FEDERAL COURT OF AUSTRALIA

Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 3) [2009] FCA 371

VID 83 of 2009

ANDREW WILLIAMS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING KINDRED INDUSTRIES UNION, CONSTRUCTION FORESTRY ENERGY AND MINING UNION, MICK POWELL AND GARETH STEPHENSON

VID 89 of 2009

JOHN HOLLAND PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICK POWELL, TONY MAVROMATIS, MICK BULL, GARETH STEPHENSON, BARRY SLAVEN, TOBY PATERSON, TRENT PADULA, CANICE LYNCH AND DAVE KERIN

JESSUP  J

24 MARCH 2009

MELBOURNE

THE COURT ORDERS THAT:

1.   Until the hearing and determination of this proceeding or further order, the first, second, third and fourth respondents be restrained, whether by themselves, their servants or agents, from –

(a)  preventing or hindering the supply of any goods or services to the West Gate Bridge Strengthening Alliance Project (“the project”) of John Holland Pty Ltd at West Gate Bridge, Melbourne;

(b)  counselling or procuring any person not to supply any goods or services to, or not to make any delivery to, the project;

(c)  counselling or procuring any person not to work upon the project;

(d)  preventing, hindering or impeding the access or approach of any person or vehicle to, or the egress or departure of any person or vehicle from, the head office of John Holland Pty Ltd at 70 Trenerry Crescent, Abbotsford;

(e)  counselling, persuading or requesting any person not to attend a job interview or employment induction session at the said head office or not to cross a picket line for the purpose of attending any such interview or session;

(f)   counselling or procuring any person not to enter the said head office;

(g)  save for the purpose of entry or exit otherwise authorised by law, standing, sitting, lying or otherwise being present at or on the approach to any door, gate or entrance of or to the said head office;

(h)  threatening or abusing any person at, within, or in the vicinity of the said head office or any person entering, approaching, leaving or departing from the said head office;

(i)   organising or procuring any person to do any of the things set out in (a) – (h).

2.   Until the hearing and determination of this proceeding or further order, Gareth Stephenson be restrained, whether by himself, his servants or agents, from –

(a)  preventing or hindering

(i)   the supply of any goods or services to,

(ii)  the access or approach of any person or vehicle to, or

(iii)the egress or departure of any person or vehicle from,

the site of the project at Spotswood (“the site”);

(b)  counselling or procuring any person not to supply any goods or services to, or not to make any delivery to, the project;

(c)  counselling or procuring any person not to work upon the project;

(d)  counselling or procuring any person not to enter the site;

(e)  placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance to the site;

(f)   attending, or organising or procuring any person or persons to attend, within 100 metres of any entrance to the site, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the site or for the purpose of complying with these orders;

(g)  preventing, hindering or impeding the access or approach of any person or vehicle to, or the egress or departure of any person or vehicle from,

(i)   the head office of John Holland Pty Ltd at 70 Trenerry Crescent, Abbotsford (“the head office”);  or

(ii)  the head office of John Holland Pty Ltd for the project at 275 Williamstown Road, Port Melbourne (“the project office”);

(h)  counselling, persuading or requesting any person not to attend a job interview or employment induction session at the head office or the project office or not to cross a picket line for the purpose of attending any such interview or session;

(i)   counselling or procuring any person not to enter the head office or the project office;

(j)   attending, or organising or procuring any person or persons to attend, within 100 metres of any entrance to the head office or the project office, save for such entry thereto as may be authorised by law, for the purpose of using a public road for reasons unconnected with the head office or project office or for the purpose of complying with these orders;

(k)  threatening or abusing any person at, within, or in the vicinity of the head office or the project office or any person entering, approaching, leaving or departing from the head office or the project office;

(l)   besetting or following any person, or the vehicle of any person, who is, was or would be –

(i)   an employee or agent of John Holland Pty Ltd;

(ii)  a person contracted to work on, or to supply labour or materials to, the project; or

(iii)an employee or agent of any such person; or

(m)organising or procuring any person to do any of the things set out in (a) – (l).

