FEDERAL COURT OF AUSTRALIA

DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2019] FCA 1331

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 proceeding or 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 the West Swanson Terminal (Relevant Employees), to:

(a)    perform work in a manner different from that in which it is customarily performed, the result of which is a restriction or limitation on, or a delay in, the normal rate of movements by a crane or straddle or other performance of work; or

(b)    adopt a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the normal rate of movements by a crane or straddle or other performance of work.

2.    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 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://wwww.mua.org.au/victoria_branch) a communication to its members who are Relevant Employees which:

(i)    includes a copy of this Order; and

(ii)    states that action of the kind referred to in subclauses (a) and (b) of clause 1 of this Order, is to cease and not occur, and is not authorised by the respondent.

3.    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.

4.    The matter be listed for first case management hearing at 9:30am on Friday, 6 September 2019.

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.

ORDERS

THE COURT FURTHER ORDERS THAT:

1.    Insofar as concerns the court’s orders made herein on 13 August 2019, the date fixed for the purposes of r 35.13 of the Federal Court Rules 2011 (Cth) is Monday, 9 September 2019.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant operates a stevedoring business throughout Australia and, of present relevance, at the West Swanson Terminal in Melbourne (hereafter, the “WST”). The respondent is a large and well-known trade union that represents many of the employees that the applicant employs at the WST.

2    By its originating application dated 31 July 2019, the applicant seeks relief in the nature of injunctions, penalties and damages against the respondent relating to industrial action that, it says, the respondent has organised or encouraged at the WST.

3    By that originating application, the applicant also sought interlocutory injunctive relief to restrain, in the interim, various species of what was said to be unlawful industrial action, the organisation of each of which it attributes to the respondent.

4    On Thursday, 1 August 2019, the court heard and determined part of that application: DP World Melbourne Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCA 1209 (Snaden J—hereafter, the “Initial Injunction Decision”). That hearing concerned what has come to be known as a “go-slow” that the applicant says has been effected at the WST. It credits the respondent with its organisation and it says that it has been organised in breach of an order made by the Fair Work Commission under s 420 of the Fair Work Act 2009 (Cth) (hereafter, the “FW Act”).

5    At the conclusion of the hearing on 1 August 2019, I granted orders restraining the respondent from organising any “go-slow” at the WST. Separately, I listed for hearing on Monday, 12 August 2019 the remainder of the applicant’s claim for interlocutory relief and made orders for the preparation, filing and service of evidence and submissions relevant to that cause.

6    That application was heard and, on Tuesday, 13 August 2019, I granted the orders that the applicant sought. Brief reasons for doing so were given orally, on the undertaking that they would be supplemented by written reasons. These are those reasons.

Background

7    Many of the relevant background facts are set out in the court’s Initial Injunction Decision (in particular, at [3]-[12] thereof). In short compass, the applicant complains that it has been subjected to unlawful industrial action in the form of a “go-slow” at its WST. By that action, it says, employees at the WST have resolved to work more slowly than they ordinarily would, resulting in a sudden and marked decrease in their output (measured in various ways, all of which are outlined in the Initial Injunction Decision). The applicant credits the respondent with the organisation of that action.

8    Since March 2019 and within the framework for which part Pt 2-4 of the FW Act provides, the parties have been bargaining in respect of terms for a proposed enterprise agreement to replace the DP World Melbourne Enterprise Agreement 2016. In support of the claims that it has advanced during that bargaining, the respondent has organised—and its members at the WST have engaged in—what the parties have so far regarded as protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act). The so-called “go-slow” is alleged to have commenced immediately following a lawful four-day work stoppage.

9    On 23 July 2019, the applicant applied to the Fair Work Commission (hereafter, the “Commission”) for an order under s 418 of the FW Act requiring (amongst other things) that the respondent cease its organisation of any “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 respondent (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.”

10    Not long after the Initial Injunction Decision, the applicant discontinued the s 418 Application as against the respondent (although it continued to press it as against its employees). As at 12 August 2019, the s 418 Application was reserved. The Commission’s order made under s 420 of the FW Act remained in place as against the relevant employees but not as against the respondent (it presumably ceased to operate from the point that the applicant discontinued the s 418 Application as against the respondent). Various other applications were afoot in the Commission in respect of its s 420 order, including for orders that it be set aside nunc pro tunc.

