to make it practically impossible to strike" one spokesman said. "You would have to be a complete nutter to take up Kevin's offer".
On 4 April Mr Reynolds telephoned Mr Kane and referred to the article in the Saturday edition of the West Australian. Mr Reynolds said to Mr Kane: "If it's war that you want it's war that you'll have".
The following day, 5 April, Mr McDonald went on to the CTA project site at 6.05 am. At 6.30 am Mr Buchan and another person went onto the CTA project site. There was a union meeting at 7.00 am. At 7.10 am employees walked off the project. Mr McDonald told Mr Capobianco, the plaintiff's site manager on the CTA project, that the reason for the strike was comments made by Mr Sasse reported in the West Australian.
Later that day, Mr Spry, the plaintiff's operations manager for building in Western Australia, spoke to Mr McDonald by telephone. In the course of the conversation Mr Spry said: "Joe, what are you going to do? Ruin my birthday by closing down all our sites?" Mr McDonald replied, "We're chasing your national IR bloke around". Mr Sasse is the plaintiff's corporate general manager, human resources, industrial relations and safety.
On 6 April Mr McDonald visited the Ennis Avenue (rail link) site for a meeting. Employees at the Hillman Depot and heavy vehicle underpass sites left their work to attend the Ennis Avenue meeting. Following the meeting all employees went on strike until Monday 11 April. Mr Powell told Mr Whatmore, the plaintiff's structures superintendent on the Package A project, that the strike was in response to a newspaper report about the plaintiff and the plaintiff's stance on union rights of entry.
On 7 April work resumed on the CTA project. On the same day Mr Buchan went onto the Perth barrier project site at 7.15 am and met with employees working there. After the meeting Mr Buchan told Mr Voorn, the plaintiff's site manager on the Perth barrier project: "the day shift are going off from now until Monday morning and the nightshift is going off from tonight to Monday morning". When asked why, Mr Buchan said: "It relates to the CTA and Package A". All employees on the site then walked off the job.
Later that day Mr Sasse rang Mr McDonald and asked: "What's going on in the West?" Mr McDonald said that he had read Saturday's West Australian newspaper and that Mr Sasse had said that Kevin Reynolds was a nutter. Mr McDonald then raised other issues including right of entry and the plaintiff's preparedness to renew its pattern agreements.
On 8 April Clayton Utz, solicitors acting for the plaintiff, sent facsimile letters to the defendant unions seeking undertakings that there would be no further unlawful industrial action on the plaintiff's sites.
On 11 April work resumed on the rail link and Perth barrier projects.
By 12 April, Clayton Utz and the plaintiff had not received any response to the facsimile letters. Clayton Utz facsimiled further letters to the union defendants seeking undertakings that there would be no further unlawful industrial action on the plaintiff's sites. Clayton Utz did not receive any reply.
The plaintiff and the first defendant had been negotiating an agreement to apply to Package A. On 15 April employees on the Package A site voted to accept the Package A agreement. Mr Kucera, an industrial officer employed by the defendant unions, informed Mr Sasse of the outcome of the vote and said that whilst a further vote would be required to "formally approve the agreement … it would be a mere formality". Mr Sasse agreed to the first defendant's request to back pay Package A employees in accordance with the agreement.
On 15 April 2005, the plaintiff issued the writ of summons in this action. The plaintiff claims a permanent injunction in the same terms as the interlocutory injunction which is now sought. The plaintiff also claims damages for the torts of interference with contractual relations and unlawful interference with business arising out of the conduct of the defendants in directing, inducing, procuring or advising employees of subcontractors to the plaintiff and employees of the plaintiff at the plaintiff's project sites to breach their respective contracts of employment by stopping work and taking strike action in January and April 2005. The writ was served on the defendants on 18 and 19 April 2005.
On 20 April, Mr McDonald went onto the CTA project site at about 12.15 pm. A union meeting was convened at about 12.50 pm. At 1.10 pm employees on the site commenced strike action. Mr McDonald told Mr Kemp and Mr Capobianco, the plaintiff's site managers on the CTA project, that employees had gone home until Friday 22 April because of a lack of amenities. When asked to explain, Mr McDonald said that there were not enough seats for the men to sit on during their meeting. Mr McDonald also said that the plaintiff was "very close" with the number of toilets.
On 21 April there was a telephone conversation between Mr Spry, Mr McDonald and Mr Reynolds. Mr Reynolds said that the plaintiff is "now taking a hard line and we are looking at ways of retaliating against that". Mr Reynolds also said: "We will see what Mr Sasse is made of when the Victorians turn up the heat on him".
The employees on the CTA project resumed work on 22 April.
