FEDERAL COURT OF AUSTRALIA

Auspine Ltd v Construction, Forestry, Mining & Energy Union [2000] FCA 501

INDUSTRIAL LAW – interlocutory injunction sought to restrain picketing during negotiations for new industrial agreement – power of the Court to grant interlocutory injunction – s 170NG of the Workplace Relations Act 1996 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) – whether serious question to be tried that the respondents have been hindering or preventing access to or egress from premises of the applicant – whether serious question to be tried that conduct of the respondent amounts to picketing – whether picketing is “industrial action” and therefore “protected action” under Div 8 of the Workplace Relation Act 1996 (Cth) – whether serious question to be tried that the action was taken with intent to coerce employer to agree to making an enterprise agreement – whether balance of convenience favours granting of injunction.

INDUSTRIAL LAW – negotiations for new industrial agreement – whether notice of initiation of bargaining period given – content of notices – whether notices sufficient to encompass picketing – whether serious question to be tried on that issue.

Federal Court of Australia Act 1976 (Cth) s 23

Workplace Relations Act 1996 (Cth) ss 170LT, 170LX(1), 170LX(2)-(4), 170MI, 170MM, 170MO, 170MO(3)(b), 170MO(4), 170MO(5), 170NC, 170NG, Pt VIB Div 2, Pt VIB Div 3, Pt VIB Div 8

Davids Distribution Pty Ltd v the National Union of Workers (1999) 91 FCR 463 applied

Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1999) FCA 1443 applied

Telstra Corporation Ltd v Community and Public Sector Union (1997) 76 IR 478 referred to

The Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 2000 applied

Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 applied

ACI Operations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 393 applied

Australian Workers Union v Yallourn Energy Pty Ltd [2000] FCA 65 applied

AUSPINE LIMITED (ACN 004 289 730) v

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION,

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA,

AUSTRALIAN MANUFACTURING WORKERS UNION

AND

PAUL MARTINELLA AND OTHERS

S 24 OF 2000

MANSFIELD J

4 APRIL 2000

ADELAIDE

THE COURT ORDERS THAT:

1.         Upon Auspine by its counsel giving the usual undertaking as to damages, I order that the respondents, by themselves or their servants, members or agents, be restrained from engaging in conduct in concert with others and with each other that hinders or prevents the access to or exit from the premises of Auspine Ltd situated in Tarpeena in the State of South Australia.

2.         That this order be served upon the respondents:

(a)                         by service upon the respondents by their solicitors at the address for service given in the appearance; and

(b)            by placing a copy of the orders on the entrances to the premises of Auspine Ltd situated at Tarpeena in the State of South Australia.

3.                  Costs of this application reserved.

4.                  Adjourn the matter for further directions to 9.15 am on 18 April 2000.

5.                  Liberty to any party to apply on short notice.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR DECISION

1                     This is an application for interlocutory relief by Auspine Ltd (“Auspine”) against each of the respondents for orders that the respondents by themselves or their servants, members or agents be restrained from engaging in conduct in concert with others, and with each other, that hinders or prevents access to or exit from the premises of Auspine situated in Tarpeena in the State of South Australia.

2                     As with any interlocutory application there are two general questions to be addressed:  whether there is a serious question to be tried on the matters which are said to give rise to the cause of action and, secondly, if there is a serious question to be tried, whether the balance of convenience indicates that the Court should make the order sought or orders like those orders.  As other judges have indicated, sometimes those two considerations interact, so that a serious question to be tried, which is perhaps assessed as a stronger case than in other cases, may have an influence upon the outcome of the application.  In the present circumstances I do not need to have regard to that latter consideration.

3                     For the purposes of this application only, I am satisfied of the following matters which are facts upon which Auspine contends that there is a serious question to be tried that it is entitled to the relief which it claims.  The findings are necessarily provisional, in the sense that they have not been made after a full hearing when evidence has been fully tested.  It may of course be that many of the background facts are not really in dispute.

4                     Auspine supplies timber products to timber wholesalers across Australia.  It operates a production unit at Tarpeena in the South-East of South Australia.  At Tarpeena it employs about 230 employees on a 24-hour shift roster in what it calls the Production Unit, on production and maintenance work.  I shall call those employees “the employees”.  The terms and conditions of employment of the employees at Tarpeena are governed by the Auspine Ltd Enterprise Agreement Tarpeena Site 1999 (“the agreement”).

