AREEA employee relations lawyer Alice Lui summarises a recent court decision after a union was found in breach of orders preventing the union from interfering with free access to several construction sites in 2012.

IN a recent ruling by the Victorian Supreme Court, the Construction, Forestry, Mining and Energy Union (CFMEU) has been found guilty of breaching court orders which restrained it from preventing, hindering or interfering with free access to certain Grocon sites late last year.

The success of the contempt of court proceedings brought by the Grocon Group (Grocon) against the CFMEU (with the Victorian Attorney-General subsequently joined as a party to the proceedings), is a reminder that unlawful conduct by unions designed to put pressure on how an employer manages it business can be effectively countered by legal proceedings.

Background – in brief

In August 2012, Grocon issued proceedings in the Victorian Supreme Court alleging that the CFMEU’s unlawful pickets at Grocon’s Myer Emporium project and McNab Avenue sites (the Grocon Sites) contravened a range of common law industrial torts, including nuisance and interference with Grocon’s contractual relations. The Supreme Court granted temporary injunctions restraining the CFMEU (inter alia) from preventing, hindering or interfering with free access to and free egress from the Grocon Sites (the Court Orders).

However, when a number of senior CFMEU officials failed to comply with the Court Orders, Grocon subsequently brought contempt proceedings against the CFMEU to which the Victorian Attorney-General was joined as a party to the proceedings.

Grocon submitted before the Court that the CFMEU officials had hindered, prevented and interfered with free access to the Grocon Sites in breach of the Court Orders. Grocon tendered a large quantity of evidentiary material to support its case including oral evidence, affidavits and exhibits containing various publications, maps, diagrams, photographs, extensive video footage and also mass media television footage downloaded from the internet.

The CFMEU argued that the charges relating to preventing and hindering free access to the Grocon Sites should be dismissed because:

• it did not ‘blockade’ the sites and prevent access through every entry point, as several entry gates and tunnels were left open to site workers or deliveries;
• the Court Orders could not have been intended to prohibit ‘lawful protests’ where there had not been a threat of genuine violence or aggression by the CFMEU;
• there was no evidence of actual prevention / hindering / interference with free access nor did the CFMEU deliberately prevent / hinder / interfere with free access;
• it did not explicitly declare or communicate that attempts by Grocon workers to gain access would be refused;
• there was no attempt sought by persons engaged to work on the Emporium site that day to enter site at all, as all Grocon workers were redeployed the previous day. As such, there could be no attempt by the CFMEU to prevent free access;
• the crowds were not assembled by or under the control or direction of the CFMEU; and
• there was no evidence that the driver of a semi-trailer that had tried to enter the McNab Avenue site was prevented or hindered from entering the site by the CFMEU.

The Decision

In his ruling, Justice Cavanough was satisfied beyond reasonable doubt that the CFMEU was liable for all 30 contempt charges and in total, made 5 findings of contempt for each of the relevant days the CFMEU continued the illegal picketing. Some of the key findings were that:

• Site access was rendered impossible by the presence of protestors in numbers that were sufficient to constitute a physical barrier;
• Some or all of the protestors used ‘active resistance’ in response to attempts by Grocon employees to access the site;
• There was a continued physical blockade that led to Grocon employees being instructed not to attempt to enter the site for safety reasons;
• The blocking of even one means of access to a site may amount to preventing ‘free access’ – and all the more so when the entry point obstructed was the customary entry point;
• Obstruction did not generally need to be tested to see if it could be safely overcome;
• The extent of the gatherings which caused substantial interference with traffic on the public roads of the Melbourne CBD were probably not lawful protests’;
• It was not necessary to prove there had been an added threat of violence or aggression by the CFMEU – there was a large number of protesters present which was not ‘mere inaction’ by the CFMEU;
• The gatherings had been intended by the CFMEU to cause obstruction to access to the sites; and
• Video evidence overwhelmingly indicated that the semi-trailer entering the McNab Avenue site was physically interrupted in its journey twice by CFMEU officials.

In finding that the CFMEU had in fact ‘procured or caused’ the crowds to attend the Grocon Sites, the Court took into account (amongst other things) that there were ‘hundreds and hundreds of men who attended early in the morning, morning after morning, at considerable personal inconvenience and risk’, the context of the bitter industrial dispute between the CFMEU and Grocon, the public statements by the CFMEU claiming ownership of the dispute and the array of CFMEU paraphernalia.

The Court concluded that it would determine the penalties and costs in a later hearing.

A copy of the decision can be found here.

Implications for employers

This decision is a positive development for employers as it reinforces the availability of legal remedies for unlawful behaviour by unions which intimidates or threatens a workforce. This case confirms that an effective employer response to stop unlawful picketing is to promptly seek an interim injunction from the Court. Careful planning and being well prepared for any unscrupulous union conduct is the key to achieving a successful result.

With pickets becoming more and more prevalent, in addition to pursing these traditional Court orders to stop illegal picketing, another less costly option for employers in the context of enterprise bargaining is to utilise the good faith bargaining laws to prevent and/or deter any unlawful conduct designed to pressure an employer in making concessions in bargaining. As highlighted in AREEA’s bulletin article titled ‘Unlawful picketing ‘does not breach’ good faith bargaining laws, this option demonstrates that simply applying for a good faith bargaining order can be an effective tool in negotiations and should not be overlooked by employers.

Please contact the legal services team on (03) 9614 4777 if you would like further advice on this.