J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA) and Ors

(1992) 111 ALR 502

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(Decision by: French J)

Re: J-Corp Pty Ltd
And: Australian Builders Labourers Federated Union of Workers (WA), Building Trades Association of Workers and Transport Workers Union of Australia, Industrial Union of Workers (WA)

Court:

Judge:
French J

Subject References:
Trade Practices

Judgment date: 9 December 1992

Perth

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Decision by:
French J

Introduction

In July 1992 a building company called J-Corp Pty Ltd commenced work on the construction of a public housing development at Rivervale. The company has a policy of engaging sub-contractors to provide the necessary labour for such work. This policy has brought it into conflict with building unions. On Friday, 24 July 1992, an altercation at the Rivervale site resulted in the arrest of two organisers employed by the Australian Builders Labourers Federated Union of Workers - Western Australian Branch (the BLF).

Two persons associated with other building unions were also arrested. A de facto picket line manned by members of the BLF and other unions outside the entrance to the Rivervale site was organised on the same day without official union sanction. An official picket line was established from the following Monday 27 July 1992. A number of suppliers to J-Corp declined to enter the site while the picket was in place and allegations were made of threats of black bans or union reprisals directed at any who might enter. J-Corp commenced proceedings in this Court on 5 August 1992 alleging that the BLF and others had engaged in conduct constituting a secondary boycott contrary to s.45D of the Trade Practices Act 1974. The Building Trades Association of Workers, an association of unions, (BTA) was later joined as a respondent as was the Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (TWU). Leave to discontinue the action was given in respect of the TWU and the trial as against the other respondents proceeded on 9, 10, 11, 12, 13, 16 and 17 November 1992.

Genesis of the Troubles

2. J-Corp Pty Ltd is a company registered as a builder under the provisions of the Builders' Registration Act (WA). It has concentrated in the past on the construction of project homes but in recent years has become involved in larger scale residential construction work for the Western Australian State Government Housing Commission, also known as Homeswest. The company has a policy of engaging independent contractors to provide the materials and services required for the performance of its construction work. It does not directly employ people for such work. This policy has led to conflict between the company and unions involved in the building industry, particularly the BLF. The present proceedings also involve the BTA which is registered under the provisions of the Industrial Relations Act (WA) 1979. The members of the BTA are:

1.

The BLF

2.

The Construction Mining and Energy Workers Union of Australia, Western Australian Branch (CMEU)

3.

The Operative Painters and Decorators Union of Australia, Western Australian Branch, Union of Workers

4.

The Operative Plasterers and Plaster Workers Federation of Australia (Industrial Union of Workers) Western Australian Branch

5.

The Plumbers and Gasfitters Employees Union of Australia, Western Australian Branch, Industrial Union of Workers

The membership of the BTA is limited to the unions mentioned. It does not have natural persons as members. The BLF and the BTA have a common secretary in Kevin Reynolds. They also use the same office premises at 27 Moore Street, East Perth and have the same telephone and fax numbers. The BTA does not employ any staff of its own.

3. On 13 July 1992, J-Corp commenced work on the construction of a housing development for Homeswest on a site at the Corner of Minora Place and Great Eastern Highway, Rivervale. The contract was not executed until 10 August 1992. The agreed term for practical completion of the works was 36 weeks from possession of the site. The general conditions of contract provided a mechanism for the enforcement by Homeswest of payment of relevant award rates where applicable (cl.43).

4. James Lenen Fox is a person employed by the BLF as a temporary organiser. He has been so employed for about 2 years. By a letter dated 18 October 1991 and addressed "To Whom it May Concern", Kevin Reynolds certified that Mr Fox was a "duly accredited representative" of the BLF "for all purposes of the "Building Trades (Construction) Award 1987" made under the Industrial Relations Act 1979". Kim Young is employed by the union as a safety co-ordinator and has been so employed for three years. He also holds a certificate as a duly accredited representative of the BTA for the purpose of the Building Trades (Construction) Award 1987. Clause 40 of the Award provides that:

"40 - RIGHT OF ENTRY

The Secretary or any other duly accredited representative of the Union shall have the right to enter any place or any premises where employees are employed at any time during normal working hours or when overtime is being worked, for the purpose of interviewing employees, checking on wage rates, award breaches or safety conditions or regulations so long as they do not unduly interfere with the work being employed by any employee during working time, and provided that they present themselves, with their authority as prescribed by this Award, to a representative of site management prior to pursuing their Union duties on site.

A representative of the Union shall be a duly accredited representative if he/she is the holder for the time being of a certificate signed by the secretary of that organisation and bearing the seal of that organisation in the following form, or in a form not materially differing therefrom..."

A form is then specified in the Award. The certificates issued to Messrs. Fox and Young were in that form. The "union" is defined for the purposes of the Award in cl.1(1) as the BLF, the CMEU, the Operative Painters and Decorators Union, The Operative Plasterers and Plaster Workers Federation, The Plumbers and Gasfitters Employees Union and the BTA. Although not so expressed it is clear that the definition is intended to be disjunctive.

5. On 24 July 1992, Fox and Young went together to the Homeswest site at Rivervale. Fox said the purpose of his visit was to "check that the site and the work done there complied with the Building Trades (Construction) Award and occupational, health and safety requirements". Young said he went to "check on safety aspects at the site". Both entered the site. Young remained initially just inside and later just outside the gate. Fox began to inspect site amenities. Graham McEwan, J-Corp's construction manager, asked who he was and what he was doing. Fox told him he had come to inspect site facilities. He showed him his accreditation certificate which McEwan later mistakenly described as being on BTA letterhead. Neither Fox nor Young had asked permission to enter. It seems to have been their view that they had a right of entry under cl.40 of the Award which they were able to exercise without prior permission from J-Corp. McEwan formed the opinion that they were there to stir up trouble. His evidence in cross-examination encapsulates the conflict:

"Well the Union know very, very well that we're a non-union employer; that our people on site are all sub-contractors. And they've tried on several occasions to come on to our sites and we tell them the same thing: that they've got no jurisdiction on our site and they pack up and they leave."

Initially it seems Fox may have been permitted to undertake some inspection. Whether he did in fact do so or not is the subject of conflict between his evidence and that of McEwan. In any event it is immaterial. What is clear is that McEwan asked Fox to leave the site and had the gate to the site locked with Young on the outside. Photographs of Fox on the site and of Young outside the locked gate were in evidence. Fox repeatedly refused to leave, so McEwan called the Belmont Police Station for assistance. After he made the call Fox complained that he was being prevented from leaving. McEwan unlocked the gate for him, but Fox did not leave and Young tried to enter. McEwan then closed the gate until the police arrived.

6. In the meantime three or four other men arrived at the site in a motor vehicle. One of them was Graham Pallott who is employed by the BLF as a temporary organiser. Like Kim Young, he was also an accredited representative of the BTA for the purpose of exercising the right of inspection conferred by cl.40 of the Award. Pallott tried to show McEwan his certificate of authorisation from the BTA. There is a photograph in evidence of that event. Police arrived on site shortly afterwards and allowed Fox to leave. A little later more men, some of whom wore hard hats and t-shirts bearing the BLF insignia arrived at the site and began talking with Young and Pallott. A second police wagon arrived and the Sergeant of Police asked the men to leave. Young and Pallott asserted that they had rights of entry. There is conflicting evidence on precisely what happened next, but it is not necessary for the purposes of this case to make any finding in that regard. What is not in dispute is that, in an altercation that followed, four men including Fox and Pallott were arrested. The identity of the other two persons arrested does not emerge in the evidence, although Matthew Keogh, an industrial officer employed by the BLF said he thought they were Darren Smith from the Painters' Union and Mike Mitchell from the Plumbers' Union respectively. The arrests took place shortly before midday. By this time news of the events at the Rivervale site had spread and a number of men had arrived outside the gates. McEwan estimated that there were between ten and fifteen of them. I accept that there were probably about ten and that these included members of the BLF as well as Messrs. Fox, Young and Pallott. McEwan's estimate was consistent with affidavit evidence from Kevin Reynolds who attended at the site not long after the arrests had taken place.

