Workplace rights and industrial bagaining

In an interesting decision of the Federal Court a judge has issued an interim injunction (limited in time until further legal argument) prohibiting a union from taking industrial action “prima facie” described as “unlawful coercion” being undertaken in support of its strategic position in enterprise bargaining. What renders the decision interesting to me is that the primary cause of action founding the source of the statutory power to do so appears to be the general protections (sec 343 which I have not seen used in  this manner before) together with the common law of trespass and the economic tort of interference with economic relations.

The argument appears to be that the company had a workplace right to position itself as it saw fit in the bargaining.

 

“REASONS FOR JUDGMENT

ROFE J:

1    On 17 November 2023, the applicant, B&D Australia Pty Ltd, filed an originating application seeking an urgent interlocutory injunction to restrain the respondent, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), from organising any “community picket” at, and blocking access to, the applicant’s premises at 147-153 Canterbury Road, Kilsyth, Victoria (Kilsyth Site).

2    The applicant primarily relies on the affidavit of Ms Brenda Denbesten, operations manager of B&D, affirmed on 17 November 2023. It also relies on the affidavit of its lawyer, Ms Stefania Anais Silvestro, affirmed on 21 November 2023.

3    This matter came before me in my capacity as duty judge. Both parties filed written submissions prior to the hearing. The respondent did not file any evidence in support of its submissions.

4    I heard the interlocutory application on 21 November 2023 and made orders granting the injunction in an amended form. These are the reasons for those orders.

Background

5    The applicant and the AMWU are covered by the B&D Doors Australia Pty Ltd Kilsyth Workshop Enterprise Agreement 2020 – 2023 made under the Fair Work Act 2009 (Cth) (FW Act), which has a nominal expiry date of 30 June 2023.

6    The parties have been bargaining for a new enterprise agreement since 4 April 2023. A number of bargaining meetings have occurred and the applicant has made three offers for a proposed enterprise agreement, all of which have been rejected by employees.

7    As set out in Ms Denbesten’s affidavit, since 2 August 2023, B&D employees covered by the Agreement and the AMWU have engaged in protected industrial action on a large number of occasions in a variety of forms, including work stoppages.

8    The applicant does not seek to restrain the AMWU or B&D employees from engaging in protected industrial action.

The alleged unlawful conduct

9    The applicant alleges that the AMWU has:

(a)    contravened s 343 of the FW Act by organising or taking action, including organising a “community picket” (namely, encouraging members of the public who are not B&D employees to protest at the Kilsyth Site), blockading the entrances to the Kilsyth Site with intent to coerce B&D not to exercise its workplace right to participate in enterprise bargaining negotiations or, alternatively, to exercise its workplace right to participate in enterprise bargaining negotiations in a particular way;

(b)    unlawfully trespassed on its property; and

(c)    committed the tort of interference with economic relations or loss of services by organising unlawful conduct, including community pickets and blockades of the entrances to the Kilsyth Site causing B&D to lose the benefit of the services of employees not covered by the 2020 Agreement and causing other loss and damage.

10    Details of the alleged unlawful conduct were set out in Ms Denbesten’s affidavit.

11    On 9 October 2023, a group of ten individuals, at least seven of whom were wearing AMWU branded clothing, attended the DuluxGroup (the parent company of B&D) head office and proceeded inside to the reception of the building. These individuals included the following AMWU officials:

(a)    Mr Tony Mavromatis;

(b)    Mr Daniel Wessley; and

(c)    Mr Lewis Farrugia.

12    After repeated requests from reception staff and other employees for the AMWU officials to leave the DuluxGroup head office, the police were contacted which prompted the AMWU officials to move outside.

13    On 12 October 2023 and 26 October 2023, Mr Wessley, Mr Mavromatis and other AMWU officials attempted to enter the main building at the Kilsyth Site without providing a right of entry permit or obtaining permission from Ms Debensten. On one of these occasions, Mr Mavromatis filmed Ms Debensten in an intimidatory manner and then a small part of the video was posted on the AMWU Facebook page. On another occasion, people shouted at Ms Debensten in a manner which she found to be intimidating.

