FEDERAL COURT OF AUSTRALIA

DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1209

ORDERS

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 that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)     to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

1.    Until the hearing and determination of the applicant’s application for interlocutory relief dated 31 July 2019 or until further order of the Court, the respondent, whether by its officers, employees, delegates, agents or howsoever otherwise, be restrained from organising, encouraging, procuring or inducing any persons employed by the applicant to perform crane or straddle operations at its West Swanson Terminal (Relevant Employees) to engage in industrial action as defined in this Order.

2.    The “industrial action” in clause 1 of this Order is:

(a)    the performance of work by an employee in a manner different from that in which it is customarily performed; or

(b)    the adoption of a practice in relation to work by an employee,

the result of which is a restriction or limitation on, or a delay in, the normal rate of movements by a crane or straddle.

3.    The “industrial action” in clause 1 of this Order does not include industrial action of a kind in respect of which the respondent provides the applicant with a notice under s 414 of the Fair Work Act 2009 (Cth).

4.    The respondent must forthwith:

(a)    take all reasonable steps to bring the existence of this Order to the attention of the officers and, employees of the Victoria Branch of the Respondent’s Maritime Union of Australia Division (MUA Vic Branch), and, its delegates who are employed by the applicant at its West Swanson terminal;

(b)    notify its officers and employees of the MUA Vic Branch, and its delegates who are employed by the applicant at its West Swanson terminal that industrial action of the kind in respect of which by clause 1 of this Order the respondent is restrained is not authorised or encouraged by the respondent; and

(c)    issue and distribute (including but not limited to posting, and maintaining for the time that this Order remains in force, on the home page of the MUA Vic Branch, http://www.mua.org.au/victoria_branch) a communication to its members who are Relevant Employees which:

(1)     includes a copy of this Order;

(2)     states that the industrial action defined in this Order is to cease and not occur, and is not authorized by the respondent.

5.    The requirement under Rule 41.07 of the Federal Court Rules 2011 (Cth) for personal service of this Order on the respondent is dispensed with and, instead, service of this Order upon the respondent is permitted by forwarding a copy of it by email or facsimile transmission addressed to the Secretary of the MUA Vic Branch.

TO: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION TAKE NOTICE THAT, PURSUANT TO ORDER 41.06 OF THE FEDERAL COURT RULES:

You are liable to imprisonment or to sequestration of property if:

(a)     you refuse or neglect to do the things that this order requires you to do; or

(b)     you do the things that this order requires you to abstain from doing, or otherwise disobey this order.

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

REASONS FOR JUDGMENT

SNADEN J:

1    On Thursday, 1 August 2019, the court heard and determined an application made by the applicant (hereafter, “DP World”) for interim injunctive relief against the respondent (hereafter, “the CFMMEU”). At the conclusion of that hearing, orders were made granting relief largely in the nature of what was sought. Those orders were accompanied by brief, oral reasons, which the court undertook to supplement by more fulsome, written reasons.

2    These are those reasons.

Background

3    DP World operates a stevedoring business throughout Australia and, of present relevance, at the West Swanson Terminal in Melbourne (hereafter, the “WST”). Amongst others, it employs people to work in what it describes as crane or straddle operations. In simple terms, those employees (referred to, hereafter, as “the Relevant Employees”) are responsible for loading and unloading shipping containers (and, in limited circumstances, other materials) from ships berthed at the WST. Insofar as concerns the unloading process, that work involves the “unlashing” of containers on a ship (that is, the removal of equipment that is designed to keep containers secured during the ship’s voyage), the removal (by means of cranes) of containers from ships to the wharf, the relocation (by means of a straddle) of containers so removed from the wharf to a staging area or “yard stack”, and the loading of containers onto trucks or other conveyances for delivery to customers. The loading process involves, as I apprehend it, more or less the reverse of that unloading process. Approximately 70,000 containers move through the WST in a typical month; each usually moved a number of times (for example, from ship to wharf, from wharf to stack and from stack to truck) over the course of its presence there.

