Recall Information Management Pty Ltd v National Union of Workers
[2013] FCA 161
FEDERAL COURT OF AUSTRALIA
Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161
Citation: Recall Information Management Pty Ltd v National Union of Workers [2013] FCA 161 Parties: RECALL INFORMATION MANAGEMENT PTY LTD v NATIONAL UNION OF WORKERS, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION, THE MARITIME UNION OF AUSTRALIA and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS File number: WAD 55 of 2013 Judge: BARKER J Date of judgment: 1 March 2013 Catchwords: INDUSTRIAL LAW – application for urgent injunctive relief – allegations of unlawful picketing by various unions – whether serious questions to be tried – balance of convenience Legislation: Competition and Consumer Act 2010 (Cth) s 45D, s 45DD
Trade Practices Act 1974 (Cth) s 45DFederal Court Rules 2011 (Cth) R 7.01(2)
Cases cited: Australian Builders’ Labourers’ Federation Union of Workers – Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452
Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463
J-Corp Pty Ltd v Australian Builders’ Labourers’ Federation Union of Workers – Western Australian Branch (1992) 11 ALR 502
Laing O’Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 133Date of hearing: 28 February 2013 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 62 Counsel for the Applicant: Mr G Hatcher SC and Mr K Bennett Solicitor for the Applicant: National Workplace Lawyers Counsel for the First and Third Respondents: Mr T Kucera Counsel for the Second Respondent: Ms N Ireland Counsel for the Fourth Respondent: Mr M Burns Counsel for the Fifth Respondent: Mr J Nicholas
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 55 of 2013
BETWEEN: RECALL INFORMATION MANAGEMENT PTY LTD
ApplicantAND: NATIONAL UNION OF WORKERS
First RespondentCOMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second RespondentAUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION
Third RespondentTHE MARITIME UNION OF AUSTRALIA
Fourth RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Fifth Respondent
JUDGE:
BARKER J
DATE OF ORDER:
1 MARCH 2013
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.On the provision of the usual undertaking to the Court and pending trial or further order of the Court, each of the first respondent and fourth respondent, by their officers, servants, agents and members be and is hereby restrained:
(a)from occupying, placing obstacles, driving motor vehicles or otherwise being in any position on the access to or egress from the public pavement and the applicant’s premises at:
(i)449 Victoria Road, Malaga, WA;
(ii)39 McDowell Street, Welshpool, WA; and
(iii)22-24 Ledgar Road, Balcatta, WA.
Collectively the applicant’s premises;
(b)from otherwise hindering or preventing the supply of goods or services to or from the applicant’s premises.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 55 of 2013
BETWEEN: RECALL INFORMATION MANAGEMENT PTY LTD
ApplicantAND: NATIONAL UNION OF WORKERS
First RespondentCOMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
Second RespondentAUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION
Third RespondentTHE MARITIME UNION OF AUSTRALIA
Fourth RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Fifth Respondent
JUDGE:
BARKER J
DATE:
1 MARCH 2013
PLACE:
PERTH
REASONS FOR JUDGMENT
OVERVIEW
The applicant, Recall Information Management Pty Ltd (Recall), having obtained an urgent order of the Court on 27 February 2013 permitting it to gain access to customer records at its premises in Malaga in the face of a picket line alleged to have been established by the five respondent unions, applied on 28 February 2013 for injunctions pending final judgment against each union to prevent the continued picketing of its premises.
The Court is satisfied that interlocutory relief should be granted in favour of the applicant against the first and fourth respondents, but not otherwise.
URGENT ORDER
By urgent application before start of a proceeding filed pursuant to R 7.01 of the Federal Court Rules 2011 (Cth) (Rules) on 27 February 2013, the then prospective applicant, Recall, applied ex parte for an injunction in terms that would permit it to gain access to certain customer records held by it at its premises at Malaga, Western Australia. Recall complained it was being denied such access by reason of an unlawful picket maintained by the five respondent unions. The Court made orders on 27 February 2013 in the following terms:
1.The Court notes the undertaking by the Applicant that it will only access its premises at 449 Victoria Road, Malaga, WA for the period the subject of these orders for the purpose of obtaining access to the records referred to in paragraphs [72]-[77] and [80] of the affidavit of Mark Cole filed in these proceedings.
2.An injunction restraining the Prospective Respondents, by their officers, servants, agents and members, from impeding access to or egress from the Prospective Applicants premises at 449 Victoria Road, Malaga, WA during the period 2.00pm to 5.00pm Wednesday the 27th February, 2013.
3.Service of this Order may be effected by electronic transmission to the Registered offices of each of the Prospective Respondents and by affixing a copy of these orders to the gate at the aforesaid premises or by reading it aloud in proximity to the said gate.
4.The prospective applicant file and serve a proceeding in relation to the subject matter of the urgent application by 2pm today 27 February 2013.
5.Service of the proceeding in [2] and accompanying documents to be served on the registered offices of each respondent by electronic transmission.
6.The matter be listed for hearing as to interim relief at 11am on 28 February 2013 for 2 hours.
