FEDERAL COURT OF AUSTRALIA

Ralan St Leonards Pty Ltd v Construction, Forestry, Mining & Energy Union [2014] FCA 431

THE COURT ORDERS THAT:

1.    Until further order, the First Respondent is restrained by its servants or agents from organising, continuing to organise, or threatening to organise, or being otherwise involved in any physical obstruction, or any physical impediment to the free movement of goods or people, to and from the First Applicant’s premises situated at 545-553 Pacific Highway, St Leonards, including the common boundary with Oxley Street and Clarke Lane.

2.    Costs are reserved.

3.    The matter is stood over to 2 May 2014 at 12:00 pm.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 29 April 2014 the Applicants filed an Originating Application in this Court. The First Applicant, Ralan St Leonards Pty Ltd (“Ralan St Leonards”) is a company that was formed for the purpose of the acquisition and development of land at 545-553 Pacific Highway, St Leonards. It is one of the companies in a group which can be called the Ralan Group. The other Applicants are also members of that Group.

2    That Application sought (inter alia) relief “pursuant to s 23 of the Federal Court Act and the Competition and Consumer Act 2010 arising from a contravention of s 45D of the Competition and Consumer Act 2010”.

3    The Respondents were named as the Construction, Forestry, Mining & Energy Union (the “CFMEU”), as First Respondent and Messrs Darren Greenfield and Robert Kera as Second and Third Respondents respectively. Mr Greenfield is a Union Organiser employed by the CFMEU. Mr Kera is an Assistant State Secretary of the CFMEU.

4    The Originating Application also sought interlocutory relief.

5    An ex parte application was made on 29 April 2014 to abridge the time for service of the Originating Application upon the Respondents. The CFMEU appeared before the Court yesterday. Service was apparently not effected upon Messrs Greenfield and Kera and they did not then appear.

6    The matter now before the Court as a duty matter is the application for interlocutory relief as against the CFMEU alone. No interlocutory relief is sought as against either Mr Greenfield or Mr Kera.

7    For the purposes of resolving that interlocutory application, it is concluded that there is a serious question as to whether the background facts which have given rise to the present application are such that some form of injunctive relief is both necessary and appropriate. The conduct of the CFMEU and its officers has arguably gone beyond what may be regarded as a lawful protest.

The facts giving rise to the dispute

8    The application for interlocutory relief in substance seeks to restrain the CFMEU by its servants or agents from unlawfully hindering or impeding access to its premises at St Leonards.

9    The facts which give rise to the present dispute go back to a time before Ralan St Leonards became involved with the site. Prior to February 2014 the development of the site was being undertaken by Steve Nolan Constructions Pty Ltd (“Steve Nolan Constructions”). That company went into voluntary administration in February 2014 and into liquidation in March 2014. Subcontractors were left being owed monies.

10    Complaints as to the non-payment of these monies were made to the Managing Director of the Ralan Group, Mr O’Dwyer. The CFMEU made contact with the Ralan Group concerning these outstanding monies in January 2014. A meeting was held on 15 January 2014 with Mr O’Dwyer and (amongst other) Messrs Severino, Mackey and Gough and Mr Greenfield. According to Mr O’Dwyer, part of what was said during that meeting was the following:

Mr Greenfield:    “Well I am here for four contractors.” He then listed the names of four individuals or companies, the details of which I cannot now recall.

Mr O’Dwyer:    “How much are they owed in total?”

Mr Greenfield:    “Around $1.2 million.”

Mr Mackey:    “Three of these contractors are not even on the list of creditors that Robert has emailed to us.”

Mr Greenfield:    “Robert why haven’t you provided Ralan with a correct list of workers that are owed money?”

Mr Severino:    “I don’t know.”

Mr Mackey:    “This is the problem we have with SNC. We cannot get the truth of what is owed or the truth about the size of the debt to creditors.”

Mr Greenfield:    “If Ralan doesn’t pay up, we will picket Ralan sites and no one will cross our picket lines. You will never finish the projects.”

Mr O’Dwyer:    “You can picket all you want. Legally Ralan does not owe a dollar to any of the contractors SNC has their money, they will need to pursue SNC.”