4    The Relevant Employees are organised into three shifts per day, each of eight hours’ duration. Subject to the number of vessels at the terminal at any given time, each shift consists of between 60 and 120 employees, each of whom is allocated to a range of tasks, including vessel operations, road operations and rail operations. Employees move between each of those operational areas subject to workload requirements. Work is organised into groups—referred to as “gangs”. Within each “gang”, employees perform a range of duties, including the operation of equipment such as quay cranes, straddles and forklifts, and the performance of foreman and general duties.

5    Productivity at the WST is measured via a suite of sophisticated monitoring tools. Crane lifts, straddle drives and container movements are monitored using global positioning system technology and other electronic tracking equipment. Vast volumes of data are recorded and stored on DP World’s information technology equipment. From that data, DP World is able to measure, for example, the number of crane lifts per shift, the number of straddle drives (that is, the number of times containers are relocated by straddle from one part of the terminal to another) per shift, the duration of each such drive and the distance that each such drive involved.

6    The CFMMEU is a large and well-known trade union. Many of the Relevant Employees are members of it (or, perhaps more accurately, of its maritime division).

7    The Relevant Employees are covered by the DP World Melbourne Enterprise Agreement 2016, an enterprise agreement approved by the Fair Work Commission in accordance with Pt 2-4 of the Fair Work Act (hereafter, “the FW Act”). That agreement (hereafter, the “EA”) nominally expired on 28 February 2019.

8    Since March 2019, DP World and the CFMMEU have been negotiating terms for a new enterprise agreement to replace the EA. In support of the claims that it has advanced in those negotiations, the CFMMEU has organised—and its members at the WST have engaged in—various forms of protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act).

9    One such instance of protected industrial action occurred between 10 and 14 July 2019, when the CFMMEU organised (and its members at the WST engaged in) a 96-hour stoppage of work (hereafter, the “Stoppage”). Since the conclusion of the Stoppage and the return to work of the Relevant Employees (or those amongst them who participated in the Stoppage), DP World has identified a sudden and significant drop in productivity at the WST. In summary form, the evidence is that:

(1)    in the period 14-30 July 2019, the average distance that land-side straddles (straddles that move containers from the yard stack to trucks or other conveyances, or vice versa) have had to traverse has decreased by 4 per cent, yet the average time per move has increased by 7 per cent;

(2)    the equivalent metric for quay-side straddles (straddles that move containers to and from the wharf) shows that average time per move has increased by 18 per cent, despite the average distance increasing by only 8.5 per cent;

(3)    83 per cent of straddle drivers who have worked shifts between 14 and 30 July 2019 have had worse-than-average performance;

(4)    reported faults—which have included matters as obviously trivial as the presence of rubbish in a straddle cabin—were 250% higher in the period 14-21 July 2019 than they were in the week prior to the Stoppage;

(5)    gross moves per hour—the total number of crane movements per operational hour that a crane is available to work a vessel—were, in the second half of July, at the lowest level they have been in 2019;

(6)    as at 24 July 2019, the rate of gross moves per hour was 28 per cent below what it had been in April and June 2019;

(7)    by its nature, the gross moves per hour metric accounts for the various forms of protected industrial action that the CFMMEU and its members have waged throughout July 2019—it does not require adjustment to take account of the impact that that action would be expected to have on crane productivity at the WST;

(8)    none of the reductions summarised above is apparently attributable to operational or environmental factors such as breakdowns or inclement weather.

10    DP World describes the sudden and dramatic drop in productivity since the conclusion of the Stoppage as a “go slow”. It attributes the CFMMEU with its organisation. On Tuesday, 23 July 2019, it made an application to the Fair Work Commission (hereafter, the “Commission”) for an order under s 418 of the FW Act requiring (amongst other things) that the CFMMEU cease its organisation of that “go slow” (that application is referred to, hereafter, as the “s 418 Application”). For reasons that need not here be stated, the Commission was unable to determine that application within two days. As s 420 of the FW Act requires, the Commission made an interim order requiring (amongst other things) that the CFMMEU (and various others associated with it) cease any organisation of industrial action “…in the form of working in a manner which is slower than that which is customary or otherwise has the effect of reducing shift crane rates or the number of straddle moves performed.” Excluded from that suite of industrial action that the CFMMEU was, by that order, required not to organise was action qualifying as protected industrial action and action based on reasonable concerns about imminent risks to health or safety.