On 27 April the plaintiff's application for interlocutory injunctive relief came before the Court. I adjourned the application to allow the defendants time to consider the plaintiff's materials and to file affidavits.
On 28 April the first defendant served on the plaintiff a notice pursuant to s 170MI of the Workplace Relations Act to initiate a bargaining period.
On 6 May, Mr McDonald, Mr Buchan and Mr Powell entered the Package A site and met with the employees of the plaintiff and of subcontractors to the plaintiff. On the same day, the first defendant served on the plaintiff a notice pursuant to s 170MO of the Workplace Relations Act giving notice that the first defendant intended to take industrial action commencing on 11 May.
On 11 May employees of the plaintiff and of contractors working on the Package A site went on strike for two days. The striking employees included employees of Lomondside and Roguero, contractors engaged on the site, neither of which had been served with a notice initiating a bargaining period or a notice of an intention to take industrial action.
On 13 May the plaintiff's application for interlocutory injunctions again came before me. The defendants applied for the hearing to be adjourned. I adjourned the application on undertakings given by the defendants. The undertakings were in the terms of the interlocutory injunction sought by the plaintiff with the following provisos:
"1.The undertaking on behalf of the first defendant does not include:
a.protected action pursuant to div 8 of Pt VIB of the Workplace Relations Act 1996 (Cth); or
b.action by an employee if the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform; and
(2)The undertaking on behalf of the second defendant does not include lawful action pursuant to cl 23 of the John Holland/CFMEUW Industrial Agreement 2002 – 2005."
On 16 May all employees working on the Package A site commenced strike action. Mr Van Der Sande, the first defendant's site delegate, said that the employees took action because the plaintiff was in breach of the National Building Trades Construction Award 2000, by failing to provide a completely covered walkway from the smoko shed to the toilets. No attempt was made by Mr Van Der Sande, or the first defendant, to comply with any award or agreement dispute or grievance resolution procedures.
On 17 May an article appeared in the West Australian newspaper in which Mr Reynolds was reported to have said that the plaintiff was in breach of the award and workers were entitled to be paid leave in inclement weather. Mr Reynolds was reported to have said that the workers would return to work on Tuesday, that is the day on which the article appeared. The Package A employees returned to work on Tuesday 17 May.
On Wednesday, 18 May employees working on the Package A site again took strike action. Mr Van Der Sande said that action was taken because the plaintiff was in breach of the award.
On 29 April 2005, Mr Kucera wrote to the plaintiff's industrial relations manager, Mr Sasse, to the following effect. The CFMEU has initiated a bargaining period against the plaintiff with the aim of securing a Federal certified agreement with the plaintiff in respect of its operations in Western Australia. There are no current certified agreements that apply in respect of the plaintiff's operations on each of the Qantas, Perth barrier, East Perth Power Station, CTA, rail link and stage 6 projects. The agreement registered pursuant to the terms of the Industrial Relations Act 1979 that currently applies in respect to the plaintiff's operations in Western Australia is due to expire on 31 October 2005. The agreement provides that the parties shall at least three months before the expiry of that agreement commence negotiation for a subsequent agreement. On that basis the CFMEU invites the plaintiff to hold negotiations in good faith on the terms of a certified agreement to apply in respect of its operations in Western Australia.
On 2 May 2005 Darren Nelson, the plaintiff's employee relations manager in Western Australia, replied to Mr Kucera's facsimile letter of 29 April. Mr Nelson said that the plaintiff was prepared to commence discussions to explore the possibility of reaching an agreement to cover the plaintiff's Western region building business. Mr Nelson said that the plaintiff was under the impression that an agreement had been reached in respect to the rail link project and had commenced payments pursuant to it based on the union's undertaking that the agreement was finalised.
The Australian Industrial Relations Commission listed an application by the first defendant in relation to its notice of initiation of a bargaining period for a conciliation conference before Deputy President McCarthy on 3 May 2005. The conference was adjourned to 4 May 2005. At the conciliation conference on 4 May Mr Nelson informed the representatives of the first defendant, Mr Kucera and Ms Scoble, that he wanted to resolve the issues concerning Package A prior to commencing discussions in relation to an industrial agreement to cover all of the plaintiff's sites in Western Australia. Mr Kucera stated the issues that were outstanding in relation to the Package A certified agreement. Mr Kucera said words to the following effect: "For the western region to move on we have to cease all hostilities. The Supreme Court proceedings need to disappear. Whilst we are talking, those proceedings need to stop".