5                     The agreement is a certified agreement pursuant to s 170LT of the Workplace Relations Act 1996 (Cth) (“the Act”).  The parties to the agreement are the employees and the first to third respondents.  Each of the first to third respondents are organisations registered under the Act.  The nominal expiry date for the agreement is 2 December 1999.  Thereafter, in accordance with s 170LX(1) of the Act, the agreement continues in operation as none of the events referred to in subs 170LX(2)-(4) of the Act have taken place.

6                     Following service of notices of initiation of bargaining period by the first and third respondents - and arguably by the second respondent - Auspine commenced negotiations for a new certified agreement.  Those negotiations took place over the period 25 November 1999 to 16 March 2000.  On 14 March 2000 Auspine submitted a draft final enterprise bargaining agreement to the first to third respondents, but negotiations on that agreement promptly broke down.  On 16 March 2000, each of the first, second and third respondents served a notice of intended industrial action on Auspine.  It will be necessary to refer to those notices in more detail shortly.

7                     On 22 March 2000 a mass meeting of representatives of Auspine, of the first to third respondents and of the employees took place.  Then the following day the employees decided to insist upon certain terms to be included in the proposed new enterprise bargaining agreement, and to consider further action if satisfactory progress in negotiations was not achieved that day.  At least in the view of the respondents, satisfactory progress was not then achieved in subsequent negotiations that day.

8                     On 24 March 2000 a mass meeting of employees decided to withdraw their labour.  The majority of the employees did not attend their rostered shifts on 24, 25 or 26 March 2000.  Auspine was unable to conduct all of its production processes on those days, described as the receipt and debarking of logs, the kiln‑drying of the rough-sawn wet product, the moulding of rough‑sawn kiln‑dried timber and the order, selection and dispatch of finished goods.

9                     There is evidence that these restrictions and the consequent inability of Auspine to meet customer orders is causing a loss to Auspine in excess of $100,000 per day.  For the purposes of this particular application, however, that loss is not the loss which is directly relevant to the question of whether there is, assuming a serious question to be tried, a balance of convenience in favour of granting the orders sought.

10                  The withholding of labour continued on 27 March 2000.  One of the fourth respondents, Howard Young, was given notice that day that he was locked out of the Auspine premises until 3 April 2000.  That notice was addressed to “Howard Young and the AMWU, CFMEU and CEPU”, that is, the first to third respondents.  In addition, lockout notices in the same terms were prepared for all the employees who had engaged in industrial action up to that time.  They were not served upon the individual employees at that time, or at all, but were given to each of the first to third respondents.  There is some issue as to the way in which those lockout notices were then treated, that is, whether they were treated by the respondents as notices of lockout given to all the employees or were only a step towards the process of giving such notices, having regard to the requirements of s 170MO(3)(b) and s 170MO(4) of the Act.  At all events, at least in respect of the employees other than Mr Young, it is clear that Auspine did not lock out those employees after that date.

11                  By letter dated 29 March 1999 (sic, 2000) given to the employees and to the first to third respondents, Auspine asserted that it had given a lockout notice to only one employee, Mr Young, and that the other employees were not locked out and were welcome to return to work.  As there was still some suggestion from a negotiator on behalf of the third respondent that there was a general lockout, Auspine by letter of 30 March 2000 to the employees and to the first to third respondents reiterated that the employees, other than Mr Young, had never been locked out.

12                  That letter described the notification to the first to third respondents given on 23 March 2000 of lockout notices prepared for all employees as being

“a preliminary step to the taking of lockout action.  The final step of notifying employees was never taken.”

13                  That letter also asserted that Auspine would not resume negotiation

“whilst the union continues the strike and while the picket line is in place.”

14                  On 28 March 2000 a picket - and I use that term loosely for the time being - was formed outside Auspine’s premises at Tarpeena.  It included, from time to time, certain of the employees.  I am satisfied on the evidence that it included each of the fourth respondents who are employees of Auspine.  I have received no submission from counsel for any of the respondents that I should discriminate in my consideration of the orders sought between any of the respondents.  As the evidence indicates that each of the first to third respondents were involved in the negotiations and the mass meetings, and there is some evidence that each of the first to third respondents approved of and to some degree supported or participated in the picketing - again using that term in a loose way - I am satisfied that if any orders are to be made it is appropriate that they should be made against the first to third respondents as well as the fourth respondents.  I note that no submission has been made that I should distinguish between any of the fourth respondents, including Messrs Martinello, Lockwood and Smith, who are officers of the first to third respondents.