Mr Gough:    “That is correct Darren. Ralan simply does not owe the contractors money.”

Mr Greenfield:    “We don’t care what is legal. We will picket the sites until Ralan pays up. If need be we will force the banks to pay up. I have done that before by sitting in the bank’s offices in the city and demanding they pay up”

Mr O’Dwyer:    “I will not bow to threats. Ralan is the biggest victim of this mess. We will need to spend millions more to get our buildings finished.”

11    From early February 2014 the CFMEU carried out protests at the St Leonards site. From early February to 10 April those protests involved men wearing shirts with the initials CFMEU and other men affixing red flags bearing the initials CFMEU to the security fencing around the site. Each day, the men also erected an inflatable rat to which signs were affixed. Each day there also appeared a truck covered with a woman’s head and the words:

“I THOUGHT I’D BE COVERED” Barry O’Farrell’s attack on Workers Compensation affects you.

The words “Union NSW” are also printed on each side of the CFMEU truck adjacent to a logo. Questions have also arisen as to whether the CFMEU has parked cars in such a manner that results in access to the site being impeded.

12    The nature of the protest, it is presently understood, changed from about 10 April 2014. From about that date, the CFMEU protesters started to line up at the rear lane where subcontractors and other personnel came onto the site. According to the site foreman, Mr Jay Linnegar, the CFMEU protesters shout abuse and shout things such as “You scabs. You’re going to work for slimy pricks who don’t pay their workers. Don’t go in there”. Mr Kera maintains that he has never heard persons shout abuse at subcontractors or workers going on to the site.

13    On 16 April 2014 a project manager employed on the site, Mr Anthony Finn, had the following conversation with Mr Tom Mitchell, one of the protesters and a person who was said in submissions to be a worker who is owed monies as a result of the collapse of Steve Nolan Constructions:

Mr O’Dwyer: “We need you to move that truck.”

Mr Mitchell: “There’s no chance of that. The truck’s staying put. Those subbies of ours shouldn’t be on this site. No-one’s permitted to work on this site until all our members have been paid what they’re owed by Ralan.”

Mr Mitchell: “Whatever mate. I’m just trying to do my job. If you’re going to stop guys working on site I’ll let the relevant people know.”

14    On 23 April 2014 the driver of a long flat-bed truck seeking to deliver materials on to the site was seeking to gain access to the site. Protesters occupied the street or lane way. In addition, CFMEU vehicles were parked in such a manner which (at the very least) impeded free access to the site. Mr Greenfield maintains that he explained to the truck driver how people on the project had not been paid and that the truck driver was apparently reluctant to thereafter go on site. Mr Greenfield further maintains that he spoke to Mr Linnegar and there was agreement that the materials could be unloaded on to the footpath and thereafter walked on to the site. That is what happened. There was a video of part of those events. The laneway access to the site, it may be observed, was extremely restricted. Union members can be seen in the path of the truck. But whether they were there before the truck sought access is not shown on the video.

15    The police were nevertheless called and told one of the most protesters, Mr Mitchell: “You’re not to block the street. You can have you’re protest but you cannot block the road”. Mr Mitchell saw the exchange being filmed by Mr Almarjawi, a security guard employed by Raptor Protective Services (“Raptor”) and, according to Mr Linnegar, shouted at Mr Almarjawi:

You filthy slimy c… Why don’t you film us down here. You slimy prick, you haven’t got the balls to film us down here.

Another private investigator from Raptor retained by the Applicant, Mr Topcu, gives a similar account of what was said.

16    On the following day, 24 April 2014, a further truck sought to deliver materials to the site. It was prevented, on the account of Ralan St Leonards, from delivering those materials. Mr Linnegar, spoke to Messrs Greenfield and Kera. Mr Linnegar maintains that the following exchange occurred:

Greenfield and Kirra:     You’re not taking delivery of any material today.

Linnegar:         Well I’ll have no alternative but to call the police.

