AMEC Engineering Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia [2003] FCA 28

FEDERAL COURT OF AUSTRALIA

AMEC Engineering Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia [2003] FCA 28 Workplace Relations Act 1996 (Cth) Barloworld Coatings Australia Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 IR 107 Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] NSWLR 760 AMEC ENGINEERING PTY LTD v COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA and AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION V 38 OF 2003 SUNDBERG J 28 JANUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 38 OF 2003

BETWEEN: AMEC ENGINEERING PTY LTD (ACN 003 066 715)

APPLICANT

AND: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

FIRST RESPONDENT

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

SECOND RESPONDENT

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

THIRD RESPONDENT

JUDGE: SUNDBERG J

DATE: 28 JANUARY 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 HIS HONOUR: In this proceeding the applicant seeks a declaration that the industrial action and picketing activities it alleges have been organised or engaged in by the respondent unions at its Bangholme work site are not protected action within the meaning of section 170MT(2) of the Workplace Relations Act 1996 (Cth). It also seeks injunctions restraining the continuance of that action and those activities. 2 The claim for interlocutory relief contained in the Application filed on 23 January 2003 asked for an order restraining the respondents until the hearing of the proceeding or further order from maintaining a picket preventing or hindering any person from gaining access to or egress from or to the site. The applicant also sought orders facilitating the removal of the picket infrastructure and requiring the respondents to withdraw any prior authorisation to participants in the picket to prevent or hinder any other person from gaining access to or egress from or to the site. 3 However, when the application for interlocutory relief came on for hearing the draft orders handed up by the applicant sought only an order restraining the respondents, until 4.15 pm on Wednesday 29 January 2003, from preventing, hindering or interfering with free access to and free egress from the site. The applicant proposed that the application for interlocutory relief (that is relief to subsist up to the trial of the action) be adjourned until 10.15 am on 29 January. 4 The matter proceeded on the basis that all that was sought of me was a determination of the application for interim relief, that is until 29 January. A large number of detailed affidavits were filed, some, mainly those filed by the applicant, deal with issues that are not central to interlocutory relief. Having regard to the way the case was conducted, it is not necessary that I attempt to summarise the affidavit material. It is sufficient to say that the argument was mainly directed to two issues. The first was whether there was a serious question to be tried as to whether the activity at the picket line is actionable. Not all conduct that constitutes picketing in the ordinary sense of the word is tortious. 5 In Barloworld Coatings Australia Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (2001) 108 IR 107 at 112‑113, Bryson J, referring to the judgment of Mason JA in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] NSWLR 760 at 767, said: "His Honour observed to the effect that picketing may become unlawful if it involves obstruction and besetting …. Much behaviour which is ordinarily called picketing is not tortious at all. A great deal depends on detail, and generalisations are of limited use, but for persons to assemble outside a workplace and make known to others, including people going to and leaving the workplace, the fact that there is an industrial dispute, what their dispute is about, what they claim are the merits of the dispute and so forth is not unlawful or tortious; yet much the same behaviour would be tortious if in doing it they obstructed the passage of other persons, whether with vehicles or on foot. Obstruction may take many forms, such as standing in their way or moving about in some way which interfered with passage. The evidence in this case shows a number of very clear instances of obstruction, including sitting and standing in the driveway, imposing the need on others to move around and avoid picketers, when there was no occasion for the behaviour but to impede passage. Other instances of obstruction are leaving cars and other articles in the driveway, and not removing persons or cars for unreasonable times or until requested or repeatedly requested by police. 'Besetting' is a much less definite concept than 'obstruction'. Behaviour can constitute a nuisance to an occupier if the occupier or other persons attending the occupier's premises are watched continually or beset with insults or messages in ways or in circumstances which offer discouragement to attendance there and so impede the occupier's enjoyment of his property. When observing behaviour it would usually be easy to distinguish between making a point of view known by addressing other persons and discouraging the passage of other persons by besetting them with insults, offensive language and threats. The evidence in this case shows that a number of persons have been subjected to threats, while it also shows that a number of persons have been subjected to insults which reasonable people would find very discouraging and would tend to avoid."