3.   The further hearing of paragraph 7 of the applicant’s Notice of Motion dated 20 March 2009 be fixed for 9.00 am on 7 April 2009.

4.   Gareth Stephenson be added as the fifth respondent.

5.   The applicant have leave to file and serve an Amended Application in accordance with the proposed Amended Application attached to the applicant’s Notice of Motion dated 20 March 2009 marked “A”.

6.   Orders 5, 6, 7 and 8 made on 11 March 2009 be vacated.

7.   The applicant file and serve any affidavit or affidavits upon which he intends to rely on or before 4.30 pm on 3 April 2009.

8.   The respondents file and serve any affidavit or affidavits upon which they intend to rely on or before 4.30 pm on 24 April 2009.

9.   The applicant file and serve any affidavit or affidavits upon which he intends to rely in reply to the affidavit or affidavits of the respondents by 4.30 pm on 4 May 2009.

10.The proceeding be sent to mediation in accordance with O 72 of the Federal Court Rules, such mediation to occur in the week commencing 4 May 2009 with the mediator to report the outcome of the mediation to the court before 13 May 2009.

11.The proceeding be listed for directions at 9.30 am on 15 May 2009.

12.The parties have liberty to apply on 48 hours notice to the other parties.

13.Costs be reserved. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

Upon the applicant by its counsel undertaking:

(a)       to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interim injunctions or either of them below; and

(b)       to pay the compensation referred to in (a) above to the person there referred to.

THE COURT ORDERS THAT:

1.   Until the hearing and determination of this proceeding or further order, the first, second, third and fourth respondents be restrained, whether by themselves, their servants or agents, from –

(a)  preventing or hindering the supply of any goods or services to the West Gate Bridge Strengthening Alliance Project (“the project”) at West Gate Bridge, Melbourne;

(b)  counselling or procuring any person not to supply any goods or services to, or not to make any delivery to, the project;

(c)  counselling or procuring any person not to work upon the project;

(d)  preventing, hindering or impeding the access or approach of any person or vehicle to, or the egress or departure of any person or vehicle from, the applicant’s head office at 70 Trenerry Crescent, Abbotsford;

(e)  counselling, persuading or requesting any person not to attend a job interview or employment induction session at the said head office or not to cross a picket line for the purpose of attending any such interview or session;

(f)   counselling or procuring any person not to enter the said head office;

(g)  save for the purpose of entry or exit otherwise authorised by law, standing, sitting, lying or otherwise being present at or on the approach to any door, gate or entrance of or to the said head office;

(h)  threatening or abusing any person at, within, or in the vicinity of the said head office or any person entering, approaching, leaving or departing from the said head office;

(i)   organising or procuring any person to do any of the things set out in (a) – (h).

2.   Until –

(A)      4.00 pm on 7 April 2009 or further order, Barry Slaven, Toby Paterson, Trent Padula, Canice Lynch and Dave Kerin; and

(B)      the hearing and determination of this proceeding or further order, Gareth Stephenson;

be restrained, whether by themselves, their servants or agents, from –

(a)  preventing or hindering

(i)   the supply of any goods or services to,

(ii)  the access or approach of any person or vehicle to, or

(iii)the egress or departure of any person or vehicle from,

the site of the project at Spotswood (“the site”);

(b)  counselling or procuring any person not to supply any goods or services to, or not to make any delivery to, the project;

(c)  counselling or procuring any person not to work upon the project;

(d)  counselling or procuring any person not to enter the site;

(e)  placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance to the site;

(f)   attending, or organising or procuring any person or persons to attend, within 100 metres of any entrance to the site, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the site or for the purpose of complying with these orders;

(g)  preventing, hindering or impeding the access or approach of any person or vehicle to, or the egress or departure of any person or vehicle from,

