Case: Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 165 ALR 550
Outcome: discussed
There were essentially two limbs to the respondents' no-case argument. In the first place, they argued that, even if proven, the conduct alleged in paras 13 and 14 of the applicant's statement of claim could not amount to "building industrial action", as defined in paras (b) and (c) of the definition in s 36(1) of the BCII Act . The respondents argued that this was because, in order to constitute "building industrial action" within these paragraphs, the action must be that of employees in respect of their work. The respondents contended that this was the effect of the Full Court judgments in Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 165 ALR 550 (" Davids ") and Construction, Forestry Mining and Energy Union v Giudice (1998) 159 ALR 1 (" Giudice "). Hence, the respondents argued that, even if the Court found that Mr Mates had caused the crane from Independent Cranes to shut down and leave the site on 21 February 2006, this conduct alone could not constitute "building industrial action" as defined in s 36(1) of the BCII Act . In support of this argument, the respondents pointed out that there was no imposition of bans or limitations in relation to the performance of their work by the employees of either Hardcorp or Independent Cranes. At most, on the applicant's case, Mr Mates had caused Independent Cranes to terminate its provision of services to Hardcorp. 37 As already indicated, the respondents' argument depended largely on the judgments of Full Courts of this Court in Davids and Giudice . Giudice involved an application by three unions for prerogative writs directed to a Full Bench of the Australian Industrial Relations Commission ("the Commission"), following the quashing of orders under s 170MW(1) of the WR Act . Subsection 170MW(1) gave the Commission power to suspend or terminate a bargaining period if satisfied that certain circumstances existed. Subsection 170MW(3) provided that a circumstance for this purpose was "industrial action" being taken to advance claims in respect of a proposed certified agreement, which was threatening to endanger the health or welfare of the population or cause significant damage to the economy. An issue arose as to whether "industrial action", as defined in s 4(1) of the WR Act , covered picketing. At 13-14, the Full Court, constituted by Spender, Moore and Branson JJ, said: The only basis on which picketing might be comprehended by the definition of industrial action is if it is conduct of the type identified in para (c) of the definition. That is, if it is a restriction on the performance of work or on the acceptance of or offering for work. The word 'picketing' may simply describe a lawful assembly outside a workplace (or elsewhere) protesting about and drawing attention to conditions of employment in the workplace. The word 'picketing' may also describe an assembly which engages in protest of this type but also prevents or impedes access into and out of the workplace (or elsewhere). Even if used to describe the latter situation, it is unlikely that picketing is conduct comprehended by the expression 'a ... restriction on the performance of work' as it appears in para (c). Having regard to the context in which that expression appears, it is more likely to relate to restrictions imposed by an employee or a group of employees on the work they do so as to limit the scope of that work or the time or the circumstances in which it is done. While the expression 'a ... restriction ... on acceptance of or offering for work' in para (c) might comprehend picketing of the latter type which prevented employees who were continuing to work from attending the workplace it is unlikely to have such a wide meaning if the other elements in para (c) relate to circumstances of the type just discussed. It is likely that para (c) in its entirety is directed to the conduct of employees who engage in conduct limiting the work they do or the circumstances in which they offer to do it. (Emphasis added.) Their Honours declined, however, to express a concluded view about the scope of the definition as it might apply to picketing. The respondents relied on these passages. 38 In Davids , Wilcox and Cooper JJ, with whom Burchett J relevantly agreed, stated their agreement with the view tentatively expressed in Giudice . In Davids , the respondent union commenced proceedings for a declaration that the appellant employer had engaged in conduct in contravention of s 170MU of the WR Act and an order restraining the employer from giving effect to purported terminations of its employees' employment. The employer had sent letters of termination to employees identified on a picket line. The Court was, in part, concerned with an entitlement under s 170ML to take "protected action" during a bargaining period, and ss 170MM and 170MN which imposed limitations on permissible "industrial action" as defined in s 4(1) of the WR Act . The union argued that the picketing was "protected action" and, in consequence, the employer's action contravened s 170MU. The employer said that this was wrong for a number of reasons, including that the picketing was not "industrial action" and was, therefore, not "protected action". 