The Victorian Supreme Court has found the Construction, Forestry, Mining and Energy Union (CFMEU) guilty of contempt of court for blockading Grocon's "Emporium" and "McNab" sites.

Implications for employers

This decision demonstrates that where an employer is able to present strong evidence to support its case, it can be successful in holding unions to account for unlawful industrial action and related conduct directed against the employer. It also sends a strong message to unions which seek to hide behind the "public protest" defence to interfere with an employer and subvert a Court's orders.

Background: facts

Grocon obtained temporary restraining orders restraining the CFMEU from "preventing, hindering or interfering with free access to, and free egress from" certain Grocon building sites by any person or vehicle and "causing, inducing, procuring or inciting any person to do or attempt to do" any of the things which the CFMEU was restrained from doing.

Subsequently, a group of Grocon entities and the Attorney-General for the State of Victoria, as an intervener (Applicants), brought 30 charges against the CFMEU alleging contempt of court for breaching the temporary restraining orders in August and September 2012 at the Emporium and McNab sites in Melbourne. Although the circumstances were sometimes described as a "blockade" by the Applicants, the charges actually referred to the prevention of access to the sites.

It was alleged that the CFMEU breached the orders:

  • by preventing free access to the Emporium site, as large crowds of people, including several named officials of the CFMEU, gathered at the site. It was further alleged that despite police involvement, the crowds blocked or restricted access by persons to the site on each of four days and the CFMEU caused the crowds to gather for this purpose and/or directed the actions of the crowds after they had gathered; and
  • in relation to the McNab site, on two separate occasions on the morning of 5 September 2012 when two named officials of the CFMEU, together with other persons, blocked or restricted the passage of a semi-trailer that was attempting to make a delivery to the site.

Background: law

The elements of a civil contempt, being a contempt constituted by breach of a Court order, are that:

  • an order was made by the Court;
  • the terms of the order are clear, unambiguous and capable of compliance;
  • the order was served on the alleged contemnor or that service was excused in the circumstances or dispensed with pursuant to the rules of Court;
  • the alleged contemnor has knowledge of the terms of the order; and
  • the alleged contemnor has breached the terms of the order.

In this proceeding, the CFMEU did not dispute elements (a), (c) and (d). It accepted element (b) but only on the basis of adopting the plain and unambiguous sense of the orders. In relation to element (e), the CFMEU denied that the Applicants had proven beyond reasonable doubt any of the charges.

Background: the parties' arguments

The Applicants

The Applicants submitted that, on any analysis of the evidence, the access of Grocon employees to the Emporium site and access of semi-trailers to the McNab site "was anything but free"

The Applicants argued that:

  • at the Emporium site on each of the days in question, access was rendered 'impossible' by:
  1. the presence at the site of protestors in numbers that were sufficient to constitute a physical barrier that rendered access to the site impossible and potentially dangerous;
  2. the active resistance that those "protestors" offered in response to attempts that were made by Grocon employees to access the site (at least on 28 August 2012); and
  3. the continuation of the "physical blockade" that caused Grocon employees to be instructed for reasons of safety not to attend or attempt to enter the site on specified work days; while
  • at the McNab site, access was rendered impossible by the "blockaders" positioning themselves, on at least two occasions, in the path of a truck that was at the site to make deliveries of materials.

The Applicants argued that CFMEU officials had direct involvement, either by participating directly in the "blockades"or by organising for others to constitute them. The Applicants submitted that CFMEU "caused", "procured" or "incited" the obstruction at each of the sites in the following four ways:

  • the presence of officials of the CFMEU in and around the vicinity of the protests meant that the conduct of those who constituted the "blockades" was implicitly authorised by the CFMEU;
  • the appearance of official sanction was enhanced by the fact that CFMEU branded infrastructure that was deployed in the service of the "blockades".
  • the CFMEU's officials were openly supportive of the "protests", both by their conduct and by various speeches and publications; and
  • there was direct incitement on 28 August 2012 at the Emporium site by two CFMEU officials, who, speaking by loud hailer, called on workers to stand shoulder to shoulder and to stick around and to hold the line.

The CFMEU

The CFMEU argued that the orders were aimed at actual prevention, hindering and interference with free access "as pleaded, in a concrete situation (and at procuring, causing or inciting such prevention)". It submitted that neither the orders nor the charges should be read in a "draconian" way:

  • with respect to the Emporium site, the CFMEU argued that:
  • "free access"did not mean access without any encumbrance at all. According, the orders did not forbid mere presence and protest by the CFMEU, nor require it to secure a clear path to the site; and
  • the Applicants had not proved beyond reasonable doubt that free access to the Emporium site by persons engaged to work at the site on the relevant days was prevented, hindered or interfered with by the crowds, or that the people in the crowds were assembled by, or were under the control or direction of, the CFMEU; and
  • with respect to the McNab site, the evidence did not establish beyond reasonable doubt that access to the site by any semi-trailer was prevented, hindered or interfered with by the CFMEU.

Decision

Justice Cavanough found in favour of the Applicants.

He concluded that two fundamental issues were to be determined:

  • whether the persons in questions obstructed access to the building sites on the days in question; and
  • whether the CFMEU deliberately caused them to do so.

His Honour concluded that "I am satisfied beyond reasonable doubt that the answer in both cases is yes". He found that:

  • all the evidence pointed directly to the CFMEU as being, at least, the main organiser, if not the sole organiser, of the protests; and
  • the gatherings were intended by the CFMEU to cause, and did cause, obstruction to access to the sites and, as an intended result, disruptions at the sites.

However, although all of the 30 charges against the CFMEU were made out, Justice Cavanough concluded that there was a great deal of overlap between them. In view of this, it was sufficient to only record five findings of contempt, being one for each of the relevant days.

The parties agreed to defer the question of penalties to a further hearing.

Grocon & Ors v Construction, Forestry, Mining and Energy Union & Ors [2013] VSC 275 (24 May 2013)

Zsofia Guczi-Kidd