11    The Commission’s order (hereafter, the “s 420 Order”) does not appear to have had the effect that DP World hoped that it might. Productivity at the WST has not materially improved and, so DP World maintains, the “go slow” that was imposed after the Stoppage remains in place. DP World continues to attribute its organisation to the CFMMEU. The CFMMEU denies that it is behind the adoption of any “go slow” at the WST.

12    On Wednesday, 31 July 2019, DP World filed an originating application seeking relief under the FW Act and the court’s accrued jurisdiction. That application incorporates an application for interlocutory relief, by which DP World sought various orders to restrain the CFMMEU from organising industrial action in various forms at the WST. That application assumes an unusual (but permissible) bifurcated form: DP World seeks interlocutory relief (what it has referred to as an interim injunction) to restrain the CFMMEU from organising the “go slow”, as well as further interlocutory relief directed to other forms of industrial action at the WST. It was the first half of that application that was the subject of an urgent hearing on Thursday, 1 August 2019 (and that is the subject of these reasons).

Procedural application

13    Immediately upon the commencement of the hearing of Thursday, 1 August 2019, counsel for the CFMMEU sought an order for its adjournment. Two bases were advanced as to why an adjournment was appropriate.

14    First, the CFMMEU referred to the fact that DP World’s s 418 Application remained before the Commission and was scheduled for hearing on Friday, 2 August 2018. It was said that the Commission was an appropriate forum within which it might be determined whether or not the “go slow” of which DP World complained was occurring and, if it was, whether or not the CFMMEU was organising it. The CFMMEU contended that it should not be “vexed” with having to simultaneously defend two proceedings dealing with a similar subject matter.

15    Second, the CFMMEU indicated that it had served upon DP World a notice to produce, by which it had required production of certain documents that it said were referred to in the affidavit material upon which DP World sought to rely. As I understood it, the CFMMEU has sought (perhaps amongst other things) access to the vast volume of productivity data that underlies DP World’s evidence that, since the Stoppage, productivity at the WST has appreciably and suddenly reduced. Counsel for the CFMMEU indicated that, without access to that source data, it was unable to test and, potentially, challenge the assertions advanced by DP World.

16    I declined to grant the adjournment sought. As is typically so with this species of application, the matter was brought on for hearing urgently to address what was said to be unlawful conduct that was visiting, or threatened to visit, significant consequences upon DP World and others that use or rely upon the WST. The fact that the s 418 Application remains on foot in the Commission is not significant. I accept that the existence of such a proceeding might properly inform an exercise of the court’s discretion to adjourn (or, for that matter, grant) an application for injunctive relief. However, if the court were to accept (on a prima facie case basis) the existence, character and significance of the conduct upon which DP World’s application for interlocutory relief in this court was premised, there is no obvious reason why the existence of another proceeding in an administrative tribunal should compel that nothing be done about it. Moreover, there was no indication as to how long the s 418 Application might take to resolve. I do not (and did not) consider that the existence of the s 418 Application in the Commission was something that justified an adjournment of the proceeding before me.

17    The CFMMEU’s access to DP World documents was likewise not a sound foundation for the adjournment that was sought. Although it couldn’t be ruled out, the prospect that the provision of the documents in question might afford the CFMMEU some avenue to resist the application brought against it seemed (and still seems) remote. Additionally, I have some scepticism as to the prospect that the CFMMEU (or any respondent) might quickly assimilate the vast volume of information that seems to be inherent in what is sought, which the evidence suggests covers many tens of thousands of data points. The seeking of an adjournment in those circumstances might easily be mistaken for an attempt at strategic delay rather than a course serving legitimate forensic purposes. Regardless, as is outlined above, the matter was brought on for hearing with some urgency to address what was alleged to be unlawful conduct of significant adverse consequence. Hearings of that nature are routinely conducted upon evidence that is less than perfect. They do not, of course, result in or require definitive findings as to what has or has not occurred. Even assuming (as I do and did) that the adjournment was legitimately sought, I do not (and did not) consider that the CFMMEU’s as-yet-unanswered notice to produce was sufficient to warrant it.