ORIGINATING APPLICATION
On 27 February 2013, pursuant to the urgent orders, Recall commenced this proceeding by filing an originating application in which it seeks injunctive relief and other relief as follows:
1.an Injunction restraining the respondents and each of them, by their officers, servants, agents and members, from occupying, placing obstacles, driving motor vehicles or otherwise being in any position on the access to or egress from the public pavement and the applicant’s premises at:
(a)449 Victoria Road, Malaga, WA;
(b)39 McDowell Street, Welshpool, WA; and
(c)22-24 Ledgar Road, Balcatta, WA.
Collectively the Applicant’s Premises.
2.an Injunction restraining the respondents and each of them, by their officers, servants, agents and members, from otherwise hindering or preventing the supply of goods or services to or from the Applicant's Premises.
3.Damages.
4.Costs.
CLAIM FOR INTERLOCUTORY RELIEF
By the originating application Recall also claims interlocutory relief in terms of paragraphs 1 and 2 of the claimed relief.
Pursuant to the urgent orders, the application for interlocutory relief came on for hearing on 28 February 2013. At the hearing, Recall and each of the respondent unions was represented by counsel.
Recall pressed for interlocutory relief, notwithstanding that there had been compliance by the first respondent (National Union of Workers (NUW)) with the urgent access orders made on 27 February 2013.
Each of the respondents opposed the grant of interlocutory relief but chose not to put on any evidence in relation to the interlocutory relief claimed.
In support of its application for interlocutory relief senior counsel for Recall formally read the affidavits of Andrew Morgan, operations manager for Western Australia and South Australia for Recall, sworn 28 February 2013, and Mark Cole, operations director of Recall, made 28 February 2013. Additionally, Mr Cole was called to give viva voce evidence as to events subsequent to those described in his affidavit, that had occurred on Tuesday 26 February and Wednesday 27 February 2013 at the three premises of Recall mentioned in the orders made and the originating application.
In short, on behalf of Recall, it is submitted that the evidence shows that there is serious issue to be tried that the respondents are individually and collectively engaged in the unlawful picketing of the three mentioned premises of Recall, that the picketing complained of is likely to continue unless restrained and that the balance of convenience favours the grant of the interlocutory relief sought pending a final hearing of the proceeding.
So far as the serious issues to be tried are concerned, the applicant, by the originating application, does not identify the grounds of the application, but by the oral submissions of senior counsel relies on a variety of torts including nuisance, trespass, conspiracy, as well as breach of s 45D of the Competition and Consumer Act 2010 (Cth) (CC Act).
The respondents contend that, having regard to the facts advanced in support of the application for interlocutory relief, that there is insufficient reason to conclude that any picketing of the premises of Recall is likely to be ongoing.
The second, third, fourth and fifth respondents (CEPU, AMWU, MUA and CFMEU respectively) also each contend that there is too little evidence to link their respective unions to the alleged picketing or action in concert with NUW to justify the Court granting any interlocutory relief that binds any of them.
FACTS ADVANCED BY APPLICANT
So far as the facts underlying the application for interlocutory relief are concerned, Mr Cole states as follows:
·Recall is an information storage and management business which is made up of the document management solutions division, the secure destruction services division and the data protection services division.
·The document management solutions division provides secure document storage, indexing and records archiving in warehouse facilities that meet strict measures of security, fire prevention and surveillance. Recall routinely picks up from customers and stores, retrieves and delivers to customers, a wide variety of documents including, for example, medical records.
·The secure destruction services division is responsible for the destruction of items that have been held by the document management solutions division.
·The data protection services division is responsible for the management of electronic information including the management of backup computer data for customers of Recall. This includes providing disaster recovery services and critical storage of data for organisations of their integral data and information.
·Recall’s customers operate in the following industries or sectors: charitable sector; construction; engineering; banking, finance and insurance; state and federal government agencies; health/medical – including hospitals; information technology; and legal including national law firms.
·Recall’s customers often require information to be retrieved from the document management warehouse and delivered to the customer within a short period of time. For example, if a hospital is about to undertake an emergency operation and requires medical information relevant to the patient that is stored in the warehouse facility this information would ordinarily be delivered to the hospital within a two hour time frame.
·Recall has document management warehouses in Western Australia, South Australia, Victoria, New South Wales, the Australian Capital Territory, Queensland and Tasmania.
·Recall’s document management warehouse employees in Western Australia are covered by an enterprise agreement known as the Recall Information Management WA Australian Collective Agreement 2008 (the WA EA).
·The WA EA covers Recall’s warehouse employees engaged at each of the Western Australian sites identified by the originating application, namely:
(1)39 McDowell Street, Welshpool, WA;
(2)22-24 Ledgar Road, Balcatta, WA; and
(3)449 Victoria Road, Malaga, WA,
(WA employees).
·There are approximately 15 WA employees.
·On or about 19 April 2012, Recall formally commenced negotiations for the renewal of the WA EA with the WA employees.
·Eight of the WA employees are members of the first respondent, the National Union of Workers (NUW members) and the NUW is the bargaining representative for the NUW members in the negotiations for the renewal of the WA EA.
·Since 19 April 2012 there have been a number of enterprise agreement negotiation meetings. However, no negotiations have occurred since about mid August 2012.