14    On 1 November 2023, the AMWU posted on its Facebook page: “Action at B&D Doors Kilsyth will continue tomorrow! If you’re in the area and want to support our members, stop by …”

15    On 2 November 2023, the AMWU set up a tent at the front of the Kilsyth Site where its members and officials gathered. At approximately the same time, private vehicles were used to block the Kilsyth Site’s two driveways.

16    Also on 2 November 2023, at about 6.00 am, a group of people proceeded to physically block the side doorway entrance to the building. They stood directly in front of the doorway, yelling obscenities at employees who approached the entrance saying words to the effect of, “there is no work today, go home” and “this is a community picket”.

17    CCTV footage and footage from a phone camera shows that, at around 6.05 am, one employee, Mr Winson Yong, was physically assaulted in his attempt to get into the building. Mr Yong’s employment is not subject to the Agreement and the incident resulted in complaints to police and caused Mr Yong to take personal leave due to stress, anxiety and panic attacks until 15 November 2023.

18    At 2.15 pm on 2 November 2023, the AMWU posted on its Facebook page: “Solidarity at its finest! We’re thrilled to see the support pouring in for our striking members at B&D Doors, with a surprise contingent of construction workers making the early trek to Kilsyth”.

19    On 9 November 2023, Mr Mavromatis called Ms Cassie Brain, Head of Workplace Relations & Senior Legal Counsel for DuluxGroup, and said words to the effect of “usually industrial action changes an employer’s view on the EA offer, but he was at a loss as to what would change B&D’s position”.

20    On 14 November 2023, picketing activity took place at the B&D Kilsyth Site. A group of approximately six individuals moved up a small pathway alongside the Kilsyth Site to stop employees from entering the building. The group allegedly threatened and intimidated four employees who turned back, got in their cars and went home out of fear. The applicant was unable to identify whether the six individuals were AMWU members or officials.

21    On 21 November 2023, the morning of the interlocutory hearing, around 14 individuals parked their cars on B&D property inside the boundary of the Kilsyth Site. A tent with AMWU insignia and a fire pit was set up beside the cars. None of the 14 individuals were expressly identified as AMWU officials.

22    According to Ms Silvestro’s affidavit, at around 7.33 am that morning, four truck drivers from Alvaro Transport, on seeing the individuals and AMWU tent near the entranceway to the site, refused to go onto the B&D site to drive the trucks with the loads for delivery (which had been prepared and loaded the previous night).

Consideration

23    The Court has power to grant the injunction sought by the applicant pursuant to both s 545 of the FW Act and s 23 of the Federal Court of Australia Act 1976 (Cth).

24    The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well-settled. In order to qualify for the relief that it seeks, the applicant must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65]–[72] (per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

25    When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries: Samsung Electronics Co. Ltd v Apple Inc (2011) 217 FCR 238 at [67] (per Dowsett, Foster and Yates JJ).

Prima facie case

26    The AMWU did not dispute that blocking the entry and exit to B&D’s Kilsyth Site, particularly the incident involving Mr Yong, constituted coercion within the meaning of s 343 of the FW Act. That section 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) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b) exercise, or propose to exercise, a workplace right in a particular way.

27    The AMWU’s primary submission was that the Court could not be satisfied on the evidence that AMWU officials had “taken” or “organised” any unlawful action in the form of the alleged blockades. That is, the AMWU contended that the individuals who blocked employees’ entry to the Kilsyth Site were not AMWU officials and there was no evidence that AMWU or its agents “organised” any individuals to blockade the Site.

28    The AMWU also relied upon Australian Building and Construction Commissioner v Huddy [2017] FCA 739 to contend that the word “organising” in s 343 requires some form of “positive conduct”: at [71] (per White J). According to the AMWU, the evidence pointed to by the applicant, such as Facebook posts encouraging people to simply attend the Site, is insufficient to show that the AMWU positively encouraged people to engage in the unlawful action.

