Summary

Justice Cavanough of the Supreme Court of Victoria has handed down judgment in the applications brought by Grocon, against the Construction, Forestry, Mining and Energy Union (CFMEU), for contempt. The contempt charges related to pickets that were maintained at Grocon’s Myer Emporium and McNab Avenue sites late last year. 

His Honour found that all 30 charges of contempt in Grocon’s application against the CFMEU were made out, and that the CFMEU was liable for findings of contempt for breaching orders made by the Supreme Court on five days last year.  

The decision considered whether the CFMEU contravened orders preventing, hindering or interfering with ‘free access’ to Grocon’s sites, in circumstances where (in the case of the Myer Emporium site) it organised a rally of up to hundreds of people outside one of the gates to the site.  

Importantly, Justice Cavanough held that the ‘obstruction’ does not need to be total. That is, for a rally or picket to constitute an interference with ‘free access’ to a site, there may still be an obstruction of ‘free access’ even if:

  • an employer has not ‘tested’ the picket by attempting to enter the site; and
  • only one of the access points are blocked (although it is more likely that an obstruction will found where the main access point to the site is blocked).

Background

In August and September 2012, the CFMEU organised large numbers of people (including at least eight officials and delegates of the CFMEU) to picket at a number of Grocon’s construction sites in Melbourne, Victoria.

On various dates in August and September 2012, Grocon Constructors (Victoria) Pty Ltd, Grocon (FCAD) Pty Ltd and Grocon Constructors (Vic) Pty Ltd (collectively, Grocon) obtained orders from the Supreme Court of Victoria, including orders that restrained the CFMEU from:

  • ‘preventing hindering or interfering with free access to’ Grocon’s Myer Emporium site and McNab Avenue site (collectively, the Sites); and
  • ‘causing, inducing, procuring or inciting any person to do or attempt to do any of those things’ that the CFMEU was restrained from doing.

As a result of the picketing continuing at the Myer Emporium Site and McNab Avenue Site, in late August and early September 2012, Grocon made two applications for contempt for breach of the court orders. In its applications, Grocon filed 33 charges (which were ultimately reduced to 30 charges) against the CFMEU for breaching the court orders and effectively shutting down Grocon’s Sites.

Soon after the applications were made by Grocon, the Attorney General of Victoria was joined as a plaintiff to each of the two contempt applications.

Issues for consideration

The fundamental issues for consideration by the Supreme Court were whether the terms of the orders were ‘clear, unambiguous and capable of compliance’ and whether the CFMEU breached the terms of the orders.2

The CFMEU submitted that the ‘plain and unambiguous’ meaning of the orders required ‘actual obstruction’ to the Sites in ‘concrete’ situations, and that the CFMEU’s mere presence at the ‘protests’ was not sufficient to constitute an obstruction of the kind contemplated by the orders.3

The CFMEU denied there was an obstruction at the Myer Emporium site for the following reasons:

  • no specific request for access to the Myer Emporium site was made by Grocon or anybody else on the days in question;
  • several entrances to the Myer Emporium site were available but Grocon workers did not use them;
  • on 29 August 2012 and 30 August 2012, Grocon workers had been redeployed to other sites and therefore there were no persons engaged to work at the site on those days; and
  • on 31 August 2012, some Grocon workers did enter the Myer Emporium site.4

The CFMEU also submitted that the crowds were not assembled by, or under the control or direction of the CFMEU.5

As to the charges alleged against it in relation to the McNab Avenue site, the CFMEU submitted that the evidence did not establish beyond reasonable doubt that access by a semi-trailer was prevented, hindered or interfered with by the CFMEU, particularly because it was not known why the semi-trailer did not proceed to the site.6

Justice Cavanough’s decision

On Friday 24 May 2013, Justice Cavanough held that all 30 charges had been made out. Given many of the charges were made in the alternative, Justice Cavanough made five findings of contempt in relation to each of the five days (28 August 2012 to 31 August 2012 and 5 September 2012).7

The key findings of Justice Cavanough's decision are set out below.

  1. Relevance of the industrial context

Justice Cavanough found that the CFMEU’s conduct on each of the days pleaded in the second contempt application could not be considered in isolation because the CFMEU’s conduct was ‘continuing and related conduct’.8

His Honour considered that the CFMEU’s conduct was ‘inextricably bound up with the ongoing industrial dispute between the CFMEU and Grocon’ and therefore the context of the industrial dispute and the CFMEU’s conduct in late August and early September 2012 was relevant to the Court’s determination of whether the CFMEU breached the court orders.9

  1. Relevance of the silence of the CFMEU 

Throughout the hearing of the two contempt applications, the CFMEU did not lead evidence.10 Although his Honour accepted that the CFMEU’s silence could only be used against it in extremely limited circumstances, Justice Cavanough did take into account the CFMEU’s silence and drew inferences against the CFMEU on issues in relation to the terms of the CFMEU rules and the identity of its officials who were involved in the protests.11 These matters were central to Grocon’s submission (that was accepted by Justice Cavanough) that the CFMEU did authorise obstruction of the Sites on each of the days.12

  1. Meaning of ‘preventing, hindering or interfering with free access’

The CFMEU’s submission that the court orders required actual obstruction of access to the Sites in ‘concrete’ situations was rejected by his Honour.13 Justice Cavanough found that the purpose and effect of the orders was to restrain the CFMEU from deliberately causing or maintaining any obstruction to the Sites.14

For the CFMEU to have been found to have caused persons to have prevented, hindered or interfered with free access to the Sites, Justice Cavanough held that the following elements must be met:

  • there must be an obstruction;
  • the CFMEU must be responsible for the presence or conduct of the persons in question; and
  • the CFMEU intended that the persons’ presence or conduct would obstruct access to the Sites.15
  1. What is an ‘obstruction’?

Justice Cavanough considered that an obstruction ‘need notbe total’, ‘can be physical or it can come in the form of intimidation’ and the obstruction ‘would generally not need to be ‘tested’ to see if it could be safely overcome’.16

Justice Cavanough also held that:

  • the blocking of even one of multiple means of access to a site may amount to preventing ‘free access’, and ‘all the more so when the entry point blocked is the normal entry point, or one of the normal entry points’, to the site;17
  • ‘free access’ may be prevented, hindered or interfered with where access is made more difficult by the obstruction, even if persons might still be able to access the site;18
  • substantial interference with traffic on public roads means that the gatherings were ‘probably not lawful protests’ (despite the CFMEU’s attempt to characterise them as such); and19
  • the employer does not need to prove that there was a threat of genuine violence or aggression for there to be an obstruction.20

In light of these principles, his Honour found that there was an interference with ‘free access’ to the Sites by the crowd of persons from 28 August 2012 to 31 August 2012 at the Myer Emporium site and on 5 September 2012 at the McNab Avenue site, in breach of the relevant court orders.

In relation to the conduct at the Myer Emporium site, his Honour found that there was an obstruction to free access from 28 August 2012 to 30 August 2012 because men were standing close of each other in large numbers, causing an obstruction to at least one normal entry point to the site,21 and the presence of the protesters constituted a physical barrier that meant that it was impossible for the Grocon workers to take a particular path to access the site.22 It was irrelevant whether there was an attempt by the Grocon workers to enter the site, or an attempt by the police to facilitate the entry on 28 August 2012.23

Although some workers did enter the Myer Emporium site through an alternate access point with police assistance on 31 August 2012, Justice Cavanough found that the free access of Grocon employees to the site was prevented, hindered and interfered with by the crowd. This was because access to the Site was only made available with elaborate police assistance, not all workers were able to enter the site, and the crowd remained so dense that it meant that no vehicles could pass on Lonsdale Street near the site.24

 In relation to the McNab Avenue site, Justice Cavanough found that the two CFMEU officials and the men with them took active steps to stop the progress of a semi-trailer, including by blocking the roadway and the two CFMEU officials speaking with the driver.25

  1. CFMEU’s responsibility of the presence or conduct of the picketers

Justice Cavanough held that all evidence pointed ‘directly and inexorably to the CFMEU as being, at the very least, the main organiser, if not the sole organiser, of the ‘protests’…by the accumulation of circumstances disclosed by the evidence.’26 While his Honour stated that ‘a fewindividuals might perhaps have attended for their own reasons independently of any steps taken by the CFMEU to cause or procure their attendance’, this was not the case for the hundreds of men who attended early in the morning, morning after morning, at considerable personal inconvenience and risk.27

The circumstances that supported Justice Cavanough’s conclusion that the CFMEU was the main or sole organiser of the protests included:

  • the context supplied by the bitter industrial dispute between the CFMEU (alone) and Grocon;
  • the prior picketing that had occurred in support of the CFMEU’s cause in the industrial dispute;
  • the repeated attendance at the Myer Emporium site of several very senior CFMEU officials;
  • the array of CFMEU paraphernalia at the ‘protests’;
  • the significant number of persons present who were wearing CFMEU branded clothing (whether or not in the majority); and
  • the numerous public statements made by the CFMEU and its officials claiming ownership of the dispute and of the ‘protests’.28    
  1. CFMEU’s intention that the persons’ presence or conduct would cause an obstruction of access to the Sites

His Honour was satisfied beyond reasonable doubt that the gatherings at the Sites were intended by the CFMEU to cause, and did cause, the obstruction to access to the Sites and as an intended result, disruptions to work at the Sites.29 This was particularly because even if the gatherings of people were ‘protests’, they caused far more than ‘short delays, discomforts and anxieties’ as each incident lasted many hours and consisted for the most part of static gatherings of large numbers of persons.30

Next stages

Justice Cavanough will hear the parties’ submissions on penalties on 19 August 2013 and 20 August 2013.

A third contempt application was filed by Grocon on 29 April 2013. The hearing in relation to the third contempt application is listed for hearing from 21 August 2013 to 26 August 2013 before Justice Cavanough.

Lessons for employers: response plans are crucial

Achieving court orders to restrain and disperse a picket is not an easy task, and is one that often takes some time to achieve. This case is a text-book example of the results that can be achieved with proper response planning. Grocon was able to secure orders protecting its sites in Victoria from interference within a few days of commencement of the picket, and commence contempt proceedings very shortly thereafter.

There are many different layers to such a response plan, but all are directed to ensuring that the employer has immediate access to the right documents, information and people (internal and external–with clearly defined roles) the minute there is any suggestion that a picket is being organised. This will ensure that the employer is best placed in the event that it needs to take action to protect its business.