·From about 8.30am on Thursday 21 February 2013 all of the NUW members commenced a period of strike action in support of the NUW’s claims in the negotiations.
·There is a protected action ballot order in place which authorises the NUW members to take industrial action against Recall. However, the ballot order does not authorise unlawful picketing.
·Since about 8.30am on Thursday 21 February 2013 there has been a picket in place at the Malaga premises. The picket is ongoing with no indication of when it will end. The five respondent unions have participated in the picket to date.
·From about 8.30am on 21 February 2013, a picket was formed at the entry to the Malaga site.
·Recall operates its document management solutions and data protection services divisions at the Malaga site.
·That eight WA employees were on the picket and blocking access to the Malaga site on 21 February 2013, along with approximately three other persons wearing items of clothing or accessories bearing the NUW logo, approximately one other person wearing items of clothing or accessories bearing the WA Australian Manufacturing Workers’ Union (AMWU) logo and approximately four other persons wearing items of clothing or accessories bearing the WA Maritime Union of Australia (MUA) logo.
·There was also a Construction, Forestry, Mining and Energy Union (CFMEU) banner hanging from the fence of the site.
·That a number of WA employees (other than the NUW members) and contract labour hire workers who attempted to gain access to the Malaga site were refused entry by persons on the picket and in some instances persons were manhandled by persons on the picket.
·Recall had four contract drivers and five WA employees who were available to access the Malaga site to perform work on 21 February 2013 but who were unable to access the site because of the obstruction by the picket.
·No person was able to access the Malaga site on 21 February 2013 following the establishment of the picket.
·On 22 February 2013, Recall’s lawyers sent a letter to the NUW advising the union that the picket on 21 February 2013 was unlawful and that Recall would commence legal proceedings if any further unlawful conduct was to occur.
·Similar letters were sent by the lawyers to the WA AMWU and the WA CMFEU.
·The picket that formed on 21 February 2013 continued into the evening.
·From about 6.15am on 22 February 2013, the picket again obstructed and prevented people wanting to enter the Malaga site from being able to do so.
·At approximately 7.30am on 22 February 2013, he, Mr Cole, contacted the local police station and requested police to attend the Malaga site to assist the employees and other persons to gain access to the site.
·Initially a police car with two police officers arrived at the Malaga site at approximately 8.15am.
·At approximately 8.15am a senior sergeant attended the site as well and arranged for further police officers to be in attendance so that there were approximately 12 police officers at the Malaga site by 8.45am.
·At approximately 9.00am the senior sergeant approached the picket line and spoke to Mr Brendan Orders who is an organiser with the NUW.
·The senior sergeant spoke to Mr Orders for approximately 10 minutes.
·After speaking to Mr Orders the senior sergeant indicated to him (Mr Cole) that there were about 35 people in the picket line who were a mix of Recall employees, NUW and community and that Mr Orders had said he had no control over the community. Mr Cole indicated that he would like to try and gain access to the facility.
·The senior sergeant again approached Mr Orders and Mr Cole then had a conversation with Mr Orders as well, as a result of which Mr Orders indicated that the “community will not allow you to access the site”.
·Immediately following that conversation, he (Mr Cole) approached the picket line with the senior sergeant and 11 or so police officers to gain access to the site.
·Upon attempting to gain access a lady by the name of Linda who he (Mr Cole) did not know stood in front of the swipe card access point, whereupon she was advised by the senior sergeant that she needed to move as she was on private property.
·Linda responded by saying she was not going to move away and she would have to be arrested.
·When she said that about 15 people on the picket line moved over to the swipe access point to support Linda. Most of these people had clothing or accessories bearing the MUA logo or CFMEU logo.
·The senior sergeant indicated that he would need further support if Recall wanted to force entry to site and he (Mr Cole) indicated he did not want to go to “that level at this stage”.
·He (Mr Cole) then spoke to Mr Orders and asked him to nominate a person to shut the roller doors and set the alarm at the Malaga site.
·One of the NUW members then did this.
·When the gate was open to provide this person with access to the site, those on the picket line stood side by side to block anyone else from accessing the site. The majority of these persons had clothing or accessories bearing the MUA or CFMEU logo.
·Recall had four contract drivers and five WA employees who were available to access the Malaga site to perform work on 22 February 2013 but who were unable to access the site because of the obstruction by the picket.
·There were also people who were on the picket on 22 February 2013 wearing clothing or accessories bearing the AMWU or Communications, Electrical, Electronic, Energy, Information, Post, Plumbing and Allied Services Union of Australia (CEPU) (specifically the Electrical Trades Union (ETU)) logo.
·On 22 February 2013, the lawyers for Recall wrote to the CEPU advising that the picket on 22 February 2013 was unlawful and that Recall would commence legal proceedings if any further unlawful conduct was to occur.
·On the same day the lawyers also wrote to the MUA advising in similar terms.
·Before he (Mr Cole) left the site, he arranged for a courier to deliver a letter to each employee on the picket line informing them that the unlawful picketing constituted serious misconduct.
·At about 10.30am on Friday 22 February 2013, he (Mr Cole) saw a double decker bus with the words “Maritime Union of Australia” pass the Malaga site on several occasions. Recall’s CCTV footage later revealed the MUA bus blocking access to the main gate at the Malaga site for the remainder of Friday 22 February 2013 and much of Saturday 23 February 2013.