7. Reynolds was informed of the arrests shortly after they took place. He was on annual leave at the time and preparing to go overseas. He had called into the BLF office at about 1pm on 24 July and was told by Mr Peter Arnold, the office manager, that two officials had been arrested. He drove straight to the Rivervale site and spoke to some of the men there, possibly including Kim Young. His principal concern was for the men who had been arrested. He was told that they had been taken to the East Perth Lockup. He told the men still present outside the site that he was going straight to the lockup to get the arrested men "out of the slot". It was put to Reynolds in cross-examination that he gave instructions to Kim Young at that time to stop any vehicle from going on the site and tell those present that a picket line was to be established. He denied giving any such instructions. In this respect I accept his evidence, which was not contradicted by any other nor, in my opinion, by subsequent events on that day.

8. Reynolds contacted Matthew Keogh and arranged to meet him at the East Perth Lockup. He arrived there at between 1.25 and 2 pm. Also present at the lockup was Alan Drake-Brockman, a member of a firm of solicitors acting for the BLF. The four men who had been arrested were released at about 4 pm. Whether they were released on bail does not appear from the evidence and is not material for present purposes. While at the lockup Reynolds discussed with Keogh the formation of a picket line outside the Rivervale site. Reynolds and Keogh said in evidence that their real concerns were J-Corp's refusal of the right of entry onto the site of accredited union representatives and the failure of Homeswest to ensure that union representatives could exercise that right. Reynolds was of the view that the dispute could be resolved over the weekend and discussed the establishment of a picket line only on the basis that no such resolution were achieved. Keogh explained in evidence that they were confident at the time that Homeswest would ensure the BLF's right of entry because a letter had previously been received from the relevant Minister of the Crown to that effect. The solicitor, Drake-Brockman, cautioned them that legal action could ensue and that they ought to be very careful. If there were to be a picket line nobody should be stopped or hindered from gaining access to the site. Reynolds said in evidence that he instructed Keogh accordingly. The picket line was to be established simply to protest and inform people about J-Corp's refusal of right of entry to union representatives. If there were to be a picket line then, he said, it was to be conducted lawfully and in accordance with advice from their lawyers with nobody to be stopped from crossing the line. Keogh said that he himself used the term "American style picket line" to describe what he had in mind. He maintained in any event that it was essential that there be people allowed onto the site who could be characterised as employees because he regarded their presence as a pre-condition of the right of entry under the Award.

9. Reynolds said he made it clear to Keogh that if there were to be a picket line set up on the Monday it would have to be well disciplined and that people were not to be "running riot". The main thrust of any protest was to embarrass Homeswest and the State Government. Reynolds and his colleagues were angry about what they regarded as a breach of an undertaking which had been given by Homeswest. Homeswest had, he said, told the BLF that whoever won the contract for the Rivervale project it would be in accordance with the Award in relation to the proper provision of amenities, workers compensation cover and "the recognition of employee's rights" and "the recognition of the union's right of entry". Reynolds did not specifically designate anyone to be in charge of any picket line that might be established but saw it as "basically Kim Young and Matt Keogh who had been involved in it". It was their area and they would therefore "sort of look after it". In his absence on leave, Keogh and Young would have day to day responsibility with Ron Kinney, the Vice President of the BLF, having "an overall responsibility". Reynolds accepted in cross-examination that Graham Pallott as the relevant area organiser would be responsible for organising and conducting the picket line with Kim Young. They were, he said, responsible for looking after the dispute. Reynolds' evidence in this regard was not effectively challenged in cross-examination and in my opinion was probably a true account of the substance of the discussion and instructions that passed between himself, Keogh, Young and Drake-Brockman at the East Perth Lockup on the afternoon of 24 July 1992. My findings in this respect however are to be read in the light of the significance of the use of the term "picket line" which is discussed later in these reasons.

The DBS Fencing Incident

10. In the meantime back at the Rivervale site several incidents occurred involving suppliers of materials to J-Corp. Peter Gregory, is a truck driver and machinist employed by a firm called DBS Fencing. On 24 July he was instructed by his employer to deliver a load of fencing materials to the site. He drove his truck with the load up to the entrance of the site just after lunchtime on that day. As he approached the entrance he saw a group of men standing near it. McEwan signalled him to go through and a security guard then opened the gate. According to Gregory's affidavit evidence, as the gate was opened, four men who had been standing near the entrance blocked his way. Two of them approached the cab of his vehicle and stood beside it. One of them, he said, introduced himself as Graham Pallott and identified himself as a BLF official. This could not have been the case as Pallott had by this time been arrested and taken to the East Perth Lockup. In cross-examination it appeared that Gregory had no basis for the identification beyond the fact that he heard someone mention the name Graham. His evidence in this respect was confused. When shown a photograph of Pallott being arrested by a police officer (GAM 6) he recognised him but said he had not seen him when he came on to the site. From another photograph (GAM 3) he identified Kim Young. He thought Young was in the group that spoke to him but could not remember what he did or said. So far as his affidavit relates to the presence of Pallott, it was evidently sworn without close consideration of its content. That being so, the rest of his evidence must, I think, be viewed with caution. He went on to say in the affidavit that "Pallott" had told him that if he were to cross the picket line he would be black banned from all union sites in future. In cross-examination he said he heard the words "black bans" but accepted that it might have been someone other than the person standing by the cab who said them.

11. McEwan and a foreman from J-Corp began trying to unload his vehicle and managed to remove a gate and some mesh. Gregory heard somebody say that there was a picket line, an opinion which he had already formed. He also said in cross-examination that he heard somebody say that DBS Fencing did a lot of union work and that it was in his best interests to leave. He told McEwan to stop unloading and then reversed his truck and left. Young agreed that he had spoken to Gregory and told him of the earlier arrests. Gregory told Young he did not wish to be involved. Young denied making any threat to Gregory that if he crossed the line he would be stopped on all union sites. Nor, he said, did he threaten any reprisals against him. Young spoke to a number of drivers arriving at the site that day. He did so, he said, spontaneously and without any actual authority from Reynolds to do so. He had not been authorised to set up any picket line or to prevent or hinder any vehicle from delivering supplies to the site. On that issue, and having regard to Reynolds' evidence to which I referred earlier, I am satisfied that no picket line had been authorised by Reynolds on 24 July nor had he authorised any conduct by way of hindering or preventing supply of materials or services to the site. Another witness to the incident involving the DBS Fencing truck was Michael Perich, who described himself as a self-employed scaffolder. He saw Young go up to the DBS Fencing truck and speak a few words to the driver. He did not hear what was said. There is no reference in his evidence to any deliberate obstruction of the progress of the truck by the men at the entrance to the site.

12. McEwan's evidence of the incident was that he had seen the DBS Fencing truck arrive carrying fencing materials. In his affidavit he said that men standing around outside the gate stood across the access road to the site and that the truck stopped in front of them. He saw several of the men go up and talk to the driver. McEwan indicated in cross-examination that the gate to the site was not open at the time but was being opened when Gregory stopped his truck. He said that as the truck came in, the men standing outside "moved over towards the access of the truck... and the truck slowed down and they came over and spoke to (Gregory)". McEwan went to the truck himself and the others left as he did. He told Gregory he could come through but Gregory told him he did not want to get involved in a dispute with the union. He then left with the fencing material. McEwan went back to his office and rang Geoffrey Skinner the proprietor of DBS Fencing. An arrangement was made that men from J-Corp would go to the carpark of the Sandringham Hotel where Gregory had parked his truck and from where he had called Skinner by two-way radio and could take delivery of fencing material there. Perich and another person from J-Corp went to the hotel for that purpose. Skinner confirmed receiving Gregory's call and making the arrangement with McEwan for collection of the materials.

