FEDERAL COURT OF AUSTRALIA Aldi Foods Pty Ltd as general partner of Aldi Stores (A Ltd Partnership) v Transport Workers Union of Australia [2017] FCA 1004 File number: NSD 1441 of 2017 Judge: PERRAM J Date of judgment: 23 August 2017 Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunctive relief – whether arguable case – whether balance of convenience favours granting of injunctions Legislation: Constitution ss 51(v), 51(xx) Competition and Consumer Act 2010 (Cth) ss 5, 6, 6(3A)(a)(i), 6(3A)(a)(ii), 31, 34, 45D, sch 2, Australian Consumer Law, s 18 Cases cited: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 Date of hearing: 23 August 2017 Registry: New South Wales Division: General Division National Practice Area: Employment and Industrial Relations Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: Mr B Cross with Ms A Perigo Solicitor for the Applicant: Enterprise Law Counsel for the First Respondent: Mr M Gibian Solicitor for the First Respondent Transport Workers Union of Australia, Legal Counsel for the Second Respondent: Mr W Friend QC Table of Corrections 28 August 2017 In [2], the word 'Minchinbury's' has been replaced with 'Minchinbury'. In [6], final bullet point, the acronym 'TWV' has been replaced with 'TWU'. In [28], the words 'the TWU' have been replaced with 'Aldi'. In [34], the word 'punitive' has been replaced with 'putative'. ORDERS NSD 1441 of 2017 BETWEEN: ALDI FOODS PTY LTD AS GENERAL PARTNER OF ALDI STORES (A LTD PARTNERSHIP) Applicant AND: TRANSPORT WORKERS UNION OF AUSTRALIA First Respondent SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION OF AUSTRALIA Second Respondent JUDGE: PERRAM J DATE OF ORDER: 23 AUGUST 2017 THE COURT ORDERS THAT: 1. The interlocutory relief sought against the Second Respondent in the Applicant's originating application filed on 21 August 2017 be dismissed by consent. 2. The interlocutory relief sought against the First Respondent in the Applicant's originating application filed on 21 August 2017 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 This is an application for an interlocutory injunction having a twofold effect. First, it would restrain the First Respondent ('TWU') from conducting pickets at premises owned and operated by the Applicant ('Aldi'). Secondly, it would restrain the publication by the TWU of certain communications relating to the dispute between the parties. So far as the pickets are concerned, there have been two pickets by, or involving, the TWU of Aldi's premises. The first of these occurred on 16 May 2017 at Aldi's then unfinished premises in Fremantle, Western Australia. The second occurred as recently as 16 August 2017 at Aldi's premises at Gallipoli Drive, Regency Park in South Australia. 2 There is evidence from Mr Jakupec, the Managing Director of Aldi's Regency Park region, which suggests that picketing activity in the future is not altogether to be unexpected. That evidence consists, in part, of an observation on his part that whenever the TWU had held a meeting near its premises, in the past, a picket seems to have followed shortly thereafter. He observes that a meeting of the TWU is planned to take place at Rooty Hill in Sydney on 24 and 25 August. Rooty Hill is proximate to Aldi's Minchinbury distribution centre and, on that basis, he is concerned that the picketing which occurred at Fremantle and Regency Park may be repeated at Minchinbury. 3 There is a second element to his concern. Part of the evidence he gives about what occurred at the Regency Park premises includes some hearsay evidence – and I do not say that in a critical fashion – of a discussion which took place between one of his logistics managers and a person wearing TWU livery. I will return to this conversation in more detail, but part of it involved a woman wearing the TWU livery saying words to this effect: 'We will be running more of these events in the future if you do not agree to meet with us to discuss safe rates.' Those two elements taken together were said by Aldi to suggest that there was reason to believe that a picketing event might occur on 24 and 25 August at Aldi's Minchinbury premises. 4 So far as the publications which are sought to be restrained are concerned, it is necessary to begin with a little bit of background information. There was formerly a tribunal known as the Road Safety Remuneration Tribunal which regulated, when it occasionally sat, the rates which were paid to independent contractor drivers operating in the transport industry. That tribunal was abolished by statute some time ago which has generated a degree of industrial unhappiness about the position of independent contractors in the transport industry. 