11    Regardless, it was the applicant’s position when the originating application was filed that the respondent had continued to organise the “go-slow” in defiance of the Commission’s order under s 420 of the Act. As at 12 August 2019, it maintained that the respondent had continued to do so. Although the order made under s 420 was not, by that stage, extant as against the respondent, it remained extant as against the relevant employees; and the applicant maintained that the respondent, by continuing to organise the “go-slow” was accessorily in breach of it.

12    Because of those alleged breaches by the respondent of the Commission’s order under s 420 of the FW Act, the applicant intended to characterise as unlawful all of the industrial action that the respondent was organising (or would, in future, organise) in support of its bargaining claims, including that which had hitherto been understood to qualify as protected industrial action (within the meaning attributed to that phrase by s 408 of the FW Act). That was said to be a consequence of s 413(5) of the FW Act, which serves to impose, as a condition precedent to the organisation or taking of protected industrial action, that bargaining representatives comply with Commission orders that bind them.

13    That intention was somewhat thwarted not long after the Initial Injunction Decision, when the parties agreed to a temporary “ceasefire” to allow for further bargaining to take place. A consequence of that agreement was that the respondent withdrew all of the protected industrial action (as the respondent had characterised it) then on foot.

14    By the time the matter came on for further hearing on Monday, 12 August 2019, the only industrial action that the applicant said remained in effect at the WST was the “go-slow”. It pressed for further injunctive relief in respect of that action but indicated that it was no longer necessary to consider whether, by reason of s 413(5) of the FW Act, equivalent relief was appropriate for any other action.

15    The matter proceeded on 12 August, then, with the alleged “go-slow” as its sole focus. The respondent resisted any further grant of interlocutory injunctive relief directed at the so-called “go-slow”. It denied that there was any discernible reduction in work output at the WST. If there were, it denied that it was a result of any “go-slow”; and, even if there were such a campaign, it denied that it had organised or encouraged it.

16    Both parties continued, for the purposes of the present matter, to rely upon the evidence and submissions upon which they relied for the purposes of the 1 August 2019 hearing. Additionally, both filed further affidavit material and written submissions specific to the 12 August 2019 hearing.

17    In total, the applicant relied upon ten 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”);

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

    a second affidavit of Ms Anderson sworn on 5 August 2019 (the “Second Anderson Affidavit”);

    a second affidavit of Mr Gravell, sworn on 9 August 2019 (the “Second Gravell Affidavit”);

    a third affidavit of Mr Jeffries, sworn on 9 August 2019 (the “Third Jeffries Affidavit”);

    a third affidavit of Ms Anderson sworn on 12 August 2019 (the “Third Anderson Affidavit”);

    a third affidavit of Mr Gravell, sworn on 12 August 2019 (the “Third Gravell Affidavit”); and

    a fourth affidavit of Mr Jeffries, sworn on 12 August 2019 (the “Fourth Jeffries Affidavit”).

18    The applicant also relied upon two written outlines of submissions, one prepared for each of the 1 August and 12 August hearings.

19    By way of resistance to what the applicant sought, the respondent relied upon five affidavits, namely:

    an affidavit sworn on 1 August 2019 by the Assistant Secretary of the Victorian Branch of its Maritime Union of Australia division, Mr Robert Patchett (the “Patchett Affidavit”);

    a second affidavit of Mr Patchett, sworn on 9 August 2019 (the “Second Patchett Affidavit”);

    an affidavit sworn on 9 August 2019 by Mr Christopher Rae Bassett, an employee of the applicant’s at the WST (the “Bassett Affidavit”);

    an affidavit affirmed on 9 August 2019 by Mr Stephen McGowan, an employee of the applicant’s at the WST (the “McGowan Affidavit”); and

    an affidavit affirmed on 9 August 2019 by the respondent’s solicitor, Ms Bridie Murphy (the “Murphy Affidavit”).

20    The respondent also relied upon a comprehensive written submission dated 9 August 2019.

21    Objections were raised by both parties to parts of the body of evidence summarised above. Some of those objections were the subject of rulings made on Tuesday, 13 August 2019, the reasons for which are set out in more detail below. Subject to the conclusions that were reached on the objections that were raised, all 15 affidavits relied upon were otherwise treated as read.

Evidential objections

22    At the hearing on 1 August 2019, the court heard and determined some objections raised by the respondent regarding what was said to be unsourced hearsay contained in the Gravell Affidavit and the Jeffries Affidavit. Those affidavits contained some passages in which the deponents deposed to things that “employees” had told them: Initial Injunction Decision, [29]. The applicant maintained that those passages were admissible because they fell within the exception to the rule against hearsay for which s 75 of the Evidence Act 1995 (Cth) (hereafter, the “Evidence Act”) provides. The respondent contended that they did not qualify under that exception because the applicant had not led evidence of the source of the previous representations in question. I declined to rule the relevant passages inadmissible: Initial Injunction Decision, [22]-[28].