18    In those circumstances, I considered that it was appropriate to proceed with due haste to hear DP World’s application for what it described as interim relief.

The evidence

19    DP World sought to lead evidence in the form of four affidavits, namely:

    an affidavit of its solicitor, Katrina Maree Anderson, sworn on 31 July 2019 (the “Anderson Affidavit”);

    an affidavit of its WST Operations Manager, Luke Matthew Gravell, sworn on 31 July 2019 (the “Gravell Affidavit”);

    an affidavit of its WST General Manager Operations, Sean Bruce Jeffries, sworn on 31 July 2019 (the “Jeffries Affidavit”); and

    a second affidavit of Mr Jeffries, sworn on 1 August 2019.

20    At the hearing on 1 August 2019, the respondent sought and was granted leave to file in court an affidavit sworn that morning by Mr Robert Patchett, the Assistant Secretary of the Victorian Branch of its “Maritime Union of Australia” division (the “Patchett Affidavit”).

21    Counsel for the respondent objected to a number of passages contained within DP World’s affidavit material. Each of those objections was addressed in the court’s oral reasons at the conclusion of the hearing on Thursday, 1 August 2019. For the sake of completeness, they are addressed more fully below.

22    The first species of objection concerned what were said to be passages within DP World’s affidavit material that contained unsourced hearsay. The relevant passages are as follows:

[From the Jeffries Affidavit]

23.    On or around 20 March 2019 Nick O’Connell (DPWML’s National Manager – Continuous Improvement) reported to me that employees had made the following comments to him:

(a)    “We can stop this if you give us more manning”;

(b)    “I have been instructed to “go-slow”, but not in those words, you know I have to do this”;

(c)    “If management weren’t so pig-headed, we would be more productive”; and

(d)    “This is no different to how we always operate, we always drive safely and to rule. It’s only the PIA that forces us to go slow.”

24.    I have also had direct conversations with stevedoring employees where comments have been made to me indicating that there was a “go-slow” at the [WST].

[From the Gravell Affidavit]

55.    On Friday 26 July 2019 I had a conversation with another employee. He told me he had read both Sean and my witness statements filed in the Commission. He said words to the effect of “I haven’t told anyone to go slow but you have stuffed us because if we now pick up productivity that shows it’s a go-slow.”

23    Each of the paragraphs replicated above contains obvious hearsay. DP World maintained that the passages were admissible by reason of the exception to the rule against hearsay for which s 75 of the Evidence Act 1995 (Cth) provides. That section states:

In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

24    The CFMMEU contended that each instance of the hearsay evidence in question was inadmissible because DP World had not adduced evidence of its source. It was not, so the contention proceeded, sufficient to attribute a previous representation to a person without naming them; in other words, that the attribution of statements to “employees” or “another employee” was not evidence of their source.

25    Respectfully, the CFMMEU’s contention is not without force. The apparent purpose to be served by leading evidence of the source of a prior representation is to give the court and opposing parties an opportunity to assess and make submissions about what weight it ought to carry: Madafferi v The Age Company Ltd (2015) 50 VR 492, 522 [96] (John Dixon J). That task is made more difficult—and, in some circumstances might be impossible—unless a source is identified by name. There is authority at least superficially supportive of the CFMMEU’s contention: Registrar of Aboriginal Corporations v Murnkurni Women’s Aboriginal Corporation (1995) 137 ALR 404, 413 (Nicholson J). The point has also been the subject of persuasive obiter: Levis v McDonald (1997) 75 FCR 36, 44 (Lindgren J), although that case was the subject of some concessions that are not present here. There is also authority that inclines to the contrary: New South Wales Crime Commission v Vu [2009] NSWCA 349, [47]-[48], and the cases there referred to (Spigelman CJ, with whom Allsop P and Hodgson JA agreed).