40 It is clear that an important consideration in Davids was the relationship between s 127 of the WR Act , as it then was, and the definition of "industrial action". This was because, by virtue of s 127 , the Commission had no power to deal with picketing if it was not "industrial action". As their Honours noted, French J had previously discussed this relationship in Communications Electrical Energy Information Postal Plumbing and Allied Services Union of Australia v Laing (1998) 159 ALR 73 (" Laing "), where his Honour had relied on Lockhart and Gummow JJ's discussion of picketing in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 (" J-Corp ") at 555-7. At 569-70, Wilcox and Cooper JJ said: One question [in Laing] was whether the picketing activity at Muja was 'industrial action', as defined in s 4 of the Act. At 88 French J noted that the Muja picket line did not prevent entry and exit of staff of the power station who wanted to cross it, but 'fuel supplies to the power station were disrupted because fuel tankers did not want to cross the picket line'. He went on: The general concept of picketing was discussed by Lockhart and Gummow JJ in Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Ltd [1993] FCA 266 ; (1993) 114 ALR 551 at 555-7. It is apparent that it is a wider class of conduct than industrial action under s 127. At common law it is not necessarily unlawful but may become so if it involves obstruction and 'besetting': Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 (Mason JA). To constitute 'industrial action' under s 127 picketing must fall within the statutory definition of that term. It is not the performance of work. It can only qualify as industrial action if it amounts to a 'ban, limitation or restriction on the performance of work'. So a picket line whose purpose is to prevent or deter or discourage employees from attending on their employer's premises and from carrying out their work could constitute a ban for the purpose of s 127. There are therefore circumstances in which picketing may be the subject of an order as industrial action under s 127. In this case the Commission's order literally applied only to such participation in picket lines as was industrial action. The term 'industrial action' provided the umbrella class within which all classes of conduct specifically proscribed by the order had to fall. This was reinforced by the reference in para (4) of the order to the application of the statutory definition of industrial action 'for the purposes of this order'. The particular picket line did not prevent entry to the power station premises nor was there evidence to suggest that it deterred or discouraged entry. Fuel truck drivers, however, did not want to cross it. It is arguable that the order did not apply to such picketing activity as had been undertaken. Whether it did or not would no doubt require a close investigation of the facts concerning the establishment and conduct of the picket. Australian Builders' Labourers' v J-Corp, referred to by French J, was a case under s 45D of the Trade Practices Act 1974 (Cth). That section did not use the words 'picket' or 'picketing'. The value of the passage cited by French J is that it demonstrates that activities falling within the general description of 'picketing' may range from a protest in which the picketers do no more than communicate their views to persons entering or leaving particular premises, through various degrees of hindrance to total prevention of ingress and/or egress. Activity that merely involves communication of information to persons entering or leaving a site is not 'industrial action', within the meaning of the definition in the Workplace Relations Act . Such activity clearly cannot constitute a 'ban, limitation or restriction on the performance of work' by the picketers. If the picketers do no more than communicate information, it is immaterial that the recipient of the information may be persuaded not to perform, accept or offer for work. On the other hand, if the picket takes the form of preventing or hindering people from performing, accepting or offering for work, its effect is to limit or restrict the performance of work, or the acceptance of, or offering for, work. Such conduct may be regarded as falling literally within para (c) of the definition of 'industrial action'. However, consistently with the tentative view of the Full Court in [Giudice], we think the paragraph ought to be read as applying only to limitations on the work of those imposing ban. The history of the legislation and policy considerations persuade us it is likely parliament intended to confine the paragraph in this way. (Emphasis added.) 42 The foregoing passages show, as indeed the respondents submitted, that, consistently with Giudice , the Full Court in Davids considered that para (c) of the definition of "industrial action" in s 4(1) of the WR Act applied only to a restriction imposed by employees on the work they did. 43 There is little doubt, however, that Giudice and Davids were much concerned with the nature of picketing, which, as these cases both noted, is a wider concept than industrial action. The applicant argued that the real question in Davids was whether picketing was capable of constituting "protected action" and that this consideration affected the Full Court's construction of the definition of "industrial action". Davids was not, so the applicant submitted, authority for the proposition that a union could not impose a restriction on the performance of work for the purpose of para (c) of the definition of "industrial action" in s 4(1) of the WR Act (and thus, as the respondents would have it, para (c) of the definition of "building industrial work" in s 36(1) of the BCII Act ). I accept this submission in part. That is, I accept that the Full Court in Davids was concerned with the scope of "protected action", as the passage set out at [41] above shows. Here the Full Court reasoned that, to the extent that picketing involved obstruction and "besetting", it could constitute "industrial action", but that it did not do so because such conduct was an actionable tort in respect of which the Parliament was not to be taken to have conferred statutory immunity. Subject to what appears at [49] below, this reasoning is independent of, and separate from, the Full Court's earlier conclusion that para (c) of the definition of "industrial action" ought to be construed so as to extend only to bans, limitations and restrictions imposed by employees performing the work in question. 