23    At the hearing on Monday, 12 August 2019, the applicant sought to rely upon the same passages (hereafter, the “Hearsay Passages”) and the respondent pressed the same objections. In addition to its contention that the Hearsay Passages were admissible as sourced hearsay, the applicant also sought to characterise them as admissions that were admissible as against the respondent by reason of s 87(1)(c) of the Evidence Act. I deal with each argument in turn.

24    As I indicated in the Initial Injunction Decision, insofar as concerns s 75 of the Evidence Act, there is divergent authority as to what is meant by evidence of the source of what would otherwise offend the rule against hearsay: Initial Injunction Decision, [25]. Despite my earlier ruling, the respondent urged me to follow the line of reasoning that favoured exclusion of the passages in issue; indeed, it again referred me to two authorities—De Bortoli Wines Pty Ltd v HIH Insurance Ltd (in liq) (2011) 200 FCR 253, 264-265 [40] (Stone J) and Prior v Wood [2017] FCA 193, [77] (Dowsett J)—and contended that I was bound to follow them unless persuaded that they were plainly wrong.

25    No such obligation exists: Undershaft (No 1) Ltd and Another v Federal Commissioner of Taxation (2009) 175 FCR 150, 165-169 [68]-[88] (Lindgren J); Woolworths Limited v BP PLC (2006) 154 FCR 97, 131 [147] (Heerey, Allsop and Young JJ). Again, I declined to rule the Hearsay Passages inadmissible for want of compliance with s 75 of the Evidence Act. Evidence that attributes a prior representation to an unnamed member of an identified group is, in my view, sufficient to qualify as evidence of the source of that representation.

26    Nonetheless, for the reasons that I foreshadowed in the Initial Injunction Decision (at [27]), the Hearsay Passages were ripe for exclusion on discretionary grounds under s 135 of the Evidence Act. The applicant had ample opportunity to identify by name the employees who made the previous representations upon which reliance was placed. There was no obvious reason explaining its failure to do so. That failure was clearly prejudicial to the respondent, which was effectively unable to challenge the evidence relied upon. Given that—and the limited probative value of the passages in question (see Initial Injunction Decision, [27], [45])—I was satisfied that the passages should be excluded on the basis for which s 135(a) of the Evidence Act provides.

27    The applicant now advances an alternative path by which the Hearsay Passages might properly be admitted, namely, that for which s 87(1)(c) of the Evidence Act provides. By s 81(1) of the Evidence Act, the rule against hearsay does not apply to evidence of admissions. Section 87 identifies the circumstances in which a previous representation made by a third party might be considered to have been made with the authority of (and, consequently, might be considered to be an admission attributable to) a person against whom evidence of it is sought to be led. The section relevantly provides:

(1)    For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:

…

(c)    the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

    …

28    In the present case, the applicant sought to characterise each of the Hearsay Passages—each of which, as stated above, sought to identify things that the deponents were told by “employees” about the existence of the “go-slow”—as evidence of prior representations that were made in furtherance of a common purpose that the “employees” should be understood to have had with the respondent.

29    I concluded that it was not reasonably open to find that such a common purpose existed. There were two reasons for my doing so. First, it was not immediately apparent how a relevant common purpose might have been advanced by the “employees” making comments to the applicant about the existence of the “go-slow” at the WST. Second and more significantly, the existence of a common purpose as between the respondent and the employees—that is to say, a purpose on the part of the respondent to organise or encourage (on the one hand), and on the part of the employees at the WST to give effect to (on the other), a “go-slow”—was the very issue about which competing contentions were advanced. It was not reasonably open to presume that which the evidence was led to prove.

30    It follows that the respondent’s objections to the Hearsay Passages (specifically, [23] and [24] of the Jeffries Affidavit, and [55] of the Gravell Affidavit) were upheld.

31    The applicant pressed objections of its own to passages from the respondent’s affidavit material. Principally, those objections related to passages containing statements of opinion. I was not asked to rule upon the objections that the applicant identified, but I was asked to take heed of them in my considerations, and I did so. For the most part, the passages to which they related involved obvious statements of opinion in which little if any store would have been placed regardless of any objection from the applicant.

Interlocutory relief: General principles

32    The court’s power to grant interlocutory injunctive relief is not doubted: FW Act, s 545 (read together with s 539(1) and item 15 of the table set out at s 539(2)); Federal Court of Australia Act 1976 (Cth), s 23.