Greenfield or Kirra:     Do what you like but nothing’s coming onto the site today

17    At about 6.45 am on 28 April 2014 there Mr Kera also said to Mr Linnegar:

No-one is going on site today. We will be standing here to make sure that doesn’t happen.

There were approximately 40 CFMEU protesters standing behind Mr Linnegar. Subcontractors who sought to enter the site on 28 April 2014 were prevented from doing so. Mr Topcu also gives the following account of a telephone call on that day as to what Mr Almarjawi then said:

There were about 30-40 CFMEU protestors at St Leonards this morning. At about 6.00am three of the contractors were turned away and prevented from entering the construction site. I was standing near the Clarke Lane entrance and saw the three contractors walk towards the entrance. I’ve seen them before on site. They’re Asian guys. As they walked towards the entrance a number of the union protestors shouted out to them: ‘Turn around and leave now. You’re not getting in.’ The three contractors then turned around and walked down Clarke Lane away from the entrance.

18    A video recorded by the CFMEU this morning shows a Ford pick-up nevertheless gaining access to the site.

Lawful protest v obstruction and besetting

19    Many decisions of both this Court and other Courts address the circumstances in which interlocutory injunctive relief that may be granted in facts broadly comparable to those presented in this case.

20    If the form of the interlocutory order as initially sought is left to one side, it is common ground that a distinction must necessarily be drawn between the lawful conduct which the CFMEU and its officers can continue to undertake as opposed to that which attracts injunctive relief. The case for the CFMEU is that its conduct has not trespassed beyond lawful picketing or protesting. The case for Ralan St Leonards is that the CFMEU may have initially been engaged in lawful protest. But, says Ralan St Leonards, in more recent days, the CFMEU has stepped over the line and has engaged in conduct which has hindered or impeded access to the site by both vehicles and its workers. Ralan St Leonards maintains that it is entitled to interlocutory relief as there is a serious question to be tried and that the balance of convenience is in its favour.

21    At common law, picketing is not necessarily unlawful but may become so if it involves obstruction and “besetting”: Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 per Mason JA. “Besetting” includes ‘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 for their own safety or the safety of their property’: Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Limited (1993) 42 FCR 452 at 457 per Lockhart and Gummow JJ.

22    One authority which canvasses the difficulties in granting injunctive relief but also identifies the circumstances in which such relief is appropriate is Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union [2001] NSWSC 826, (2001) 108 IR 107. Bryson J there helpfully identified the “important basic values” involved in resolving a dispute as to when conduct trespasses into the realm of unlawful conduct as follows:

[13]    Important basic values are involved on either sides of an application to restrain picketing. Picketing can cover many kinds of behaviour. The plaintiff's claim relates to a basic liberty, the right of persons to come and go in public streets and have access to premises, unimpeded by people who do not have lawful authority to restrain them, and the related right of occupiers of land to be free from restrictions on access to their land. Freedom of movement is a basic value: (2001) 108 IR 107 at 111.

His Honour went on to refer to the reluctance of Courts of Equity to attempt to control picketing by way of injunctions and the reluctance “to use equitable remedies in disputes of an industrial nature” as follows:

[13]    …Picketing involves reliance on another basic value, freedom of speech and expression, which Courts of Equity have been markedly reluctant to attempt to control by injunctions. Injunctions including interlocutory injunctions should not be granted as a matter of routine or without careful consideration including an address to the adequacy of other remedies. I am reluctant to attempt to use an injunction as a means of controlling anything in the nature of communication of a point of view; on the other hand not everything which is verbal is an exercise of freedom of expression. There are it seems to me rather close practical limits to the extent to which what people say can be controlled by an injunction.

