Case: Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 
Outcome: applied
The threat of disruption was a threat of "other action" ( National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 ; (2002) 117 FCR 114 at [95] ; Laing v Construction, Forestry, Mining and Energy Union [2003] FCA 1018 at [7] and [12] [13]). It can safely be concluded that Lane's intent in making the threats was to coerce the officers of LGB into agreeing to an EBA. The threat of disruption to work on the project by any available means was pressure that was illegitimate and unconscionable. LGB had completion of a project of some $16 million at stake. Any disruption to progress would have significant adverse financial consequences. It was clear enough that the threats also envisaged unlawful action. Threats of picketing were made. There would appear to be no lawful basis for picketing in relation to this site (cf Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 per Lockhart and Gummow JJ at 456 458, although on different legislation). Unlawful conduct had taken place. The direct action by Lane and Primmer on 21 October 2003 fell into that category. The conduct in breach of s 45D and the inducement of breach of contract to be found were unlawful as well as illegitimate and unconscionable. (See generally Finance Sector Union of Australia v Commonwealth Bank of Australia [2000] FCA 1468 ; (2000) 106 FCR 16 at [19] [25]; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 ; (2001) 109 FCR 378 at [41] ; and National Tertiary Education Industry Union [2002] FCA 441 ; 117 FCR 114 at [97] [103].) 78 The factual findings that I have made require further findings that: (1) Lane and Primmer, on 20 and 21 October 2003, engaged in conduct that hindered and prevented LGB from acquiring services from Silvestri P/L. Threats and verbal intimidation, as well as physical interference, can constitute hindering or preventing the supply or acquisition of services ( Australian Broadcasting Commission v Parish (1980) 29 ALR 228; (1980) 43 FLR 129; J-Corp Pty Limited 42 FCR 452 per Lockhart and Gummow JJ at 459 460). Services for these purposes include benefits to be provided under a contract for the performance of work ( Trade Practices Act , s 4). It was submitted on behalf of the respondents that, in any event, the conduct could not extend beyond the blocking of the driveway by Lane. That is too limited a view of the situation. The aim of Lane and Primmer was to prevent Silvestri P/L from carrying out any work on site by LGB. They succeeded. Work was stopped and the contract was terminated. The blocking of the driveway was a small step toward that objective. It was not of great significance in itself. It was significant in the wider context by demonstrating the extent to which Union officials would go to target Antonio Silvestri and Silvestri P/L. (2) The conduct was 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 Silvestri P/L. It is enough if one of the purposes of engaging in the conduct was the proscribed purpose (s 45D(2)). A purpose of the conduct was plainly to inflict such injury to Silvestri P/L that it would enter into an EBA with the Union and Antonio Silvestri would become a Union member. The evidence as to what Lane, Primmer and Kelly said to LGB employees, consistently with the evidence of Antonio Silvestri, was that this was not an isolated instance of pursuit of Antonio Silvestri by the Union. That circumstance gives colour to the particular facts relied upon in this case. This is not a case, such as J-Corp Pty Limited 42 FCR 452, where damage was collateral in the sense that, although predictable, the infliction of harm or damage was not a purpose in itself. Here, the two were inextricably linked. It is significant in this, and a number of other respects, that no endeavour was made by the Union to establish the genuineness of the complaints made by its officials about the safety record and commercial morality of Antonio Silvestri and Silvestri P/L. Loss or damage to Silvestri P/L was inevitable. "Substantial" in the context of s 45D means real or of substance rather than large ( Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; (1979) 42 FLR 331 at 348; Building Workers' Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 at 140). Being prevented from carrying out a contract for reward is substantial in this sense. The arrangement between Antonio Silvestri and LGB was that Silvestri P/L would provide those services necessary to carry out the whole of the excavation work required on the site. Preventing that outcome would cause substantial loss or damage.