FEDERAL COURT OF AUSTRALIA John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 615 Citation: John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 615 Parties: JOHN HOLLAND PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, MICK BUCHAN, JOSEPH MCDONALD, MATTHEW WATERS, SEAMUS BYRNE, RAY MCMURRICH, MATT BLADE, PETER JOSHUA and STEVE MCCANN File number: WAD 133 of 2013 Judge: BARKER J Date of judgment: 3 May 2013 Catchwords: INDUSTRIAL LAW – application for interlocutory injunctive relief – allegations of contraventions of ss 417(1) and 421(1) Fair Work Act 2009 (Cth) and tort of nuisance – whether prima facie case – where balance of convenience lies Legislation: Fair Work Act 2009 (Cth) s 12, s 19(1), s 417(1), s 417(4), s 418(1), s 420(2), s 421(1), s 421(3)(a) Cases cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Integrated Maintenance Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCA 760 Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 Victorian Hospitals' Industrial Association v Australian Nursing Federation [2012] FCA 149 Date of hearing: 3 May 2013 Place: Perth Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: Mr S Davies SC and Mr D Parker Solicitor for the Applicant: Ashurst Australia IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 133 of 2013 BETWEEN: JOHN HOLLAND PTY LTD Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent MICK BUCHAN Second Respondent JOSEPH MCDONALD Third Respondent MATTHEW WATERS Fourth Respondent SEAMUS BYRNE Fifth Respondent RAY MCMURRICH Sixth Respondent MATT BLADE Seventh Respondent PETER JOSHUA Eighth Respondent STEVE MCCANN Ninth Respondent JUDGE: BARKER J DATE OF ORDER: 3 MAY 2013 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Upon the giving of an undertaking as to damages in the usual form, until the hearing and determination of this proceeding, or until further order, the first respondent (whether by its officers, employees, agents or howsoever otherwise), and the second to ninth respondents be restrained from: (a) organising or engaging in any industrial action as that term is defined in the Final Order at or in the vicinity of the New Children's Hospital Site; (b) doing any act which in any way obstructs or hinders or interferes with the passage of any person, whether on foot or in a vehicle proceeding to or from the New Children's Hospital Site; (c) abusing, threatening, besetting or harassing by words or gestures or physically harming any person approaching or leaving the New Children's Hospital Site; (d) abusing, threatening, besetting or harassing by words or gestures or physically harming any person on the New Children's Hospital Site; (e) standing in line or in any other formation on any roadway, lane or footpath in the path of vehicular or pedestrian traffic approaching or leaving the New Children's Hospital Site; (f) aiding, abetting, counselling, procuring or inducing — or being in any way, by act or omission, directly or indirectly knowingly concerned in, or party to — any conduct that is restrained by orders 1(a)-(e) above. 1. Mandatory orders requiring that the first respondent: (a) immediately notify, including by posting a Facebook feed through its Facebook site, all of its members who work at the New Children's Hospital Site that any continuation of industrial action at the New Children's Hospital Site is not authorised by the first respondent or by any person acting on behalf of the first respondent, including the second respondent and the third respondent; and (b) immediately direct, including by posting a Facebook feed through its Facebook site, all of its members who work at the New Children's Hospital Site to immediately cease and not take any further industrial action; and (c) by no later than 12:00pm, Monday 6 May 2013 — and by a duly authorised person — swear or affirm, and serve upon the applicant, an affidavit describing the steps that the first respondent has taken to comply with orders 2(a) and (b) above. 2. An order dispensing with the usual requirements of service of any interlocutory orders made and permitting, instead, for service of such orders on the respondents by forwarding a copy of them by email or facsimile transmission to the Western Australia branch of the first respondent's Construction & General Division. 3. That the time for service of this application be abridged so far as is necessary to enable the interlocutory application of which notice is hereby given to be heard on 3 May 2013 pursuant to Rule 1.39 of the Federal Court Rules 2011 (Cth). 4. The respondents have leave to apply in respect of this order on short notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY FAIR WORK DIVISION WAD 133 of 2013 BETWEEN: JOHN HOLLAND PTY LTD Applicant AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent MICK BUCHAN Second Respondent JOSEPH MCDONALD Third Respondent MATTHEW WATERS Fourth Respondent SEAMUS BYRNE Fifth Respondent RAY MCMURRICH Sixth Respondent MATT BLADE Seventh Respondent PETER JOSHUA Eighth Respondent STEVE MCCANN Ninth Respondent JUDGE: BARKER J DATE: 3 MAY 2013 PLACE: PERTH REASONS FOR JUDGMENT overview 1 On 3 May 2013, I made interlocutory orders restraining the respondents from picketing a construction project site known as the New Children's Hospital site in Nedlands, Western Australia (NCH site), mandating that the first respondent take steps to prevent further picketing, and ancillary orders. 