15                  In the afternoon of 28 March 2000 a truck from Linfox Interstate, which supplies linehaul services for the movement of Auspine’s finished goods, arrived at Auspine’s premises.  Certain of the employees forming the picket stood in its path.  The truck then left the area after a conversation with some representatives of those employees.  Subsequently that afternoon a fully-laden log truck, which I assume to be an Auspine vehicle, also arrived at Auspine’s premises.  Again, employees of Auspine stood in its path.  It stopped, and again a conversation took place, following which that truck also left the area.

16                  In the afternoon of 29 March 2000 a truck from Smiths Transport, which transports residue woodchips from Tarpeena to Auspine’s premises at Portland, was also prevented from entering Auspine’s premises by persons standing in its path, and then after a conversation that truck also left the area.

17                  On 30 March 2000, in the evening, the actions taken by those involved in the picketing - again using that expression in a loose way - became more apparent by the placing of motor vehicles across the entrances to the Auspine premises.  That was done under the direction or supervision of Mr Lockwood, one of the fourth respondents and an organiser of the first respondent.  The evidence does not indicate that the positioning of vehicles in that way has persisted.

18                  It has been submitted on behalf of the respondents that I should not be satisfied that there is a serious question to be tried that there has been any obstruction or hindering of access to or exit from the premises of Auspine at Tarpeena, except for the period of time during which that access or egress was impeded by the placing of motor vehicles.  It is put that the evidence goes no further than indicating that the persons who were present outside the premises of Auspine sought the opportunity to speak to truck drivers proposing to enter the premises of Auspine and, having been given that opportunity, those truck drivers simply chose to leave the area without proceeding on their previously intended course.

19                  I have carefully considered that submission.  However, the evidence satisfies me that there is a serious question to be tried that each of the first to third respondents and each of the fourth respondents - that is, including the Auspine employees who are fourth respondents - have been involved in the action of hindering or preventing access to or egress from the premises of Auspine at Tarpeena.  Although the evidence does not indicate the responsibility of each of the employees who are fourth respondents, by their presence and support and to varying degrees by their positive actions, they have each engaged in the conduct which I have found to have taken place.

20                  I am also satisfied that there is a serious question to be tried that that conduct does involve hindering or preventing access to or egress from the Auspine premises.  In the case of each of the truck movements, the evidence is sufficient to raise a serious question to be tried that there was a physical blockade of the premises by certain of the respondents standing in front of the truck approaching the premises, in a way which prevented it from proceeding to enter the premises.  I do not think it is helpful to refer in detail to that evidence.  It is apparent that the strategy involved the imposing of a human barrier in front of the entrance as a truck approached the premises, so as to force the truck driver to stop the truck.  At least in respect of one of those occasions there is further evidence of a conversation in which a Mr Young, one of the employees of Auspine who is one of the fourth respondents, indicated quite clearly that the purpose of causing trucks to stop in that way was to take the opportunity to tell the truck driver that the Auspine premises were being picketed and that no-one was being allowed into the premises by those who were involved in the vicinity of Auspine’s premises.  The truck driver, on that occasion, was told clearly that he would not be permitted to gain access to the premises to unload his truck.

21                  There has been no proposal put by the respondents, or on their behalf, that the conduct which appears to have been engaged in on that occasion will not be repeated or that I should interpret that particular conduct as untypical of the conduct which is proposed to be engaged in.  Nor has any submission been put that the conduct which has been engaged in in relation to other truck entries or proposed entries to the Auspine premises will not continue.  It may very well be the case that the respondents do not intend to hinder or prevent access to or exit from the premises of Auspine.  I do not know.  I am called upon to make a decision as to whether there is a serious question to be tried on the material before me that their actions, as I have referred to them from the evidence before me, amounts to a hindering or preventing of access to or exit from those premises.  I am satisfied that it does.  I am prepared to infer, without direct evidence of the conversations which took place once the other trucks were stopped by the fourth respondents, or certain of them, standing in the path of those trucks, that a similar message was given to the truck drivers concerned, causing those truck drivers to leave the premises without entering them, other than for the purposes of turning around.