13. I am satisfied on the evidence that Gregory arrived at the site early in the afternoon of 24 July. He saw the men near the gate and stopped his truck. In all probability he had to do so because the gate was not open. And in all probability he saw the men near the gate and concluded that there was some kind of picket. Having regard to the reserve with which I treat his evidence and having regard to McEwan's evidence in cross-examination about the movements of the men towards the truck as he approached the site entrance, I am not satisfied that anybody actually obstructed his approach to the site. Nor am I satisfied that Kim Young made any threat that he would be black banned in future. It may be that some person made that comment, but there is no satisfactory evidence that it was Young or any other officer of the BLF. In my opinion Gregory, fearful of the consequences if he were to cross what he considered to be a picket line, retreated to the carpark of the Sandringham Hotel and contacted his employer following which an arrangement was made for Perich and another to collect the material from the carpark.

The Giffard Warning

14. Another related incident involving DBS Fencing occurred on the same day. Robert Manwaring, an organiser for the Plasterers Union and a trustee of the BTA (although he was unaware of the latter fact until told recently by his solicitors) arrived at the site just before the DBS Fencing truck. He observed that after the union members had spoken to the driver a "J-Corp person" came out and with the assistance of some others removed gear from the truck. He saw the truck then leave and a few minutes later saw a J-Corp vehicle leave the site also. The Plasterers Union has the same office as the BLF and shares the use of a two-way radio communication system. Manwaring used the two-way radio to contact Graham Giffard, an industrial officer employed by the BLF. Giffard had held that post for just over 4 months. It is common ground between Manwaring and Giffard that Manwaring told Giffard that there was a dispute at the Rivervale site and that Giffard should ring DBS Fencing and tell them not to send any further supplies for the time being.

According to Manwaring he told Giffard that he should tell DBS to hold off in order to avoid the position becoming inflamed. He claimed that he could distinctly remember telling Giffard that DBS Fencing was not banned from coming on to the site. Giffard made no reference to that qualification in his evidence. He rang Skinner at DBS Fencing and, he said, told him that he was ringing from the BLF, that two of their organisers had been arrested trying to get access to the J-Corp site in exercise of their right of entry and that "we", meaning the BLF, did not want DBS Fencing delivering any gear until the matter was settled. Skinner told him that J-Corp were collecting the materials from the DBS Fencing truck and asked Giffard whether he was saying that DBS Fencing could not sell material to J-Corp. Giffard replied that he was not saying that. Skinner asked what he was saying and Giffard said he would ring back. Giffard then recontacted Manwaring and told him that J-Corp were going to pick up the DBS Fencing gear. Manwaring said he thought that would be unwise. Giffard again called Skinner and told him that he thought it would be unwise for J-Corp to collect the DBS Fencing materials. Giffard was called as a witness under subpoena by the applicant and his evidence was not challenged in cross-examination. It was apparent from his testimony and cross-examination however, that he had been told since 24 July by Keogh and others in the union that if the union were to take any industrial action it was to be "at the say so of Kevin Reynolds". Skinner said in his affidavit that he had been told by Giffard that the BLF had instituted a ban on the Rivervale site and that DBS Fencing was not to go on to it. He also said that he told Giffard that DBS Fencing was already off the site and would not go back while a ban was in place. He was not challenged in cross-examination on the affidavit. In my opinion it is likely that the conversation went along the lines indicated by Giffard. His inexperience in the job led him to act in response to Manwaring's request without first consulting Reynolds. What he did in his approach to Skinner was not authorised by any appropriate officer of the BLF. Manwaring's suggestion that he referred to a need to avoid inflaming the situation and that he specifically eschewed any suggestion of a ban in what he said to Giffard strikes me, on the other hand, as unlikely. I consider that his action was designed to prevent J-Corp from obtaining fencing materials from DBS Fencing where the DBS Fencing driver had not been prepared to deliver them on to the site himself. Manwaring was not, however, acting on behalf of anybody but himself. There is no evidence to suggest that he was or had any authority to act on behalf of either the BLF or the BTA.

The Stateside Hire Incident

15. A separate incident on 24 July involved the delivery on to the site of chemical toilets by a firm called Stateside Hire. That firm hires out scaffolding and chemical toilets in the building industry. McEwan explained in his evidence that an order for four chemical toilets had been placed with Stateside Hire that day. He had asked his staff to organise the toilets on the previous Wednesday or Thursday. Stateside initially told J-Corp that they could not be delivered until the following Monday as they were booked out in connection with the Avon Descent which was being conducted on the Avon River that weekend. When the union representatives came on site on Friday, however, J-Corp asked for the toilets to be supplied urgently that day. One of Stateside Hire's employees, John McWilliam a yardman/truckdriver, drove a four wheel drive utility and trailer with three toilets to the site sometime in the afternoon. When he arrived at the site he stopped his utility and trailer on the road in Minora Place. He saw a lot of people standing near the gate to the site. As he stopped a number of men came running up to him. He said he thought there were 15 to 20 of them, but I think that is probably an exaggeration. They said they were from J-Corp and wanted to unload the toilets on the spot. They started to do so. Then three more men came up and identified themselves as being from the BLF. A member of either the J-Corp or the BLF group told him that there was a picket line. One of the BLF people told him not to allow any more toilets to be unloaded because Stateside Hire could be black banned. McWilliam described this person as having red hair and, he thought, a beard. When he knew there was a picket line at the site which was before he was threatened with a black ban, he had come to the conclusion that he would not be able to cross it. He said "they're too much trouble". McWilliam contacted Ray Livesey, the Operations Manager for Stateside Hire by two-way radio. He told Livesey what had happened and was instructed not to unload any more of the toilets. He then tried to prevent J-Corp personnel from unloading the second toilet. Two or three of them tried to push it off the trailer and he pushed against it. However, he could not stop them and had to jump off the trailer. The second toilet was unloaded despite his efforts to prevent it. Somebody from the BLF Group, not the person who had originally spoken to him, told him then not to worry that he was "in the clear". McWilliam got back to Livesey on the two-way radio and was told to rope the third toilet on to the trailer and leave the site. About 15 minutes after McWilliam had arrived at the site another Stateside Hire vehicle driven by Danny Payne arrived. It was a toilet truck used for pumping out the chemical toilets. McWilliam tried to get Payne not to enter the site but he drove straight in. There was no attempt by the BLF men to stop the vehicle and no reaction to its entry. Payne left his truck behind the gate and walked out to where McWilliam was and spoke over the two-way radio on his utility. Payne wanted to get the last toilet unloaded from the trailer. McWilliam told him that Livesey had said that they should leave the site with the remaining toilet. McWilliam was a credible, honest witness, not shaken in cross-examination and I accept his evidence.