(i)   the applicant’s head office at 70 Trenerry Crescent, Abbotsford (“the head office”);  or

(ii)  the applicant’s head office for the project at 275 Williamstown Road, Port Melbourne (“the project office”);

(h)  counselling, persuading or requesting any person not to attend a job interview or employment induction session at the head office or the project office or not to cross a picket line for the purpose of attending any such interview or session;

(i)   counselling or procuring any person not to enter the head office or the project office;

(j)   attending, or organising or procuring any person or persons to attend, within 100 metres of any entrance to the head office or the project office, save for such entry thereto as may be authorised by law, for the purpose of using a public road for reasons unconnected with the head office or the project office or for the purpose of complying with these orders;

(k)  threatening or abusing any person at, within, or in the vicinity of the head office or the project office or any person entering, approaching, leaving or departing from the head office or the project office;

(l)   besetting or following any person, or the vehicle of any person, who is, was or would be –

(i)   an employee or agent of the applicant;

(ii)  a person contracted to work on, or to supply labour or materials to, the project; or

(iii)an employee or agent of any such person; or

(m)organising or procuring any person to do any of the things set out in (a) – (l).

3.   The further hearing of paragraphs 1 and 3 of the applicant’s Notice of Motion dated 20 March 2009 be fixed for 9.00 am on 7 April 2009.

4.   Gareth Stephenson, Barry Slaven, Toby Paterson, Trent Padula, Canice Lynch and Dave Kerin be added as the sixth to eleventh respondents respectively.

5.   The applicant have leave to file and serve a Further Amended Application in accordance with the proposed Further Amended Application attached to the applicant’s Notice of Motion dated 20 March 2009 marked “A”.

6.   Orders 4, 5, 6 and 7 made on 11 March 2009 be vacated.

7.   The applicant and the intervener file and serve any affidavit or affidavits upon which they propose to rely with respect to so much of the applicant’s case as does not include questions relating to the quantification of damage, if any, by 4.30 pm on 3 April 2009.

8.   The respondents file and serve any affidavit or affidavits upon which they propose to reply with respect to so much of their case as does not include questions relating to the quantification of damage, if any, by 4.30 pm on 24 April 2009.

9.   The applicant and the intervener file and serve any affidavit or affidavits upon which they propose to rely in reply to the affidavit or affidavits of the respondents by 4.30 pm on 4 May 2009.

10.The proceeding be sent to mediation in accordance with O 72 of the Federal Court Rules, such mediation to occur in the week commencing 4 May 2009 with the mediator to report the outcome of the mediation to the court before 13 May 2009.

11.The proceeding be listed for directions at 9.30 am on 15 May 2009.

12.The parties have liberty to apply on 48 hours notice to the other parties.

13.Costs be reserved. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

AND                                                                                                                               VID 89 of 2009

REASONS FOR JUDGMENT

1                          There are two proceedings before the court today, in each of which there is a Notice of Motion for the extension of interim orders previously made.  The applicants seek to widen the scope of the orders and to apply them to additional respondents.  The present occasion is not one upon which I need to rehearse the background facts of the dispute which gives rise to each of these proceedings.  Those facts have been sufficiently canvassed in previous interlocutory reasons which I have delivered: see Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union [2009] FCA 86, Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No 2) [2009] FCA 103, and John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union [2009] FCA 235.

2                          It seems that the need for the two motions now before the court has arisen substantially since the orders made by the court on 17 March 2009 which applied at the project office of John Holland Pty Ltd (“John Holland”), the applicant in proceeding VID 89 of 2009.  Since then, there has been conduct by some people, to whom I will refer further in a moment, at that site, at the site of the construction project itself adjacent to the West Gate Bridge, and at the site of the administrative head office of John Holland at Abbotsford.  The conduct now drawn to my attention has, for the most part, been engaged in by people who are not presently respondents.  The applicant in the John Holland proceeding seeks that they be made respondents and that they be bound by an interlocutory restraint.  The applicant in the Williams proceeding seeks that one additional person be made a respondent and that he and the existing respondents be bound by more extensive orders.  For reasons canvassed with counsel, I propose to commence by considering the John Holland application for further interim orders, and only if necessary then to consider making corresponding orders in the Williams proceeding. 

