FEDERAL COURT OF AUSTRALIA ACI Operations Pty Ltd v Automotive Food Metals Engineering Printing & Kindred Industries Union [2000] FCA 393 INDUSTRIAL LAW – picketing involving physical obstruction of goods and persons – whether picketing was carried out with intention to coerce an employer to agree to a new or varied enterprise agreement – whether any special principle applies to interlocutory injunctions in industrial litigation Australian Workplace Relations Act 1996 (Cth) – ss 170NC and 170NG Australian Paper Limited v CEPU (1998) 81 IR 15 – considered David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 - considered Australian Workers Union v Yallourn Energy Pty Ltd [2000] FCA 65 – applied Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 - cited ACI OPERATIONS PTY LTD v AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS V 136 of 2000 JUDGE: MERKEL J DATE: 30 MARCH 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 136 of 2000 BETWEEN: ACI OPERATIONS PTY LTD (ACN 004 230 326) APPLICANT AND: AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS RESPONDENTS JUDGE: MERKEL J DATE OF ORDER: 30 MARCH 2000 WHERE MADE: MELBOURNE Upon the applicant by its counsel giving the usual undertaking as to damages the Court orders that: 1. Until the trial of the proceeding or further order the first and the second respondents, whether by themselves, their servants, agents or howsoever otherwise, be restrained from organising or continuing or threatening to organise or being otherwise involved in physical obstruction or a physical impediment to the free movement of goods or people to and from the business premises of the applicant or its customers where the purpose, or a purpose, of that conduct is to support or assist employees of the applicant's Box Hill plant in relation to any aspect of their industrial dispute with the applicant. 2. The applicant's claim for interlocutory relief is otherwise refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 136 of 2000 BETWEEN: ACI OPERATIONS PTY LTD (ACN 004 230 326) APPLICANT AND: AUTOMOTIVE FOOD METALS ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION AND OTHERS RESPONDENTS JUDGE: MERKEL J DATE: 30 MARCH 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 The applicant ("ACI") is a manufacturer of glass products. It conducts a plant at Box Hill where moulds for its products are manufactured. The first respondent ("the AMWU") and eighty-three of the eighty-four employees working at the Box Hill plant (who are members of the AMWU) ("the Box Hill AMWU members") have, since the middle of 1999, been engaged in an industrial dispute with ACI over a new enterprise agreement. 2 As part of the dispute, the AMWU organised certain industrial action at various ACI plants, as well as picketing at an ACI plant and the plants of certain customers of ACI. 3 As a consequence of the picketing, on 10 March 2000 ACI commenced this proceeding against the AMWU, the second respondent (the State Secretary of the AMWU) and the Third to Thirty-Sixth Respondents ("the employee respondents"), employees at the Box Hill plant who are alleged to have been involved in the picketing. 4 In the proceeding ACI is claiming: "1. [T]he imposition upon the respondents of a penalty or penalties under s 170NF of the Workplace Relations Act 1996 for contravention or contraventions of s 170NC and an order that the penalties be paid to the Applicant. 2. An injunction that the Respondents, whether by themselves, their servants, agents or howsoever, be restrained from taking or threatening or directing, inciting or procuring any other person to take industrial action or any other action with intent to coerce or having the effect of coercing the Applicant to agree to making an agreement under division 2 or 4 of the Workplace Relations Act." 5 The present application concerns ACI's claim for interlocutory injunctions restraining the respondents from: "…organising or continuing or threatening to organise or being otherwise involved in a physical obstruction or a physical impediment to the free movement of goods or people to or from the business premises of the Applicant or customers of the Applicant including Carlton & United Breweries (a division of Fosters Limited), Kraft Foods Limited, HJ Heinz Limited, Southcorp Wines (a division of Southcorp Ltd), Mildara Blass (a division of Fosters Limited), Hardy's Wines (a division of BRL Hardys Limited), Lion Nathan Limited, Tooheys Breweries (a division of Lion Nathan Limited), Coopers Brewery Limited." 6 ACI founds its entitlement to interlocutory relief on the ground that the picketing instigated, organised and conducted by the respondents is action taken with the intent to coerce ACI to agree to the terms, proposed by the AMWU and the Box Hill AMWU members, of the new enterprise agreement being negotiated between the parties. ACI contends that the picketing is therefore in contravention of s 170NC of the Australian Workplace Relations Act 1996 (Cth) ("the Act"). Background 7 The ACI Mould Manufacturing Certified Agreement 1997, an enterprise agreement covering employees at ACI's Box Hill plant, expired on 31 March 1999 but has continued in operation pursuant to s 170LX(2) of the Act. 8 During February 1999 the parties commenced negotiations for a new certified agreement. On 2 August 1999 ACI gave notice of its intention to initiate a bargaining period under s 170MI of the Act. The Notice stated that ACI intended to try to make a new certified agreement in relation to the terms and conditions of employment of its employees of the Box Hill plant. On 15 October 1999 the AMWU gave notice of its intention to initiate a bargaining period under s 170MI of the Act. The Notice stated that it was the intention of the AMWU to try and make a new certified agreement to cover employees of the applicant at the Box Hill plant. Provided that it is conducted in accordance with the requirements of the Act, industrial action during the bargaining period to advance a party's claims in respect of a new certified agreement is protected action and, under s 170MT, is immune from legal action. 