16. Robert Domenic Papaluca, a Site Supervisor employed by J-Corp, swore an affidavit in which he said that he saw Kim Young speak to the driver of the Stateside Hire truck and tell him that an official picket line had been set up and that he was not allowed to cross. Young, he said, had told the driver that if he went through the picket line it would call Stateside Hire problems on other sites. According to Papaluca Young spoke to McWilliam's boss on the two-way radio and repeated what he had said to the driver. In an earlier affidavit sworn on 23 September 1992 Papaluca had said that Young and Fox spoke to the driver. He explained in cross-examination that he had wrongly believed the person with Young to be Fox and realised his error when he learned that Fox was then in custody. He did not know Young prior to 24 July but had known his name from a BLF magazine and from other people who recognised and knew who he was. He said Young had been pointed out to him in the two week period of the dispute as "the guy there with the orange beard and orange hair". I was not greatly impressed by Papaluca's evidence. He had sworn an affidavit prepared for him which contained wrong information. I think there is a risk that his recollection may have been affected by a process of reconstruction of events through discussions with others in the course of preparation for this litigation. His evidence therefore must be treated with some caution. Perich also gave affidavit evidence that he saw Kim Young speak to the driver of the Stateside Hire truck and heard him say that he wanted to speak to the driver's boss. He said that he saw Young take the microphone on the two-way radio and heard him say that if Stateside Hire crossed the picket line it would have no other work on union sites in Perth. In cross-examination he said he was about 5 feet away from Young at the time "directly in front of the truck leaning on the bonnet". He also recalled seeing McWilliam speak on the two-way.

17. Young's account of these events in his affidavit was that he had been conducted an inspection of the site with inspectors from the Department of Occupational Safety Health and Welfare. Also present was Peter Madden from Homeswest and McEwan. As he was leaving the site he saw a bobcat bringing in the first toilet from the Stateside Hire trailer. There were still two toilets on the trailer at that stage. He saw a group of people around the four wheel drive vehicle and the trailer. He was told by a BLF member that "people had spoken to the Stateside Hire driver who had decided not to go on site. He said he was told by this person that J-Corp people had brought the bobcat to the trailer and started unloading the toilets and that Perich and another had pushed the driver away from his vehicle. According to Young, the driver of the Stateside Hire vehicle appeared concerned and he told him not to worry. He also recalled Payne speaking on McWilliam's two-way radio and telling him (Young) that the supervisor from Stateside Hire wanted to speak with him. Young told "the supervisor" that there was a dispute on site and that McWilliam had been threatened with physical violence by J-Corp people but that he did not wish to enter. He denied saying at any time that if Stateside Hire entered the site it would have no other work on union sites in Perth. Young said he did not make any threat of any reprisals against Stateside Hire. Young was asked in cross-examination whether he had mentioned a picket line to McWilliam. He said that he could not remember doing so but accepted that it was possible that he had made such a reference.

18. Livesey gave evidence that he was alerted by somebody at the Stateside Hire offices to a problem at the Rivervale site at around 1.30-2pm on the Friday. He called McWilliam on the two-way radio and was told that a picket line had been set up and that McWilliam wanted to know what to do. Livesey told McWilliam he would contact the builder. He rang the site and spoke to someone from J-Corp and told that person that Stateside Hire would not be crossing any picket line.

19. I am satisfied on the evidence that McWilliam arrived at the site on the afternoon of 24 July and stopped on the external road. He was told by somebody that there was a picket line. The evidence does not allow me to conclude whether the person telling him was associated with J-Corp or the BLF or some other union. He was also told by somebody from the BLF or another union that Stateside Hire would be black banned if he crossed the picket line. I am satisfied that the person was not Kim Young. It was Kim Young who told McWilliam after the second toilet was unloaded not to worry and that he was in the clear. That was not the same person who had first spoken to him. Two toilets were unloaded and McWilliam left the site. Kim Young did speak to somebody at Stateside Hire who had been having a conversation with Payne, the second Stateside driver. The evidence does not support a finding that that person was Livesey because Livesey said nothing about any such conversation. Nor did he say anything about being threatened over the two-way radio with a black ban. No other person was called by Stateside Hire to give evidence of any black ban threat over the radio. Having observed Young in the witness box, I am not satisfied that he would readily answer the description of a person with red hair. The evidence suggests that there was at least one other person in the area who would answer that description. Young's own description of his hair as "mousey brown" seems reasonable. I am not prepared to draw any inference from the evidence of Perich and Papaluca that Young made any threat to McWilliam or over the two-way radio to Livesey or to any other officer of Stateside Hire. I am satisfied that McWilliam was influenced not to enter the site by the presence of the men outside the gate, the advice that this was a picket line and the threat of a black ban from some person. I am satisfied also that the second driver, Payne, entered the site without obstruction or recrimination.

The Water Authority Incident

20. Late on the afternoon of 24 July a truck arrived from the Metropolitan Water Authority to connect temporary water to the site. There were two men including the driver in the truck. They parked the truck in the street. McEwan saw Kim Young speak to the driver. He did not hear what was said. He went to the driver himself and spoke to him. He asked if he was going to connect the temporary water supply. The driver said "No. There is a ban on this site and I have been told not to connect water". The vehicle then left. McEwan contacted Ted Evans, the officer in charge of the Water Maintenance Section at the Water Authority and arranged for the water supply to be connected on the weekend which was done. McEwan was not challenged on this evidence in cross-examination. The evidence of his conversation with the driver was admitted over objection. It was, however, admitted on the basis that it was not proof of what Young had told the driver. It only went to the driver's state of mind at the time of his conversation with McEwan. Young gave no evidence-in-chief on the matter but when it was put to him in cross-examination denied that he had said anything about a ban to the Water Authority driver (652).

21. The state of the evidence on this matter is such that I can find only that a Water Authority truck arrived, that Young spoke to the driver and that the driver subsequently refused to go on to the site. In the absence of any direct evidence from the driver or his passenger or from anyone else as to the content of the conversation with Young, I am not satisfied that the refusal to connect the supply was the result of any directive or request from Young. It could be the case, for example, that Young had told the driver of what had happened at the site earlier and that the driver refused to enter the site out of fear of the consequences of crossing a picket line or out of sympathy for the union cause. But that is speculation and no finding can be made. Security Arrangements

22. Because of Walter's concern about security, J-Corp arranged, on the afternoon of 24 July, for flood lighting to be erected on site and for the employment of security guards 24 hours a day. The daily cost of the security guards was about $660 and the cost of flood lighting $160 per day. There was no action at the site on the weekend of 25 and 26 July. The security men were evidently from a firm called International Security. They were described by some BLF witnesses as "kick boxers". Their presence, origins and function were not explored in the evidence. Their presence was evidently a source of some resentment on the part of the BLF people.

BLF Organisers Meet - 27 July 1992

23. On the morning of Monday, 27 July, Keogh, Young, Pallott and Fox and others not identified in evidence, discussed setting up a picket line at the site. Their objective, according to Keogh, was to protest and embarrass Homeswest. Keogh said that he told the others that Reynolds' instructions were that they were not to prevent people from entering the Rivervale site and there were not to be any problems at the site. In fact he wanted employees of J-Corp or its contractors on site as a foundation for the claim that the BLF representatives had a right of entry under the award. He said that he repeated his warning to Young, Fox and Pallott on the Monday afternoon and continued to stress it on other occasions during the week. The evidence of the discussion on 27 July was not the subject of any direct challenge and I am satisfied that the substance of the conversation was as given on affidavit by Keogh and in the similar affidavit evidence of Young, Pallott and Fox.

24. Keogh said it was no part of his objective in relation to the establishment of a picket line to embarrass J-Corp or put any economic pressure on it. His previous dealings with the company had led him to the belief that it could not be embarrassed. Economic pressure would not work because of the company's wide contacts in the building industry. He explained that comment by saying that J-Corp has a large share of the housing market. He had explained to Reynolds that if the BLF tried to stop supplies the company's contacts in the industry would enable it to attract the services of people who were not union members. As to the line of authority in relation to the picket that was established on the Monday, I am satisfied that Keogh took a general supervisory role reminding the participants during the week that they were not to stop anyone from entering the site. He pointed out repeatedly that he wanted employees on the site. Although lines of authority at the picket were not clearly defined, it is plain that each of Fox, Pallott and Young took responsibility for communicating the concerns of those involved in the picket to suppliers approaching the site.