22                  Having referred to those matters of fact, Auspine contends that there is a serious question to be tried that the conduct of those involved in the way I have described is picketing.  I will hereafter use the word “picketing” to reflect what I have found to be, at least as a serious question to be tried, the fact that there is hindering or preventing of access to or exit from the premises of Auspine.  Auspine contends that the picketing constitutes the taking or threatening of any industrial action or other action with intent to coerce Auspine to agree to the making of an enterprise agreement under Div 2 or Div 3 of Pt VIB of the Act.

23                  It contends, therefore, that the conduct of picketing amounts to an infringement of s 170NC of the Act.

24                  Subsection (2) of s 170NC provides that:

“Subsection (1) does not apply to action or industrial action that is protected action (within the meaning of Division 8).”

25                  Auspine contends that the conduct of picketing is not protected action within the meaning of Div 8 of the Act for three reasons.

26                  Firstly, it contends that the second respondent did not give a notice of initiation of a bargaining period in accordance with the Act.  Consequently, a bargaining period did not commence in respect of that respondent or had not commenced on 16 March 2000, when each of the first to third respondents gave notice of intended industrial action.  Because the second respondent had not properly brought itself within a bargaining period so as to fall within the protected action concept within Div 8 of Pt VIB of the Act, it is then contended, and accepted as a matter of law by the respondents, the other respondents, in particular the first and third respondents, can also not be protected because they are acting in concert or collaboration with the second respondent:  see s 170MM of the Act.

27                  Auspine next contends that the picketing is not protected action because it was not action taken in accordance with a properly given notice of intended industrial action under s 170MO of the Act.  That is because it is said each of the three notices given, dated 16 March 2000, did not state the nature of the intended action and the day when it will begin as required by s 170MO(5) of the Act.  It is said that the notices did not specify the time when the picketing was intended to commence; that they did not specify with sufficient precision what the intended industrial action was intended to be; and, in particular, that they did not specify that the picketing would constitute part of the intended industrial action.

28                  Auspine thirdly contends that picketing cannot constitute “industrial action” within the meaning of that term as used in the Act and, therefore, it does not amount to protected action within Div 8 of Pt VIB of the Act.  Consequently, Auspine contends s 170NC(2) does not protect any of the respondents from the operation of s 170NC(1) of the Act.

29                  Auspine’s contention then is that because s 170NC is a penalty provision, as defined in s 170ND, the Court has power to grant an injunction requiring a person not to contravene or to cease contravening s 170NC, by virtue of s 170NG, and also has power at an interlocutory stage to make an interlocutory order of the nature which is sought.

30                  I am satisfied in the light of the decision in Davids Distribution Pty Ltd v the National Union of Workers (1999) 91 FCR 463 (“Davids”), and the decision of Carr J in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1999) FCA 1443, that the Court has power under s 170NG or under s 23 of the Federal Court of Australia Act 1976 (Cth) to grant an interlocutory injunction in the terms which are sought, that is, to restrain a proposed or continuing alleged contravention of s 170NC(1) of the Act if otherwise the circumstances are appropriate to do so.

31                  I turn therefore to consider each of the three matters by virtue of which Auspine contends that the conduct of picketing is not a protected action under the Act.  It is only necessary to be satisfied that there is a serious question to be tried on any one or more of those matters to give rise to the next issue, namely whether there is a serious question to be tried that there is a contravention of s 170NC(1) of the Act.