33    Likewise, 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 they seek, the applicants must demonstrate that they have 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 The Federated Furnishing Trades Society of Australasia (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); Communications, Electrical, Electronic, Energy Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333, 339 (Greenwood J).

Prima facie case

37    The applicant’s case for interlocutory relief turns upon whether or not there is a “go-slow” in effect at the WST, the organisation of which can be attributed to the respondent. More precisely, it turns upon whether there is a prima facie case that each of those circumstances exists. If there is, the applicant contends (again on a prima facie case basis) that it must follow in light of the Commission’s order under s 420 of the FW Act that it has been organised in contravention of s 421.

38    That order is no longer binding on the respondent in the way that it was when the matter was last before the court; but, so the applicant’s contention proceeded, the effect of s 550 of the FW Act is that the respondent’s continued organisation of the “go-slow” would have involved it in a contravention of s 421 in any event. Alternatively, it was said that the union’s procuring or encouragement of the “go-slow” was relevantly tortious.

39    The respondent’s position was that there was no “go-slow” and that even if there was, it was not in place as a result of any conduct fairly attributable to the respondent. Again, more precisely, it said that there was no prima facie case that each of those circumstances existed, and that if, contrary to that view, such a case did exist, it was very weak.

40    The evidence regarding the “go-slow” and its organisation was not the same as it was on 1 August. The applicant continued to rely upon assertions based on statistical records that it said showed that there had been a marked and sudden diminution in productivity at the WST. Crane and straddle movements, it maintained, remained well below where they should have been. It maintained that there were no operational or environmental factors that might explain why that was so. The evidence that it led was capable of sustaining findings consistent with all of those submissions.

41    The respondent denied three things. First, it denied that the productivity markers to which the applicant pointed were below where they should have been. Second, and assuming, contrary to that submission, that they were, it denied that that was because of any campaign in the nature of a “go-slow” being waged by employees at the WST. And third, if such a campaign were being waged, the respondent contended that it was not because of anything that the respondent or representatives of it were doing or had done.

42    On the first of those denials, the respondent attacked the conclusions that the applicant sought to draw from the productivity statistics to which its evidence adverted. The respondent complained that the applicant’s productivity analyses painted an unreliable and potentially unfair summary of the productivity position at the WST since mid-July 2019. By way of example, the respondent pointed out that all of the metrics that were relied upon were averaged in one way or another, and that averages might not provide as clear a picture of productivity as less-processed data could. The respondent also produced a volume of correspondence produced internally by the applicant, much of which recorded positive assessments made by various of the applicant’s personnel about the work performed at the WST since mid-July 2019. It was said that those assessments were inconsistent with the notion that productivity at the WST was well below where it ought to have been. In response, the applicant contended that that evidence showed nothing other than that the individuals who made the comments in question were satisfied with certain aspects of the work performed under their supervision; they did not demonstrate any consciousness by those people of broader productivity concerns.

43    On the second and third denials, the respondent relied upon evidence from Mr Patchett, Mr McGowan and Mr Bassett, all of whom stated that there had been no execution by employees of—and no exhortation by them nor, in the case of the employees, to them by anyone from the respondent that they should effect—any campaign, howsoever described, involving the deliberate performance of work in a way that was, or ways that were, designed to retard productive output at the WST. In response, the applicant accepted that that evidence was damaging to its prima facie case; but dismissed it as hailing only from a very small number of employees within a group approximately 600-strong.

44    In each case, counsel for the respondent contended, or at least by their written submissions appeared to contend, that the evidence upon which they relied was dispositive of the question that the resolution of the applicant’s claim for interlocutory relief required me to determine. That contention, if it was put, was wrong; and, at the hearing on 12 August, counsel for the respondent correctly retreated from (or otherwise accepted an invitation not to advance) it. Nonetheless I accepted the better point, advanced at least in the alternative, that that evidence—that is, the evidence drawn from the applicant’s own records that tended to show that productivity at the WST was not materially below where it should have been, and the evidence of the respondent’s deponents that tended to show that there had been no coordinated “go-slow” at the WST—weakens what prima facie case the applicant might otherwise have had regarding the respondent’s organisation of a “go-slow” at the WST.

45    On the evidence now before the court, I accepted that there was scope to doubt that there was any productivity deficiency at the WST; and that, if there was, that it was the product of a coordinated campaign in the nature of a “go-slow”. Additionally, I accepted that there was scope for doubting that any such campaign, if it existed, existed as the product of coordination by the respondent.