29    I accept that there is no evidence that the person who assaulted Mr Yong (who the applicant has been unable to identify) is an AMWU official. Nor is there any evidence that any of the people in the group who confronted Mr Yong and prevented his access to the Site were AMWU officials. However, CCTV footage shows Mr Farrugia talking to that group minutes before Mr Yong was assaulted, and returning to speak to the group minutes after Mr Yong was assaulted and left the Site.

30    Mr Farrugia’s presence at the entranceway immediately before and after Mr Yong was assaulted on 2 November 2023 must be viewed in context. First, it is uncontested that identified AMWU officials trespassed at the DuluxGroup head office on 9 October 2023. Second, the AMWU encouraged people through Facebook posts to attend the Kilsyth Site, including on 2 November 2023, and celebrated the action that took place on 2 November 2023 (without expressly referring to the incident with Mr Yong). Third, on each of the occasions that B&D employees were prevented from entering or exiting the Kilsyth Site, being 2 November and 14 November 2023, AMWU officials were present at the Site, even if not directly engaging in the blockading. Fourth, Mr Mavromatis’ statement to Ms Brain that industrial action usually persuades an employee but he was “at a loss what to do” in this case, supports the inference that AMWU sought to put further pressure on B&D through conduct in addition to the protected industrial action.

31    Finally, the AMWU could have put on affidavit evidence from one of its officials that it did not organise any persons, or seek to encourage any persons, to engage in the unlawful trespassing and blockading of B&D’s Kilsyth Site. It did not do so. I therefore consider that an adverse inference may be drawn that the uncalled evidence would not have assisted the AMWU: see Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 at [59]–[60] (per Reeves J).

32    All that is required at an evidentiary level is for the applicant to establish a prima facie case that AMWU officials “organised” persons to take coercive action against B&D. I am satisfied that a reasonable inference can be drawn from the evidence set out above that AMWU organised persons to attend the B&D Site and blockade access to the Site, in order to coerce B&D to offer terms more favourable to its employees and AMWU with respect to a new enterprise agreement.

33    There was no real dispute that AMWU officials had, on a number of occasions, trespassed upon B&D property, including on the morning of the hearing. As such, the applicant has also established a prima facie case that AMWU has unlawfully trespassed.

Balance of convenience

34    The balance of convenience clearly lies with B&D. First, on the evidence, there is a prima facie case in respect of trespass and contravention of s 343 of the FW Act.

35    Second, the unlawful coercion has caused, or is likely to cause, loss and damage to B&D, both in financial terms by virtue of its employees being prevented from attending work, and due to the stress and anxiety experienced by its employees as a result of the unlawful conduct. The AMWU has repeatedly refused to provide any undertaking that would indicate it intends to cease organising the unlawful conduct, if the order is not made.

36    All that is being sought are orders that prevent the AMWU from organising or taking unlawful action or trespassing on B&D property. No orders are being sought that prevent the AMWU taking protected industrial action.

37    The AMWU contended that the AMWU and its members have a right to organise and take protected industrial action and to engage in peaceful protest and picketing. So much may be accepted. However, the AMWU also contended that if there is any lack of clarity about the conduct which might be the subject of any order, then the AMWU, acting through its officers and members, will be unclear as to what is permitted or not permitted and this may result in an inadvertent breach of the order. In these circumstances, the consequences of any inadvertent breach of the injunction sought would terminate the AMWU’s right to take protected industrial action (as per s 413(5) of the FW Act), with a consequential alteration to the bargaining dynamic.

38    I consider that the conduct captured by the injunction is clear. The AMWU cannot trespass on B&D property and cannot blockade persons from entering or exiting the Kilsyth Site. Nor can it organise, cause, induce or procure others to engage in such conduct. The AMWU is still entitled to take protected industrial action. The terms of the order are also sufficiently narrow to ensure that the mere organisation of a peaceful picket, that does not occur on B&D property and does not have the effect of blocking access to the Site, is permissible. As such, I do not consider there is any prejudice to the AMWU if the injunction is granted.

Conclusion

39    Accordingly, I will make the orders above granting the injunction.”

 

 

B&D Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2023] FCA 1451 delivered 21 November 2023 per
Rofe J