32                  The evidence as to whether the second respondent gave a notice of initiation of bargaining period is by no means clear‑cut.  Auspine, through its general manager at Tarpeena, asserts that no such notice has been given.  Nevertheless, Auspine continued to negotiate with each of the respondents, including the second respondent, in the period up to 16 March 2000 and even when the second respondent gave its notice of intended industrial action on 16 March 2000, Auspine did not then respond to indicate that there was no relevant bargaining period having been commenced.  The assistant state secretary of the South Australian branch of the second respondent has sworn by affidavit that such a notice was given, both by facsimile and by ordinary post, and has exhibited to his affidavit the copy of the notice which was apparently filed at the Australian Industrial Registry.  The copy which has been exhibited does not contain a facsimile header or a facsimile cover sheet.  It may be that in the period of time available that document simply could not be readily located.  In response to that affidavit the general manager of Auspine at Tarpeena has filed a further affidavit in which he deposes to what appears to be quite thorough searches of the records of Auspine to see whether such a document as was exhibited to that affidavit has been received.  Auspine has not been able to find that document.  Given the direct conflict of evidence, and the absence of what I would regard as overwhelming evidence one way or the other (and I interpose to say that I would expect that such overwhelming evidence would be able to be introduced at the trial), at this point I am satisfied on balance that there is a serious question to be tried that the second respondent did not give a notice of initiation of bargaining period in accordance with s 170MI of the Act.  It would follow that, because the first and third respondents are acting in collaboration or in concert with the second respondent, they cannot fall under the protection of Div 8 of Pt VIB of the Act as engaging in protected conduct because of s 170MM of the Act.  There is therefore, in my view, a serious question to be tried that none of the respondents are protected by the provisions of Div 8 containing reference to conduct which is protected action under that Division.

33                  In my judgment, there is also a serious question to be tried that the notices of intended industrial action given on 16 March 2000 are not sufficiently precise to bring within their scope the picketing.  I do not think it is necessary to determine whether there is any difference in the ruling of Duncan DP in Telstra Corporation Ltd v Community and Public Sector Union (1997) 76 IR 478 on the one hand, and the observations of the Full Court, in particular of Wilcox and Cooper JJ, in Davids at pars 88 to 90, and in adjacent sections in their Honours’ reasons.  Paragraph 90 of the reasons for decision of Wilcox and Cooper JJ said this about the notice then under consideration:

“It seems to us that, if picketing fell within the definition of “industrial action”, there would be two deficiencies in the notice relied on in the present case.  First, the word “ban” would be inappropriate to the picketing that was adopted.  Even if the picketing could be described as a “limitation” or “restriction” on the work performed by the truck drivers, it could not properly be described as a “ban”; a “ban” is a prohibition.  Secondly, an activity so significant as the pickets in this case would need specific mention in a notice designed to reveal the “nature” of the intended action.”

34                  The effect of those observations, albeit that they were not critical to the resolution of the appeal before the Court, is that the use of the word “ban” in a notice of intended industrial action is or may be an inappropriate or insufficient description to indicate that picketing is to be adopted.  In effect, their Honours’ view was that if picketing is to be adopted as part of intended industrial action, the notice should explicitly say so.  Each of the notices in question refers to the nature of the intended industrial action as being to engage in bans, limitations, stoppages or strike action.  That is not a paraphrase of each of the expressions in the notices, but there is nothing in the notices which goes beyond the sort of consideration which was addressed in Davids case.  In particular, there is nothing which positively indicates an intention to engage in picketing as part of the intended industrial action.  Accordingly, in reliance upon those observations of the majority, albeit obiter, in Davids, in my view there is a serious question to be tried that the notices of intended industrial action were insufficient to encompass within them the picketing, and that therefore the picketing was not protected action within Div 8 of Pt VIB of the Act.

35                  I am also satisfied that there is a serious question to be tried as to whether picketing in any event may constitute industrial action, and therefore may fall within the aegis of being protected action under Div 8 of Pt VIB of the Act.  That question was addressed by the Full Court in The Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1998) 89 FCR 2000 (“the CFMEU case”) and again in Davids.  The relevant parts of the first case are quoted at some length in the Davids decision, at par 48, in the following terms:

“The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in par (c) of the definition.  That is, if it is a restriction on the performance of work or on the acceptance of or offering for work.  The word ‘picketing’ may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace.  The word ‘picketing’ may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere).

Even if used to describe the latter situation, it is unlikely that picketing is conduct comprehended by the expression ‘a restriction on the performance of work’ as it appears in par (c).  Having regard to the context in which that expression appears it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done.  While the expression ‘a restriction on acceptance of or offering for work’ in par (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in par (c) relate to circumstances of the type just discussed.  It is likely that par (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it.”

36                  A distinction is to be drawn, as Wilcox and Cooper JJ said in Davids at par 52, between activity that merely involves communication of information to persons on entering or leaving a site which is not industrial action within the meaning of the definition in the Act and which itself cannot constitute a “ban, limitation or restriction on the performance of work by the picketers”, which conduct is not itself unlawful and, on the other hand, conduct preventing or hindering people from performing, accepting or offering for work.  The latter conduct falls literally within par (c) of the definition of industrial action.