46    Nonetheless, on the state of the evidence available (conflicting though it does), I was satisfied that there remained a prima facie case—albeit not a strong one—that productivity at the WST had been and was being adversely affected by the adoption by employees at the site of a practice or practices conveniently and collectively described as a “go-slow”; and that they, or at least some portion of them, had adopted those practices at the behest of the respondent.

47    In the Initial Injunction Decision, I formed the equivalent view. I identified “…seven circumstances that conspire[d] toward [it].” The relevant passages from that decision are reproduced below (references omitted):

40    First, the parties have been bargaining for five months for terms to be included in a new enterprise agreement. The [respondent] 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 [respondent] (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 [the applicant] 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 [four-day stoppage referred to above]).

44    Fifth, the “go slow” has been engaged in by a cross section of the [relevant employees at the WST] 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 [those employees].

45    Sixth, comments that the evidence attributes to employees at the WST…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 [respondent]’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 [respondent] 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 at the WST] are [the respondent’s] members. The evidence as much as compels the inference that the [respondent] 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 [respondent] 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 [respondent] 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 light of the conclusions that I reached on the respondent’s evidential objections (above, [23]-[30]), the sixth of those seven considerations loomed less large in the present application. Subject to that observation, however, the existence of the prima facie case here rests on equivalent considerations.

49    By its written submission, the respondent was critical of the applicant’s reliance upon (and, by extension, the court’s having previously had regard to) the seven matters identified in the Initial Injunction Decision; or, otherwise and at the least, sought to explain why none of them should factor into the court’s assessment as to whether there existed in the present application a prima facie case of the sort for which the applicant contended.

50    As to the first four of those matters, the respondent posited that it was “impermissible to reason”:

(1)    from a premise that a person is a bargaining representative to a conclusion that that person acts unlawfully and contravenes Orders of the Commission;

(2)    from a premise that a person has not struck a deal to a conclusion that a person would act unlawfully to cause a deal to be struck;

(3)    from a premise that a person complies with law by taking protected industrial action to a conclusion that the person would act unlawfully by taking unprotected industrial action; or

(4)    from a premise that a person has just finished taking industrial action in compliance with law to a conclusion that the person would immediately then take industrial action in contravention of law.

51    It was said that a “…process of inferential reasoning proceeding in that way would not involve drawing ‘the more probable inference’”. In each case individually, that might well be so; but it was not the submission advanced—nor the process by which the court reasoned in the Initial Injunction Decision—as to why the respondent might, at a prima facie case level, be understood to have organised a “go-slow” at the WST. It is artificial to look, as the respondent sought to, at each circumstance individually, divorced from its context. Rather, what was put (and accepted) was that the identified circumstances accumulated (or “conspire[d]”), with each other and with others, to and beyond the point that an inference as to the respondent’s involvement in organising a “go-slow” at the WST might fairly be sustained.

52    Whether or not that is so will be a matter to be determined at trial. On the evidence as it now exists, it cannot be said that the applicant would have, at trial, no prospect of successfully inviting the court to infer—such that it might be said that there is not presently a prima facie case—that the respondent has been behind the adoption of a “go-slow” at the WST. The respondent’s position as a bargaining representative that has prosecuted an as-yet unsuccessful bargaining campaign on behalf of employees at the WST is a circumstance that is capable of informing whether such an inference might fairly be available at trial.

53    The respondent next turned its attention to the court’s finding, in the Initial Injunction Decision, that the “go-slow” appeared “…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].” The respondent contended that the applicant could not, in this application, successfully advance an equivalent contention. In its written submissions, it argued as follows (references omitted, original emphasis):

20.    Regardless of whether these findings were available at an interim stage, they are not now available. [The applicant] has not explained or adduced evidence of why any coordination must have been “sophisticated,” or “central.” There is no evidence as to what are the hallmarks of sophisticated, central co-ordination, what distinguishes those hallmarks from unsophisticated co-ordination, or what distinguishes them from disparate co-ordination. The only evidence that purported to go to this point—[51] of the affidavit of Sean Bruce Jeffries dated 31 July 2019—was rejected, rightly, as inadmissible.

21.    Findings of this kind would not involve a process of valid inference drawing; they would involve speculation and guesswork and would assume much of the very thing to be proved.

22.    Drawing from a different area of the law, so to submit or find in the context of this interlocutory application would involve a “personal assumption,” not a fact that might be found on evidence. This matter should be discarded.