·The picket continued throughout the evening of Friday 22 February 2013 and throughout Saturday 23 February 2013 and Sunday 24 February 2013.
·During those periods Recall arranged for operatives from a private investigation firm to undertake surveillance at the Malaga site and various pictures were taken by the private investigators.
·The picket was still in place on Monday 25 February 2013 and again obstructed and prevented people wanting to enter the Malaga site that day.
·At about 7.30am on 25 February 2013, he (Mr Cole) was made aware from CCTV footage at the Malaga site that there were approximately 12 people on the picket and two cars blocking the entrance to the Malaga site.
·At about 8.30am he called the police station again to request police attendance.
·The same senior sergeant arrived at the site at about 9.15am.
·He and the senior sergeant then approached a person by the name of Alex on the picket.
·Alex was wearing clothing and accessories bearing the NUW logo and to the best of his knowledge, Alex is an organiser with the NUW.
·A conversation took place between Alex and himself (Mr Cole) in the presence of the senior sergeant concerning whether access to the site could be negotiated at the conclusion of which Alex advised: “You need to negotiate – the community can get more numbers down here as required”.
·Following that, he (Mr Cole) heard someone say: “You need to negotiate otherwise this thing is going to be bigger than Ben Hur!”.
·Recall had four contract drivers and five WA employees who were available to access the Malaga site to perform work on 25 February 2013 but who were unable to access the site because of the picket.
·No persons were able to access the Malaga site on 25 February 2013 because of the picket.
·Unlawful picketing is preventing Recall from operating its Malaga site and is creating a significant backlog in the company’s processing of customer orders which is resulting in financial loss and also risks damaging Recall’s reputation as a reliable supplier of information management services. Recall estimates its financial loss at $20,000 for each day the company does not have access to the Malaga site.
·The NUW’s website was at material times promoting support for the MUA members.
·The NUW’s Facebook page posted on 25 February 2013, had a post seeking for NUW members to urgently attend the Malaga site given word that police were attempting to “break the picket line”.
·Due to the unlawful denial of access to the Malaga site, there are an increasing number of urgent customer orders that Recall has been unable to attend to, which include those customer orders set out at [72] to [81] of his (Mr Cole’s) affidavit.
·Recall currently holds files for the Department of Child Protection – Western Australia relevant to an upcoming court hearing concerning the protection of a child which is due to be heard in Kalgoorlie on 4 March 2013.
·The Premier of Western Australia has directed the Public Sector Commissioner to undertake a special inquiry to examine all aspects of the delivery of public health services at the Peel Health Campus by Health Solutions Pty Ltd. The Department of Health has requested several boxes of documents relating to the inquiry, the majority of which are stored at the Malaga site and Recall had been unable to process the urgent order.
·CSC Australia Pty Ltd is a significant national client of Recall and its documents and data protection tapes are held at the Malaga site and Recall has been unable to process its customer’s orders since the commencement of the strike action on 21 February 2013.
·Lavan Legal is a client of Recall and Recall holds documents on its behalf, as well as back up tapes and as of 25 February 2013 the firm initiated an urgent order for documents but Recall had been unable to complete the request. Further, there remained at least three other outstanding orders for documents and back up tapes, all of which are becoming increasingly urgent.
Mr Cole gave viva voce evidence at the hearing for interlocutory relief to the following effect:
·At the Balcatta premises on Tuesday 26 February 2013, at approximately 7am he noticed seven or eight persons near the premises holding an NUW banner. He recognised Alex – the NUW official – holding a banner.
·The Balcatta site is not fenced but there is a gate 30 metres from the road.
·These persons remained for approximately 15 to 20 minutes.
·They dispersed after Mr Brendan Orders arrived.
·He (Mr Cole) then drove with a private investigator to the Welshpool premises.
·He drove past those premises and saw about two to three WA employees at those premises.
·He then went to the Malaga site and also drove past, noting one car and a trailer with ETU stickers on it near the gate and a number of people including some WA employees and “community” people.
·He did not try to access the Malaga site at that point.
·The next day, Wednesday 27 February 2013, it was possible to achieve free access to the Welshpool premises.
·On Wednesday 27 February 2013, it was also possible to gain free access to the Balcatta premises.
·As to the Malaga premises, CCTV footage showed that on Wednesday 27 February 2013, cars and the ETU trailer was blocking access to the gate.
·On Wednesday 27 February 2013, Recall, having obtained the urgent court order that day, he (Mr Cole) attended at the Malaga premises in order to obtain documents for the three “critical” customers.
·The senior sergeant with whom he had earlier dealings met him on site at 1.45pm.
·He attached the court order to the gate to the site.
·He read out loud the terms of the court order.
·While reading the court order out loud, a number of persons shouted things out including some swear words.
·In order to gain access, it was necessary for the cars in the driveway near the gates that were blocking access, to be removed.
·A request was made for the two vehicles (a white vehicle and a blue vehicle) to be removed but that did not happen, at least initially.
·The police stated that where the two vehicles were parked was private property and asked for them to be removed.