2 These are my reasons for the making of the orders. background 3 The applicant is a company which has been contracted by the government of Western Australia to construct the New Children's Hospital (NCH project). The applicant directly engages employees to work in construction roles on the NCH project and also subcontracts some of the construction work to various subcontractors. These subcontractors each engage a number of employees to perform various construction work in relation to the NCH project. 4 The first respondent is an employee organisation within the meaning of s 12 of the Fair Work Act 2009 (Cth) (Act). It represents the industrial interests of construction workers who are employed in connection with the NCH project, including workers who are employed by the applicant's subcontractors. The second to ninth respondents are apparently officers of the first respondent. 5 By affidavit sworn on 3 May 2013, Sarah Louise Woolley, a human resources / industrial relations manager employed by the applicant, deposes that the applicant's employees on the NCH project and a number of the subcontractors' employees on the project are covered by in-term enterprise agreements. 6 Following apparent industrial disputation in relation to the NCH project, on 19 February 2013, the Fair Work Commission made an order pursuant to s 418(1) of the Act (final order). This order apparently superseded an interim order made on 25 January 2013 pursuant to s 420(2) of the Act (interim order). The final order applies to the first respondent, whether acting through its officers, employees, agents, delegates or otherwise, and the employees of the applicant's subcontractors, who are engaged to work on the NCH project. The order relevantly provides: 3.1 The [first respondent] (whether acting through its officers, employees, agents, delegates or howsoever otherwise) must: (a) not engage, or threaten to engage, in industrial action at the New Children's Hospital Project site; (b) not organise, or threaten to organise, any industrial action at the New Children's Hospital Project site; and (c) not aid, abet, counsel, procure, induce or authorise the Employees or any of them, to engage in industrial action at the New Children's Hospital Project site. 3.2 The [first respondent] must immediately: (a) advise its officers, employees, agents and delegates who have involvement or contact with the New Children's Hospital Project site of this Order and advise those persons that they must not organise or otherwise aid, abet, counsel, procure, induce or authorise any Employees, to engage in industrial action at the New Children's Hospital Project site; and (b) make all reasonable endeavours to advise the Employees who are members of the [first respondent] on site of this Order and advise those persons that they must not engage in industrial action at the New Children's Hospital Project site. 3.3 The Employees must not engage in or threaten to engage in any industrial action at the New Children's Hospital Project site. … 4.1 For the purposes of this Order 'industrial action' means: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; and (c) a failure or refusal by employees to attend for or a failure or refusal to perform any work at all by employees who attend for work; but does not include; (d) protected industrial action within the meaning of s.408 of the Fair Work Act 2009; (e) action by employees that is authorised or agreed to by or on behalf of their employer; or (f) action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employee to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform. 7 The final order continues in force until 3:00pm on 19 August 2013. 8 On 3 May 2013, the applicant filed the originating application in this proceeding. The applicant alleges that the respondents contravened the final order and the interim order through various activities carried out at the NCH site on 2 and 3 May 2013. The applicant also alleges that these activities constituted a breach of s 417(1) of the Act and the tort of nuisance. The originating application includes a claim for interlocutory relief in the following terms: 1. Upon the giving of an undertaking as to damages in the usual form, until the hearing and determination of this proceeding, or until further order, the first respondent (whether by its officers, employees, agents or howsoever otherwise), and the second to ninth respondents be restrained from: (a) organising or engaging in any industrial action as that term is defined in the Final Order at or in the vicinity of the New Children's Hospital Site; (b) doing any act which in any way obstructs or hinders or interferes with the passage of any person, whether on