44 The discussion of French J in Laing cannot support the contrary conclusion, since it was not specifically concerned with the question whether para (c) of the definition of "industrial action" referred to bans, limitations or restrictions imposed by those performing the work. Rather, it was concerned with the nature of picketing as industrial action. In any event, Laing was the subject of the Full Court's consideration in Davids. 45 I accept that, in relying on Laing , Dowsett J in Temple v Powell [2008] FCA 714 at [50] - [52] apparently adopted a broad view of the scope of paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act , which would extend the paragraph to unions. This case, however, proceeded by way of an agreed statement of facts, the parties agreeing that the union had contravened s 38 of the BCII Act , and his Honour's attention was not drawn to the relevant passages in Davids or Giudice . The same may be said of the earlier judgment of Le Miere J in Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (No 4) [2006] WASC 317 (" Leighton "), at [28]-[31] where once again reliance was placed on Laing without reference to Davids or Giudice . 46 Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 (" Transfield ") cannot be explained in the same way. In this case, Merkel J referred to Davids and said (at [46]): In my view nothing said by Wilcox and Cooper JJ in [Davids] detracts from the observations of French J in Laing to the effect that a picket line, established by unions or their organisers for the purpose of preventing or deterring or discouraging employees from attending at their employer's premises and from carrying out their work, could constitute industrial action for the purpose of s 127. At first blush, his Honour's analysis is apparently inconsistent with the view expressed in Davids that para (c) of the definition of "industrial action" in s 4(1) of the WR Act referred to bans, limitations or restrictions imposed by those performing the work. It is to be borne in mind, however, that the picket line in Transfield was made up of the applicant's and its subcontractors' employees. This fact may serve to avoid the apparent inconsistency. 47 In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Langley (unreported, 26 February 2004, Federal Court of Australia, BC200404666), where Finkelstein J was concerned with an application for an interlocutory injunction, it was sufficient for his Honour to note that whether or not picketing can be "industrial action", for the purposes of para (c) of the definition in s 4(1) of the WR Act was far from clear. As his Honour said (at [12]), a possible interpretation of the cases is that "picketers only engage in industrial action when they are limiting or restricting the performance of their own work". His Honour added: This is a reasonable approach which requires picketers to be manning the picket lines on a work day. It also seems to be the view of Goldberg J in Original Juice Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2001] FCA 675 [at para 32]. Whilst this approach was broadly supportive of the respondents' position, it also emphasised that the effect of Davids and Giudice was far from clear, a proposition reinforced by the intervening decisions referred to by Finkelstein J and in paragraphs [45] and [46] above. 48 After argument, the applicant referred the Court, with leave, to the Commission's decision in NMHG Distribution Pty Ltd t/as Yale Asia Pacific v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 104 IR 158 (" NMHG "). This was an appeal to the Full Bench of the Commission, which raised the question "whether a ban imposed by the AMWU through its delegates employed by CUB at the Abbotsford plant on the performance of work by Yale employees at that plant [was] capable of coming within the meaning of the definition of industrial action in s 4(1) of the WR Act ". As to this the Commission said (at 160): [I]t is necessary to examine whether the ban is capable of constituting 'a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work' within the meaning of those words in pars (b) and (c) of the definition ... [I]n the Commissioner's view the action alleged could not constitute industrial action because it did not relate to the work of the delegates themselves, but to the work of the Yale employees. After referring to Davids and Giudice , the Commission said (at 161-2): Whilst these decisions provide some support for the construction of the definition advanced by the AMWU, in each of the cases referred to the Court was considering whether picketing was industrial action for the purposes of the definition. It follows that neither case constitutes binding authority on the question which arises in this case. Furthermore in [Giudice] the relevant passage was clearly not an integral part of the court's reasons