On 6 May the plaintiff received a letter from the first defendant which enclosed a notice that the members of the union had been authorised to engage in industrial action within the bargaining period against the plaintiff.
An informal meeting took place on 9 May 2005 between Mr Nelson on behalf of the plaintiff and Mr Kucera, Ms Scoble and Mr McDonald on behalf of the first defendant. Mr Kucera raised an issue concerning comments made by the Managing Director of the plaintiff in the Financial Review newspaper of 6 May 2005. In that newspaper article it was stated that the plaintiff had launched Supreme Court action against the first defendant over stoppages, including one in protest over the company refusing early renegotiation of new agreements. The plaintiff's group managing director, Bill Wilde was quoted as having said that the company would not roll over any certified agreement before its expiry date later that year. Mr Nelson stated that the plaintiff would be prepared to explore the possibility of discussing a new industrial agreement with the first defendant prior to the expiration of the current State agreement between the plaintiff and "the CFMEU". Mr McDonald then stated: "Pull out of the Supreme Court and give the blokes what they want". Mr Kucera said words to the effect that the plaintiff should enter into a certified agreement to apply in Western Australia in the same terms as the pattern agreement purported to being negotiated by the CFMEU with a number of employers in Victoria. Mr Kucera stated the issues which needed to be resolved in relation to the Package A certified agreement. Mr McDonald again said: "Withdraw the Supreme Court action". There was further discussion concerning the terms of an agreement. Mr McDonald again said: "Pull out of the Supreme Court". In the course of further discussions Mr McDonald said: "We want it all and there is no negotiation".
Later in May 2005, the plaintiff filed three applications in the Australian Industrial Relations Commission. The first was an application under s 127 of the Workplace Relations Act for orders that the CFMEU, McDonald, Buchan and Powell and members of the CFMEU stop engaging in industrial action on Package A. The second was an application under s 170MW of the Workplace Relations Act for orders suspending or terminating the bargaining period which the CFMEU had initiated on 28 April on the grounds that the CFMEU was not genuinely trying to reach an agreement and had initiated the bargaining period and was taking industrial action on Package A as a response to the plaintiff commencing these proceedings. The third was an application under s 170LJ of the Workplace Relations Act for the certification of the Package A agreement which the plaintiff and the CFMEU had made on or about 15 April 2005 but which the CFMEU was now trying to re‑open.
On 19 May 2005 Commissioner Gregor convened a conference in the Australian Industrial Relations Commission. Mr Nelson attended the conference on behalf of the plaintiff together with its legal representatives. Mr Kucera and Mr Reynolds attended the conference on behalf of the CFMEU. In the course of the conference the plaintiff's representatives stated that the plaintiff considered that the parties had reached an agreement on Package A in April and that the real reason why the CFMEU had initiated a bargaining period and was trying to re‑open the Package A agreement was so that it could take protected action on Package A as a response to the plaintiffs commencing proceedings in the Supreme Court. Package A is the only one of the plaintiff's current Western Australian projects on which there are significant numbers of direct employees of the plaintiff. Mr Reynolds said that the CFMEU's outstanding issues over the Package A agreement could easily be fixed and that he was prepared to give an undertaking on behalf of the CFMEU that it would not engage in any industrial action for a period of one month to allow negotiations to occur. The plaintiff's representatives said that they would be prepared to have discussions to resolve the issue. Mr Reynolds gave the undertaking that the CFMEU would not engage in any industrial action, protected or unprotected, for one month to allow discussions to occur over Package A. Before doing so, Mr Reynolds said there would have to be an exception to the undertaking. Mr Reynolds said words to the effect: "there is a national stoppage on 30 June – we will get all our people to get involved in that". Commissioner Gregor pointed out that 30 June was more than one month away. Mr Reynolds gave the undertaking.