The Establishment of the Picket

25. On the morning of Monday, 27 July between 7 am and 8 am several of the vehicles that had brought union protesters on the Friday arrived at the site. Among those who came were Fox and Pallott. Fox said in his affidavit evidence that he did not arrive until after 8 am. Pallott's testimony was to like effect.

26. According to McEwan one of the men at the site on the Monday morning put up a sign with the words "Official Picket Line" on it. Neither Fox nor Pallott could recall seeing any such sign put up at that stage. There was no photographic evidence of any sign bearing those words. In one of his affidavits, Walter said that on the Monday he saw various signs including one bearing the words "Combined Building Unions Picket" and another with the words "BTA/TLC Picket Line". There were photographs of these signs exhibited to his affidavit. In another affidavit he said that on 30 July 1992 a large sign in white writing on a 1.2 metre by 1.5 metre plyboard was erected bearing the words "BTA/TLC Official Picket Line". There was no satisfactory evidence supporting the existence of the latter sign and it appears that Walter may have been confused on this aspect between different signs. There was evidence from McEwan of a large composite sign which was erected on a tree outside the site on the Monday morning. It bore copies of two printed notices, the letters "BLF" and the BLF insignia. There was no reference to the BTA on the sign although one of the printed notices on it referred to a number of individual unions which comprise the membership of the BTA.

27. In the event, the conflict and inconsistencies in the evidence as to the dates and precise content of these signs is of little moment. What is clear is that from 27 July 1992 the BLF by its secretary Reynolds, had authorised the establishment of an assembly of its members outside the entrance to the Rivervale site which was designated and accepted by those involved as a picket line. It was intended by those concerned with its organisation including Keogh, Fox, Young and Pallott, that it would be seen and accepted as a picket line by suppliers for J-Corp approaching the site. When and precisely where signs announcing the existence of the picket were erected is, in my opinion, of little moment. That they were erected in the week commencing 27 July is beyond doubt. If a finding be necessary, it is probable, I think, that some form of sign announcing the existence of the picket was erected on 27 July which was the first day of its official union sanctioned existence. On the evidence, I am satisfied that only one of the signs erected bore any reference to the BTA and that was the sign that read "BTA/TLC Picket Line". I am not satisfied that it was authorised by any official of the BTA.

28. It is now necessary to turn to evidence of events involving suppliers to the site on Monday and the following days.

Aaron Lee Pest Control - 27 July 1992

29. On the afternoon of Friday, 24 July, McEwan telephoned Glenn Philcox at Aaron Lee Pest Control in relation to white ant treatment to be carried out on the site on the following Monday. He asked that the Aaron Lee driver arrive early on the Monday morning so that he would leave the site by 6.30 am before any men arrived on the picket line. According to his evidence, no-one from Aaron Lee arrived until 7.30 am on the Monday by which time the picket line had been established. McEwan saw a number of men from the picket approach the vehicle. He was annoyed that it had not arrived early enough to avoid the picket. He went up to the driver, told him he was too late and told him to "piss off". The driver, Alvan Jacques, who is a pest control technician and also a financial member of the BLF, said he had come to the site with another technician, Brian Jose, to spray and treat two or three sand pads. He was late because of a vehicle breakdown. When he parked his vehicle on the side of the road near the entrance to the site he was approached by two men who told him that a BLF picket line was in place. He saw a blue and white flag flying. He could see about six men outside the entrance dressed in blue t-shirts and sweat shirts some of which bore the BLF's insignia. The men who approached his vehicle said they were BLF representatives and asked who he was and who he worked for. He explained the nature of his task and showed them his union ticket. There is no evidence that he was asked not to enter the site. His attitude was that as a member of the BLF he could not cross a picket line set up by the BLF or any other union. He was also aware that Aaron Lee does a lot of work on union sites. If he were to cross the picket line he considered that he would be labelled a scab and black banned from working on any other union sites. This could be damaging to Aaron Lee's business. He recalled being approached by McEwan who told him that Aaron Lee were always late and that he should leave the site. Jacques' evidence was not challenged and I accept it in its entirety.

Advance Formwork - 27 July 1992

30. On the morning of 27 July 1992, Angelo Ricci, a formworker employed by Advance Formwork, was instructed by his employer to deliver formwork material to the Rivervale site. Ricci is a member of the BLF. He arrived at the site. As he pulled across a kerb his load shifted so he stopped his vehicle some distance from the entrance. He was approached by a man who asked if he were in a union and if he realised that the site was picketed. He said he did not. The man was wearing a BLF sweatshirt and said to him "you are not going to cross the picket line are you?". According to Ricci he said "no". His affidavit evidence was that as a member of the BLF he knew he could not cross the line and knew what the consequences would be if he did. Advance Formwork does a lot of work on other sites. It had two other "union jobs" going on at that time. He believed that the BLF would make working very difficult in the future and would give Advance Formwork "lots of hassles" if he crossed the line. If he had crossed the line, he said, he might as well have torn up his union ticket. It would have been difficult for him to get work in the future "because of the power the BLF have in the work place". Shortly after the initial conversation six or seven men wearing blue BLF t-shirts and jumpers came towards his vehicle. Some men from inside the site also approached. The two groups exchanged comments and Ricci felt the atmosphere was "getting a bit nasty". One of the men from inside the site asked him to drive through the picket and said they would look after him. One of them offered to drive the truck through. Ricci then called David Watt the Managing Director of Abacca Pty Ltd, which trades as Advance Formwork, on a mobile phone. He told him what had happened. Watt asked to speak to McEwan. McEwan took the phone and it was agreed that Ricci would take his load to the Sandringham Hotel where people from J-Corp could unload. That is what subsequently occurred. Ricci was not cross-examined on his affidavit.

31. McEwan's affidavit evidence of this incident was that Ricci's truck arrived at about 9am carrying formwork, ply-sheeting and acro props. Jim Fox went up to Ricci and started talking to him. McEwan produced a photograph which, he said, showed Fox talking on a mobile phone shortly after having spoken to Ricci. McEwan spoke to Ricci who declined to drive on to the site because of the picket. The arrangement to go to the Sandringham Hotel was then made. Advance Formwork did not supply any further material on site. There was no challenge to McEwan in cross-examination in relation to the identity of Fox as the person who spoke to Ricci. The suggestion was put to McEwan that Advance Formwork had subsequently delivered materials to the site in an unmarked vehicle, but he denied this and I accept his denial.

32. David Watt said that his company had contracted to do all the suspended slab and columns and other formwork for J-Corp and had been on site for about 8 days prior to 27 July. He confirmed receiving a call from Ricci and told him that if the BLF would not allow the truck to go on to the site then he should not go through. He was very concerned about the situation because of the impact upon his business if he were prevented from performing work on other sites. On 31 July 1992 he agreed with Walter after some discussion, that his company would be released from the contract with J-Corp. His evidence was unchallenged in cross-examination although he was asked and did agree that his company had carried out a small amount of column work on the site in the week commencing 27 July.

33. In his affidavit evidence, Fox said he had spoken to someone on the Advance Formwork truck, but had never threatened him with any bans or reprisals if the truck were to go on site. He also claimed that formwork was subsequently taken to the site on a regular basis by J-Corp trucks.

34. I am satisfied from the evidence that upon the Advance Formwork truck arriving at site on 27 July, the driver Ricci was approached by Fox who put the question - "You are not going to cross the picket line are you?" Ricci regarded this as a direction not to cross the line and acceded to it. Knowing it was a picket line he would not have crossed it in any event. Subsequently, and because of the existence of the picket line Advance Formwork declined to deliver further materials to site and negotiated a release from its contractual obligations to J-Corp.