[14]    An object of granting equitable remedies is to resolve controversies overall by enforcing all the rights and equities of the parties. This Court has a well-established reluctance to use equitable remedies in disputes of an industrial nature…In my understanding this reluctance is based, at least in part, on poor experience of the efficacy of injunctive relief and contempt proceedings to enforce rights or resolve disputes of an industrial nature. It is also based in part on the existence, now for about a century, of alternative specialist jurisdictions which overall are better equipped and better empowered to resolve industrial disputes…

[15]    Much conduct which could be described as picketing is not tortious at all, but for picketing which is tortious it is not in my opinion appropriate, in relation to the Workplace Relations Act, for a Court of Equity to decline equitable relief on discretionary grounds because the dispute between the parties is of an industrial nature and appropriate for resolution under the Industrial law; a claim in respect of picketing which is tortious cannot be resolved under industrial law. For that reason this Court's established reluctance to act in industrial disputes should not govern my decisions. There are recent instances in which this Court has granted injunctions in respect of tortious behaviour related to industrial disputes in fields regulated by the Workplace Relations Act…: (2001) 108 IR 107 at 111-112.

His Honour then went on to address the question as to when picketing becomes tortious as follows:

[16]    The point at which picketing becomes tortious has been the subject of judicial consideration on a number of recent occasions. In the Court of Appeal of NSW significant observations were made by Mason JA (as his Honour then was) with the concurrence of other Judges in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] NSWLR 760 at 767; his Honour observed to the effect that picketing may become unlawful if it involves obstruction and besetting…Much behaviour which is ordinarily called picketing is not tortious at all. A great deal depends on detail, and generalisations are of limited use, but for persons to assemble outside a workplace and make known to others including people going to and leaving the workplace the fact that there is an industrial dispute, what their dispute is about, what they claim are the merits of the dispute and so forth is not unlawful or tortious; yet much the same behaviour would be tortious if in doing it they obstructed the passage of other persons, whether with vehicles or on foot. Obstruction could take many forms, such as standing in their way, or moving about in some way which interfered with passage…“Besetting” is a much less definite concept than “obstruction”. Behaviour can constitute a nuisance to an occupier if the occupier or other persons attending the occupier's presence are watched continually or beset with insults or messages in ways or in circumstances which offer discouragement to attendance there and so impede the occupier's enjoyment of his property. When observing behaviour it would usually be easy to distinguish between making a point of view known by addressing other persons and discouraging the passage of other persons by besetting them with insults, offensive language and threats…: (2001) 108 IR 107 at 112-113.

This decision has, not surprisingly, been followed and applied: see Saint-Gobain Warehousing Pty Ltd v National Union of Workers [2006] NSWSC 1210 at [9], (2006) 158 IR 80 at 82 per Barrett J.

Section 45D

23    The Originating Application in the present proceeding invokes s 45D of the Competition and Consumer Act 2010 (Cth).

24    Section 45D(1) provides as follows:

In the circumstances specified in subsection (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 would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

In resolving questions as to whether conduct falls within this provision, it is again sufficient, (for present purposes), to note that the common law analysis of that which constitutes picketing has been applied by way of analogy: e.g., Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Limited (1993) 42 FCR 452 at 457 per Lockhart and Gummow JJ.

25    It is unnecessary for the purposes of resolving the present interlocutory application to further pursue the reach of s 45D.

CONCLUSIONS

26    Wherever the line may ultimately be drawn between lawful protest and unlawful picketing, there is a serious question to be tried as to whether that line has been crossed in the present proceeding.

27    There is a serious question to be tried as to whether the lawful delivery of materials to a construction site has been repeatedly impeded – if not prevented – and whether workers have been exposed to intimidation and abuse such that their free access to the site has been unlawfully impeded. Unless restrained, there is a real risk that such conduct may continue.

28    The balance of convenience is unquestionably in favour of granting relief.

29    There is not considered to be any persuasive discretionary reason to decline to grant relief.

30    There was no argument in the present case on the part of the CFMEU that its conduct – if found to be obstruction and “besetting” – nevertheless was protected industrial action under the Fair Work Act 2009 (Cth).

THE ORDERS OF THE COURT ARE:

1.    Until further order, the First Respondent is restrained by its servants or agents from organising, continuing to organise, or threatening to organise, or being otherwise involved in any physical obstruction, or any physical impediment to the free movement of goods or people, to and from the First Applicant’s premises situated at 545-553 Pacific Highway, St Leonards, including the common boundary with Oxley Street and Clarke Lane.

2.    Costs are reserved.

Associate:

Dated:    6 May 2014