·He (Mr Cole) spoke with Mr Orders and explained the court orders to him which Mr Orders “accepted”.
·Soon after that a woman who he (Mr Cole) believed to be an official of the NUW indicated that access should be given.
·Access was duly achieved to the premises, at least after removing some signage from the gates which prevented them opening easily.
·Subsequently, he and others exited by a rear gate exit from the premises – being a gate at which it is not possible to enter the premises and can only be activated from the inside of the premises.
·As of today, 28 February 2013, CCTV shows that from 7am one or two cars were again parked in front of the gate at the Malaga premises, as well as the ETU trailer.
·That data protection backup tapes are important to a number of companies, including CSC Australia and WA Police and need to be replaced frequently.
Mr Cole also identified four photographs that were taken at the Malaga premises on 27 February 2013 at about 2pm and just after when access was eventually obtained to the Malaga premises.
These four photographs (which became exhibit 1) variously disclose NUW flags on two tents, some signage espousing employee values, a CFMEU flag, an MUA sticker on a fire hydrant located near the fence to the Malaga premises, an ETU trailer (which apparently is a mobile barbecue), a white vehicle and a blue vehicle. On the perimeter fencing and gate appears NUW signage.
Mr Morgan gives direct evidence concerning the events recounted by Mr Cole of 21 February 2013, as well as about the picketing on 26 February 2013, to the following effect:
·He (Mr Morgan) became aware of some WA employees forming a picket at about 7.30am on 21 February 2013 at the Malaga premises.
·He noticed NUW banners.
·He noted certain WA employees on the picket.
·He saw two people, Brendan Orders and Alex Falconer, on the picket. He understood each to be an organiser with the NUW and that they were wearing “hi vis” vests with jeans and red NUW hats.
·He became aware that labour hire workers and courier van drivers were unable to get access to the site.
·Other WA employees began to join the picket at about 8 to 8.30am.
·Persons who appeared to be MUA members or officials had also joined the picket. He drew that conclusion as he saw people wearing MUA motifs on their polo shirts. One also had an MUA flag in their hands.
·They arrived in a car which had personalised number plates which commenced with the letters “MUA”.
·There were homemade banners to the effect: “Toot for Recall employees 4%” and “Bosses get 37% - employees get 3%”.
·At 9am he called the police to report the matter and seek their assistance.
·He approached the picket himself and noticed there were an additional 10 or 11 persons on the picket.
·A shelter had been set up and there was a trailer to one side of the driveway. He noted that three labour hire workers were at the back of the picket line and unable to get access to the site.
·Two people swore at him.
·Those persons were not WA employees and he did not know who they were.
·He had a conversation with one man, where they reflected on their New Zealand heritage.
·He called out to Mr Orders and had a conversation with him about some of those people, as a result of which Mr Orders indicated he could not do anything as “they are part of the community and not NUW”.
·He attempted to bring in the labour hire workers and the other employee who wanted to enter the site, but persons on the picket line all linked arms and would not allow them to pass.
·He managed to press through the group and returned to the gate.
·Two police officers arrived and there was more swearing while he spoke to the police.
·He then returned to the main building on the site and soon after had a conversation with the police.
·On 26 February 2013, he arrived at the Balcatta site at about 6.30am.
·There was no indication of a picket when he arrived.
·At about 6.50am a number of people arrived to form a picket, blocking the driveway access.
·There were approximately eight people on the picket.
·Some were wearing clothing that had MUA or AMWU or NUW logos on them and he also saw a number of NUW banners.
·He went down to the picket line to meet Recall’s site manager, Michelle Ballantyne, at the picket and he spoke with Alex, the NUW organiser, and asked him to allow the site manager on site, but Alex said: “No, we won’t let her on”.
·Alex turned to other people on the picket line and asked if they would allow access and they said they would not.
·Ms Ballantyne parked her car on the side of the road and was later able to access the site via a side perimeter that was unfenced.
·The picket was in place until about 7.50am on 26 February 2013.
·A picket also formed at the Welshpool site on the morning of 26 February 2013 and blocked access to the Welshpool site.
·A labour hire worker advised him on 26 February 2013 that she had been unable to gain access to the Welshpool site.
·He learnt from Ms Ballantyne later on the morning of 26 February 2013 that a courier van had been unable to gain access to the Welshpool site.
·He attended at the Welshpool site midmorning on 26 February 2013 with Mr Cole and noticed that there were approximately eight or nine persons picketing the entrance of the Welshpool site, including some WA employees.
·The entrance to the Welshpool site was blocked by two vehicles. He recognised one of the vehicles as belonging to a female organiser of the NUW, having noticed her driving the same vehicle on previous days. There were NUW stickers and labels all over the fence.
·The picketers left the Welshpool site at about 9.45am.
·The picket continued to be in place on 26 February 2013.
CONSIDERATION
The principles that govern the grant by a court of interlocutory relief in circumstances such as those now presented are well understood and need not be repeated. In short, the Court needs to be satisfied that there is a serious issue to be tried and that the balance of convenience favours the applicant for interlocutory relief: see Laing O’Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 133 at [22]‑[23].