9 On 8 November 1999 the AMWU gave notice, under s 170MR, that the Box Hill AMWU members had been authorised to engage in industrial action, which included certain bans and limitations, against ACI at its Box Hill plant. ACI advised its employees at the plant that due to the bans it proposed to review the shut down and leave entitlements over the Christmas vacation. On 16 December 1999 ACI notified the Box Hill AMWU members at the plant that they would be stood down until further notice as from 17 December 1999 and would not be paid during the period during which they were stood down. 10 On 20 December 1999, ACI gave notice to the AMWU of its intention to lock out employees under s 170MO(3)(b) of the Act. The notice, which did not specify the duration of the lock out, stated that whilst the employees were locked out they would not be paid and that, as a result of the employees' industrial action, no annual leave could be approved. 11 On 21 December 1999 the AMWU commenced a proceeding in the Court seeking, inter alia, to restrain ACI from proceeding with the lock out. On 24 December 1999 Goldberg J found that there was a serious issue to be tried in respect of the validity of the lock out notice and granted an injunction restraining ACI from giving effect to it. 12 Subsequently, ACI has given further notices of intention to lock out employees at the Box Hill plant under s 170ML(3)(b), resulting in the 83 Box Hill AMWU members being locked out without pay since 29 December 2000. The current lock out notice, which was operative from 29 February 2000, is stated to end at 7.00 pm on 1 April 2000 at which time employees were informed they "will be required to attend for work in accordance with their normal roster". Thus, the 83 employees have effectively been locked out from the Box Hill plant since late in December 1999 and will, subject to any further notice, remain locked out until 1 April 2000. ACI's evidence, which I accept, is that the purpose of the lock out is to respond to the continuing industrial action taken by the AMWU and its members and to advance ACI's claim against the AMWU in relation to the new certified agreement. 13 The respective actions of ACI and the AMWU and its members were taken in the context of ongoing negotiations between those parties for a new certified agreement in respect of the employment of ACI's employees at the Box Hill plant. The negotiations culminated in general agreement on the terms of a new certified agreement at a meeting held on 1 March 2000 between representatives of ACI and senior AMWU officials representing the employees. One of the terms of the agreement was that the parties were not to pursue any ongoing or future "action" as a consequence of the current industrial dispute. 14 At the conclusion of the meeting AMWU officials informed the ACI representatives that they proposed to recommend to the employees that they accept the agreement. However, on 3 March 2000 the employees unanimously rejected the proposed agreement. ACI was informed by AMWU officials that there were certain problems with the content of the agreement and that the AMWU was redrafting a document which would be submitted to ACI. 15 During February and March 2000, while the Box Hill employees remained locked out, industrial action including picketing was taken at other ACI plants and plants of ACI's customers to "support" employees at the Box Hill plant. The present application of ACI is only concerned with the picketing organised during that period by the AMWU. 16 The picketing commenced on 17 February 2000 at the Abbotsford plant of Carlton United Breweries, one of ACI's major customers. The picket was said by an AMWU official to be part of a series of "flying pickets" organised by the AMWU to support the Box Hill employees. It involved approximately 70 persons and included blockading the gates of the plant. 17 On 24 February 2000, Kraft Foods Limited, another major customer of ACI, was also the subject of picketing activities organised by the AMWU. The picketing involved approximately 45 persons, including the second respondent, and included the placement of motor vehicles across the main entry and exit gates to the Kraft Plant. Kraft officers were advised by union officials that they were picketing the Kraft plant "to pressure ACI into agreeing with the AMWU in order to resolve their dispute at the Box Hill plant". 18 The next picket occurred on 6 March 2000 at the Spotswood plant of ACI. The picket restricted the ingress and egress of commercial traffic at the plant. A union representative explained that the picketing was related to the lockout of union members employed by ACI at Box Hill and was said to be for the purpose of bringing the dispute "to a head". 