foot or in a vehicle proceeding to or from the New Children's Hospital Site; (c) abusing, threatening, besetting or harassing by words or gestures or physically harming any person approaching or leaving the New Children's Hospital Site; (d) abusing, threatening, besetting or harassing by words or gestures or physically harming any person on the New Children's Hospital Site; (e) standing in line or in any other formation on any roadway, lane or footpath in the path of vehicular or pedestrian traffic approaching or leaving the New Children's Hospital Site; (f) aiding, abetting, counselling, procuring or inducing – or being in any way, by act or omission, directly or indirectly knowingly concerned in, or party to – any conduct that is restrained by orders 1(a)-(e) above. 2. Mandatory orders requiring that the first respondent: (a) immediately notify, including by posting a Facebook feed through its Facebook site, all of its members who work at the New Childrens Hospital Site that any continuation of industrial action at the New Children's Hospital Site is not authorised by the first respondent or by any person acting on behalf of the first respondent, including the second respondent and the third respondent; and (b) immediately direct, including by posting a Facebook feed through its Facebook site, all of its members who work at the New Children's Hospital Site to immediately cease and not take any further industrial action; and (c) by no later than 12:00pm, Monday 6 May 2013 – and by a duly authorised person – swear or affirm, and serve upon the applicant, an affidavit describing the steps that the first respondent has taken to comply with orders 2(a) and (b) above. 3. An order dispensing with the usual requirements of service of any interlocutory orders made and permitting, instead, for service of such orders on the respondents by forwarding a copy of them by email or facsimile transmission to the Western Australia branch of the first respondent's Construction & General Division. 4. That the time for service of this application be abridged so far as is necessary to enable the interlocutory application of which notice is hereby given to be heard on 3 May 2013 pursuant to Rule 1.39 of the Federal Court Rules 2011 (Cth). 5. Such further or other orders as to the Court may seem fit. 9 On 3 May 2013, I heard the application for interlocutory relief. 10 Although the respondents did not appear at the interlocutory hearing, it appears as though service of the originating application and supporting affidavits has been attempted on them. 11 In this respect, Daniel Matthew Harrop, a paralegal employed by the applicant's solicitors, deposes that he attempted to serve the respondents at the Western Australian branch office of the first respondent. Mr Harrop states that after he was informed that no-one would accept service, he left the originating application and supporting affidavits on the counter of the reception desk. 12 However, Glenn Luc Jozef Geerts, an employee of the applicant's solicitors, deposes that the applicant's solicitors successfully emailed the respondents with copies of the originating application and supporting affidavits. Further, Mr Geerts states that the applicant's solicitors telephoned and emailed the respondents to inform them about the listing of the application for interlocutory relief. 13 Senior counsel for the applicant informs the Court that there has been no indication from the respondents regarding whether or not they intended to appear at the interlocutory hearing. facts advanced by the applicant 14 So far as the facts underlying the application for interlocutory relief are concerned, the applicant relies upon the affidavit of Ms Woolley and an affidavit of Melanie Anne Mallott, a solicitor employed by the applicant's solicitors, affirmed on 3 May 2013. 15 Ms Mallott deposes that on 19 February 2013, she sent by email or facsimile copies of the final order to the State and National Secretaries of the first respondent. Further, Ms Woolley deposes that on 26 February 2013, she placed copies of the final order on various notice boards around the NCH site. Ms Woolley also states that she emailed copies of the final order to the applicant's subcontractors, directing each of them to personally serve a copy of the order on each of their employees and to hold meetings with the employees explaining the order's effect. This was all apparently done in order to comply with the terms of cl 5 of the final order, which relates to service of the order. 16 Ms Woolley deposes that on 11 March 2013, an aircraft flew above the NCH site displaying a banner that read: "EBA Means Equal Pay – Shame John Holland Shame!". A photograph of that banner later appeared on the cover of a publication produced by the first respondent, the Autumn 2013 edition of the "Construction Worker". 