FEDERAL COURT OF AUSTRALIA Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 82 Citation: Director of the Fair Work Building Inspectorate v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2013] FCA 82 Parties: DIRECTOR OF THE FAIR WORK BUILDING INSPECTORATE v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION and TONY MAVROMATIS File number: VID 77 of 2013 Judge: MARSHALL J Date of judgment: 14 February 2013 Catchwords: INDUSTRIAL LAW – Application for interlocutory relief – serious issue to be tried as to whether the respondents have breached s 355(a) of the Fair Work Act 2009 – injunction granted Legislation: Fair Work Act 2009 (Cth) ss 355(a), 363(b), 545(2)(a), 793 Migration Regulations 1994 (Cth) Telecommunications (Interception and Access) Act 1979 (Cth) Cases cited: Bullock and Ors v The Federated Furnishing Trades Society of Australasia and Ors (No 1) (1985) 5 FCR 464 Date of hearing: 12 February 2013 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Applicant: Mr J Bourke SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr E White Solicitor for the Respondents: Slater and Gordon IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 77 of 2013 BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INSPECTORATE Applicant AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION First Respondent TONY MAVROMATIS Second Respondent JUDGE: MARSHALL J DATE OF ORDER: 14 FEBRUARY 2013 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Until the hearing and determination of the proceeding or further order, the Respondents are restrained (whether by themselves, their employees or agents or otherwise) from: (a) preventing or hindering the access to and egress from the City West Waters West Werribee Dual Water Supply Project at William Thwaites Drive, Werribee, Victoria ("the site") by any person or vehicle; (b) counselling, procuring, encouraging or persuading any person not to enter the site; (c) counselling, procuring, encouraging or persuading any person not to work at the site. 2) The directions hearing in the proceeding is adjourned to 10.00 am on 6 March 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 77 of 2013 BETWEEN: DIRECTOR OF THE FAIR WORK BUILDING INSPECTORATE Applicant AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION First Respondent TONY MAVROMATIS Second Respondent JUDGE: MARSHALL J DATE: 14 FEBRUARY 2013 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Four Filipino nationals, who hold sub-class 457 visas, are employed by a contractor on a site in Werribee where a water treatment plant is being constructed. Their presence on the site has led to a protest by a group of local unemployed workers calling itself the "District Western Alliance Group". The group describes its activity as a community protest. The applicant and the entities employing labour on the site describe the group's activity as a picket. This judgment is not about the rights and wrongs of the employment of foreign nationals in circumstances where Australian citizens are out of work and available for that same employment. It is also not a judgment which deals with "the legality of the blockade". It deals only with an interlocutory application brought by the Director of the Fair Work Building Inspectorate for orders against the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ("the Union") and one of its organisers, Mr Tony Mavromatis. Alleged breach of section 355(a) 2 The applicant alleges that Mr Mavromatis has been involved in supporting the campaign by the group to remove the sub-class 457 visa holders from the site and replace them with local labour. He contends that, as a result of the conduct of Mr Mavromatis, the Union is vicariously liable for contravening s 355(a) of the Fair Work Act 2009 (Cth) ("the Act"). At least at this stage of the proceeding, the applicant contends that there is a serious issue to be tried as to whether the respondents have breached s 355(a) of the Act. Section 355(a) provides: A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) employ, or not employ, a particular person 3 The applicant also contends that the balance of convenience favours the grant of interlocutory relief against the respondents. The site 4 The water treatment plant (also known as a salt reduction plant) is being built in William Thwaites Drive, Werribee for City West Water. Tedra Australia Pty Ltd is the head contractor. Tedra commenced work on the site in July 2012. It has ten employees at the site and has engaged three primary sub-contractors. One of those sub-contractors is Briagolong Engineering Pty Ltd. Briagolong is contracted to construct two welded steel tanks. It has engaged Hire Services Pty Ltd to supply labour for it on site. 5 Briagolong is the sponsor of the four sub-class 457 (Business - Long Stay) visa holders for the purposes the Migration Regulations 1994 (Cth). Mr Chris Lupton is the sole director of Briagolong. His wife, Lynette, is the sole director of Hire Services. The protest 6 At least as at 4 February 2013, protestors have assembled at or near the entrance of the site and have, for sustained periods, blocked access to and egress from the site. The spokesman for the protesting group is a man called "Nick". The protesters are demanding the employment of local labour instead of the sub-class 457 visa holders. The protest has also included a meeting at or near the entrance to the site. "Nick" has made it known to Tedra that the protest at the site will end if local workers are employed instead of the sub-class 457 visa holders. 