19 In an interview on Radio 3CR on 3 March 2000, the twentieth respondent (Alex Clark) who was a shop steward at the Box Hill plant, described the union's actions as bringing "pressure" to bear on ACI in the context of meetings with management that had taken place and from which he was expecting to "get something to take back to the members". 20 Finally, on 8 March 2000 there was a further picket at the Carlton United Breweries Abbotsford plant where cars were parked in front of the gates to the plant. 21 For the purpose of determining the present interlocutory application I make the following findings, albeit on a prima facie basis, in relation to the picketing: · it was instigated and organised by the AMWU and its officers; · the second respondent, as State Secretary of the AMWU, was involved in the instigation and organisation of the picketing; · the third to the thirty-sixth respondents, as ACI employees who were locked out of its Box Hill plant, were involved in the picketing but the evidence is unclear as to the extent to which individual employees were involved in instigating, organising or maintaining the physical obstructions or impediments to ingress or egress at the plants; · the picketing has caused and, if continued, is likely to cause financial harm to ACI and its customers. The legislative scheme 22 Division 8 of Pt VIB of the Act provides that certain industrial action taken during a bargaining period in respect of a proposed certified agreement is to be protected action. In substance, Div 8 protects both industrial action by unions and employees against the employer (s 170ML(2)) and a lock out by employers (s 170ML(3)). The protection is contingent on the action being taken for the purpose of supporting or advancing claims made in respect of the proposed agreement, or as a response to industrial action taken by the other party to the negotiations in relation to the proposed agreement. 23 Section 170MO(2) provides for written notice to be given of the initiation of the bargaining period. Section 170ML identifies industrial action that is protected action and which enjoys the legal immunity conferred under s 170MT. Sections 170ML(2) and 170ML(3), relevantly, provide: "(2) During the bargaining period: (a) an organisation of employees that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party; is entitled, for the purpose of: (e) supporting or advancing claims made in respect of the proposed agreement; or (f) responding to a lockout by the employer of employees whose employment will be subject to the agreement; to organise or engage in industrial action directly against the employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action. (3) …during the bargaining period, the employer is entitled, for the purpose of: (a) supporting or advancing claims made by the employer in respect of the proposed agreement; or (b) responding to industrial action by any of the employees whose employment will be subject to the agreement; to lock out from their employment all or any of the employees whose employment will be subject to the agreement and, if the employer does so, the lockout is protected action." 24 The written notice of action to be given in respect of protected action "must state the nature of the intended action and the day when it will begin" (s 170MO(5)). 25 Section 170MT(2) confers immunity from legal action, other than for defamation, in respect of protected action. The sub-section provides: "…no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property." 26 The power of the IRC to make orders under s 127 to stop or prevent industrial action does not apply to protected action (s 170MT(1)). The Act also limits the freedom of employers to respond to protected action. Section 170MU(1) provides: "An employer must not: (a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action." 27 Section 170NC(1) provides: "A person must not: (a) take or threaten to take any industrial action or other action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person to agree, or not to agree, to: (c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or (d) approving any of the things mentioned in paragraph (c)." 28 Section 170NC(2) provides that s 170NC(1) does not apply to protected action. 29 Sections 170ND, 170NE and 170NF provide for penalties of not more than $10,000 to be imposed by an eligible Court in respect of a contravention of penalty provisions, which include s 170NC. An eligible Court is defined in s 170NE as including the Federal Court. An eligible court may also grant an injunction requiring a person not to contravene or to cease contravening a penalty provision: s 170NG. 30 The freedom of parties to an industrial dispute to engage in protected industrial action, free of the fetter of legal liability, only exists for action by protected persons (see s 170MM(3)) during a bargaining period, which may be suspended or terminated by the Industrial Relations Commission in the circumstances set out in s 170MW(2)-170MW(7). 31 The legislative scheme, to which I have referred, reflects a policy that enables and authorises unions, employees and employers to lawfully engage in protected industrial action during a bargaining period notwithstanding that, but for s 170MT(2), the action would otherwise be unlawful and therefore actionable. 