Serious Question to be Tried

The plaintiff submits that there is a serious question to be tried that the defendants by directing, inducing, procuring or advising employees of subcontractors engaged by the plaintiff and employees of the plaintiff to withdraw their labour, have committed the tort of indirect interference with the following contracts:
(a)the contract between the plaintiff and Cape Bouvard Properties Pty Ltd for the carrying out of building works on the CTA building (CTA project);
(b)the contract between the plaintiff and the Public Transport Authority of Western Australia for the carrying out of works including the installation of barrier systems at the Perth Railway Station (Perth barrier project);
(c)the contract between the plaintiff, MacMahon Contractors Pty Ltd and Multiplex Constructions Pty Ltd and the Public Transport Authority of Western Australia for the construction of the new Perth to Mandurah rail link (Package A); and
(d)the several contracts between the affected subcontractors on the CTA project, the Perth barrier project and the Package A project and the plaintiff for the performance of different aspects of work on those projects.
The plaintiff submits that there is a serious question to be tried that the defendants knew of those contracts and with intent to procure interference with the performance or breach of those contracts did persuade, induce or procure employees of the affected subcontractors and of the plaintiff to strike with the necessary consequence that the contracts were interfered with resulting in loss or damage to the plaintiff.
The plaintiff further submits that there is a serious question to be tried that the defendants by directing, inducing, procuring or advising employees of the plaintiff engaged to work at the affected sites to withdraw their labour, have committed the tort of direct interference with contract, being the contracts of employment between those employees and the plaintiff.
The plaintiff submits that there is a likelihood the defendants will seek to procure the plaintiff's employees at all its Western Australian project sites to breach their contracts of employment. There is also a likelihood the defendants will seek to procure the plaintiff's employees to commit further breaches.
The plaintiff further submits that there is a serious question to be tried that there is in Australia a tort of interference with trade or business by unlawful means and that the defendants have committed that tort by unlawfully interfering with the plaintiff's business with intent to injure the plaintiff. The plaintiff says there is a likelihood that the defendants will continue to unlawfully interfere with the plaintiff's business.
The plaintiff submits that it is likely to continue to suffer damage if the defendants are not restrained from continuing to unlawfully interfere with the contracts referred to.
The plaintiff submits that there is a likelihood that the defendants will seek to procure interference with the performance or breach of contracts at other projects operated by the plaintiff including the East Perth power station project, the stage 6 project, and the Qantas project. The plaintiff says that the issue which is said to have provoked the strikes on 5 – 8 April, that is the issue of the renegotiation of pattern agreements in advance of changes to Federal legislation, is not confined to particular projects. The defendants' apparent objective of "chasing the plaintiff's national IR bloke around" while retaliating against the plaintiff does not suggest future industrial action will be confined to particular projects.
The plaintiff submits that there is a likelihood that the defendants will seek to procure further industrial action on the affected projects. This is to be inferred from the following matters. First, the reasons given for the strike action, namely the comments attributed to the company's national HR Manager in the weekend press, are equally applicable to all of the plaintiff's projects and the issue is unresolved. Secondly, the defendants have in recent weeks threatened strike action and other forms of retribution at all of the plaintiff's projects. Thirdly, the defendants appear set on a course of industrial action aimed at softening up the plaintiff's HR Manager. Fourthly, the failure of the defendant unions to undertake that they will not engage in further unlawful industrial action at the plaintiff's sites gives cause for concern that they will do so.
In support of its submission that the industrial action was organised by the first defendant for the purpose of causing the plaintiff to discontinue these proceedings, the plaintiff relies on the following matters. The conciliation conference in the Australian Industrial Relations Commission on 4 May 2005 was attended by Mr Nelson for the plaintiff and Mr Kucera and Ms Scoble for the first defendant. Immediately following that conference Mr Kucera said to Mr Nelson that a number of issues were still outstanding with respect to the Package A agreement. The matters raised by Mr Kucera had not been raised with the plaintiff since the negotiations for the Package A agreement had concluded. Significantly, one of the issues raised by Mr Kucera was that the plaintiff should discontinue these proceedings.
Later that day, 4 May, Ms Scoble sent by facsimile a letter to Mr Nelson seeking a meeting on 9 May to discuss, amongst other things, proposed amendments to the Package A agreement. In that letter Ms Scoble stated: "The union requests that the Supreme Court proceedings CIV 1441/05 be discontinued. I am instructed that should this occur the union will consider postponement of any protected industrial action while negotiations proceed in good faith".
On 6 May, the third, fourth and fifth defendants went onto the Package A site and had a meeting with employees. At the conclusion of the meeting the third defendant, Mr McDonald, informed the plaintiff's supervisor that the plaintiff would be notified in writing of the outcome of the meeting and the action the men will be taking. One of the plaintiff's managers, Martin Peake, was informed on 6 May that the outcome of the meeting was that rolling stoppages are in effect until further notice and that union officials have stated to members that they cannot sign the EBA due to current actions by the plaintiff through the courts.
At the meeting on 9 May 2005 both Mr Kucera and Mr McDonald demanded that the plaintiff withdraw these proceedings.
The plaintiff submits that it may be inferred from all these matters that the real reason for the proposed industrial action on Package A was not that there was some outstanding issues as to the content of the agreement but rather that the plaintiff had initiated these proceedings in this Court.

Protected Action

Prior to the industrial action on 11 and 12 May 2005 at the Package A site, the first defendant had initiated bargaining periods and served notices of intention to take industrial action under the provisions of the Workplace Relations Act on the plaintiff and one of its three subcontractors. The plaintiff contends that there is a serious question to be tried that the industrial action was not protected action on a number of grounds. First, the notice of industrial action pursuant to s 170MO was defective in that it did not adequately state the nature of the intended action. Secondly, the industrial action was organised other than solely by one or more protected persons. Thirdly, the industrial action was engaged in, and was intended to be engaged in, in concert with one or more persons that are not protected persons. Fourthly, before beginning to engage in the industrial action the first defendant did not genuinely try to reach agreement with the plaintiff. Fifthly, before beginning to engage in the industrial action the first defendant did not genuinely try to reach an agreement with Clancorp Construction Pty Ltd with whom the first defendant had also initiated a bargaining period. Sixthly, the industrial action was organised by the first defendant for the predominate, alternatively, the collateral purpose of causing the plaintiff to discontinue these proceedings rather than for the purpose of seeking an agreement to cover Package A.
For the same reasons, the plaintiff submits that there is a serious question to be tried that the further industrial action will also be unprotected.