3                          John Holland relies upon the affidavits referred to in paragraph 2 of its outline of argument dated 23 March 2009, namely the fifth affidavit of Mr Hamersley, the third affidavit of Mr Foster, the fourth and fifth affidavits of Mr Cassells, the affidavit of Mr Wiadrowski, the affidavit of Mr Webb and the affidavits previously filed in support of interlocutory motions.  John Holland relies also upon the affidavits filed in support of the motion in the Williams proceeding, namely those of Mr Wojniusz made 20 March 2009, of Mr McCourt made 18 March 2009, of Mr Astbury made 20 March 2009, of Mr Alfred made 20 March 2009, of Mr Twentyman made 20 March 2009, of Mr McElligott made 23 March 2009 and the fifth affidavit of Mr Williams also made 23 March 2009. 

4                          The time available this morning does not permit me to refer in any more than by way of the barest outline to the conduct referred to in these affidavits.  However, I shall draw attention to some of the more disturbing aspects of that conduct.  For the most part, as I have said, it was engaged in by the persons which John Holland seeks to add as respondents in its proceeding, namely, Barry Slaven, Toby Paterson, Trent Padula, Canice Lynch and Dave Kerin.  To an extent, the conduct is also engaged in by an organiser of the second respondent (the CFMEU), Mr Gareth Stephenson.  Mr White, who appears today for the existing respondents, announced an appearance also for Mr Stephenson and, as an organiser in the service of the CFMEU, he was effectively grouped by Mr White with his existing clients for the purpose of resisting the applicant’s motion. 

5                          The aspects of the conduct referred to in these affidavits which I have described as being the more disturbing ones include the following.  The persons to whom I have referred have gathered themselves in the company of large numbers of others at one or both of the entrances to the construction site in such numbers as would arguably be intimidating, and the persons whose names I have mentioned have, at least on the material before the court, apparently taken a leadership or organisational role in those gatherings.  On one occasion, the operation of a padlock on a gate of the construction site was fouled by a person or persons unknown having snapped the key off in the padlock.  On another occasion, one of the entry gates to the site was welded closed with steel bars and steel mesh; and there is some limited evidence that two of the deponents relied upon by John Holland observed that welding operation being carried out.  On a number of occasions, vehicles have been parked across one or other of the entry ways to the site.  On at least one occasion the approach to one of the access gates to the site was lined with cars, apparently forming a corridor through which any person working on the site, or otherwise having recourse to the site, would be required to pass.  There have been two occasions upon which the drivers of trucks delivering substantial equipment to the site have apparently been persuaded not to make those deliveries and to turn around and return to their bases. 

6                          There was an occasion in which the employees of a significant contract or to John Holland were addressed in an off-site meeting by Mr Stephenson and persuaded to refuse to work on the site, which they did.  The same contractor, that is to say the contractor by whom those persons were employed, was, it seems, directly contacted by Mr Stephenson and requested to discontinue working on the site.  There is evidence that some of the persons who were believed to be intending to work on the site were followed in their vehicles to off site locations (such as a fast food restaurant) to which they had recourse when it appeared that the picket line was going to prevent their access to the site.  The motor vehicle of one of the supervisors engaged by the applicant on the site was damaged and the proximity of rocks lying on the ground near the damaged car caused John Holland to infer that those rocks were used to damage the car.  There is evidence that one of the new workers, or one of the workers newly engaged to work, on the site, whilst leaving one of the John Holland premises, had his vehicle surrounded and rocked by those making protest against John Holland. 