54    The point that the applicant made—and made obviously, in terms not fairly open to criticism through the process of intimate dissection upon which the respondent invited the court to embark—was that the cause of the apparently sudden and dramatic reduction in productivity at the WST appeared to be widespread and successful; that is, that the reduction seemed to be a product of coordination (rather than spontaneous but pervasive happenstance), orchestrated by a person or people sophisticated enough to command the loyalty of a sufficiently wide cross-section of the 600-odd employees who work at the WST. The respondent’s contentions on this issue were specious, and obviously so.

55    Next, the respondent focused upon the Hearsay Passages to which reference is made above, as well as other evidence that was the subject of objection. For the most part, I have said all that needs to be said about those passages; however, there were two passages that the respondent said were probative of whether or not there was a prima facie case that it had organised a “go-slow” at the WST. The first was a comment attributed to a WST employee, which was to the effect that he had not instructed anybody at the WST to go slow. The second was evidence led by the applicant about what was said to be similar industrial action from 2011 that it attributed to the respondent; but which, the respondent maintained, tended to precisely the opposite effect.

56    If, in either instance, that evidence was probative of anything relevant to the present application, it was only barely so. A statement by an employee that he has not told anybody to go slow is not evidence that nobody else has. Evidence that shows that a person did not organise particular industrial action eight years ago is not evidence that the person is not now organising it. I did not accept that that evidence, in either case, was significant.

57    The respondent then focused upon the last of the seven circumstances listed above: namely, that there was evidence to suggest a close connection between the respondent and the employees at the WST. The respondent advanced the following criticisms of the reasoning upon which the applicant relied (references omitted):

50.    After stating [the connection referred to above], the Court said as follows:

“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.”

51.    The [respondent] submits that the matters stated in the first few sentences of IJ[46] cannot “compel” that inference, which DP World again seeks to be drawn. There is no logical connection between the [respondent] working closely with an employee representative committee and a finding that the [respondent] is organising industrial action in contravention of law and of a Commission order. That is especially so now that Mr Bassett’s affidavit states that the employee representative committee did not meet between 12 June 2019 and 7 August 2019. And, there is no logical connection between employees being [the respondent’s] members and a finding that the [the respondent] is organising industrial action in contravention of law and a Commission order. It is not the “more probable” inference.

58    The respondent appears to have materially misunderstood the applicant’s submission. There is no submission—nor was there any finding in the Initial Injunction Decision—that the respondent’s relationship with employees at the WST was a matter that compelled a finding that it was organising unlawful industrial action. The applicant’s submission was two-fold: first, that it was clear that the respondent has coordinated the bargaining campaign that has been waged against the applicant on behalf of the WST employees; and, second, that the “go-slow” (if the court were minded, at an interlocutory level, to accept that there was one) was implemented in support of, or to complement, that campaign. For interlocutory purposes, there is no obvious or nominated basis upon which to doubt either proposition. Their significance is that they accumulate, in combination with the other identified circumstances—and, in particular, with the evidence about the representative role that the respondent has historically played at the WST and what appears to be the coordinated nature of the “go-slow” (if there is one)—to suggest that the principal force behind any adoption of a “go-slow” at the WST would appear to have a profile very similar in many respects to that of the respondent.

59    Whether that should translate to the drawing of inferences adverse to the respondent at trial will remain to be seen. What could not fairly be said now is that the applicant enjoys no prospect of establishing, at trial and as a matter of inference, that the respondent is behind the “go-slow”. That is another way of saying that there exists, now, a prima facie case that it is.

60    The respondent’s criticisms then continued as follows (references omitted):

53.    However, [the applicant] adduces no evidence of sophistication, of co-ordination, or of [the] “subterranean” character [of a ‘go-slow’].

54.    Further, these findings could not now be made because they assume the very thing that is to be proved. If [the applicant] wishes to establish its case against the [respondent] by process of elimination (nobody else could have organised a go-slow), it cannot establish that by tendering inadmissible (and not-admitted) opinion evidence; it must adduce evidence capable of sustaining an inference (not speculation or guesswork) that there is no other body capable of organising a few hundred workers. It must also adduce evidence capable of sustaining an inference that there is organisation going on. It did neither of these things.

55.    Finally, the transcript attached to Anderson 1 negatives the notion that the fact of a go-slow (if it were a fact, which is denied) “compels the inference” that the [respondent] was involved. In that case, the finding of the Commission—in the presence of evidence of the kind given by Mr Patchett in this proceeding—was that there was a go-slow, but it was not prepared to find that the [respondent] was organising it (see page 98 PN648). It positively went further to find that the [respondent] was not complicit (page 99 PN652). It must be, then, that go slows can occur without central co-ordination, or at least without central co-ordination by the [respondent].