32 Two related aspects of the scheme are of significance. The first is that protected action can be engaged in by a protected person during a bargaining period free of the fetter of the threats of, or the commencement of, litigation by unions, employees and employers in respect of that action. As North J stated in Australian Paper Limited v CEPU (1998) 81 IR 15 at 18: "The purpose of this statutory scheme is to allow negotiating parties, both employer and employee, maximum freedom consistent with a civilised community to take industrial action in aid of the negotiation of agreements without legal liability for that action." 33 However, an equally important aspect is that, save for protected action, no other action (whether industrial or otherwise) is to be taken by any person "with intent to coerce" persons to make, vary or terminate certified agreements. These related aspects are critical to protecting and maintaining the integrity of the bargaining process provided for under the Act. The carefully prescribed limitations on the use of industrial, or other, action that is not protected action, for the purposes of supporting or advancing each party's position as part of that process reflects a legislative policy that, in general, the freedom of the parties to negotiate may be fettered by protected action but not by any other coercive action. A serious issue to be tried – s 170NC 34 ACI contends that the evidence establishes that the unlawful picketing that has occurred is in contravention of s 170NC, as it is being carried out with the intention of coercing ACI to end its lock out and to agree to the terms of the certified agreement being proposed by the AMWU and the 83 employees at the Box Hill plant. 35 The AMWU has filed an affidavit by an Articled Clerk acting for the AMWU which states that she has been informed by an AMWU official that the sole purpose of the "peaceful protests" has been to "put pressure on ACI to stop the lockout of Union members employed at Box Hill which has continued since last December and which is causing those employees considerable financial hardship and distress". The deponent added that the activities have not been carried out "to coerce ACI into entering an enterprise agreement". Counsel for the respondents, in opposing the interlocutory injunction sought by ACI, submitted that there was insufficient material before the Court to establish the intent required by s 170NC and there was insufficient evidence to connect the employee respondents with the picketing the subject of the proceeding. 36 In David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 574-575 Wilcox and Cooper JJ (with whom Burchett J generally agreed) concluded that irrespective of whether it merely involved communication of information to persons entering or leaving a site or whether it also involved preventing or hindering those persons from entering or leaving the site, picketing is not industrial action and therefore cannot be protected action. In the course of discussing the general role of picketing their Honours noted that a picket where a person merely "stands outside an establishment to make a protest, to dissuade or to prevent employees, suppliers, clients or customers of the employer from entering the establishment", is not actionable by anyone and therefore does not need the protection of s 170MT. In contrast, picketing which involves obstruction and besetting will constitute an actionable tort but their Honours concluded that there was no discernible indication that Parliament had intended that such action be protected action at the expense of basic common law rights. 37 On the evidence presently before the Court it appears that both forms of picketing have occurred, but it is only the latter form of picketing which is sought to be the subject of interlocutory relief. ACI relies on David's Distribution to contend that picketing, which is an actionable tort, is by its nature more likely to constitute coercive conduct proscribed by s 170NC than picketing which is merely a public protest. 38 I considered the operation of s 170NC in Australian Workers Union v Yallourn Energy Pty Ltd [2000] FCA 65 at [69]-[76]. I observed that: · the section is cast in wide terms; · intention can relate to the result that a party desires to obtain by its action. 39 I also stated that there was a degree of unreality about the submission of counsel for the employer in that case that a threatened common law proceeding was extraneous to and unconnected with the employer's bargaining position in relation to the new enterprise agreement. I added that "each step and counter-step by the parties in the current dispute appears to be intended to advance their respective bargaining positions in relation to the new enterprise agreement": see [73]. In my view the same observation can be made in respect of the activities of all of the parties in the present case, which I have outlined in some detail earlier in these reasons. It is difficult to accept that each of those actions, including the picketing, was not intended to advance the respective bargaining positions of the parties in relation to the new enterprise agreement being negotiated throughout the period. Indeed, there is evidence from Union officials and the shop steward at the Box Hill plant that the picketing activities were intended to bring pressure to bear on ACI to bring an end to the industrial dispute. The end of the industrial dispute is only likely to occur when the new certified agreement has been agreed to on terms acceptable to the disputing parties. 