FEDERAL COURT OF AUSTRALIA BHP Steel Ltd v Automotive Foods Metals Engineering Printing and Kindred Industries Union [2002] FCA 719 INDUSTRIAL LAW – application for interlocutory injunction restraining union respondents from engaging in picket – where picket is not "industrial action" which falls within protection of s 170ML(2)(a) Workplace Relations Act 1996 (Cth) – where applicant is suffering real loss – whether union as distinct from union members involved in picket – whether balance of convenience in favour of granting injunction Workplace Relations Act 1996 (Cth) ss 170ML(2)(a) BHP STEEL LIMITED v AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and ANOTHER V323 OF 2002 HEEREY J 22 MAY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V323 OF 2002 BETWEEN: BHP STEEL LIMITED APPLICANT AND: AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA SECOND RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 22 MAY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Until 4.30 pm on 23 May 2002 or further order the first and second respondents, whether by their officers, agents or howsoever otherwise be restrained from organising or continuing or threatening to organise or otherwise being involved in physical obstruction or physical impediment to the free movement of goods, vehicles or people to or from the premises of the applicant at Bayview Road, Hastings, in the State of Victoria. 2. Further hearing of the application and interlocutory relief be adjourned to 10.15 am on 23 May 2002. 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 V323 OF 2002 BETWEEN: BHP STEEL LIMITED APPLICANT AND: AUTOMOTIVE, FOODS, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION FIRST RESPONDENT COMMUNICATION, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA SECOND RESPONDENT JUDGE: HEEREY J DATE: 22 MAY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for an interlocutory injunction to restrain the two union respondents from engaging at a picket at the Westernport plant of the applicant. I am satisfied the evidence shows that there is a triable issue that there is a taking or threatening to take of industrial action with intent to coerce another person to agree or not to agree the making, varying or terminating of a workplace agreement: see Workplace Relations Act 1996 (Cth) s 170NC(1)(a) and (c). The authorities establish that a picket which takes the form of obstruction or besetting is not "industrial action" which falls within the protection given by s 170ML(2)(a). 2 Mr Maddison, who appeared on behalf of the second respondent, argued that there was no evidence that the union itself, as distinct from its members, was involved in the picketing. However, I think there is at least prima facie evidence that Mr Mark Farrell who, on the material before me, was a CEPU delegate and who had been engaged in what seems to have been a formal meeting with company representatives and representatives of other unions on Tuesday 16 April, said this morning to a security officer that the picket would only let in workers at the union's discretion. There is also evidence of a sign of the union at the picket. 3 As to the balance of convenience, the material shows that there is substantial loss of the order of $1,696,752 per day being suffered with disruption to customers, suppliers and other employees not members of the respondent unions. 4 There is something of a dilemma in that the union respondents have had very limited time to respond. They were notified today at 9.30 am of this application, but there seems some doubt as to whether the affidavits reached them. Mr Maddison, as I said, appeared for the second respondent and did the best he could with the limited time available. The injunction should be for as short a period as possible, although the shorter the period the more difficult it will be for the respondents to present a case. 5 The practical problem is that I am satisfied there is real loss being suffered and for that reason I think I should grant the injunction sought, but I think it should be for the short period proposed, even though that I appreciate it will not be easy for the respondents to get material together and to make out a case against the continuation of the injunction. But all things considered I think I should grant the injunction which will be in these terms, upon the usual undertakings as to damages, that: 1. Until 4.30 pm on 23 May 2002 or further order the first and second respondents, whether by their officers, agents or howsoever otherwise be restrained from organising or continuing or threatening to organise or otherwise being involved in physical obstruction or physical impediment to the free movement of goods, vehicles or people to or from the premises of the applicant at Bayview Road, Hastings, in the State of Victoria. 2. Further hearing of the application and interlocutory relief be adjourned to 10.15 am on 23 May 2002. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 6 June 2002 Counsel for the Applicant: Mr M McDonald Solicitor for the Applicant: Blake Dawson Waldron Counsel for the First Respondent: No appearance Solicitor for the First Respondent: No appearance Counsel for the Second Respondent Self represented Solicitor for the Second Respondent Self represented Date of Hearing: 22 May 2002 Date of Judgment: 22 May 2002