37                  Their Honours took the view in accordance with the tentative view in the CFMEU case that par (c) of the definition of industrial action should be read as applying only to limitations on the work of those persons imposing a ban and not more generally.  The same conclusions appear in par 71 of the decision in Davids, which reads as follows:

“As we have already observed, picketing which does not involve obstruction and besetting does not fall within the definition of “industrial action”; it does not relate to the performance of work in the circumstances specified in par (a), (b), (c) or (d) of the definition.  Such conduct does not need the protection of s 170MT(2) because it is not actionable by anyone.  Only picketing which involves obstruction and besetting, and is therefore an actionable tort, gives rise to policy considerations as to whether it was intended to be protected from suit, or should be so covered if the language will permit.”

38                  The reference to “obstructing and besetting” in that passage is enlightened further by the observations of Murphy J in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 at 388-389.  In a passage to which Wilcox and Cooper JJ refer, Murphy J referred to conduct which involved physically preventing persons and vehicles from approaching and entering premises by obstruction, threats and besetting, that is, to set about or surround with hostile intent.  His Honour said:

“Besetting is appropriately a term applied to the occupation of a roadway or passageway through which persons wish to travel so as to cause those persons to hesitate through fear to proceed or, if they do proceed, to do so only with fear of their own safety or the safety of their property …”

39                  Accordingly, in my judgment there is a serious question to be tried that the picketing does not constitute industrial action, and therefore does not constitute protected action within Div 8 of Pt VIB of the Act.  Although Burchett J delivered separate reasons in Davids, and in one significant respect dissented from the views of the majority, his Honour’s judgment on the matters to which I have referred, as I understand it, was in accordance with those views of the majority.

40                  It then remains to determine whether there is a serious question to be tried that the conduct of picketing amounts to the respondents taking or threatening to take any industrial action or other action with intent to coerce Auspine to agree to making an enterprise agreement.  It has been submitted by counsel for the respondents that I should not be satisfied on that point.  That is because, it is put, the conduct of picketing in the circumstances was a response to the lockout of Mr Young and not to coerce Auspine in the manner which is alleged.

41                  In ACI Operations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 393, Merkel J was confronted with a similar submission.  His Honour described it as having “a degree of unreality” to suggest that the conduct there engaged in, which in some respects was similar to the picketing about which I have found that there is a serious question to be tried that it occurred, was extraneous to and unconnected with the employer’s bargaining position in relation to the then proposed new enterprise agreement.  His Honour had also addressed that issue in his earlier decision in Australian Workers Union v Yallourn Energy Pty Ltd [2000] FCA 65.  His Honour said at pars 39 and 40, and I quote:

“I also stated that there was a degree of unreality about the submission of counsel for the employer in that case that a threatened common law proceeding was extraneous to and unconnected with the employer’s bargaining position in relation to the new enterprise agreement.  I added that “each step and counter-step by the parties in the current dispute appears to be intended to advance their respective bargaining positions in relation to the new enterprise agreement”: see [73].  In my view the same observation can be made in respect of the activities of all of the parties in the present case, which I have outlined in some detail earlier in these reasons.  It is difficult to accept that each of those actions, including the picketing, was not intended to advance the respective bargaining positions of the parties in relation to the new enterprise agreement being negotiated throughout the period.  Indeed, there is evidence from Union officials and the shop steward at the Box Hill plant that the picketing activities were intended to bring pressure to bear on ACI to bring an end to the industrial dispute.  The end of the industrial dispute is only likely to occur when the new certified agreement has been agreed to on terms acceptable to the disputing parties.

In any event, it does not seem to me to be an answer to ACI’s claims, as the AMWU contends, that the pressure is intended to bring an end to the lock out.  The lock out is ACI’s response to the industrial action of the employees and is stated by ACI to be intended to support or advance its position in relation to the new enterprise agreement.  Thus, there is a degree of industrial unreality about the union submission that action taken with the intent to bring an end to the lock out which, if successful, would clearly weaken ACI’s bargaining position, is conduct unrelated to seeking to weaken that position.”