As noted above, senior counsel for Recall contends that at a final hearing Recall would be entitled to claim relief against each of the respondent unions on the basis of the commission of a variety torts, as well as by reason of contravention of s 45D of the CC Act, which governs what are known as “secondary boycotts” for the purpose of causing substantial loss or damage.
By s 45D(1), in the circumstances specified in subs (3) or (4), a person must not, in concert with a second person, engage in conduct:
(a)that hinders or prevents:
(i)a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii)a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b)that is engaged in for the purpose, and will have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.
Section 45DD, however, provides for situations in which boycotts are permitted. Without setting out the full details of that provision, s 45DD provides for situations where the dominant purpose of the conduct relates to remuneration, conditions of employment, working hours or working conditions of employees engaged in the conduct or environmental protection or consumer protection and the conduct is not industrial action.
The first respondent, NUW, supported by the other respondents, primarily contends that interlocutory relief should not be granted because NUW has been shown to have complied with the urgent order made by the Court on 27 February 2013. It submits the Court should take the view either that there is no continuing picketing issue or that NUW will deal appropriately with access requests made of it.
The difficulty with this submission, however, is that NUW does not offer any undertaking that they will not continue to or further picket the premises of Recall in a like manner to that described in the evidence of Mr Cole and Mr Morgan if interlocutory relief is not granted. At the invitation of the Court, no such undertaking was forthcoming from NUW.
In my view, the evidence at this point, which has not been the subject of any of cross‑examination by any of the respondents, is all one way. It shows a steady campaign of picketing at the primary instigation of NUW since 21 February 2013, which has moved from one of the three identified premises of Recall to another at different times. The main target of the picketing, however, appears to have been the Malaga site.
In the circumstances, even though NUW, through Mr Orders, readily complied with the urgent orders made by the Court when it was shown to him and explained to him by Mr Cole, there is nothing to suggest that NUW has called off its picketing campaign.
It should be mentioned in passing that it is understood that while NUW is able to take protected industrial action at present under the Fair Work Act 2009 (Cth) this does not extend to unlawful picketing: see generally Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463.
On behalf of NUW, counsel submitted, in effect, that there are pickets and pickets and in that regard referred to what French J had said about the concept of picketing in J‑Corp Pty Ltd v Australian Builders’ Labourers’ Federated Union of Workers – Western Australian Branch (1992) 111 ALR 502 to the effect that a peaceful picket might not constitute, in a relevant sense, an unlawful picket, in that the conduct involved might not contravene any relevant laws. Further discussion about the nature of picketing is also to be found in the appeal judgment from the decision of French J in Australian Builders’ Labourers’ Federated Union of Workers – Western Australian Branchv J‑Corp Pty Ltd (1993) 42 FCR 452 where the Full Court (Lockhart, Spender and Gummow JJ) considered both the question of picketing (at 456‑458) and the concept of “hindering” (at 459‑460) under s 45D of what was then the Trade Practices Act 1974 (Cth) and which in relevant parts contained similar prohibitions to those now found in s 45D of the CC Act.
Suffice it to say, there is nothing in the evidence before the Court on the hearing of the interlocutory relief application to suggest that any of the respondents, particularly NUW, are proposing to engage in something of the nature of a demonstration that does not hinder access to the Malaga premises or any of the other identified premises of Recall. I am not satisfied that it can be said, on the evidence, that there is currently anything approaching a peaceful, lawful picket.
On the evidence, there is also no reason to think that the picketing activities complained of by Recall have ended. No undertakings, as I have noted, are given by NUW in that regard.
I turn then to the question whether there is sufficient evidence at this point to show that the second to fifth respondent unions are involved in the picketing and acting in concert with NUW for the purposes of the conspiracy tort and the s 45D claims to relief.
It is said, for example, on behalf of the CFMEU that the fact that some people have been identified wearing clothes with union logos on them, is insufficient to found an arguable finding that the union itself is thereby engaged in the activities complained of. Counsel submits that individuals in the community are free to wear what they will, and while they may thereby display their allegiances to particular organisations, nothing more can be made of their act of wearing such clothing, at least in the absence of other relevant evidence. This submission may in such broad terms be accepted. What it demands, therefore, in a case such as the present, is an analysis of the evidence so far presented in order to determine what inferences, if any, may reasonably be drawn concerning the involvement of a respondent union in the picketing complained of.
So far as the first respondent, NUW, is concerned, as noted above, it is clear that the NUW is the principal agitator of the activities complained of. It is its members who are involved in the negotiation of the WA EA with Recall. There are ample signs of the NUW employees being involved in the picket from the outset and there is ample evidence of NUW organisers and the like attending the picket. It was a NUW organiser, Mr Orders, with whom Mr Cole spoke and showed the urgent court order to on the afternoon of 27 February 2013, and who “accepted” the terms of that order, according to Mr Cole. It was soon after that the two vehicles blocking access to the Malaga premises were apparently moved so that Mr Cole could gain access to the Malaga premises in order to obtain access to the records of the critical clients. The action of the unidentified female NUW organiser also appears to have been instrumental in controlling the picketers so access could be achieved. I have little hesitation in concluding NUW is involved in the picket and there is no reason, on the evidence, to conclude the picket is at an end.