40 In any event, it does not seem to me to be an answer to ACI's claims, as the AMWU contends, that the pressure is intended to bring an end to the lock out. The lock out is ACI's response to the industrial action of the employees and is stated by ACI to be intended to support or advance its position in relation to the new enterprise agreement. Thus, there is a degree of industrial unreality about the union submission that action taken with the intent to bring an end to the lock out which, if successful, would clearly weaken ACI's bargaining position, is conduct unrelated to seeking to weaken that position. 41 I need only be satisfied at this stage that there is a serious issue to be tried that the picketing activities complained of by ACI have been engaged in with intent to coerce ACI to agree to the terms of the new enterprise bargaining agreement proposed by the AMWU and its members, and is therefore in contravention of s 170NC. I am satisfied that ACI has established that there is a serious issue to be tried in respect of its claim that the picketing activities contravene s 170NC. 42 The evidence as to intent for the purposes of s 170NC is stronger in respect of the claim of breach against the AMWU and its State Secretary than it is in relation to the claim of breach against the respondent employees. The employees have been upset by the lock out and the denial by ACI of their annual leave entitlements. Thus, there is some likelihood that the involvement of the employees in the picket may be to facilitate their return to work and to earning an income in order to support themselves and their families, rather than to achieve a better negotiating position in relation to the new enterprise agreement. However, such matters remain to be investigated at trial and go to the strength or weakness of ACI's prima facie case against the employees, rather than to its existence. 43 The other submission of counsel for the respondent was that there is insufficient evidence to link the individual respondent employees with the obstruction involved in the picketing activities of the respondents. As the interlocutory relief is only sought in respect of those activities it was said that there is no serious issue to be tried as to the involvement of the employee respondents in any breach of s 170NC. 44 The extent of the respondent employees' involvement in physical obstruction at the picketing is unclear. However, the picketing appears to have been actively engaged in by a significant number of the respondent employees, and it is probable that some were involved in obstruction activities. As with the submission as to the employees' intent, the submission as to the employees' lack of involvement goes more to the strength or weakness of ACI's prima facie case rather than to its existence. As I later explain, the evidentiary inadequacies complained of are more relevant to balance of convenience and discretionary considerations. Accordingly, I am satisfied that there is a serious issue to be tried in respect of ACI's claim of a contravention of s 170NC of the Act. Balance of convenience and discretion (a) ACI 45 I have found that the picketing is likely to cause financial harm to ACI and to its customers, who are innocent third parties in the dispute. The respondents have not adduced any evidence as to how they may be disadvantaged or inconvenienced if enjoined, until trial or further order, from engaging in picketing activities which constitute obstruction or besetting and, therefore, actionable tortious conduct. 46 One possible form of loss that might be suffered by the respondents by reason of the injunction is an inability to conduct picketing that might end the lock out and thereby undermine ACI's bargaining position in relation to the new collective agreement. However, that is the very conduct which is alleged to constitute a contravention of s 170NC. As explained earlier, it is an integral aspect of the legislative scheme that only protected, but not other coercive, action be permitted to fetter the bargaining process for a new or varied enterprise agreement: see Yallourn Energy at [77]. 47 Accordingly, ACI has made out its case for injunctive relief against the AMWU and its officials, including its state secretary. As the relief sought, however, is based upon s 170NC, rather than the common law, it is appropriate that the terms of the injunction are limited to picketing that is related to the industrial dispute at ACI's Box Hill plant. (b) The respondent employees 48 The same observations that have been made regarding balance of convenience in relation to the AMWU can be made in respect of the respondent employees. 49 On the other hand, the strength of ACI's case against the employees is also a relevant factor. Woodward J, (with whom Smithers and Sweeney JJ agreed) in Bullock v Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464 at 472, said that the serious issue to be tried and balance of convenience "…need not be considered in isolation from each other. Thus 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.'" 