5 The TWU represents transport workers and has been conducting a campaign since, but possibly even before May this year, seeking to highlight the position of independent contractors in supply chains in the transport industry and has been seeking to persuade large grocers such as Woolworths, Coles and Aldi to adopt particular practices in relation to their supply chains. That campaign has had a number of aspects to it, including both formal communications between the TWU and the large entities which it seeks to persuade to its view, but has also involved a degree of old-fashioned industrial activity. As part of that campaign, a number of publications have been made and it is these to which Aldi has taken exception. The first publication to which exception is taken is a press release which was issued by the TWU on the same day as the events at Fremantle. The press release contained a large quantity of material but includes a description of what occurred at the Fremantle site. Some relevant excerpts are as follows: 'Truck drivers and TWU supporters angry at wealthy retailer Aldi over a spike in deaths from truck crashes have blocked the road in South Fremantle. Traffic was halted on Hampton Road as over 150 protestors demanded that Aldi and the financial squeeze on transport companies and truck drivers which is leading to deaths on our roads. … "Aldi needs to take responsibility for what is happening in its supply chain. Cutting transport costs and underpaying truck drivers has massive consequences on our roads. This financial pressure leads to trucks not being maintained and drivers forced to speed, drive long hours and skip mandatory rest breaks. This squeeze has got to stop for the sake of the entire community," said TWU national secretary, Tony Sheldon. "The Federal Government is also to blame for this problem. Last year, it tore down an independent tribunal which was holding wealthy clients, like Aldi, to account for the financial squeeze on transport that kills and injures people. This increase in deaths should not come as any surprise to the Government. Its own report showed the tribunal would cut truck crashes by 28 per cent. Transport workers are paying with their lives with this government's mismanagement," said Mr Sheldon. Aldi, last year, attempted to pay truck drivers less, misclassifying them in an enterprise agreement which the Federal Court struck down. WA Senator, Glen Stewel addressed the rally, "We are here to demand that our truck drivers and our families should be safe on the roads. Wealthy retailers like Aldi and federal government need to listen because we are not going away,' he said.' 6 Comments to a similar effect were posted on the TWU's Facebook page. That Facebook page was, I accept, accessed by media organisations and gave the contents of the Facebook page broad television coverage. A corresponding press release was also issued on about 16 August at the same time as the picket which occurred at the Gallipoli Drive, Regency Park premises of Aldi, which relies upon that as well. Finally, at the same time as the original Fremantle picket, a flyer was produced which is set out in an annexure to Mr Jakupec's affidavit, which contains a number of statements about which Aldi complains. These include: The use of the Aldi trademark in close proximity to the slogans "stop the race to the bottom" and "undercutting road safety"; That 'the transport industry is Australia's deadliest industry'; That 'multinational corporations at the top of the supply chain, like Aldi, put pressure onto trucking companies and owner drivers to fulfil unsafe deadlines'; That 'it's a fact that safe rates for truckies save lives'; and The comment that 'Aldi needs to engage with transport workers through the TWU and take responsibility for its supply chain to ensure transport workers are not being unfairly pressured and are being properly compensated. If Aldi wants to be in our community, it needs to ensure good jobs with good conditions for everyone in its supply chain. After all, its competitors – the major supermarkets – have agreed to work with the TWU. So, what's the deal, Aldi?' 7 So these are the matters which Aldi complains about. Insofar as loss and damage which Aldi might suffer is concerned, it is necessary to consider the position of the pickets and the publications separately. 8 So far as the pickets are concerned, there did not seem to be a debate that the premises at which the Fremantle protest had occurred had not yet been finished, so there can be no suggestion, at least in relation to those premises, of any diversion of trade or delay in delivery. I accept, nevertheless, that by means of their coverage which accompanied the communications associated with that protest, it is possible that persons in the public may have formed – or may have been inclined to form – a negative view about Aldi as a company. 9 I make no statement, at this stage, about whether I accept that argument but I note that it is open on the evidence in relation to the Fremantle protest. Insofar as the protest in South Australia is concerned, the evidence was quite a bit more developed, not only in terms of the affidavit but also because the Court was provided with a video of the protest. It became Exhibit Two. The protest involved a picket across the driveway to the entrance to Aldi's Regency Park distribution centre. A distribution centre is not actually a supermarket but, rather, a significant premises from which supermarkets are supplied by Aldi. 10 The video which went for about 15 minutes, I think, showed a black vehicle with a trailer attached to it, parked across the exit lane of the truck driveway between the boundary of Aldi's premises and the road. The truck had a sign on it with the acronym 'TWU' and the words "safe rates save lives". Behind the truck was a large group of people carrying banners with disparate colours of yellow, orange and white, to my observation. Members of the Shop Distributive and Allied Employees Association appear to have been amongst those protesting. 