for its decision, while in Davids the court based its decision for the most part on indications to be found in various sections of the Act that the legislature did not intend to include picketing in the statutory concept of industrial action ... This case is not concerned with picketing. In this case employees of one employer and their union ... placed bans on the performance of work by employees of another employer at the first employer's premises in circumstances where the employees of the second employer normally perform such work at those premises. ... As a matter of ordinary language, a prohibition by employees of CUB (and their union) on Yale employees carrying out work on the CUB premises when the Yale employees normally perform work on those premises can be described as a 'ban ... on the performance of work, or on acceptance for or offering for work' within the terms of pars (b) and (c) of the definition. There is no indication in the objects of the Act, in the objects of Pt VI or anywhere else in the Act that the legislature intended to exclude such conduct from the definition. We can see no basis for limiting the ordinary meaning of 'ban' where it appears in pars (b) and (c) of the definition to a ban imposed by employees in relation to their own work. 49 Of course, as the respondents noted, NMHG is not binding on this Court. It seems probable, however, that neither in Davids nor in Giudice was the Full Court considering the kind of situation that arose in NMHG . This supports the proposition for which the applicants contend that the effect of these two decisions must be assessed having regard to the context with which each was concerned. Further, it is plainly correct to say, as NMHG does, that the observation of the Full Court in Giudice was obiter dictum. The status of the observations in Davids is less clear, but, plainly enough, as already noted, the focus of Davids was on picketing. Accordingly, the observations in Davids on the scope of the definition of "industrial action" in s 4(1) of the WR Act are to be considered in this light. Furthermore, it is to be borne in mind that the Full Court in each case was not concerned with the BCII Act but with the WR Act , being different though related legislation. Whilst I must take such guidance from Davids and Giudice as I can, they provide no clear and definitive answer to the question whether or not the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer to a ban, limitation, or restriction imposed only by employees, or can extend to union action. 57 Thus, the BCII Act is evidently directed to industrial action in the building industry, with emphasis on the conduct of all industry participants, including unions, and is designed to overcome some of the perceived deficiencies of the WR Act . The considerations that informed the introduction of the BCII Act differ to an extent from the historical and policy considerations referred to by Wilcox and Cooper JJ in Davids , and which led their Honours to construe paras (b) and (c) of the definition of "industrial action" in s 4(1) of the WR Act as referring to a limitation on the performance of building work imposed by those to whom the work related. 58 As the second reading speech and REM to the BCII Bill make clear, there is a distinct relationship between the operation of the WR Act and the BCII Act . It is to be borne in mind, however, that when the definition of "industrial action" in the WR Act was amended by the introduction of s 420 , with the effect that it became clear in terms that a relevant "ban, limitation or restriction on the performance work" must be imposed "by an employee" (see [34] above), the Parliament did not adopt the same course with respect to the definition of "building industrial action" in the BCII Act . Whatever the position be with respect to the definition of "industrial action" in the WR Act , I am not persuaded that, in the context of the BCII Act , the reference to a ban, limitation or restriction on the performance of building work should be construed as if the Parliament had made this amendment to it. That is to say, the ban, limitation or restriction on the performance of building work to which paras (b) and (c) of the definition of "building industrial action" in s 36(1) of the BCII Act refer is not limited to a prohibition or restriction imposed by employees to whom the work relates and may refer to that which is imposed by a union, such as the CFMEU. It does not follow, of course, that every ban, limitation or restriction on the performance of work imposed by a union or other industry participant satisfies the definition of "building industrial action" in paras (b) and (c) of s 36(1) of the BCII Act . As noted already, each paragraph is constrained by other factors, including, in the case of para (b), "an [applicable] industrial instrument" and, in the case of para (c), the existence of "an industrial dispute". 59 For the reasons stated, I reject the respondents' submission that, even if proven, the conduct alleged in paragraphs 13 and 14 of the applicant's statement of claim could not amount to "building industrial action", as defined in paragraphs (b) and (c) of the definition in s 36(1) of the BCII Act , because, in order to constitute "building industrial action" within these paragraphs, the relevant "ban, limitation or restriction on the performance of building work" must be imposed by the employees in respect of whom the work relates. For the reasons stated, I would make this ruling without putting the respondents to their election.