26    In this case, I am (and was) satisfied that DP World has adduced evidence of the source of the hearsay representations reproduced above that is sufficient to attract the exception for which s 75 of the Evidence Act 1995 (Cth) provides. Attributing the statements in question to DP World employees affords both the court and the CFMMEU an opportunity to assess what weight the statements ought to carry. The matters about which the “employees” were said to have made previous representations were matters about which one might ordinarily expect employees to have at least some knowledge. Evidence of statements made by them, then, properly attracts at least some weight.

27    It should not be forgotten that, for want of attribution of the statements to somebody by name, the CFMMEU had limited scope to investigate, test or challenge what was recounted. Counsel for the CFMMEU fairly raised that criticism. In the right circumstances, that might justify exclusion of generally-sourced hearsay on discretionary grounds: Evidence Act 1995 (Cth), s 135. In the present circumstances, though, I am (and was) not minded to exclude any of the passages to which this species of objection related. As has already been noted, the matter was brought on with some urgency. The evidence was no doubt prepared with haste and, inevitably, without the same attention to detail that might otherwise have been dedicated to it (or, perhaps, the same opportunity to collate that detail as might otherwise have been optimal). Further, the matters attributed to “employees” were of some (albeit, for the reasons addressed below, not critical) significance to the case that DP World advanced.

28    It follows that the objections based on s 75 of the Evidence Act 1995 (Cth) are (and were) not upheld.

29    The CFMMEU also objected to some other affidavit passages on the basis that they amounted to inadmissible opinion evidence. The relevant passages were as follows.

[from the Jefferies Affidavit]

51.    In my experience, I find it unlikely that employees would have departed from the custom and practice of working efficiently and effectively, and in a manner that meets productivity targets, without the planning and involvement of the [CFMMEU] and its officials or delegates. The Employees work across multiple shifts and in a continuous operating environment. For a sustained decline in productivity to occur, it would need to be coordinated, and based on my experience, I do not believe there is any person other than the [CFMMEU] who could achieve this level of coordination on the docks. Moreover, in the absence of a direction from the [CFMMEU], I do not believe that employees would deprive themselves of the chance to earn productivity bonuses.

[from the Gravell Affidavit]

54.    …In the current circumstances at site I would interpret this kind of statement as being a reminder to the employees to work as per the instructions they had received from the union or code to continue the “go slow[”].

30    The CFMMEU’s contentions must be (and were) accepted. The passages in question are both plainly inadmissible statements of the deponents’ opinions and senior counsel for DP World did not mount any serious defence of them. I do not (and did not) pay them any regard.

31    I also pay (and paid) no regard to [55] of the Gravell Affidavit or [11] of the Anderson Affidavit. The former is reproduced above. Although it assumes the form of admissible hearsay, it doesn’t assist with the resolution of any issue that requires resolution. The latter deals with what is suggested to be the CFMMEU’s history (or that of the former Maritime Union of Australia, when it was a separate entity) of organising similar industrial action. That evidence (including the transcript that it annexed of a proceeding in what was then Fair Work Australia in 2011) did not assist in establishing whether there was an arguable case that the “go slow” in the present case was occurring and was being organised by the CFMMEU.

32    Subject to those observations, the affidavit material advanced by the parties was treated as read.

Interlocutory relief: General principles

33    The principles that govern the court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. In order to qualify for the relief that it seeks, DP World must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

34    When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ).

35    In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):

…an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

36    An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); CEPU v Blue Star Pacific (2009) 184 IR 333, 339 (Greenwood J).