Jiffy Foods - 27 July 1992

35. Susan McGuire is a van driver and retail sales person employed by Jiffy Foods to supply sandwiches, rolls, confectionary other foods and drinks and hot pies to workers on building sites and other locations. She had been to the Rivervale site on Friday and one of two or three men told her that he was from the BLF and that they were going to do something about the Rivervale site. However she was not prevented from entering the site that day. On Monday, 27 July at about 9.15 am she went back to Rivervale on one of her regular deliveries. The same man came up to her as had spoken to her on the Friday. He told her there was a BLF picket line in place. She nevertheless drove into the site and did her job. As she left she was stopped by the BLF man and told that she would be black banned from all building sites in the future. She said "see you later" to which he answered "no you won't".

36. Cross-examined on what was said to her on the Monday, Ms McGuire said it was "all just a blur" to her. She said that the man who spoke to her didn't use the expression "picket line". She was however firm in her evidence, which I accept, that she was asked not to enter the site. She remembered clearly being told as she left that Jiffy Foods was black banned. The experience left her shaking as she drove away. She was a credible witness telling the truth to the best of her recollection and I accept her account of what occurred. Subsequently, Rob Connell for Jiffy Foods rang McEwan to say they would not be crossing the picket line.

Gericevich Earthmoving - 28 July 1992

37. On the morning of 28 July 1992, two vehicles arrived at the site together. One was a truck from J.J. Calautti Earthmovers carrying limestone. The other was a Gericevich Earthmoving frontend loader. Three employees of Gericevich Earthmoving arrived with the frontend loader. J.J. Calautti was contracted to Gericevich Earthmoving to deliver limestone for earthworks on the site. They were Gregory Clarke, who is a labourer and compactor operator, the frontend loader operator, Jonce Taseski, and a labourer called George who had only just started work with Gericevich. Clarke was driving a green and white Gericevich Earthmoving truck which he parked behind the loader a couple of hundred yards from the gate opening to the site.

38. In his affidavit evidence, Clarke said that he recalled seeing signs to the effect that there was a picket line in existence. At that time he was a member of the BLF, although that is no longer the case. He recognised four or five members of the BLF on the picket line. According to his affidavit evidence he recognised Kim Young and Jim Fox. He exhibited to his affidavit photocopies of their photographs. This evidence was untrue so far as it related to Jim Fox. Clarke admitted in cross-examination that he did not know Jim Fox. Given that his affidavit exhibited a photograph of Fox, this was a disturbing admission which did not reflect well upon his evidence generally. The evidence was also untrue in so far as it suggested that he recognised four or five men on the line. What he meant to say, as he accepted in cross-examination, was that he saw four or five men on the line of whom he knew only two, Kim Young and a man called Graham. He went on his affidavit to say that after the vehicle stopped he saw Taseski talking to the men on the picket line. Taseski then got out of his frontend loader and walked up to the cab of Clarke's truck. Clarke walked across to the picket with Taseski and heard him ask men on the picket line what would happen if he went on to the Rivervale site. According to Clarke's affidavit, Pallott said "don't go in, you won't work on any other union site if you do so". In cross-examination however, Clarke said he did not know the man Graham's surname. Nor did he actually hear what that man said to Taseski. Clarke and Taseski then discussed the matter and agreed not to go on to the site. Shortly afterwards, he said, Gericevich arrived and eventually advised them to return to the Gericevich Earthmoving premises in Osborne Park. In his affidavit Clarke said he thought that this incident occurred on Friday, 24 July but it is clear that he was mistaken.

39. Having regard to a number of his answers in cross-examination, I am unable to place any reliance on any part of Clarke's evidence that was not corroborated. His readiness to swear that he knew Fox and to refer to a photograph of him exhibited to his affidavit and to swear that Pallott said something when he did not hear what was said and did not know the surname of the man concerned, indicate either a reckless disregard for his obligations as a witness or a failure to fully appreciate them.

40. Robert Gericevich, the proprietor of Gericevich Earthmoving, received a telephone call from his sister on the car phone and was told that there was a problem at the Rivervale site. On the way to the site he telephoned a man called Joe Gallagher at the CMEU who told him he was not allowed on the site and might not be allowed on other sites if he were to go there. On his arrival at Rivervale, Gericevich went up to Pallott and asked him what was going on. Pallott, he said, told him that his firm was not allowed on the site. Gericevich asked why not and Pallott simply repeated the statement. Someone called Jim or Kim was present when Pallott said this. Gericevich appears to have been referring to Kim Young. McEwan and Walter were also present at this conversation. When he repeated what he had been told by Gallagher, Kim Young said he had not said that. Gericevich repeated on a number of occasions that Pallott had told him he could not go on site. Furthermore, he said Pallott had said this in the presence of McEwan and Walter. McEwan was holding a tape recorder and at one point in the conversation, according to Gericevich, Pallott said he would be prepared to talk to him but not while the tape recorder was going. It appears from a video tape of the incident which was taken by one of the J-Corp security personnel, that it was in fact Kim Young who said that. The video did not pick up any statement by Pallott to the effect that Gericevich could not come on to the site. The sound quality, it must be said, was poor.

41. McEwan's evidence on affidavit about this incident was that he saw Kim Young speak to the Calautti truck driver and Pallott speak to Taseski. In discussion that ensued Walter asked whether the truck and frontend loader could go on to site. Kim Young, he said, evaded the question initially but ended up saying that they could not stop the truck going through. Gericevich showed surprise and said he would be black banned from other construction sites if he tried to do so. He recalled Young saying that he would have a chat with Gericevich but not while he was being taped. Gericevich, Young and Pallott went off for a discussion. Gericevich said on his return that he was not allowed through but could dump the limestone outside the site. The limestone on the Calautti truck was dumped and a bobcat used to move it inside. The frontend loader was driven away and another one from Gobetti Engineering brought on to the site later that evening. There was no real challenge to McEwan's evidence.

42. Walter said that he saw McEwan holding a tape recorder and that a video film was being taken of these events. He approached Gericevich, Young and Pallott. He asked Young and Pallott if they were stopping the truck and they said words to the effect of "no we can't stop it". They smiled as they spoke. He heard Gericevich make the comment about what Gallagher had said and in cross-examination agreed that Young responded "I didn't say that".

43. According to Young he spoke to the Calautti driver and told him that there was a picket line and that it was over the right of entry to the site. He did not ask him not to go in. The driver said he would not be going on site. Young also confirmed that he had denied to Gericevich saying what had been quoted by Gallagher of the CMEU. In the course of private conversation with Gericevich, the latter told Young that the loader driver did not want to enter the site. The Calautti truck driver was a sub-contractor who would lose money if he did not dump his load. Young suggested that it be dumped at the side of the road. He denied threatening Gericevich with any bans if his vehicles crossed the line. Pallott also denied saying to Gericevich that he could not go through the picket line. He did not speak to the driver of the frontend loader who had stopped of his own accord. He confirmed Young's evidence of what he had said to Gericevich. The next day, 29 July, Gericevich asked Pallott if there were any problem with someone from his firm supervising on the site. Pallott said there was no problem and a supervisor subsequently went on site.

44. Young agreed in cross-examination that he had heard Walter say that all Gericevich wanted to know was whether he could enter the site and agreed that he did not answer. He did not answer directly because Walter had just recently instructed McEwan to have four union officials arrested. He was not in the mood to talk to him. Walter did not employ anyone from Gericevich Earthmoving. Gericevich was the principal of that firm which is why he wanted to talk to him. He was also being filmed at the time by one of the security personnel engaged by J-Corp and McEwan was holding a tape recorder. Pallott was asked in cross-examination why he couldn't simply have told Gericevich that he could go through. He did not respond because he felt that he was being set up by Walter.