50 As explained above, at this stage the evidence as to the employees' intent and involvement in obstruction is far from clear. Thus, the prima facie case of contravention of s 170NC against the respondent employees is weaker than the case against the AMWU and its State Secretary. Further, the injunctions against the AMWU and its State Secretary are likely to significantly diminish the risk of the employees engaging in obstructive picketing. 51 ACI and its employees remain in an ongoing employment relationship. Plainly, the injunctions sought will have the potential to seriously undermine that relationship. While that is not a factor which, alone, would warrant the refusal of relief, the Court should approach the grant of the injunctive relief sought by ACI against its employees fully cognisant of the industrial realities of that relationship. 52 There is a further factor that is relevant to the grant of the injunctive relief sought by ACI against its employees. On 22 February 2000, while the employees were locked out and were not entitled to receive any pay or unemployment benefits, a letter from Clayton Utz (ACI's solicitors) was served personally at the homes of each of the 83 Box Hill AMWU members. The letter was as follows: "ACI Mould Manufacturing: Alternative employment We act for ACI Mould Manufacturing. We are instructed by ACI that you are currently locked out from your employment. The purpose of this letter is to advise you that despite the lockout you continue to be employed under a contract of employment with ACI. It is a legal requirement under this contract that you act, at all times, in good faith towards the company and that when required you are available to perform work for ACI. ACI has been advised that some employees have obtained full-time employment with other companies since the lockout commenced. We have advised ACI that employees who are proven to have other full-time employment may be in breach of their duty of good faith to ACI. We have further advised that they may also be treated as abandoning their employment. Consequently, any employee who is proven to have accepted full-time (or near full-time) employment may (depending on the circumstances) be deemed by ACI to have abandoned their employment. We are instructed that ACI is currently conducting extensive investigation to identify employees with alternative full-time employment. ACI will take whatever steps are necessary to ensure that employees abide by their duty of good faith to the company. Yours faithfully, CLAYTON UTZ" 53 Evidence was given that the letter intimidated a number of the employees and their families. I have no reason to doubt that evidence. On a literal reading each statement in the letter may well be accurate: see Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-82 per Dixon and McTiernan JJ. However, the overall impression of the personal home delivery of the letter to the lay employees would be, and, more importantly was likely to have been be intended to be, that employees engaging in other full time employment during the period of the lockout ran a serious risk that they were acting in breach of their employment agreement and had thereby abandoned their employment with ACI. Plainly, the consequences of that outcome to particular employees might be devastating. 54 As was pointed out by their Honours in Blyth Chemicals Ltd (at 82) there must be some conduct of the employee that is inconsistent with the employee's contractual obligations; ground for "uneasiness" as to future conduct is not enough. ACI has not adduced evidence that any of its employees have, by their conduct, placed themselves in a position where they are unable, or do not intend, to return to work when the lock out ends nor is it suggested that any of its employees have made statements to that effect to ACI. Nor has ACI adduced any evidence that any interim full time employment undertaken by any of its employees involved incompatibility or conflict with or was otherwise repugnant to the terms of their contract of employment: see Blyth Chemicals Ltd at 82. 55 Sections 170ML(4) and (5) provide that a lock out under s 170ML(3) does not result in the termination of the contract of employment and that an employer is entitled to refuse to pay any remuneration to the employers in respect of the period of the lockout. Whilst the effect (if any) of these statutory provisions on the common law relating to employment remains to be determined I do not accept that the mere obtaining of other full time employment during a lock out is capable of constituting a breach of the employment agreement or an abandonment of employment. Nevertheless such conclusions are likely to have been conveyed by the letter. 