7 The central issue for determination in this interlocutory aspect of the proceeding is whether Mr Mavromatis has been involved in organising the protest with intent to coerce Hire Services not to employ its Filipino workers. Mr Mavromatis 8 Mr Mavromatis denies that he has played any role in organising the protest. He claims he acted as a conduit between the protesters and Tedra to settle the dispute between them. Mr Mavromatis said he first became aware of the protest when he arrived on site on 4 February 2013 to follow up some safety issues which he had raised with Tedra on 1 February 2013. Mr Mavromatis said that he spoke to some protesters and discovered that "Nick" was their spokesperson. "Nick" told him about the concerns of the protesters. Mr Mavromatis claims that all further discussions he had with management regarding the protest were designed to facilitate a resolution of the issue which gave rise to the protest and were not intended to support the demands for the removal of the Filipino workers. 4 February 2013 9 Mr Mavromatis said that while he was at the site on 4 February 2013 he observed the protesters conduct a meeting. He noticed that some of the discussion at the meeting was being listened to by some of the workers at the site. 10 Mr Atchison is a director of Tedra. Mr Mavromatis knows him through previous dealings which led to Mr Mavromatis to consider that the two gentlemen had a reasonable relationship. Mr Mavromatis left a telephone message for Mr Atchison on 4 February 2013 saying that he was prepared to organise a meeting between the group and Tedra, "to see whether we can come up with some resolution for all". 11 Mr Atchison did not respond to that message. He gave evidence that he arrived at the site about 7.30 am on 4 February 2013 and saw Mr Mavromatis outside the entrance to the site, talking to people who Mr Atchison described as "picketers". Mr Atchison said that at about 8.15 am, he heard Mr Mavromatis invite workers who were waiting at the entrance to the site to "come and hear what this protest is about". 5 February 2013 12 Mr Mavromatis attended the site on 5 February 2013 for two purposes. First, he wished to pursue the safety issues he had raised on 1 February 2013. Second, he wished to see if it was possible to "facilitate discussions" to attempt to resolve the issues between the protesters and Tedra. 13 Ms Wendy Grace Collier is an industrial relations consultant. She is engaged by Tedra to deal with industrial relations issues at the site. She first attended the site on Tuesday, 5 February 2013. Mr Mavromatis said that Ms Collier approached him and asked him what was going on. He said that she asked him to find out what the protesters wanted. He said that he told her to ask the protesters themselves, as it was not a Union protest but a protest by the group. 14 Ms Collier said that when she came to the site she saw about 20 men and some vehicles blocking the entrance. She saw that Mr Mavromatis was present and asked him to let her through the gate. Ms Collier said that Mr Mavromatis replied "you will have to ask them", and that he pointed in the general direction of the picketers. 15 Ms Collier then invited Mr Mavromatis into the site office for a meeting. "Nick" also attended. Ms Collier said that she asked Mr Mavromatis what would end the picket. She said he replied words to the effect of "employ local labour". Ms Collier also referred to a further discussion that occurred about 11.30 am on that day with Mr Mavromatis. It is not presently necessary to refer to that discussion but mention of that is made at [24] below. 6 February 2013 16 Mr Mavromatis attended the site on Wednesday, 6 February 2013. He said he was there because Ms Collier had asked him to help to resolve the issues raised by the protesters. Before entering the site, he parked at a service station about 400 metres away. He said he saw Ms Collier and Mr Lupton at the service station. He had a conversation with Ms Collier which commenced at about 6.45 am. Mr Mavromatis said that Ms Collier asked him "what would it take to resolve the issue". He replied that if local labour was employed, there would be no need for the protest. 17 Ms Collier's version of the discussion differs from that of Mr Mavromatis. Ms Collier said that Mr Mavromatis said words to the effect that she should "give these blokes a job and the picket will end". Ms Collier said that she understood the reference to "these blokes" to mean some of the picketers at the site. She said that she asked Mr Mavromatis for his word that the picket would end if that occurred. She said that Mr Mavromatis replied that he would give her that certainty. 18 Mr Lupton said he drove his vehicle to the entrance of the site on 6 February 2013 and was heckled by the majority of about 25 people present. The heckling included the exclamations "we're locals" and "we should be employed on this site not the 457s". He said that Mr Mavromatis approached him and used words to the effect that he should "get rid of the 457 workers" and employ people that are demonstrating. Mr Mavromatis has not given evidence, through his solicitor or otherwise, to contradict that statement specifically. 19 At about 10.45 am on Wednesday, 6 February 2013, Ms Collier left a text message for Mr Mavromatis which said: Can you please get four names sorted I will need to see tickets or resumes or something I can give to the company? Call you soon. Mr Mavromatis did not respond to that message. 20 At about 12.30 pm, Ms Collier had a telephone conversation with Mr Mavromatis. She said that they discussed the qualifications and potential identities of the men Mr Mavromatis wanted Tedra to engage on site. She said that she used words to the effect that "when the blokes see them go through the gate, everyone will go home?" Mr Mavromatis gave a different account of the conversation. He said that he told Ms Collier that "as per the meeting with Nick, the employment of local labour will resolve the problem". Concerns with the evidence of Ms Collier 21 Ms Collier said that in a conversation which occurred between "Monday, 4 February and Thursday [sic], 6 February", she discussed with Mr Mavromatis where the figure of four men came from. She said that Mr Mavromatis said words to the effect that he wanted the four Filipino workers sacked or removed from the site. She said she could not recall exactly during which conversation Mr Mavromatis said those words. Mr Mavromatis denies ever making such a demand to Ms Collier. 