7                          There is evidence that what I will call for the moment picket-like gatherings at the off-site locations, namely the Port Melbourne location and the Abbotsford location, had the purpose of intimidating those attending for interview or induction.  In this particular respect, that is to say in respect of the off-site locations, I shall make specific reference to the contents of two of the affidavits.  In the fifth affidavit of Mr Hamersley, the following evidence appears:

I am informed by Nugent [that is to say an employee of John Holland] that the following events occurred at or around the Head Office site [that is to say the office in Abbotsford] on 17 March 2009:

(a)  Nugent had been directed to attend a meeting at Head Office at 6.30 am that morning;

(b)  as he approached the Head Office site, he noticed that there were two men standing out the front of the site who he had seen before in the course of his work on the Project and who he thought were “union blokes” [as he described them];

(c)  there was to be a picket in place at Head Office;

(d)  he felt uncomfortable approaching the Head Office site, so he continued driving up and down Trenerry Crescent;

(e)  he parked his car around the corner from the Head Office site;

(f)  approximately 6 to 8 people approached his car whilst he was sitting in or driving his car in the vicinity of Trenerry Crescent.

(g)  at one point, a number of men approached his vehicle and said to him:  “We have a picket in place, you have to understand that if you cross the picket, there will be consequences.  It could get physical.  We won’t back down.  John Holland won’t win.  Now, are you going to cross the picket?”  Peter [that is Mr Nugent] told the men that he intended to cross the picket. 

(h)  some time after this exchange, Nugent noticed a silver Volkswagen with the registration “NEEROD” pull up behind his vehicle.  The driver revved his engine, then shut off the vehicle, got out of the car and approached Nugent’s vehicle.  The driver was of average build, with dark hair, and appeared to be in his late 20s to early 30s with a neat goatee beard. 

(i)   the driver asked Nugent, “How are you going?  Are you enjoying your job?”  Nugent replied “Not really, not at the moment.  The driver said to Nugent: “Well, I am, because I am getting paid to do this.” 

(j)   A white VS Holden Commodore ute pulled up in front of his car with only inches between the vehicles, the effect of which was to prevent Nugent from moving his vehicle.  Two men, each approximately 6 feet 2 inches tall approached Nugent’s vehicle and tapped on his window.  Nugent wound down his window and proceeded to have a 30 minute conversation with these men.  The men asked whether Nugent was a John Holland employee or a WorkPac employee.  Peter eventually told the workers that he was a John Holland employee.

(k)  The men asked Nugent to join the picket and said to him that if he did not join the picket, he would not work in construction again.  The men also said to Nugent that things could get physical.  They also said that they had just joined the picket themselves and that they had been pressured into it.  The men also said that: “Marshall is a fucking dog and a prick and you can’t trust him.”  Nugent replied that he knew Marshall, and his father knew Marshall and he believed that he could trust him.  The men then walked away from Nugent’s vehicle. 

As to that evidence, I would add two things.  The first is that the Marshall referred to of course is the same Mr Marshall as has previously given evidence in this proceeding, and the second is that the Volkswagen with the registration NEEROD has been seen on a number of occasions and in a number of places closely associated with the activities and conduct of which John Holland complains, and there is evidence – more than once in the affidavits – that it is usually driven by one of the proposed respondents, Mr Padula. 

8                          I refer also to a passage in the fourth affidavit of Mr Cassells.  There is evidence in that affidavit as follows, with reference to 19 March 2009:

At approximately 8.30 AM I received a telephone call from Brian Lee (Security Supervisor) who informed me that there was a crowd forming at the Smith Street entrance to the Port Melbourne office.  I was at the Port Melbourne office at the time, so I moved to where I could view the Smith Street entrance.  I saw approximately 60 protestors, including Lynch, Paterson, Slaven, Mick Bragagnolo and David Dawson, all former Civil Pacific employees.  The protestors were being led by Kerin on a loudhailer. 