17 Next, Ms Woolley states that on 2 May 2013 at approximately 4:40am, she arrived at the NCH site and noticed a large banner and tent erected across the road from the main gate to the site. The banner read: "Equal Pay Embassy Shame John Holland Shame: EBA Means Equal Pay". Ms Woolley deposes that she saw the second, fifth and sixth respondents standing near the tent. Ms Woolley also deposes that at approximately 5:25am, she saw the second, third and fifth to ninth respondents standing near the main gate. Ms Woolley states that she heard the third respondent say to a worker words to the effect of: "Tomorrow's the big one". Ms Woolley then states that, shortly afterwards, she observed a worker attempt to enter the NCH site through the main gate. Ms Woolley deposes that, while the worker's access was not impeded, the seventh respondent repeatedly swore at the worker, including calling the worker a "scab". 18 Ms Woolley states that at approximately 9:54am, she viewed a post from a Facebook webpage belonging to the first respondent. The post was apparently uploaded one hour earlier, and included some text and a photo of the banner and tent Ms Woolley had earlier seen erected outside the NCH site. The text read: Photo attached of the EQUAL PAY EMBASSY banner set up overnight – community protest set to run continually over the next 48 hours. John Holland Children's Hospital site Monash Avenue Nedlands. get on down and support the workers who are not on equal pay for doing the same job as their EBA comrades. Equal pay for Equal work! 19 Ms Woolley deposes that at approximately 11:30am, she viewed approximately 150 people in the area around where the banner and tent were erected. Ms Woolley states that approximately 40 of these people appeared to her to be first respondent or Maritime Union of Australia "officials". 20 Ms Woolley then deposes that, on 3 May 2013 at approximately 4:25am, she arrived at the NCH site and saw the banner and tent that had been erected the previous day were still in place and that there were a number of people gathered around them. Ms Woolley states that at approximately 4:38am, she saw the third, sixth and eighth respondents standing around the NCH site's main gate and at approximately 4:55am, she saw an employee of one of the applicant's subcontractors attempt to enter the site through the main gate. However, this employee was impeded by a person who Ms Woolley was unable to identify. Ms Woolley states that she asked this person: "Are you blocking the gate and stopping people from entering?" to which this person responded: "Yes". At approximately this time, Ms Woolley deposes that she became aware that the locks on the main gate had been glued shut. 21 Ms Woolley states that at approximately 5:48am, she saw approximately 400 people surrounding the NCH site and blocking access to it. Ms Woolley also states that she saw the third respondent using a loud hailer to direct the people surrounding the site. 22 Ms Woolley then deposes that she was informed by Stacey Scaffardi, an employee relations manager for the applicant who reports to Ms Woolley, of various events which occurred in the morning of 3 May 2013, including: At approximately 5:00am, Ms Scaffardi approached the NCH site's main gate and was initially refused access to the site by a person who she was unable to identify. However, Ms Scaffardi states that the second respondent then said words to the effect of: "Let her through boys". At approximately 8:00am, Ms Scaffardi saw a number of employees of two of the applicant's subcontractors being physically prevented from entering the NCH site. Ms Scaffardi states that she saw an official of the first respondent standing with the group of people surrounding the site, and say to the employees words to the effect of that they could not come on to site. At approximately 10:37am, Ms Scaffardi observed a meeting held in a car park near the NCH site. Ms Scaffardi states that she saw the third respondent address the meeting and say, inter alia: "When we're satisfied West Coast Formwork and Crown [two of the applicant's subcontractors] have moved on, we're going to move on too", "Thanks to the MUA and the other unions that are here for their support" and "We will be here tomorrow and Monday and won't stop the fight". 23 Ms Woolley deposes that the activities of the respondents have resulted in unnecessary operational costs on the NCH project. Further, Ms Woolley states that the activities of the respondents have the capacity to cause substantial delay to the NCH project and that pursuant to the contract with the State government there are certain milestones for the project, which will incur the payment of liquidated damages of $180,000 per day if not met. consideration 24 I accept the applicant's submission that it has standing pursuant to ss 417(4) and 421(3)(a) of the Act to seek the orders sought. That is, it is "a person affected" by the alleged industrial action and alleged contravention of an order of the Fair Work Commission. 25 The principles that govern the grant by a court of interlocutory relief in circumstances such as those now presented are well understood and need not be repeated. In short, an applicant must show that it has a prima facie case and that the balance of convenience favours the granting of the relief sought: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]-[72] (Gummow and Hayne JJ). 