45. On all the evidence relating to this incident I am not satisfied that Gericevich was told by Pallott that he could not cross into the site. Neither McEwan, Walter nor Young, all of whom were present at the relevant time, according to Gericevich, said that such a statement had been made. McEwan's evidence was to the contrary, namely that Young and Pallott said they could not stop Gericevich from entering. I have no doubt that it was a matter of some satisfaction to them that Gericevich would not enter the site without their express clearance. In my opinion, the most likely explanation of his attitude is the advice from Joe Gallagher of the CMEU, his observation of the existence of the picket and his concern and uncertainty about the consequences if he were to cross it.

Foxline Courier - 28 July 1992

46. In an incident recorded on video tape on 28 July 1992 and the subject of short evidence in McEwan's affidavit, Fox spoke to the driver of a Foxline Courier truck carrying electrical pits. McEwan tried to persuade the driver to go through the picket line but he refused to do so. J-Corp had to make arrangements to meet him in Abernethy Road to pick up the pits themselves. The driver told McEwan he would not cross the picket line because he could be banned by the BLF from other sites. Neither Fox nor the driver was called to give evidence and what passed between them is not known. To try to draw a positive inference of the content of their conversation would be to engage in speculation.

Maddington Concrete - 28 July 1992

47. Stephen Owen, a truck driver employed by Maddington Concrete, gave oral evidence that he had driven to the site sometime late during the week to deliver concrete tanks for drains and sewerage. A group of men came up to him and said there was a union picket line in place and that he should turn around and go away. He did not recognise any of them. They did not say what union was involved. Owen said in cross-examination that the day he gave his evidence was "more or less" the first time he had been asked to say what happened. He didn't take much notice of the incident at the time:

"It happens all the time actually; just about every week or at least once a month."

A similar thing had happened to him about a month before the hearing. That was at a site in Whitfords. His evidence left something to be desired in terms of reliability but he was firm on the fact that he had been told to turn around and go away and I accept that he was.

48. McEwan thought this incident occurred on 28 or 29 July 1992. He remembered the driver stopping his truck outside the gate and having a discussion with the men on the picket line. After that, he told McEwan that because of the picket line and his discussions with the men on it he would not be crossing the line to deliver materials to site. I accept McEwan's evidence on this point.

Action Couriers - 28 July 1992

49. McEwan's affidavit referred to another incident shown on the video tape in which Pallott is said to have stopped an Action Courier truck and spoken to the driver. McEwan said he persuaded the driver to go through after a long discussion, but the driver said he would not be doing it again. In cross-examination McEwan said that Pallott had walked towards the truck which had stopped. Other people also walked towards the truck holding picket signs. Pallott said that the truck driver had stopped before getting to the gates and asked him what was happening. His evidence was that he told the driver of the dispute over the refusal of a right of entry the union representatives and suggested that he speak to his union or to his employer. He denied making any threat to the driver. Courier vehicles for Action Courier and Five Star Courier went on and off site on a regular basis.

50. There was a suggestion that somebody close to Pallott while this encounter was video taped was singing loudly so that the conversation could not be recorded. I am not able to draw any particular inference from that even if that were the purpose. Pallott was not shaken in cross-examination on this point and although at times combative in the witness box, I accept his evidence as generally credible.

Telecom - 29 July 1992

51. On 29 July 1992, according to McEwan, a Telecom truck arrived at the site with three men to lay wiring along trenches excavated for the purpose. He observed Pallott and others go up to the truck and speak to the men inside. The driver subsequently told McEwan he was not going through the picket line and did not want to get involved. McEwan spoke on his mobile phone to a Telecom foreman, Roly Crawford, and Crawford said Telecom would not cross the picket line. He said it was policy. Pallott said he spoke to the driver and explained that there was a picket line and that it was because J-Corp and Homeswest had refused a right of entry. He suggested that the driver contact his own union. Subsequently he spoke to a foreman or area supervisor with Telecom and told him that it was up to Telecom to decide whether or not it wanted to enter the site. The supervisor, after speaking to J-Corp people on the site, came out and said the job had been nothing but hassles for them and they were not getting involved as they had plenty of other work to do. His evidence and that of McEwan did not conflict and I accept that these events occurred as described by both witnesses.

The Steel Fixers - 27 July 1992

52. McEwan said that on Monday, 27 July J-Corp's steel fixers, Rod and Stephen Herbert, came to him and said that they could not continue. They asked him to let them out of their sub-contract with J-Corp because they were working on another union site and were concerned about being identified and excluded from further work by the BLF. He agreed to let them go and arranged other steel fixers who arrived three or four days later. The relevance of this evidence was questioned but I allowed it to be led on the basis that it could be the subject of submission in due course. Upon reflection, I am not satisfied that it was relevant to any aspect of the cause of action and I disregard it. Its weight, in any event, as evidence of the reasons for the departure of the steel fixers is doubtful in light of the fact that they were not called to give evidence themselves.

A Smaller Picket Line - 29 July 1992

53. On the evening of Tuesday, 28 July, Pallott told Keogh that there people on the picket line whom he did not know. On the afternoon of the following day, Reynolds had a conversation with Keogh and Young and reiterated that no-one was to be stopped from entering the site. This position was plainly adopted as the result of legal advice about the possible consequences of hindering or preventing the supply of goods or services to J-Corp. According to Reynolds the purpose of the picket line was to be a presence to inform people about the refusal of the right of entry. So that the picket line could be run in an orderly manner, it was decided between Reynolds, Keogh and Young that the number of men participating in it would be reduced to five and the rest sent away. I accept that latter evidence which was not challenged. The question of purpose requires further consideration in the light of all the circumstances.

54. I also accept Reynolds' evidence that he did not visit the site during the week commencing 27 July. Although some persons claim to have seen him in a silver coloured motor vehicle, it transpired that he does not drive such a car and that Mr Ron Kinney or Pallott who drove such vehicles could have been mistaken for him.

The Signs

55. Various signs appeared in the vicinity of the site while the picket line was being conducted. Some of these have already been referred to. Two printed signs were fixed to trees near the site. One was in the following terms:

The second sign was in the following terms:

The Role of the BTA

56. Frederick Smith, the President of the BTA gave evidence that although its Rules provide for the establishment of a management committee there is in fact no management committee in existence other than the officers being himself as President, William Ethell as Vice-President, Reynolds as Secretary and Treasurer and Manwaring, Ethell and Phillip Mitchell as trustees. The BTA does not and did not at any material time employ any staff. No meeting of a management or executive committee was held in July or August 1992. No decision was ever taken by the BTA through resolution of any committee or otherwise to establish or participate in a picket line at the Rivervale site. Nor did the BTA give any authority to any of its officers or member unions in relation to the establishment or participation in a picket line at the Rivervale site. Smith said that anybody purporting to act in the name of the BTA had no authority to do so save for the performance by duly accredited representatives of functions specified in the relevant award. This was a reference to the right of entry under cl.40 of the Building Trades (Construction) Award 1987 in respect of which Young and Pallott held certificates of authorisation.

57. Apart from the production of accreditation documents referred to earlier in the reasons and the occasional invocation of the name of the BTA at the picket line, the only clear references to the BTA were in a sign which bore the designation "BTA/TLC Picket Line" and an advertisement which appeared in the West Australian Newspaper on 5 August 1992. The text of the newspaper advertisement was as follows:

"How much to Forgo LABOR principles?

Housing and Construction Minister, Jim McGinty, is standing by while workers' rights and conditions are being eroded.

Some companies are being awarded Homeswest jobs ahead of those companies that pay award wages and observe award conditions and accept that they are bound by the Occupational, Health and Safety Act. Most Homeswest sites are a mess and Homeswest appears unable or unwilling to make contractors comply with their contractual agreements, despite using taxpayers money to set up a compliance unit that is unable to do anything to make contractors toe the line.