The Defendants Withdraw Notice of Industrial Action

On 13 May 2005 Ms Scoble wrote to the plaintiff. Ms Scoble referred to "the s 170MO notice that was served … on 6 May 2005" and stated: "the CFMEU is withdrawing the abovementioned notice for the reason that the protected industrial action foreshadowed in the notice is cancelled".
As I have said, Mr Reynolds gave an undertaking to the Australian Industrial Relations Commission on behalf of the first defendant, that it would not engage in industrial action, whether protected or not, for one month. On 8 June 2005 Mr Reynolds wrote to the plaintiff. Mr Reynolds said that regardless of any views which may have been expressed in the past, the CFMEU will seek to organise and engage in any future protected industrial action strictly in compliance with the requirements of the Workplace Relations Act and that the union will not organise or engage in industrial action for the purpose, or for purposes including the purpose of procuring the discontinuance of the Supreme Court proceedings.

Is There a Serious Question to be Tried?

At the hearing of this application senior counsel for the defendants, Mr Borenstein SC, stated that the defendants would not embark on a detailed exposition on the facts because the task of the Court on the hearing of an interlocutory injunction was to see whether there are serious questions to be tried to support the interlocutory injunction and "on the facts you can't deny that there is a serious question". However, the defendants made three submissions in opposition to the grant of the interlocutory injunctions sought. The first is that there is not a serious question to be tried that the plaintiff will succeed in obtaining final relief, that is a permanent injunction or damages, because s 166A of the Workplace Relations Act bars the plaintiff's claim for relief. The second is that the plaintiff is seeking quia timet injunctions and has not made out a sufficient case for the grant of such injunctions. The third is that the court should refrain from interfering in the industrial dispute between the plaintiff and the defendants because the Australian Industrial Relations Commission is seized of the matter.

Workplace Relations Act, Section 166A

Section 166A places restrictions upon a person bringing an action in tort against an organisation of employees, or an officer, member or employee of such an organisation acting in that capacity, against conduct in contemplation or furtherance of claims that are the subject of an industrial dispute. Except in circumstances not presently relevant, such action may not be brought unless the Australian Industrial Relations Commission (after receiving notice that the person wants to bring the action) certifies in writing that it is unlikely to be able to stop the conduct promptly, or that substantial injustice would be caused to the person wishing to institute tortious proceedings. In any event, the Commission must immediately issue a certificate in respect of the conduct, in circumstances where it is has not been able to stop the conduct after 72 hours from the time written notice was given to the Commission. In effect, s 166A provides for a cooling off period before proceedings under the general law may be commenced. The section requires a certificate to be issued and enables the Commission to have 72 hours in which it can try and settle the dispute.
The plaintiff commenced these proceedings without having obtained a certificate from the Commission pursuant to s 166A(6).
The plaintiff submits that s 166A does not apply for four reasons. First, the application for injunctive relief is not an action in tort under the law of the State of Western Australia. Secondly, s 166A has no application once the industrial action has ceased. Thirdly, s 166A has no application to the second defendant or to the third to fifth defendants acting as officers or employees of the second defendant. Fourthly, the conduct of the defendants was not in contemplation or furtherance of claims that are the subject of an industrial dispute.
The plaintiff submits that it is sufficient for present purposes that there is a serious question to be tried that s 166A does not operate in this case to prevent the grant of the interlocutory injunctions sought to restrain the commission of the alleged torts. The plaintiff submits that if there is doubt as to the application of s 166A then the proper course is to treat the determination of the true operation and effect of the section in these proceedings as an issue to be tried in the course of the determination of the principal proceedings.
In Patrick Stevedores No 1 Pty Ltd v Maritime Union of Australia (1988) 79 IR 268, Beach J in the Supreme Court of Victoria held that the application for injunctive relief was not an action in tort under the law of the State of Victoria. It was an application seeking that the court exercise its equitable jurisdiction to prevent the union and certain of its officials committing the tort of intentionally interfering with the performance by the members of the union of their contracts with Patricks.
Beach J repeated the view he had expressed in Patrick Stevedores v MUA in Melbourne Ports Corporation v Maritime Union of Australia, unreported; SCt of VIC, 5471/1998; 29 April 1998; Tenix Defence Systems Pty Ltd v Automotive, Food, Metal, Engineering, Printing & Kindred Industries Union [1999] VSC 40 and Hazelwood Power Corp Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2000] VSC 477.
In Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 237, Wood CJ in the New South Wales Supreme Court held that the expression "an action in tort", as employed in s 166A(1) should be construed as not including cases in which the substantial claim is one for an injunction and hence s 166A did not preclude an application for an interlocutory injunction to restrain acts of the defendants which were said to be tortious behaviour even though the plaintiff has not obtained a certificate under s 166A(6). His Honour reached that conclusion after considering authorities in which expressions similar to "an action in tort" were considered in the context of procedural statutes dealing with matters of costs. His Honour further considered the language of s 166A(1), the difference in the terms of s 166A(1) from s 170MT(2) of the same Act and the terms of the Parliamentary debates.
In Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87, the defendant submitted that the Supreme Court of Western Australia was without jurisdiction to grant an interlocutory injunction because the plaintiff's action was barred by s 166A. The plaintiff contended that s 166A(1) has no application because the writ was not relevantly solely for an action in tort within the meaning of the subsection. The plaintiff submitted that its claim was a suit in equity and therefore was to be distinguished from an action in tort as the latter is solely and exclusively a creature of the common law. Parker J held at 90:
"The question may well be alive in these proceedings in due course. As things presently stand, however, there is authority for the plaintiff's proposition and that authority is in line with well‑known understandings in the law. It is the view I should take of the provision for the purposes of this interlocutory application. On this view alone s 166A(1) is no impediment to a grant of interlocutory relief to the plaintiffs."