22 Before making the above claim, Ms Collier had been careful to relate the content of actual discussions in their sequence. The above assertion must be treated cautiously. Ms Collier had no discussion with Mr Mavromatis concerning the site until Tuesday, 5 February 2013, so the reference to 4 February 2013 may be dismissed. 23 Ms Collier recorded the discussions with Mr Mavromatis and "Nick" at the site office on 5 February 2013. She placed a "device" near her handbag. The applicant arranged to have the recording transcribed. The transcription is inadequate. Much of the conversation is attributed to people who did not utter the words attributed to them and multiple hand-written corrections have been made. It would be unsafe to rely on this material to be satisfied as to any particular fact, other than that the meeting occurred. 24 The same considerations apply to the taping of a conversation with Mr Mavromatis at about 11.30 am on 5 February 2013 at the front of the site. In that conversation Ms Collier said that she asked Mr Mavromatis "what would it take for the picket to go away" and that he replied with words to the effect that "Tedra had to hire local labour" and that "Tedra needed to hire four men". 25 The conversation between Mr Mavromatis and Ms Collier at about 6.45 am on Wednesday, 6 February 2013 was also recorded by Ms Collier. She achieved this by secreting a device in her bra. The transcript of that recording is riddled with crossings out, hand-written additions and various changes. It is of no probative value. 26 Quite properly, the applicant, as a model litigant, did not attempt to tender into evidence any transcript (intelligible or otherwise) of Ms Collier's recording on her computer of the telephone conversation she initiated with Mr Mavromatis at about 12.30 pm on 6 February 2013. Ms Collier's conduct in that respect raises a serious concern as to whether she has breached the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth). In the absence of any detail as to the precise circumstances of that recording, the Court is unable, at present, to say any more about that matter. Indeed, it would be inappropriate to do so. 27 It is unnecessary for current purposes to deal with any other concerns with Ms Collier's evidence. Post 6 February 2013 28 Mr Mavromatis said that, as he had not been able to assist in the resolution of the dispute between the protesters and Tedra, he has not attended the site since 6 February 2013. He said he has had no further contact with the protesters or any contractor on site. Mr Mavromatis denies making a demand that the sub-class 457 visa holders be dismissed and local labour be employed instead. He says that in all his discussions with Ms Collier he was merely conveying the views of the protesters. 29 Mr Dargarvel is the Secretary of the Victorian Branch of the Union. He says that the Union has not organised, taken part in, assisted or aided the protest. He has instructed organisers employed by the Union to have nothing to do with the protest at the site. Serious issue to be tried 30 As the evidence now stands, there is a serious issue to be tried as to whether Mr Mavromatis has contravened s 355(a) of the Act. Mr Lupton's evidence that Mr Mavromatis approached him on 6 February 2013 and told him that he should "get rid of the 457 workers" provides sufficient basis for the Court to conclude that there is a serious issue to be tried in this proceeding. The denials of Mr Mavromatis about his specific involvement in the group's activities are acknowledged. However, there is sufficient evidence, even on Mr Mavromatis' account of his involvement in the group's protest, that he may have breached s 355(a) of the Act. It follows that the Union may be vicariously liable; see s 363(b) and 793 of the Act. Balance of convenience 31 There is no serious dispute that the balance of convenience favours the grant of interlocutory relief. Counsel for the respondents did not contend otherwise. 32 In Bullock and Ors v The Federated Furnishing Trades Society of Australasia and Ors (No 1) (1985) 5 FCR 464 at 472, Woodward J referred to the need to consider the issues of balance of convenience and serious question to be tried together. His Honour said: 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. 33 I am prepared for the purposes of this interlocutory judgment to assume that the claim in this case is closer to the second category referred to by Woodward J and observe that there is a marked balance of convenience in favour of it. Terms of interlocutory relief 34 It is appropriate to grant an interlocutory injunction against the respondents which prohibits the restriction of access to and egress from the site by any person or vehicle. There is no evidence of any disruption to the site other than at its entrance. Any geographically broader injunction is not currently justified. The order of the Court is informed by the concessions properly made by Senior Counsel for the applicant on 12 February 2013. 35 The applicant seeks orders which include an injunction directed to the respondents not to threaten, abuse or harass any person seeking to enter or exit the site. There is no evidence before the Court that Mr Mavromatis or anyone else employed by the Union has engaged in such behaviour. No such order will be made. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 14 February 2013