11 Indeed, that association was the Second Respondent to this application, however, at the commencement of the hearing, I was notified by the parties that the application for interlocutory relief against the Second Respondent had been dismissed by consent. Notwithstanding that, this evidence satisfies me that there were a number of representatives of the TWU in the crowd generally wearing orange and, of course, the truck appeared to be the TWU's or, at least, to be under its custody and control. It is hard to put a precise estimate on the number of people who were standing behind the truck but, in my estimation, it would probably be 50 or 60, or thereabouts. Those people were standing immediately behind the trailer and were blocking the entry lane of the truck driveway between the other boundaries of Aldi's premises and the road. At its maximal point, the protest made it impossible for a truck to drive in and out of the premises. 12 The evidence satisfies me that requests were made to those who were present to move and that those requests were not immediately complied with. Indeed, the evidence suggests that when the request was made, Aldi was told that the action would continue to be taken until it agreed to meet and discuss the safe rates campaign. All in all, this blockade went for about 20 minutes and the evidence suggests that the ingress and egress of three trucks was affected by it. Because of one of the points raised by the TWU, it is necessary to be reasonably precise about what happened. Two trucks from Aldi's suppliers were prevented from leaving the site. In addition, one Aldi truck was prevented from leaving by the normal truck driveway but, as I understood it, it left by an alternate route. 13 The point that was made by the TWU was that the Aldi suppliers who were leaving the distribution centre would not have been leaving with any goods on them because they would have delivered their goods to the distribution centre already. In relation to the Aldi truck which was prevented from leaving, whilst it might have been replete with goods, it would have been on the way to an Aldi shop and would not have been on its way to providing the contents to some other supplier. The loss and damage which these events are said to have given rise to differs as between the two injunctions. So far as the picket is concerned, the affidavit evidence suggested that interruption to Aldi's operations at its Minchinbury centre, even for a very brief period such as 20 minutes, could have a severe impact upon the transport operations from that centre. This was because it operates on the basis of booked time slots for receiving deliveries from suppliers. If there is an interruption to those time slots, it requires the drivers for all its suppliers to wait, either on site, or causes them to drive around until the problem goes away, which raises the potentiality for a large number of trucks backed up as a result of the interruption. 14 Because of the backlog resulting from the interruption to access, it will usually take some time for the problem to clear. The evidence of Mr Jakupec was that this state of affairs had the potential to put the drivers or their employers in breach of road safety legislation and, as New South Wales road safety legislation concerned itself with what is characterised as the chain of responsibility, the picketing could result in Aldi being in breach of its legal obligations. I assume what is had in mind here is the presence of large numbers of trucks circulating the distribution centre. 15 So far as the deliveries to individual stores are concerned, Mr Jakupec said that Aldi could manage around the interruption by having some drivers do overtime or engaging transport contractors to take other loads but that problem was said to be aggravated by the drivers having insufficient time to do the delivery within a safe regime of hours. He said that Aldi might have to replace the drivers in that circumstance. 16 So far as the publications were concerned, the damage which Aldi was concerned about suffering was twofold. The first was brand damage amongst the purchasing public who would, by reason of the publications, come to regard Aldi as an unsavoury supplier of groceries. The second category of loss was said to be reputational harm amongst potential employees of Aldi. Here, the argument was that Aldi had invested considerable time and effort in making itself a responsible and generous employer and had a reputation for being just that. 17 The remarks being made by the TWU, in its various communications, were apt to suggest that it was not such an employer and that, in fact, it was the kind of employer who underpaid people in its supply chain with all the negative connotations necessarily travelling with that. This was said to cause a loss, (a) in the sense of its reputation as an employer, and (b) more directly that it would have to start advertising for positions, a problem which it had not previously had. That is to say, as a result of the damage to its reputation amongst prospective employees, it would be moved from a position where it had a surplus of people making applications to it for employment, to a position where it would find itself forced into the indignity of having to advertise for the jobs. Therefore, it was said that it would suffer loss and damage being the cost to it of conducting that advertising campaign. 