56 The significance of these matters is that ACI, itself, appears to have taken intimidatory action that can have the propensity to undermine the employees' position in relation to the bargaining process. It is difficult to see what other purpose was intended to be achieved by the letter. If all ACI intended to convey was that its employees (including those in other full time employment in the interim) remained under an obligation to return to work when the lock out ended then that information, which had already been conveyed in the lock out notice, was capable of being conveyed again without intimidatory overtones. Also, if as is suggested by ACI, it had concerns that some employees did not intend to return, then a letter directed to employees in that situation may have been appropriate. However the letter of Clayton Utz, delivered personally to the home of each of the 83 employees who were locked out from their employment until at least 1 April 2000 and possibly longer if a further notice is given, appears to be intimidatory conduct on the part of ACI. 57 The question of whether the letter itself might constitute a breach of s 170NC is not before me and my findings on the letter are, necessarily, on a prima facie basis. However, I made certain observations in Yallourn Energy at [81] and [82] as to the anomaly involved where a party, seeking legal relief to remove a fetter on the freedom of the bargaining process, engages in unprotected action that might be fettering the same process to advantage its bargaining position. Where neither action is protected action, the anomaly might afford a basis for refusing the interlocutory relief sought. 58 Earlier, I referred to the carefully prescribed balance struck between employers, unions and employees during the bargaining process. The respective actions, which otherwise might be unlawful, of employees to withdraw labour and of employers to withdraw access to employment, are immune as protected action. However, in an industrial relations context the immunity can give rise to responsibilities, one of which is to ensure that each party's conduct in relation to the industrial dispute falls within the procedures prescribed by the Act and is not otherwise unlawful. In the present case ACI's intimidatory letter has the propensity to fall outside those procedures in so far as it undermines the entitlement of the employees to assume the continuity of their employment, notwithstanding that they may be engaged in other full time employment, while the lockout is being maintained. 59 The above factors, operating cumulatively, have satisfied me that it is inappropriate to grant the injunctive relief sought at this stage against the respondent employees. If hereafter the employees engage in unlawful picketing activities, then ACI would be entitled to renew its application for interlocutory injunctions against the employees, not only on the basis of a breach of s 170NC but also at common law, which is plainly within the accrued jurisdiction of the Court: see Yallourn Energy at [83] and [84]. 60 Finally, it is appropriate to address briefly the respondents' reliance on certain observations made by North J in Australian Paper Limited v CEPU (at 24) where his Honour referred to the need for the Court to approach "with particular caution" the grant of interim injunctions against "industrial action". See also Australian Workers' Union v BHP Iron Pty Ltd [2000] FCA 39 at [61] per Gray J. 61 The observations of North J are of no assistance to the respondents. While the injunction is sought in respect of picketing which, colloquially, might fall within the popular description of industrial action, picketing has been held to fall outside that term as defined in the Act: see David's Distribution at 574-575. More importantly, the activities sought to be enjoined in the present case appear to be actionable tortious conduct. His Honour's observations did not state that he was treating such conduct as necessarily falling within his observations. 62 Furthermore, I do not regard his Honour as intending to state any rule that special principles apply in relation to the grant of interlocutory relief in industrial litigation. Rather, I take his Honour as indicating that, by reason of some of the particular features of industrial disputes, the Court should take particular care to approach the question of interim injunctions in respect of such disputes, conscious of the industrial realities. I respectfully agree with that observation. 63 In effect, the AMWU submitted that his Honour was formulating a special rule in respect of the grant of injunctive relief in relation to industrial disputes or action. I do not accept that submission. The Act has laid down a careful scheme as to what will constitute lawful and unlawful conduct for the duration of a bargaining period. Where any party, whether a Union, an employer or an employee, makes out a case for injunctive relief in respect of unlawful conduct, then, in accordance with well established principles (which include legislative policy considerations of the kind to which I have referred earlier), the Court will grant the relief. The fact that that case relates to an industrial dispute, or the relief might restrain industrial action, neither adds to nor subtracts from the entitlement of the party to obtain, or of another party to resist, the injunctive relief sought. Conclusion 64 For the above reasons it is appropriate to grant the injunctions sought against the AMWU and its officials, including the State Secretary, restraining them from picketing which involves the physical obstruction or impediment of persons or goods to or from premises of ACI or any of its customers, which is related to the industrial dispute between ACI and its employees at the Box Hill plant. I otherwise refuse ACI's application for injunctive relief against the respondent employees. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 30 March 2000 Counsel for the Applicant: Mr S Wood Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: Mr W Friend Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 15 March 2000 Date of Judgment: 30 March 2000