26 First, I note that the applicant has provided the usual undertaking as to damages. 27 Secondly, in my view the applicant has established a prima facie case. In this respect, I note Ms Woolley's evidence regarding the activities at the NCH site on 3 May 2013, and accept the applicant's submission that there is a prima facie case that this constituted "industrial action" within the meaning of s 19(1) of the Act. Section 19(1) materially provides that "industrial action" means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; 28 Ms Woolley's evidence suggests that, prima facie, the activities at the NCH site on 3 May 2013 constituted "industrial action" within the meaning of s 19(1)(b) of the Act, in that they involved limiting or restricting various employees' access to the site for the purposes of the performance of their work. I also accept that there is sufficient material for the Court to draw a prima facie inference that the activities at the NCH site are being organised by the respondents. In this respect, I note Ms Woolley's evidence regarding: a photograph of the banner which was flown over the NCH site on 11 March 2013 later appearing on the cover of a publication produced by the first respondent, and a similar banner appearing across the road from the main gate to the site on 2 and 3 May 2013; the presence of various officials of the first respondent (including the second, third and fifth to ninth respondents) at the NCH site on 2 and 3 May 2013; the post from a Facebook webpage belonging to the first respondent regarding the current and proposed activities at the NCH site; the role of the third respondent in directing the persons surrounding and blocking access to the NCH site on 3 May 2013; the role of the second respondent in apparently controlling access to the NCH site on 3 May 2013; the official of the first respondent preventing employees of two of the applicant's subcontractors from entering the NCH site; and the role of the third respondent in addressing the meeting of persons in the car park near the NCH site. 29 Ms Woolley's evidence is that the applicant's employees on the NCH project and a number of the subcontractors' employees on the project are covered by in-term enterprise agreements. This being the case, in my view the applicant has established a prima facie case that the respondents have contravened s 417(1) of the Act. 30 For essentially similar reasons, I find that there is a prima facie case that the first respondent has contravened cl 3.1 of the final order and thus s 421(1) of the Act. 31 It is unnecessary for me to consider whether the applicant has established a prima facie case in relation to the tort of nuisance. 32 Thirdly, in my view the balance of convenience favours the granting of the interlocutory relief sought. In this respect, I note Ms Woolley's evidence regarding the potential significant costs to the applicant from the respondents' current and apparent proposed activities at the NCH site. By contrast, in my view, there is no significant prejudice to the respondents if the interlocutory relief sought is granted. 33 I accept that the prohibitory injunctive relief sought by the applicant is usual and appropriate in a case such as this. The mandatory injunctive relief sought is slightly more unusual. In the past, this Court has made mandatory orders requiring trade unions to send correspondence to, or otherwise communicate with, its members in prescribed terms or with prescribed effect: see, for example, Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413; Integrated Maintenance Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2003] FCA 760; Victorian Hospitals' Industrial Association v Australian Nursing Federation [2012] FCA 149 (Victorian Hospitals). Indeed, in Victorian Hospitals the Court made an order requiring the respondent union to publish a specified message on its Facebook webpage. In the present case, I note that there is evidence before the Court that the first respondent has been using a Facebook webpage to organise the activities at the NCH site. As such, I accept that mandating that the first respondent notify its members, including via its Facebook webpage, that any continuation of industrial action at the site is not authorised by the first respondent or its officials, and that its members are to immediately cease and not take any further industrial action, is a sensible and appropriate order to make in the circumstances: compare Victorian Hospitals at [27], [29]-[30]. conclusion and orders 34 For the reasons given, I am satisfied that the interlocutory relief sought should be granted. However, I would amend order 1 of the proposed orders to clarify that it is made upon the giving of an undertaking as to damages in the usual form, and order 5 to provide that the respondents have leave to apply in respect of the orders on short notice. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 19 June 2013