18 Turning then to the various causes of action, so far as the picketing is concerned, it was said that picketing constituted the tort of besetting. There was some debate at the bar table as to whether there was a tort of besetting or whether it was to be seen as an aspect of nuisance. It does not seem to me to be necessary to resolve that debate. Having seen the video footage, it is apparent that for a period of time, maybe six or seven minutes, trucks were prevented from entering and exiting Aldi's premises by reason of the picket and I will be prepared to assume that, for the purposes of the interlocutory injunction that the applicant has established an arguable case for the commission of the tort of nuisance. 19 The second way the case was put was under section 45D of the Competition and Consumer Act 2010 (Cth) ('the Act'). Section 45D provides as follows: '45D Secondary boycotts for the purpose of causing substantial loss or damage (1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person. (2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose. (3) Subsection (1) applies if the fourth person is a corporation. (4) Subsection (1) also applies if: (a) the third person is a corporation and the fourth person is not a corporation; and (b) the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.' 20 I think there are difficulties in accepting that section 45D could apply on the particular facts which I have found to be arguable in relation to the South Australian premises, in particular, because the argument must be that the TWU is a person who has, in concert with another person (whom I imagine would be the Second Respondent), engaged in conduct which prevents a third person supplying goods to a fourth person. The third person here would have to be the suppliers who were blocked by the demonstration but, as Mr Gibian who appeared for the TWU pointed out, the suppliers were leaving the distribution centre and had already delivered their goods. 21 So there may be serious difficulties in understanding how section 45D could apply. I am not willing to say that it does not apply in absolute terms but it seems to me that a case based upon it is a reasonably weak case. 22 So far as the communications are concerned, the case was put on four different bases. First, it was said that the actions which had happened in the publications constituted commission of the tort of injurious falsehood. I do not think the case in relation to injurious falsehood is a good case. An important element of the tort of injurious falsehood is the presence of malice. Resort to the back history to this dispute reveals that the TWU is engaged in a particular campaign, trying to assert its particular view about how the transport sector ought to be regulated so far as independent contractors are concerned. It may be – and I make no conclusive comment about this – that it has conducted itself in a way which is upsetting to Aldi. It may be that it has used language which is strong. It may be that it has a lingering degree of resentment towards Aldi. But none of that detracts from the proposition that the views which the TWU are pursuing are bona fide views and I do not think I can conclude, in that circumstance, that there is any real prospect of making out the tort of injurious falsehood. 23 Secondly, reliance was placed upon s 18 of the Australian Consumer Law ('ACL') which is the general provision prohibiting engaging in conduct which is misleading and deceptive and/or likely to mislead or deceive. There are two limitations on that section which are pertinent for present purposes. One is that by reason of the constitutional underpinning of the Act, section 18 is expressed in its language to be limited only to conduct which is engaged in, in trade and commerce. 24 The High Court has explained that not every activity of a corporation is in trade or commerce. So, for example, in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 it was held that a misleading statement to an employee working on a site in the Sydney CBD which then subsequently caused the employee to suffer an injury was not in trade or commerce because the statement was not made as part of the trading or commercial activities of the corporation. Therefore, an attempt by the injured worker to step outside the compulsory system of workers compensation under New South Wales law and to use the federal statute instead was unsuccessful. Here, the argument which the TWU advances is that its activities as a union conducting a union campaign wholly lack a trading or commercial character. Related to that point is the second point it pursues which is that the operation of the Act is constrained by section 51(xx) of the Constitution only to apply to trading corporations. 25 It is true that a large part of the Act has, as a matter of history, been erected on a constitutional foundation in which section 51(xx) has been at the forefront of the drafters' intention; but there has always been present sections 5 and 6. Section 5 deals with jurisdiction outside Australia. Section 6, however, involves an attempt to drag in as many heads of power as can be availed of and it is apparent from section 6 that the powers relied upon include the postal and telecommunications power: ss 6(3A)(a)(i)-(ii). 