42                  I think that general line of reasoning is arguably applicable to the present circumstances.  In my judgment there is a serious question to be tried, by a parity of reasoning, that the conduct engaged in by the picketing was with the intent to coerce Auspine to agree to the making of an enterprise agreement.  I consider that, although the immediate event which may have heightened the response of the respondents may have been the lockout of Mr Young, that lockout was itself in turn a step in the process of the exercise of negotiating power towards the making of an industrial agreement.  It was not suggested by counsel for the respondents that there was any reason underlying the lockout of Mr Young, or the picketing, which was extraneous to the bargaining process.  Counsel gave the example of industrial action in response to a safety issue.  There is no such underlying issue here identified.  The underlying circumstance is the process of negotiation with a view to achieving an enterprise agreement, and each of the steps in that process of negotiation, whether protected action under Div 8 or otherwise, is a step taking some form of action which had as its ultimate purpose the intent to procure an enterprise agreement upon terms acceptable to the persons or entities taking that step.

43                  I share the views of Merkel J that it would add an air of unreality to the proper operation of s 170NC if the Court were to look only to the immediate step which preceded the picketing to see whether the intent of those taking that step of picketing was to coerce another person to agree to making an enterprise agreement, or if the Court was obliged only to identify the immediate preceding step in the negotiating process without regard to the ongoing process of negotiations.  In addition, there is the evidence of the conversation which took place when one of the trucks was denied entry that the purpose of those participating at that time in the picketing was to further their interests in the negotiating process.  Although it may be that an immediate purpose, or an immediate cause, of the picketing was to respond to the step of locking out Mr Young from the premises, I do not think that that is a sufficient reason not to be satisfied that there is a serious question to be tried that s 170NC(1) has been contravened in the terms in which the applicant Auspine alleges.

44                  Accordingly, I am satisfied that there is a serious question to be tried that the conduct which is now sought to be injuncted, the picketing, is conduct in contravention of s 170NC(1) of the Act which is not protected by s 170NC(2) of the Act, and that the Court has power, if so minded, to make an interlocutory injunction at this stage of the proceedings in respect of that conduct.

45                  I turn then to consider the balance of convenience.

46                  It is necessary to endeavour to isolate the consequences to Auspine of the particular conduct sought to be injuncted on the one hand from the consequences of the more general strike action, or action of withdrawal of labour, on the other.  It is obvious that the withdrawal of labour is causing Auspine significant loss but I do not think that is the relevant loss for the purposes of determining the balance of convenience.

47                  Inevitably evidence on such matters cannot be really tested at this point of the proceedings.  However, I am satisfied to the necessary degree that Auspine is suffering, and will continue to suffer, significant loss by reason of the picketing.  That is simply because materials cannot be taken into its plant at Tarpeena or taken from its plant at Tarpeena.

48                  I will mention but a few features of the evidence which, in my view, are able to be attributed to the picketing as distinct from the more general industrial action which is taking place.  At the Tarpeena premises there are some $550,000 worth of logs which are debarked or undebarked, and which are vulnerable to deterioration due to what is called blue stain.  On the evidence that condition can emerge to a significant degree within a period of about two weeks, and on the evidence of Mr Praolini, Auspine fears that that condition will now significantly adversely affect a significant quantity - in excess of 9,000 cubic metres of logs - within the next several days.  To avoid that consequence Auspine will need to be able to transport the logs out of its Tarpeena premises so other operators can green mill the logs, or will be obliged to take into its premises machines that will convert the logs or parts of them to chips.  At present in my view there is at least a serious question to be tried on the issue that the picketing prevents that conduct.  That itself is a significant potential loss.

49                  In addition, Auspine has at present some 5,200 cubic metres of finished product for dispatch.  It is still operating on a small staff and is still continuing to produce finished product.  It normally removes about 600 cubic metres of finished product per day.  It has been unable to do so for some days.  Unless some order is made, I am satisfied there is a significant risk that it will be unable to do so at least in the immediate future.  Counsel for the respondents did not indicate that the respondents would permit the removal of finished product from Auspine’s premises.  Auspine’s inability to remove that finished product means that its ability to service its customers is diminished to some degree, although ultimately I am not persuaded that the accumulation of finished product can not be removed over time and the anticipated levels of revenue from that finished product achieved.  I do not think, therefore, that that particular factor is of great moment.