In Construction, Forestry, Mining and Energy Union v Mirvac Constructions Pty Ltd [2000] FCA 341; 171 ALR 279, Ryan J held that there was a serious question to be tried whether an action for a quia timet injunction is an action in tort within the meaning of s 166A so that the issue by the Commission of a certificate under that section is a prerequisite to the institution of proceedings.
A different approach was taken by Goldberg J in Keppel Prince Engineering Pty Ltd v Automotive Full Engineering Printing and Kindred Industries Union [2001] FCA 1637; 109 IR 436. At [34] Goldberg J said:
"Even if there had been conduct warranting the grant of an interlocutory injunction in relation to the continuation or commission of a tort, I do not consider that such an action is available without a certificate from the Commission under s 166A of the Act unless the conduct comes within subsection (2). Although there have been some decisions of other courts in which this issue has been raised, namely that an application for injunctive relief by way of exercise of equitable jurisdiction does not fall within s 166A of the Act, I do not consider that those cases set out a sufficient basis upon which I should conclude at the present time that there is a serious question to be tried on this issue."
In ABB Australia Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2002] FCA 1070, Weinberg J held that there was not a serious question to be tried in relation to the applicants' claims brought for injunctive relief arising out of a claim in tort because he agreed with the reasoning of Goldberg J in Keppel.
In Australian Die Castings Pty Ltd v AMWU [2002] VSC 328, Nettle J heard an application for an interlocutory injunction to restrain picketing by the defendants at the plaintiff's plants. Counsel for the defendants, Mr Friend, submitted that the proceeding was incompetent because the bringing of the proceeding was barred by s 166A until such time as a certificate had been issued. He submitted that the expression "action in tort" which is used in s 166A(1) should be understood as including not only actions for damages and specific relief in tort but also proceedings for equitable remedies which might be granted in equity or in the auxiliary jurisdiction in aid of legal rights. He submitted that if s 166A were not construed in that fashion the result would be effectively to emasculate the provision. He contended that because an action in tort for damages could not on any view be prosecuted to judgment in the 72 hours which may elapse under s 166A(6) it must have been in the contemplation of the legislators when they used the expression "action in tort" that it would cover not only an action for damages but also proceedings for other remedies which conceivably could be obtained within the 72 hours. In his submission, s 166A should be seen as informed by an intent to leave industrial disputes to be dealt with under the Workplace Relations Act during the 72 hour period, unaffected by approaches which either party might otherwise wish to make to a court of law or equity. Alternatively, he submitted that even if the words "action in tort" are properly to be confined to an action in tort strictly so called, the effect of s 166A(1) is still to preclude the grant of an injunction to restrain activity until the 72 hours has expired: because, he submitted, equity will not act in aid of legal rights if the legal rights are either barred or unenforceable, whether by reason of statute or otherwise. Nettle J concluded at [14]and [15]:
" … I must say for my own part that I regard Mr Friend's submission as persuasive. A court of equity will not ordinarily lend its aid in support of legal rights if those legal rights cannot, by reason of statutory prohibition, be enforced at law: Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 at [16] and [86].
That said, however, because of the decisions to which I have already referred, and because I think it is open to conclude that s 166A(1) would have work to do even if it is restricted to an action in tort strictly so called, I consider that there is at least a serious question to be tried as to whether this action or its commencement was prohibited by s 166A(1)."
In Outshine Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2004] VSC 72, the plaintiff sought interlocutory injunctions restraining the defendants, amongst other things, from preventing, hindering, or interfering with free access to and from certain premises and from engaging in other tortious conduct. It was submitted on behalf of the plaintiffs that there were serious questions to be tried in respect of a number of actual and threatened tortious causes of action. Mandie J referred to each of the decisions to which I have referred except Hazelwood Power Corp Ltd v CFMEU and CFMEU v Mirvac Construction Pty Ltd. Mandie J concluded at [37]:
"In my opinion, it is seriously arguable that a proceeding or an application for an injunction, interlocutory or otherwise, to restrain the future commission of tortious conduct is not 'an action in tort' within the meaning of s 166A of the Workplace Relations Act. Clearly there are serious arguments to the contrary and also an argument that equity should not lend its aid during the pendency of any statutory immunity created by s 166A. I think that there are serious questions to be tried as to this aspect, assuming of course, that there are serious factual questions to be tried as to the threatened tortious conduct."
Having reviewed all the authorities to which I have referred, I conclude that it is seriously arguable that an application for an injunction to restrain the future commission of tortious acts is not "an action in tort" within the meaning of s 166A of the Workplace Relations Act. There are serious arguments to the contrary and a strong argument that equity should not lend its aid during the pendency of any statutory immunity created by s 166A. Nevertheless, there is a serious question to be tried that the plaintiff is entitled to final injunctive relief, if it otherwise makes out its case, notwithstanding that it has not obtained a certificate under s 166A of the Workplace Relations Act and accordingly it may obtain an interlocutory injunction without having obtained a certificate under s 166A.
In any event, there is a second reason why I conclude that there is a serious question to be tried that the plaintiff is, or might be, entitled to final relief in this case. It is arguable that the Commission cannot act under s 166A(6)(a)(b) or (c) if the industrial action has already come to an end. In National Workforce Pty Ltd v Australian Manufacturing Workers Union (1998) 3 VR 265, at 378 the Victorian Court of Appeal accepted a submission that a certificate could be given under s 166A(6) only during the currency of industrial action of a type to which the section was directed as a whole; for obviously the Commission could not act under par (a)(b) or (c) of subsection (6) if the industrial action had already come to an end. It follows that it is arguable that a certificate is not necessary as a condition precedent to the commencement of civil proceedings for damages after the industrial action has ceased. That is this case.
For those reasons, I find that the plaintiff has established a serious question to be tried.