So far as the second respondent, CEPU, is concerned, Mr Cole said people were wearing AMWU and CEPU (specifically ETU) logos at the Malaga site on 22 February 2013. Additionally, the barbecue trailer bearing the label “ETU” on the side has been outside the gates at the Malaga premises at material times. The ETU is part of the CEPU, something adverted to by Mr Cole and acknowledged by counsel for the second respondent. That, however, would appear to be the extent of connection between the CEPU and the picketing activities. The evidence of Mr Cole or Mr Morgan does not identify any of the persons attending the pickets as CEPU members or officials. Apart from the barbecue trailer, there is nothing else to suggest the CEPU is involved in the activities that Recall complains of. The only thing that suggests the trailer belongs to the CEPU, is the ETU markings on it. Recall, however, also refers to the fact its lawyers wrote to each respondent union on or about 22 February 2013 advising that the picket of that date was unlawful and Recall would commence legal proceedings against the union if any unlawful conduct was to occur, and that no response to the date of the hearing in the Court had been received. It is submitted on behalf of Recall that when one adds that circumstance to the other facts that a reasonable inference can be drawn that the union has been involved in the picketing activity.
In my view, however, neither the facts relied upon, or when taken with the evidence of the letter and the non‑response to it, supports a reasonable inference that CEPU, as an organisation, is involved in the picketing.
I therefore accept the submission made on behalf of CEPU that the evidence relied upon to this point to establish its involvement in the picketing for which the NUW is primarily responsible, is insufficient to justify the grant of interlocutory relief against it.
So far as the third respondent, AMWU, is concerned, there is evidence to show that one person wore clothing or accessories bearing an AMWU logo on 21 February 2013 at Malaga and that on 22 February 2013 at Malaga there were persons wearing clothing or accessories bearing the AMWU or CEPU (specifically the ETU logo). It is not clear just how many, if more than one, person was wearing an AMWU logo. There is further evidence showing that on 26 February 2013 at Balcatta, Mr Morgan observed people on the picket wearing items of clothing which had the MUA or AMWU or NUW logos on them. He does not say, however, whether more than one person was wearing an AMWU logo. That picket ultimately ceased at 7.50am, having apparently commenced just after 6.50am.
It would appear that AMWU clothing was not identified at the picketing on 22 February 2013 at the Malaga site. Mr Cole said that after the woman, Linda, had made comments about the police having to arrest her and about 15 people moved across to support her, those people or most of them had clothing or accessories bearing the MUA logo or CFMEU logo. No mention was made of the AMWU. He gave similar evidence as to the people who blocked access to prevent anyone else passing through the gate soon after.
In my view, the evidence of some persons on 21 and 22 February 2013 at Malaga wearing clothing or accessories with AMWU logos, and someone wearing clothing with an AMWU logo at Balcatta on 26 February 2013, is not of itself, or in combination with the lawyers’ letter not answered by AMWU, sufficient to permit the Court to draw an inference at this stage that AMWU is involved in any relevant way as an organisation in the picketing primarily instigated by NUW that is complained of.
Again, neither Mr Cole nor Mr Morgan’s evidence identifies any person wearing clothing with union logos as an AMWU member or official. There is nothing else to link the organisation, other than some persons wearing some clothing with logos that suggests some affiliation with the union, to the picketing complained of.
In these circumstances, I accept the submission made on behalf of the third respondent, AMWU, that its involvement in the activities complained of is not made out and interlocutory relief should not be granted against it.
So far as the fourth respondent, MUA, is concerned the evidence is more extensive. There is the evidence of Mr Cole and Mr Morgan that on 21 February 2013 at the Malaga premises, there were approximately four persons amongst those in the assembled picketing group wearing items of clothing or accessories bearing the WA MUA logo. Mr Morgan’s evidence was also that one person had a MUA flag in their hands. Additionally, he said these persons arrived in a car which had personalised number plates which commenced with the letters “MUA”.
Mr Cole gave additional evidence that on Friday 22 February 2013 he saw a double decker bus with the words “Maritime Union of Australia” pass the Malaga premises on several occasions and that Recall’s CCTV footage later revealed that the MUA bus was blocking accessing to the main gate at the Malaga premises for the remainder of Friday 22 February 2013 and much of Saturday 23 February 2013.
There is also evidence of MUA stickers on objects by the fence as of 27 February 2013 in the photos then taken.
Finally, there is evidence of persons with clothing with the MUA logo at the Balcatta premises as of 26 February 2013.
I also note that Mr Cole, at [69] of his affidavit, draws attention to the website of the NUW which he states was “promoting support for MUA members”.
Senior counsel for Recall again submits that, taking all this evidence into account and the fact that the lawyers for Recall wrote to MUA complaining about the unlawful picket and advising that legal proceedings would be commenced if it continued, to which no answer was received, that an inference can be drawn that MUA was involved in the alleged common law and statutory contraventions complained of.
The NUW website materials referred to by Mr Cole, at [69] of his affidavit, and contained in attachment MC13 to his affidavit do not make reference at all to “MUA Members”. This may be a typographical error and he may have simply meant to refer to “NUW members”. In any event, that evidence of Mr Cole is not relevant.