As a result of a picket on Smith Street, the new workers were not able to gain access to the warehouse in their cars, and therefore could not be safely transported to the bridge.  I was informed by Gary Marshall that some of the protestors had attacked one of the new workers as he drove his car down Smith Street by pushing and kicking his car and rocking it from side to side.

This evidence, of course, relates to the Port Melbourne office of John Holland which was the subject of the injunction granted on 17 March 2009. 

9                          The affidavit material to which I have referred persuades me that I should make a temporary holding injunction, binding upon Messrs Slaven, Paterson, Padula, Lynch and Kerin.  The present circumstances are that they have not been served, although it is apparent that at least some of them are aware of the applicant’s intention to serve them.  I will make an order which runs until 4.30 pm on 7 April 2009, and I will bring the applicant’s Notice of Motion relevantly to those gentlemen back on before the court at 9 am on that day. 

10                        That brings me to the existing respondents for whom Mr White appeared this morning.  His case is that there was, and is, no evidence that they are involved in the conduct which is arguably unlawful under the provisions of the Building and Construction Industry Improvement Act 2005 (Cth) on which the applicant and the intervener rely.  There is the question whether it is arguable that the respondent unions, that is, the first and second respondents, are associated with the activities of the proposed new respondents and those with whom they have acted.  There is some evidence which would give rise at least to an arguable inference that there is such association.  On at least one occasion, there were cardboard signs or other forms of display visible at the Hyde Street entrance to the site when the protestors were gathering there, upon which were shown the names of the applicant unions.  There is the evidence of the driver of the Volkswagen who said that he was being paid to engage in the conduct which he did.  There is, seemingly more than 100 metres away from the entrance to the site, a tent and a caravan set up with some suggestion that that has been done on behalf of the CFMEU, because a CFMEU flag was seen nearby.  There are the activities of Mr Stephenson in relation to Mr McElligott’s company and the staff of that company.  Although those activities are in a different category from some of the more obviously troubling activities to which I have referred, nonetheless the involvement of Mr Stephenson in a common cause, and his position as a staff organiser of the CFMEU, provides some reasonable basis for an apprehension that the CFMEU are involved to an extent.  And finally, there is the evidence in affidavits of service (which I have been shown in a photocopy this morning and which counsel for the applicant has undertaken to procure to be filed), which suggest that Mr Lynch and Mr Slaven have been told by someone (they do not say by whom), that it might well be anticipated that they would be served with documents in this case, and that they should take all steps to avoid service, even if that should prove costly.  I give the unions credit for ostensibly complying with the orders previously made, but it is arguable, in my view, that they are involved in an organisational way in an attempt to defeat the intent of those orders, that is, an attempt to make it the more difficult for those orders to secure their obvious purpose, which was to maintain the status quo and to avoid the exercise of the jurisdiction of this court being frustrated by the harassing and arguably unlawful activities of these other persons to whom I have referred.  The conduct of those persons has been referred to as a protest.  I am disposed, however, to think it at least arguable that that is little more than a euphemism to describe an organised program of harassment calculated to induce fear on the part of those who would be minded to attend one or other of the sites conducted by John Holland.

11                        I propose to make different orders binding upon the existing respondents and upon the proposed additional respondents.  In part I do that because the respondents are already bound by orders made by the court and clearly there should be no duplication or confusing overlap.  Mr Stephenson is in a slightly different position from the others because, although he is not presently a respondent, the second respondent, the CFMEU, has quite properly taken responsibility for his circumstances and has caused Mr White to appear for him in common with the existing respondents.  Notwithstanding that circumstance, Mr Stephenson’s involvement in what appears to have been a reasonably well-orchestrated program of recent activity, justifies him being grouped with those whom I propose to restrain on an interim basis until 7 April 2009.

Associate:

Dated:         21 April 2009

In VID 83 of 2009:

In VID 89 of 2009: