A recent decision of the Federal Court of Australia highlights the extent to which certain behaviour on a picket line, such as public urination and damaging property, will be deemed unacceptable, and steps that an employer can take to stop that behaviour.

In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235, John Holland Pty Ltd (John Holland) sought and was granted interim injunctions from the Federal Court of Australia (the Court) to restrain conduct occurring on a picket line.

Background to the dispute

The picket had its origins in a dispute between John Holland, the Construction, Forestry, Mining and Energy Union (CFMEU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU). The dispute arose because a labour hire provider to John Holland made a wages agreement with the AMWU and the CFMEU under which higher wages were to be paid to the labour hire providers employees working on the Westgate Bridge upgrade project, which was being run by John Holland.

As John Holland was not prepared to cover the additional wage costs, the labour hirer dismissed its Westgate Bridge project workers. The workers and the AMWU and CFMEU then started a protest outside the John Holland project office in Port Melbourne. John Holland alleged that during that protest, the protesters engaged in the following conduct:

  • urinating on, or in public near, the project office,
  • preventing or attempting to prevent people from entering and leaving the project office,
  • damaging property, including doors and windows,
  • banging on windows,
  • verbally abusing John Holland employees at the project office,
  • attempting to persuade job applicants not to apply for employment with John Holland, and advising the applicants not to cross the picket line,
  • displaying union flags and paraphernalia, and
  • gathering at the project office.

John Holland's application to the Court and findings of the Court

John Holland applied to the Court for interim injunctions to restrain the AMWU, CFMEU and two union organisers (together, the Respondents) from continuing to engage in the above conduct alleged to be in breach of sections 43 and 44 of the Building and Construction Industry Improvement Act 2005 (BCII Act).

Section 43(1) prohibits action taken, or threatened to be taken, with intent to coerce another person to employ a person as a building employee. Section 44(1) prohibits a person from taking or threatening to take action, or refraining or threatening to refrain from taking any action, with intent to coerce or apply undue pressure to another person to make that other person agree, to make a building agreement under the Workplace Relations Act 1996 (Cth) (WR Act).

The Court considered that the conduct could be grouped into three categories.

It was held that activities such as urinating on, or conspicuously in the vicinity of, the project office, damaging John Holland’s property, banging on windows, abusing John Holland staff and impeding persons in the act of entering or leaving the project office (category 1 conduct) was prima facie illegitimate conduct that would probably have the practical effect of negating choice, and which was engaged in with prima facie intent to coerce John Holland to employ the former labour hire employees, and to make a building agreement under part 8 of the WR Act.

The Court also accepted that interfering with John Holland’s attempt to hire staff (category 3 conduct), while probably not unlawful, illegitimate or unconscionable such that it gave rise to a breach of section 43, was arguably conduct engaged in by the Respondents to apply undue pressure to John Holland to make a building agreement in breach of section 44 of the BCII Act.

Conduct such as displaying union flags and paraphernalia and the peaceful presence of a number of people who, in numbers and demeanour, were not intimidating (category 2 conduct) was not found to be unlawful, illegitimate, unconscionable or negating choice.

As John Holland was able to establish that if conduct in breach of sections 43 and 44 continued, the damage to John Holland was likely to be irreparable, Justice Jessup found that the balance of convenience favoured the grant of injunctions. Accordingly, the Respondents were ordered to not engage any further in category 1 conduct and category 3 conduct.

The dispute has been reported as settling on the basis of the CFMEU and AMWU giving undertakings to the Federal Court in respect of conduct on Westgate project and good behaviour contractual agreements for other John Holland business in Victoria.

Lessons for employers

This case highlights the extent to which conduct on a picket line or protest will be considered illegitimate, unlawful or unconscionable. It also demonstrates the benefits to an employer of carefully capturing evidence of conduct on a picket line or protest and applying to a court for injunctions against that conduct. Deacons can assist you in this process, from gathering evidence of conduct on a picket line to applying to a court for injunctions to restrain the conduct.