Prima facie case

37    The evidence is plainly sufficient to establish, on a prima facie case basis, the existence of what has thus far been described as a “go slow” at the WST. It might more precisely be described as the adoption of a practice or practices by the Relevant Employees (or by a sizeable portion of them) that, by design, has retarded what would otherwise be the normal progression of work at the WST. As much is plain from the evidence as to the abrupt and striking reduction in productivity at the WST since the conclusion of the Stoppage (above, [9]), combined with the absence of any apparent operational or environmental explanation for it. Those circumstances are sufficient to support (if they don’t compel) the drawing of an inference that the sharp decline in productivity has been (and continues to be) the product of the adoption of that practice or those practices (whatever they might be). There is, at the very least, a prima facie case that the Relevant Employees (or a sizeable portion of them) have embarked upon and continue to maintain a “go slow” so characterised.

38    Having established the existence of the action, it is necessary to identify whether it is, as DP World contends, the CFMMEU that is organising it. The CFMMEU submits, on that score, that there is no direct evidence that it is; and that what evidence there is is insufficient to ground an inference that it might be. More significantly, it has led evidence of its own to the effect that it is not.

39    The contention that the CFMMEU is organising the “go slow”—that is to say, is the primary moving force behind the adoption of the practice or practices that have resulted in the sharp decline in productivity at the WST—is at least seriously arguable. Put more properly, there is at least a prima facie case that the CFMMEU has organised and is organising the action in question. There are seven circumstances that conspire toward that conclusion.

40    First, the parties have been bargaining for five months for terms to be included in a new enterprise agreement. The CFMMEU has participated in those negotiations in its capacity as bargaining representative for its members at the WST.

41    Second, in support of the positions that it has advanced in those negotiations, the CFMMEU (as the representative of its members at the WST) has initiated and organised various forms of protected industrial action.

42    Third, that campaign of lawful industrial action appears not to have worked (at least not yet), in the sense that it appears not to have been sufficient to convince DP World to accede to the claims in support of which it was organised and engaged in.

43    Fourth, the “go slow” (as I will continue to describe it) has been, or appears to have been, implemented immediately after employees at the WST engaged in what can fairly be described as a significant instance of protected industrial action (namely, the Stoppage).

44    Fifth, the “go slow” has been engaged in by a cross section of the Relevant Employees that has been sufficient to result in immediate and dramatic reductions in productivity at the WST. It appears to have all the hallmarks of sophisticated, central coordination; and to have been executed by a person or persons who apparently command the loyalty of a significant proportion of the Relevant Employees.

45    Sixth, comments that the evidence attributes to employees at the WST (above, [22]) suggest that such central coordination is present and that the “go slow” is not the implausible product of coincidence or individual spontaneity. I have rejected the CFMMEU’s evidential objections to that evidence but that rejection is not material to the conclusion that I have drawn. Even without evidence from “employees” as to the existence of some central planning behind the “go slow”, the scale and sustained nature of what has occurred would, in any event, impel in favour of the same conclusion.

46    Seventh, the evidence establishes the important role that the CFMMEU plays in representing its members at the WST. It is said to work closely with the employee representative committee (a body established under the EA to facilitate liaison between employees and management at the WST). Most of the Relevant Employees are CFMMEU members. The evidence as much as compels the inference that the CFMMEU has coordinated the Relevant Employees’ bargaining campaign (which has been on foot since March 2019) and that the “go slow” has been implemented in support of, or perhaps to complement, that campaign. In light of the apparent significance of the role that the CFMMEU discharges at the WST, it is implausible—at least a prima facie level—that there might be some other person or body sufficiently sophisticated and motivated to coordinate the kind of complementary, subterranean campaign to which the “go slow” amounts.

47    Those circumstances are amply capable of sustaining an inference that it was and is the CFMMEU that has organised and continues to organise the “go slow” at the WST. That recognised, there is at least a prima facie case that it has done (and is doing) so.

48    In saying as much, I have taken (and took) account of the evidence that the CFMMEU has led in the form of the Patchett Affidavit. Mr Patchett deposes to the effect that the CFMMEU has not organised, is not organising and will not organise industrial action in the form of a “go slow” at the WST. I accept (and accepted), as counsel for the CFMMEU urged, that that evidence does at least some damage to DP World’s submission that there is a relevant prima facie case for the relief that it seeks. For the following reasons, however, I do not consider that that damage is sufficient to warrant against a grant of injunctive relief.