Balance of Convenience

The plaintiff submits that the balance of convenience is all one way. The actions of the defendants have caused and are threatening to cause further substantial loss and damage to the plaintiff. The threatened loss and damage consists of:
"(a)wasted overheads for days on which no work is performed including staff costs, office infrastructure costs, plant and equipment rental, insurance and utilities;
(b)liquidated damages if scheduled completion dates are not met (in the case of the rail link project/Package A the liquidated damages total $125,000 per day); [and]
(c)damage to reputation and loss of goodwill."
The plaintiff has put forward evidence of all of those matters. It has not been challenged by the defendants. I accept that evidence for the purposes of this application.
The plaintiff submits that the injunction sought will cause no loss or damage to the defendants.
There is no evidence that the defendants will suffer any material or significant loss or damage if the injunctions sought are granted. The injunctions seek only to restrain the defendants from engaging in unlawful conduct.
Injunctions are often used as a weapon by parties in the course of industrial disputes or other disputes between employers and unions. The grant of an injunction has a chilling effect on the freedom of action of the union and its members. That is a relevant consideration. Notwithstanding that consideration I conclude that the balance of convenience favours the grant of the injunctions sought by the plaintiff.

Quia Timet Injunctions

The defendants submit that the plaintiff seeks an injunction to prevent an alleged threatened infringement of the rights of the plaintiff including rights which are yet to come into existence. The defendants submit that where the plaintiff alleges that the earlier actions of the defendants may lead to future causes of action, an injunction should only be available where the plaintiff can show that there is a "strong probability" that the defendants' conduct will be the cause of serious damage, the threat of injury is immediate and substantial, and damages will not be a sufficient or adequate remedy if the damage does occur: Halsburys Laws of Australia [185 – 1560].
Courts have always adopted a cautious approach when asked to award an injunction for the purpose of preventing a threatened unlawful interference with the exercise of the plaintiff's rights prior to actual harm being suffered. Once it was said that the plaintiff must show a strong probability that what the defendant proposes to do will cause imminent and substantial damage to the plaintiff's property or business: Fletcher v Bealey (1885) 25 Ch D 688 at 698. The term "imminent" in this context is used in the sense that "the circumstances must be such that the remedy sought is not premature": Hooper v Rogers [1975] Ch 43 at 50 per Russell LJ. However, this is not to be taken as conveying that it need not be shown to be likely at all: Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261 at 270.
The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances: Hooper v Rogers (supra) at 50 per Russell LJ followed by the Full Federal Court in Magic Menus Systems Pty Ltd v AFA Facilitation Pty Ltd (supra) at 269 ‑ 270. Provided that there is a real risk of wrongful conduct which would cause injury which is more than trivial, there may be no good reason to refuse quia timet relief: CGM Investments Pty Ltd v Chelliah (No 2) [2003] FCA 305 per Finkelstein J at [4].
The plaintiff submits that it has been the subject of seven unlawful strikes since 5 April 2005. I conclude that there is a real risk of the defendants unlawfully directing or causing employees of the plaintiff, or employees of subcontractors to the plaintiff, to take strike action or other industrial action.
It is open to infer that some at least of the strike action, or industrial action, caused to be taken by the defendants on the plaintiff's project sites has been taken for the purpose of putting pressure on the plaintiff to negotiate a certified agreement to apply in respect of the plaintiff's operations in Western Australia prior to the expiry of the agreement registered under the Industrial Relations Act that currently applies in respect to the plaintiff's operations in Western Australia and is due to expire on 31 October 2005. The drawing of that inference is made easier by the failure of the defendant to deny those claims on oath. This application was twice adjourned to enable the defendants to put on evidence. Despite that opportunity, the defendants have not addressed the substance of the plaintiff's case. The defendants may have elected to take that course having regard to the fact that this is an interlocutory hearing and the court would not make findings on disputed questions of fact where there is a conflict of evidence. Nevertheless, the fact remains that the defendants have not gone on oath to deny the statements attributed to them or the inferences that may be drawn from their conduct.