61    Again, it is immediately apparent that the respondent has misunderstood what inferences were said to have been relevantly “compelled” (above, [58]). Further and more significantly, the respondent’s contention is a continuation of the specious reasoning referred to earlier. It is, of course, conceivable that a “go-slow” might occur without centralised coordination or without coordination by the respondent. It is, of course, possible that there is (or was) no go-slow; or even that there is (or was) no productivity decline. The court was neither asked nor able to make any findings on any of those questions.

62    I do not accept the propositions that were advanced at [53] and [54] of the respondent’s written submission. It was not necessary for the applicant to lead evidence capable of sustaining an inference that there is no other body capable of organising a workforce 600-strong. There may well be other such bodies (the applicant, presumably, being amongst them). The significance of the evidence that was led was that the respondent, to put it in simple terms, had both the motive and the means to effect what appears to have been effected. It is simply not fairly open to conclude—indeed, it requires a conscious and artificial separation from what strikes, on the evidence, as eminently plausible (though, of course, not proven)—that the applicant has no prospects of establishing, as a matter of inference at trial, that which it is necessary that it should establish. The respondent’s contention on this subject was contrived and unrealistic.

63    The respondent was also critical of the court’s treatment of the Patchett Affidavit in the Initial Injunction Decision. That evidence was the subject of the following observations:

48    In saying as much, I have taken (and took) account of the evidence that the [respondent] has led in the form of the Patchett Affidavit. Mr Patchett deposes to the effect that the [respondent] 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 [respondent] urged, that that evidence does at least some damage to [the applicant]’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 at the WST] 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 [respondent]’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 [respondent] has organised or is organising industrial action in the form of a “go slow”. It clearly informs the strength of [the applicant]’s prima facie case—and, on any view, it must weaken it—but it isn’t sufficient to foreclose upon it altogether.

64    The respondent complained that “…it was unfair to Mr Patchett (and [to it])…” to reason that there might be some ambiguity to what Mr Patchett considered was covered by the concept of a “go-slow”. Again, whether there was or was not any such ambiguity was not a question upon which the court was asked, able or required to rule; it was merely identified as a potential explanation for why it was that his evidence conflicted with other aspects of the evidence that inclined in favour of the view that the respondent was (or that it was seriously arguable that it was) behind the adoption of a “go-slow” at the WST. There was no unfairness. It is not immediately apparent what counsel for the respondent hoped to achieve by this gratuitous attempt to admonish the court’s reasoning; but, regardless, the point that they advanced is without foundation.

65    It is also now largely moot. The respondent fairly pointed out that, by the second Patchett Affidavit, the potential ambiguity as to what was meant by a “go-slow” was extinguished. I accept that it was. Mr Patchett’s evidence was that the respondent was not behind any “go-slow” at the WST, howsoever described. That evidence was plainly inadmissible insofar as it attributed conduct to the respondent as a whole; but insofar as Mr Patchett was referring to what he, himself, had or had not done, I accept (as I did in the Initial Injunction Decision) that his evidence weakened the applicant’s prima facie case. What I do not accept is that it was sufficient to displace that prima facie case, which the evidence as a whole otherwise sustained. The respondent’s contention that Mr Patchett’s evidence “…does not ‘merely form[] part of the evidential matrix’…” was self-evidently wrong.

66    For all of the reasons set out above, I concluded that the applicant enjoyed a prima facie case for the relief that it sought, albeit not a particularly strong one.

The Balance of convenience

67    The balance of convenience factors were not materially different in the present case to what they were on 1 August 2019. The observations that I made on that occasion remained apposite: Initial Injunction Decision, [54]-[57].

68    Had the prospect of interlocutory injunctive relief at this juncture threatened to have had any bearing upon the respondent’s entitlement to organise protected industrial action, I might well not have granted the relief that was sought. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272, I had occasion to consider the nature of protected industrial action and its value to employees and their bargaining representatives:

57    … Counsel for the applicants contended that protected industrial action should be understood as a valuable measure by which employees might persuade employers to accede to claims made during enterprise bargaining. Respectfully, I agree. The scheme of the Act is such as to permit, in limited circumstances, the application of what might not unfairly be described as lawful coercion: that is, the application of pressure, usually economic in nature, that is designed to make as difficult as possible any ongoing resistance to the claims advanced from the other side of the proverbial bargaining table. In JJ Richards & Sons Pty Ltd v Fair Work Commission (2012) 201 FCR 297 at 306 [29], Jessup J put it thus:

…the ability to take protected industrial action is to be seen as part and parcel of the statutory regime for bargaining in pursuit of, or in resistance to, the making of [enterprise] agreements. This way of looking at the legislation is amply justified by the Parliament’s own words in identifying the object of the Act: see s 3(f).