Nonetheless, in my view, the evidence of MUA involvement in the picket and with NUW is sufficient to support the grant of interlocutory relief against not only NUW but also MUA on the identified causes of action, being the commission of the various torts complained of and contravention of s 45D. The use of the double decker bus with the union markings is of particular significance in drawing the inference that I do of MUA involvement in the picketing complained of. There is no evidence to suggest MUA involvement in the picketing has ended.
In relation to the fifth respondent, CFMEU, the evidence chronologically is that on 21 February 2013 at the Malaga site, a CFMEU banner was hanging from the fence of the site. This evidence is found in [20] of Mr Cole’s affidavit. That evidence was, however, on information and belief, the source being Mr Morgan. Mr Morgan, in his affidavit, however, does not make any such statement. The photographic evidence (exhibit 1) from 22 February 2013 plainly shows a CFMEU flag, but it is not hanging from the perimeter fence, but from an open gazebo tent. In the circumstances I do not accept that there is reliable evidence that as of 21 February 2013 at the Malaga premises, a CFMEU flag was attached to the perimeter fence. It is not said by Mr Cole or Mr Morgan that those attending the picket at the Malaga premises on 21 February 2013 wore clothing or accessories with CFMEU logos. The allegation is only that approximately three persons were wearing NUW logos, one person was wearing the AMWU logo and approximately were wearing the MUA logo.
On 22 February 2013, it is claimed that a CFMEU flag was hanging from one of the tents. On that day it is also said that some of the people in the picket line were wearing clothing or accessories with a CFMEU logo.
Neither Mr Cole’s nor Mr Morgan’s evidence concerning persons wearing clothing or accessories with CFMEU logos identifies any of the persons concerned as CFMEU members or officials. Apart from the CFMEU flag hanging from the gazebo tent, there is nothing else to suggest the CFMEU is relevantly involved, as an organisation, in the activities that Recall complains of.
Senior counsel for Recall submits, however, that an inference may be drawn on the basis of all of this evidence, when coupled with the fact that CFMEU had not responded to Recall’s lawyers’ letter advising that legal action would be commenced if the unlawful picket continued, that CFMEU were relevantly involved in the picketing complained of.
In my view, the evidence, both with and without the evidence of the non-response to the lawyers’ letter is insufficient to justify a reasonable inference that CFMEU as an organisation has been or is relevantly involved in the NUW picketing complained of. I therefore accept the submission made on behalf of CFMEU that interlocutory relief should not go against it.
Recall has also generally drawn attention to the Facebook post on NUW’s Facebook page of 25 February 2013 calling for NUW members to urgently attend the Malaga site. The NUW Facebook post on 25 February 2013 it should be noted is apparently directed to NUW members, not others. It asks for “WA members who are available” to “get down to the Recall picket line at 449 Victoria Road Malaga. We’ve just had word police are attempting to break the picket line”. This post plainly may be attributed to NUW but it is difficult to see how it can be construed as a call to arms to the members of any other union. I do not consider it adds any relevant evidence to the facts concerning the second to fifth respondents.
I should also note what was stated above, that I do not consider the NUW website material shows any relevant linkage or cooperative industrial campaigning between NUW and MUA or other respondents.
In these circumstances, I am not satisfied that CEPU, AMWU or CFMEU have been shown by the evidence, put at its highest, of any relevant involvement as organisations in the picketing activities complained of. Thus, in my view, a serious issue to be tried concerning those respondents has not been identified and interlocutory relief should not be granted against them.
However, so far as NUW is concerned, as I have indicated above, it is shown to be the primary agitator of the picketing complained of.
Further, there is sufficient evidence to disclose, at this stage, that the MUA, the fourth respondent, is involved in and arguably acting in concert with the NUW in maintaining the picket of Recall’s premises, which is sufficient to make the alleged tort of conspiracy and contravention of s 45D arguable as well as to support the commission of the other torts alleged.
No submissions were made on behalf of the first and fourth respondents that the primary torts identified and the proposition that s 45D might be relevant, were not arguable. No submission was made on behalf of those respondents that s 45DD had application in this case.
Further, neither of these respondents submitted that, if there were a serious issue or issues to be tried, that in weighing the balance of convenience the Court should not find that it favoured Recall. The facts as stated by Mr Cole at this point are that Recall has suffered financial detriment and possibly damage to its reputation in the marketplace. Particular clients with urgent needs have had their interests put at risk. I accept that the balance of convenience in this case favours the applicant, Recall.
CONCLUSION AND ORDERS
In these circumstances, I would grant the following relief:
1.On the provision of the usual undertaking to the Court and pending trial or further order of the Court, each of the first respondent and fourth respondent, by their officers, servants, agents and members be and is hereby restrained:
(a)from occupying, placing obstacles, driving motor vehicles or otherwise being in any position on the access to or egress from the public pavement and the applicant’s premises at:
(i)449 Victoria Road, Malaga, WA;
(ii)39 McDowell Street, Welshpool, WA; and
(iii)22-24 Ledgar Road, Balcatta, WA.
Collectively the applicant’s premises;
(b)from otherwise hindering or preventing the supply of goods or services to or from the applicant’s premises.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 1 March 2013
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