49    First, Mr Patchett does not identify what he considers is covered by the concept of a “go slow”. There is evidence that some of the Relevant Employees consider that what has occurred at the WST is more accurately described as a “work to rule”. That potential confusion might reconcile Mr Patchett’s evidence with the other evidence that points to the CFMMEU’s involvement.

50    Second, Mr Patchett’s evidence merely forms part of the evidential matrix that informs whether or not, at an interlocutory level, there is a prima facie case that the CFMMEU has organised or is organising industrial action in the form of a “go slow”. It clearly informs the strength of DP World’s prima facie case—and, on any view, it must weaken it—but it isn’t sufficient to foreclose upon it altogether.

51    The court is, of course, neither asked nor able to rule now upon whether or not the CFMMEU is, in fact, the principal motivating force behind the “go slow” at the WST. That will fall for determination at trial.

52    In the meantime, I accept (and accepted), as senior counsel for DP World submitted, that there exists a prima facie case not only that industrial action in the form of a “go slow” has occurred and is occurring at the WST, but also that the CFMMEU is and has been organising it; and that, in those respects, the s 420 Order has been and continues to be contravened.

Balance of convenience

53    The balance of convenience strongly favours (and favoured) a grant of injunctive relief.

54    Save for the inherent prejudice that attaches to being made subject to a grant of injunctive relief, there is no obvious or material detriment that the CFMMEU will sustain if injunctive relief is granted.

55    By contrast, the prejudice to DP World is obvious, immediate and significant. In addition to what might be described as predictable financial consequences (associated with, for example, financial penalties payable to shipping lines whose vessels have been unable to be loaded or unloaded because of delays arising from the “go slow”), DP World also faces the prospect of potentially long-lasting reputational damage, sounding in the loss of existing business and the failure to gain new business for which it is presently negotiating.

56    The evidence demonstrates that the “go slow” is also impacting upon third parties, including shipping lines and their customers, who are inevitably and obviously (and adversely) affected by vessels missing their “berthing window” (which is to say, being loaded or unloaded later—and, in some cases, much later—than they were scheduled to be). It is appropriate to (and the court does and did) take account of the impact upon third parties of the conduct that is sought to be restrained: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 41-42 [65] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

57    Although some, undoubtedly, is not, it is (and was) plain that much of the prejudice that will accompany a failure to grant the relief sought is of a kind in respect of which damages will not afford an adequate remedy.

58    The balance of convenience overwhelmingly favours a grant of interlocutory injunctive relief.

Form of relief

59    It follows that the court is (and was) inclined to exercise its discretion to grant interlocutory injunctive relief directed to the “go slow”.

60    The order made restrains the CFMMEU from organising for, encouraging, procuring or inducing Relevant Employees to perform their work in a manner different from that in which it is customarily performed, or to adopt a practice in relation to that work, the result of which (in either case) is a restriction or limitation on, or a delay in, the normal rate of movements by a crane or straddle at the WST.

61    The order is, on any view, expressed widely, in that it is aimed at practices that have a particular effect, rather than at particular practices. That reflects the difficulty associated with identifying and correcting the action complained of. It would have been preferable to be more precise in the crafting of the order, and in the identification of the conduct to be restrained; but the nature of the action with which the court is here confronted does not permit that additional precision. A “go slow”, by its nature, is apparent as much (if not more) from its effect as from the conduct that constitutes it. The form of words employed in the order that the court has made strikes an appropriate balance between identifying with precision what must not be done and prohibiting what it is that gives rise to DP World’s cause of action. The CFMMEU—on any view, a sophisticated participant in the Australian industrial relations arena—cannot legitimately complain that there is doubt about what it is that it is restrained from doing.

62    The order also requires that the CFMMEU take positive steps to indicate that the “go slow” is not authorised and should cease. This court has made orders of that kind many times and they are (and were) appropriate in the present case.

Associate:

Dated:    5 August 2019