69    As it is (and was), save for the prejudice inherent in being subjected to a coercive court process and for the administrative steps that normally attach thereto, there is (and was) no prejudice to the respondent in relief being granted. Save for some ancillary requirements, the orders that the applicant proposed did no more than restrain the respondent from doing that which it was not at liberty, in any event, to do.

70    That being so, I considered that the balance of convenience favoured an exercise of the court’s discretion to grant interlocutory injunctive relief, notwithstanding the weakness that I identified in its prima facie case.

Form of relief

71    The orders that were made on 13 August 2019 were in the terms that counsel for the applicant had proposed. Those terms were the subject of opposition from the respondent and it is appropriate to briefly address some of the contentions that were advanced in that regard.

72    For the most part, the respondent’s concern was that any order granted should be couched in terms permissive of clear and precise understanding. The terms that the applicant proposed—and, by extension, the terms of the court’s earlier order, from which they were principally drawn—were said to be “vague and ambiguous”. That contention was also advanced for the purposes of the Initial Injunction Decision. There, I made the following observations:

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 [the applicant]’s cause of action. The [respondent]—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.

73    The same may be said of the order presently under consideration. As a general proposition, the respondent’s contention (that orders should be framed clearly and precisely) was self-evidently sound. However, I did not accept that the order here presented, for the respondent, anything approximating the difficulty of which it complained. In particular, I did not accept that there was any realistic prospect that the respondent might be unclear as to what it can and cannot do by reason of the order that was made. There are two reasons why that is so.

74    First, the order is not to be read in a vacuum. In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA (with whom Hodgson JA and Tobias JJA agreed) observed (at 78):

The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract.

75    This court found to similar effect in Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 (Drummond, Sundberg and Finkelstein JJ). There, Drummond J (with whom Sundberg and Finkelstein JJ agreed), said (at 78-79):

It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order framed in unambiguous language, regard should still be had to the reasons given by the Court for making the order because they form part of a context in which the order was made.

Other judges of this court have expressed similar views: Hamersley Iron Pty Ltd v National Competition Council (2008) 247 ALR 385, 399 (Weinberg J); Smith v Comcare (2014) 64 AAR 205, 218 (Robertson J); Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129, [13] (Moshinsky J); Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 1441, [53] (Moshinsky J).

76    Second, it is artificial to contend that the respondent, of all people, might be unclear as to what does and does not amount to the organisation or encouragement of a “go-slow”. The respondent is a large, well-resourced and sophisticated trade union that boasts significant experience with the realities of Australian industrial relations. I do not (and did not) accept that it might have any practical—that is to say, non-contrived—difficulty in understanding what, by the orders made, it is and is not to do.

77    The respondent also urged that the court should:

…be particularly cautious about issuing [a]n injunction against industrial action for the reasons identified in Australian Paper Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 24 et seq. Those reasons include (relevantly) [that]:

“… parties to litigation concerning an industrial dispute include persons or bodies who are professional negotiators. Their everyday function is resolving disputes between themselves about industrial issues. There is good sense in courts maintaining a degree of restraint against intervention between parties who are experienced in techniques for dispute resolution. Furthermore, the disputants usually have a relationship which has been built up over some time and must continue after the current issue between them is long past. The philosophy of the Act is to allow workplace relationships to be negotiated by the parties with the minimum of third party intervention.”

78    It is (and was) not apparent to me why those circumstances—assuming that the evidence established them—should warrant any greater caution in resolving the matter than would be warranted in any event. Regardless, I did not consider that they should stand in the way of an exercise of the court’s discretion to grant appropriate injunctive relief in this case.

Delay in provision of written reasons

79    Publication of these written reasons has been delayed beyond what I had hoped might be required. Neither party has inquired about them and there is no indication that either intends to seek leave to appeal from the orders made (a course that, had it been necessary, would have been open on the strength of the oral reasons that were provided at the time that the order was made). Nonetheless and given the delay, it is appropriate to extend the timeframe within which any such application must be filed. I will order that the date fixed for the purposes of r 35.13 of the Federal Court Rules 2011 (Cth) be Monday, 9 September 2019.

Associate:

Dated:    26 August 2019