Yakult Australia Pty Ltd v National Union of Workers
[2018] VSC 151
•26 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2018 01047
| YAKULT AUSTRALIA PTY LTD (ACN 055 486 443) | Plaintiff |
| v | |
| NATIONAL UNION OF WORKERS & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2018 |
DATE OF RULING: | 26 March 2018 |
CASE MAY BE CITED AS: | Yakult Australia Pty Ltd v National Union of Workers & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 151 |
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INJUNCTION – Picketing preventing plaintiff from making any deliveries to customers from its premises – Serious issue to be tried that picketing constitutes a nuisance and interference with contractual relations – Balance of convenience favours grant of injunction – Injunction granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Follett | Ai Group Workplace Lawyers |
| For the Defendants | No appearance |
HIS HONOUR:
On 22 March 2018, the plaintiff filed a summons seeking injunctions against the defendants in respect of picketing activity which has prevented access and egress to and from the plaintiff's premises in Dandenong. Affidavit evidence which has been filed with the Court establishes the picket has been in place continually since the morning of 19 March 2018. During the intervening period, the plaintiff has been unable to make any deliveries of product to its customers which include the Coles and Woolworths supermarket chains.
The first defendant, National Union of Workers (‘NUW’), is a registered organisation of employees under the provisions of the Fair Work (Registered Organisations) Act 2009. The second defendant, Mr Robert Dent, is an employee of the NUW, and it would appear works as an organiser with responsibilities for the plaintiff’s operations. The third to eighth defendants are employees of the plaintiff.
The plaintiff and the NUW are currently in dispute regarding the terms and conditions of employment of production workers at its Dandenong plant. I am informed that there are approximately 30 such employees. Since 19 March 2018 the union has organised, and the employees have been engaged in, protected industrial action in the form of an indefinite strike.
The plaintiff does not rely upon the strike action in aid of any of the causes of action it has pleaded in its indorsement of claim filed 22 March 2018. Those causes of action include claiming nuisance and interference with contractual relations. Those causes of action are based solely upon the picketing activity which commenced on the morning of 19 March 2018.
Plainly, the first and second defendants have a lawful right to organise protected industrial action, and the third to eighth defendants have a lawful right to engage in strike action where such action is protected.
However, it is well established that picketing activities which are unlawful by reason of constituting a nuisance fall outside of the protected industrial action regime of the Fair Work Act 2009.[1]
[1]See Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463.
The evidence before the Court supports a finding that the plaintiff has established a strong prima facie case that the picketing, which commenced on 19 March 2018, is unlawful by reason of constituting a nuisance, as well as interfering with the plaintiff's contractual relations with third parties, including its customers.
The evidence in respect of the first and second defendants supports the finding of a serious issue to be tried that they have both engaged in conduct alleged to constitute a nuisance and/or interference with contractual relations. The overwhelming inference is that the NUW and Mr Dent have organised the unlawful picketing activity as a corollary of the lawful protected strike action which commenced on 19 March 2018. Video footage of the picket shows Mr Dent playing a central role in blocking a Yakult delivery van which was seeking to exit the premises on 19 March 2018.
As to the third to eighth defendants, they are identified in the affidavit of Takuto Uchida as having participated in the picketing activities, together with Mr Dent, on the morning of 19 March 2018 in preventing a Yakult delivery van from exiting the plaintiff's Dandenong premises. At the time Mr Dent stated, in response to a request to let the delivery van leave the premises, ‘no, we are standing here, we will not let the vans go out’. I am satisfied that this evidence raises a serious issue to be tried that the third to eighth defendants have engaged in unlawful picketing activity.
Further, I am satisfied that unless orders are directed to those individuals, there is a real risk that they shall continue to engage in unlawful picketing activity.
I note that I have been informed that this morning the second, third, fourth and sixth defendants were identified as again participating in the picket.
The Court does not lightly make orders against individuals. This is one of the reasons why the plaintiff's summons was adjourned from 23 March 2018 to today's date, to provide all of the defendants, but particularly the individual employees, with an opportunity to come to Court and put forward material in response to that which is relied upon by the plaintiff. I am satisfied that each of the third to eighth defendants is squarely on notice of the current proceeding and has made a conscious choice not to engage in the proceeding.
As to the balance of convenience, it strongly favours the grant of the relief which is sought. The evidence before the Court establishes that the plaintiff, since the commencement of the picketing activity, has sustained a net loss of profit of approximately $288,000. It is clear that the picketing activity is having a significant adverse effect upon the plaintiff's legitimate business activities.
In those circumstances, the Court being satisfied both as to the existence of a serious issue to be tried as to the causes of action pleaded in the indorsement of claim, and that the balance of convenience strongly favours the grant of relief sought, an order will be made in the terms of the minute of order provided to the Court this afternoon by counsel appearing for the plaintiff.
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SCHEDULE OF PARTIES
YAKULT AUSTRALIA PTY LTD (ACN 055 486 443)
Plaintiff
- and -
NATIONAL UNION OF WORKERS
First Defendant
ROBERT DENT
Second Defendant
CHUN NGO
Third Defendant
CAMILUS ABEYRATNE
Fourth Defendant
HASSAN ALI AKBARI
Fifth Defendant
SAMEDI CHUON
Sixth Defendant
WALDEMAR ADAMCZUK
Seventh Defendant
SANDEEP KURA
Eighth Defendant
0
2
0