It is also open to infer that the conduct of the defendants subsequent to the issue of the writ has in part been directed to putting pressure on the plaintiff to discontinue these proceedings. Whilst Mr Reynolds has stated that is not so in a letter to the plaintiff, neither Mr Reynolds nor any of the other defendants have supported that denial on oath.
The first defendant gave an undertaking to the Australian Industrial Relations Commission not to engage in any industrial action but that undertaking has expired. The defendants have refused or failed to give any further undertakings.
I am satisfied that any strike or industrial action taken or caused to be taken by the defendants would cause substantial injury to the plaintiff. In all the circumstances justice between the parties is best served by granting interlocutory injunctions to restrain threatened unlawful interference with the plaintiff's rights.

Discretion – Alternative Remedy

The defendants submit that as a matter of general principle or judicial policy, courts will refrain from interfering in industrial disputes where there is another specialist tribunal which has jurisdiction and sufficient power to provide effective relief in the matter. They submit that the fact that the relevant disputes are currently before the Australian Industrial Relations Commission (and the Western Australian Industrial Relations Commission) is a relevant factor favouring the refusal of the Court's discretion to grant an interlocutory injunction, as the matters in this case are within the province of the industrial commissions specifically constituted to deal with disputes of this nature. The defendants refer to dicta of Street J in Harry M Miller Attractions v Actors & Announcers Equity Association (1970) 1 NSWR 614 in support of their contentions.
It appears at one time to have been a view that it was generally desirable for industrial disputes to be dealt with by specialist tribunals rather than by the common law courts. However, the availability of industrial tribunals to deal with disputes between the parties, or the fact that an industrial tribunal is seized of a dispute between the parties is not a reason to refuse relief to a party that has made out a case that it is otherwise entitled to relief. In National Workforce Pty Ltd v Australian Manufacturing Workers Union (supra), the Victorian Court of Appeal noted that the emphasis of the Workplace Relations Act is no longer on the resolution of industrial disputes by industrial tribunals but upon their resolution by the parties themselves by means of direct bargaining. In that altogether different context the court held that there is no barrier in the way of an aggrieved employer who seeks to vindicate its common law rights. The existence of further power in the Australian Industrial Relations Commission to act in relation to the continuing industrial disputes is no reason to treat the employer as prejudiced in its attempt to invoke the jurisdiction of the court.
The fact that there are proceedings in the Australian Industrial Relations Commission and the Western Australian Industrial Relations Commission is a relevant consideration. The weight to be given to that consideration will depend, amongst other things, on the nature and ambit of those proceedings, the currency of conciliation actively proceeding and the likelihood for such proceedings to bring an imminent resolution of the disputes between the parties. Having regard to the particular proceedings in the Australian Industrial Relations Commission and the Western Australian Industrial Relations Commission involving the plaintiff and the union defendants I do not consider that those proceedings, or the further power of the commissions to conciliate disputes between the parties, is a reason to refuse interlocutory relief.

Conclusion

In the result, therefore, I propose to grant the interlocutory injunctions sought. The form of the orders should be based upon the undertakings given by the defendants to the court on 13 May 2005.