26 I am reasonably satisfied that Aldi will be able to overcome whatever difficulties these provisions present because the communications upon which it relies all seem, in various ways, to have been communicated via telecommunications network to which the power in section 51(v) in the Constitution relates. On the other hand, I believe that Aldi will have difficulties in establishing that the conduct by the TWU of its campaign is an activity which is in trade or commerce. For that reason, although I accept that it has a case based on section 18 of the ACL, I believe that case to be a reasonably weak one. 27 Thirdly, reliance was also placed upon section 31 of the ACL. Section 31 is in the following terms: '31 Misleading conduct relating to employment (1) A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to: (a) the availability, nature, terms or conditions of the employment; or (b) any other matter relating to the employment.' 28 Mr Cross of counsel, who appeared for Aldi, submitted that this applied because the TWU would be the first referred to person and therefore the section would be applicable on its terms. I am not sure I accept that as an available construction of section 31. It seems to me more likely that the provision is concerned with representations made by potential employers to potential employees. Certainly, that is the way it has been traditionally read. It seems to me an adventurous construction of section 31, which is being advanced in this case. I do not think, therefore, that the case in relation to section 31 is particularly strong, although I do not discount it as perhaps ultimately being available to succeed. 29 Fourthly, reliance was also on placed upon 34 of the ACL. Section 34 is in these terms: '34 Misleading conduct as to the nature etc. of services A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.' 30 The argument was that the statements which were being made by the TWU would mislead the general purchasing public about the nature of Aldi's services with the consequence that the section was engaged. I do not think that is a plausible reading of section 34. It seems to me much more likely that section 34 is directed to statements made by corporations about the suitability for the purposes of their own services. Whilst I accept it may be possible for section 34, ultimately, to succeed, it seems to me to be an unlikely construction. 31 So the position I have arrived at is that Aldi has arguable claims in relation to each of these causes of action, although I would not rate any of them as being particularly high. It also has demonstrated that there is, I accept, a risk that the conduct which they are afraid will occur, will occur. 32 However, I think the proposed losses which are put forward to justify the injunctions are fairly speculative. What happened at the South Australian premises was certainly an interruption and probably tortious but it was very brief and, although I accept that it is possible that there could be supply chain delay consequences by reason of conduct of that kind, the evidence which was put on in that regard was of a fairly theoretical basis. I can easily imagine a case where substantial blockading or picketing activity really does cause a knock-on effect in supply chains and really does cause delays which cost money. But for such a claim to be sufficient to warrant an injunction, in my view one would need to have either much stronger evidence about the likely impact of the picketing or, alternatively, have very much more detailed evidence about how the picketing which is occurring actually has the financial consequences to which attention is drawn. 33 In this case, the loss which is said possibly to derive from the picketing activity is quite non-specific and unclear. That is not to say it is not a real head of loss or that there might not be something in it, but it is relevant when it comes to weighing what, effectively, would be an injunction having a reasonably serious interference with activities of an entity pursuing what it says is a course of political activity. I would not, for myself, accept that that would mean in every case that an injunction could not be granted to restrain picketing activity, but this just does not seem really to be an extremely serious incident calling for injunctive relief. 34 If the activity becomes worse or the evidence about the losses it is causing becomes better, then it might be appropriate to reconsider it but, as presently advised, taking into account the strength of the causes of action, the prejudice to the union in the form of disruption of what is effectively one of its core functions and, at the same time, the relative paucity of the loss which is likely to be suffered by reason of the picketing activity from Aldi, I am not sure this is a case for an injunction so far as the pickets are concerned. So far as the publications are concerned, a similar problem arises. It seems to me that the loss which has been foreshadowed – certainly the loss relating to the position of putative employees – is largely speculative. I am prepared to accept that there is a certain degree of brand damage caused to Aldi by what is taking place but I do not think that the balance of convenience favours the granting of the injunction. For those reasons, I will dismiss both applications for an injunction. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 25 August 2017