50                  Apart from the deterioration question, the evidence also indicates to me that there is the prospect of Auspine further reducing the adverse consequences of the industrial action by engaging external labour to load logs onto transportation vehicles for transport to other milling operators to generate finished product in a more timely manner.  The picketing process is preventing that from taking place.  That inability is another aspect of the potential loss to Auspine if the picketing does not stop.

There are other significant features of the balance of convenience, in my judgment, affecting employees of Auspine at Kalangadoo and at Portland.  To an extent, the evidence indicates that those effects are anticipatory, rather than presently being experienced, at least in Portland.  The evidence is that the Kalangadoo plant requires dressed and untreated timber to be provided from Tarpeena, and that at present, because of a lack of such product from Tarpeena, the employees at Kalangadoo are at a significant risk of reduced hours due to the scaling down of those operations.  That will cause a loss both to those employees and to Auspine at Kalangadoo.  A similar, but perhaps less dramatic, state of affairs applies in respect of Auspine’s premises at Portland.  Certain of its activities are being wound down and its employees’ hours are being reduced.  In other aspects of its activities, there is apparently sufficient stock to last for another week or a little more before further reduced hours of its staff may occur.

51                  On the other hand, the respondents have not asserted any particular disadvantage to them if the orders sought are made.  I am mindful of the fact that if the orders sought are made, and if ultimately the claim made by Auspine is unsuccessful, they will have been deprived of the opportunity for a time to exercise what may ultimately be found to be legitimate industrial action in furtherance of their objective of endeavouring to reach an enterprise agreement in terms acceptable to them.  To that extent, there is a significant prospect of disadvantage to them.  Beyond that, no particular feature of disadvantage was identified other than the desirability of the court not interfering with what is called their right of freedom of public discourse.  No orders which I propose to make are intended to interfere with that right of public discourse.

52                  Accordingly, I am satisfied in all the circumstances that it is appropriate in the exercise of my discretion to make an order injuncting in an appropriate form the action of picketing.

53                  I note that Auspine, by its counsel, is prepared to and does proffer an undertaking to the Court in terms of the usual undertaking as to damages, that is the undertaking in terms of Practice Note 3 published on 14 June 1999.

54                  Upon that undertaking, I propose to make an order that the respondents, by themselves or their servants, members or agents, be restrained from engaging in conduct in concert with others and with each other that hinders or prevents the access to or exit from the premises of Auspine Ltd situated in Tarpeena in the State of South Australia.

55                  So there is no scope for misunderstanding, in my judgment the conduct of standing on the roadway so as to force a vehicle to stop, even for the purpose of engaging in discussion with the driver or drivers of that vehicle would amount to the hindering of access to or exist from those premises.  On the other hand, if vehicles or persons are not restricted in any way in their access to or exit from the premises of Auspine, it would not be a breach of that order for the respondents to stand by the roadside or to have signs or placards indicating the nature of their claim or other matters, provided that such communications did not convey any threat to those proposing to gain access to or exit from the premises as to consequences to those persons if they proceed to or from the premises.

56                  I have made those comments because counsel for the respondents rightly urged me to make it clear what conduct was contemplated by any order I might make as being the subject of any such injunction.  I do not regard the injunction, in the terms that I have indicated and in the light of those reasons, as preventing the respondents from engaging in their right to speak to such persons as they choose to, but they cannot for that purpose force truck drivers or others gaining access to or exit from the premises to stop to engage in such communications if those persons do not choose to do so.

57                  I have also been asked to make an order that the respondents do not appear within 200 metres of the entry points of the premises of Auspine unless they are presenting themselves for work in accordance with their contracts of employment.  I am not satisfied that an order in those terms is warranted.  I decline to make it.

58                  I make the following orders:

1.         Upon Auspine by its counsel giving the usual undertaking as to damages, I order that the respondents, by themselves or their servants, members or agents, be restrained from engaging in conduct in concert with others and with each other that hinders or prevents the access to or exit from the premises of Auspine Ltd situated in Tarpeena in the State of South Australia.

2.         That this order be served upon the respondents:

(b)                        by service upon the respondents by their solicitors at the address for service given in the appearance; and

(b)            by placing a copy of the orders on the entrances to the premises of Auspine Ltd situated at Tarpeena in the State of South Australia.

6.                  Costs of this application reserved.

7.                  Adjourn the matter for further directions to 9.15 am on 18 April 2000.

8.                  Liberty to any party to apply on short notice.

Associate:

Dated:              17 April 2000