Therefore builders and sub-contractors meeting minimum awards and statutory obligations are being excluded from Homeswest jobs because of a pricing disadvantage. On 13th March 92 Jim McGinty wrote (to W. Ethell President CMFEU) "I do not condone any employer breaching award or statutory provisions. Any employer not meeting their obligations cannot expect to be awarded contracts."

AWARD AND OTHER CONDITIONS NOT MET ON MANY SITES INCLUDE:

•

Award Wages

•

On-site Amenities and Toilets

•

Superannuation

•

Workers Compensation

•

Long Service Leave

•

Holiday and Sick Pay

McGINTY WILL NOT BE FORGOTTEN AT THE NEXT ELECTION!

AUTHORISED: Kevin Reynolds, Building Trades

Association Secretary, Fred Smith BTA President, Phil

Mitchell PGEU, Neil Flynn CMFEU, Bill Game AEEFEU"

The advertisement contained a photograph of the J-Corp site at Rivervale with persons who were described by Walter as members of the BLF standing across the entrance looking inwards.

58. Reynolds in his oral evidence explained that the BTA had been formed about twenty years ago. Its mode of operation was such that it would not become involved in industrial action without a meeting and prior agreement by all of its member unions. He said that unions comprising the BTA were astute to ensure that he as secretary did not purport to represent them. By way of example he produced a letter from Neil Flynn, the Assistant Secretary of the CMEU dated 24 June 1992 in which Reynolds was rebuked for making decisions as secretary of the BTA that appeared to make the CMEU party to certain site agreements unrelated to the J-Corp or Rivervale jobs. The letter went on:

"Let me take this opportunity to reiterate the policy of the Union again, that no body makes commitments on our behalf unless there has been prior consultation and agreement."

Reynolds denied any suggestion that he had convened a meeting of BTA constituent members to consider its participation in the Rivervale picket. He did not receive any instructions or directions from any executive member of the BTA in relation to Rivervale.

59. Reynolds was overseas at the time the advertisement was placed. He had given instructions for it to be prepared and had approved a rough draft of its content faxed to him in Montreal prior to it going to the paper. After receiving the fax he had telephoned Keogh, discussed it with him and told him to go ahead with it. The statement at the bottom of the advertisement that it was authorised by him as secretary of the Building Trades Association was not on the rough draft that was sent to him in Montreal. Reynolds was not aware in advance that the advertisement was to contain any reference to the BTA and he did not know how that reference came to be on it. The BTA did not pay for the advertisement. It was paid for by the BLF. In this respect I have no reason to doubt the correctness of what Reynolds said. It may well be that there were people involved in the composition of the advertisement who thought it would be a good idea to give it the apparent imprimatur of an umbrella organisation, but I am satisfied that did not emanate from the organisation itself. Smith seemed to have had no part in it.

The Significance of the Picket Line

60. It is necessary at this stage to refer to evidence which bore upon the industrial significance and impact of the establishment of the picket line. There was a reasonably uniform reaction from suppliers confronted with what they understood to be, or what they were told, was a picket. Gregory, of DBS Fencing, in cross-examination, said that he thought it easier to pull out and leave in the face of a picket line. As I have found, he retreated from the Rivervale site to the Sandringham Hotel because he was fearful of the consequences if he were to cross what he considered to be a picket line. Similarly, McWilliam of Stateside Hire, was influenced not to enter the site by the advice he received that a picket line had been established. Alvan Jacques of Aaron Lee Pest Control, who arrived at the site on 27 July, adopted the attitude that as a member of the BLF he could not cross the picket line and would be considered a scab and blackbanned from other union sites if he did. Ricci of Advance Formwork, also a BLF member, took a similar view. He believed that if he crossed the line he might as well tear up his union ticket. Susan McGuire of Jiffy Foods did not hear any reference to the term "picket line" but said in cross-examination that her boss had told her "don't go through a picket line". If she had heard that expression used at the site it would have given her pause. Gericevich would not enter the site without an express clearance from a BLF official and, as I have found, one of the factors which influenced his attitude in that respect was the existence of the picket line. The picket line was also a factor which influenced Owen of Maddington Concrete to decline to enter the site. I do not take into account for present purposes, McEwan's evidence of the statement made by the driver from Foxline Couriers that he would not cross the picket line, nor the statement of alleged Telecom policy by Roly Crawford to McEwan.

61. Evidence was called by the BLF to show that there are different kinds of picket line and that that designation does not necessarily involve an implied direction or request to members of the BLF or any other unions or suppliers to the site not to cross it. Keogh referred in his evidence to what he called an American Picket Line. He had used the term in discussion with Reynolds on Friday afternoon at the East Perth Lockup. He described it as a protest in which no attempt is made to stop people from entering the relevant premises.

He explained the concept but did not use that terminology in the course of discussion with Young, Pallott and Fox on the Monday morning. He was asked in cross-examination whether an unqualified reference to a "picket line" would cause people to believe that it was something they could not cross. He answered that this would not be a fair proposition. Picket lines he had been involved in with the BLF had been established for different purposes. BLF members had crossed the picket lines of other unions. He gave an example of a picket line established by the CMEU which BLF members crossed. This may have been at the old Swan Brewery, the renovation of which has been the subject of notorious public controversy for some years. Another example he cited was a picket line at the University of Western Australia "a couple of years back".

62. Reynolds was asked in cross-examination to explain the notion of a picket line. In answer to the question "How is a picket line organised?", he said:

"It requires the parties to obtain support from rank and file members to assist in placing a picket line and creating a physical picket line, barriers to prevent vehicles and people what have you that gone in (sic). It changes from time to time as to what - there's different interpretations about what is a picket line and what isn't a picket line. Different unions have different (views) and different unions - or unions' views of picket lines are and have changed over the years."

He said, however, that unions had learnt from recent court decisions in relation to picket lines. His views on the way they should be conducted had changed in the past five years. But five years ago he agreed one of the ways in which picket lines were carried out was to get a group of men to form a line to stop people bringing supplies to a site (670). Since that time there have only been one or two picket lines conducted by the BLF. There was no formally promulgated policy about how members are supposed to behave in relation to picket lines.

63. The relevant ordinary English meaning of the word "picket" in the Oxford English Dictionary is:

"5 (usually pl) Applied to people acting in a body or singly who are stationed by a trade union or the like, to watch people going to work during a strike or in non-union workshops and to endeavour to dissuade or deter them. Similarly applied to a person or group conducting a demonstration at particular premises, a particular installation etc..."

The Macquarie Dictionary, Revised Edition, relevantly defines "picket" as:

"A person or body of persons stationed by a trade union or the like before a place of work and attempting to dissuade or prevent workers from entering the building during a strike."

The ordinary English meaning of a word is a matter of fact and may be determined by reference to the relevant dictionary definition. In considering its usage in a particular situation regard can be paid to surrounding circumstances to determine what the word would reasonably have conveyed to those who heard it used. In my opinion there can be little doubt in this case that to the drivers of vehicles bringing goods and services to J-Corp at Rivervale the existence of a picket line involved at least a request, and probably a direction, that they should not enter. In the absence of any express disclaimer or advice that the line could be crossed, it was so understood by those participating and those drivers who approached the site.

That finding is consistent with my acceptance of Reynolds' testimony and that of Keogh that instructions were to be given that no-one was to be stopped from crossing the line. I take that to mean that those participating in the picket were to be told that they should not physically stop anyone from crossing nor explicitly direct or request anyone not to cross the line.

BLF Rules - Officers and Decision Making Processes

64. A certified copy of the registered Rules of the BLF was in evidence. The Rules provide for an Executive Committee consisting of the President, Vice-President, Treasurer, Secretary, three Trustees, a Guardian and three Delegates elected every four years by and from financial members of the union (cl.6(a)). There is provision also for three organisers elected every four years by and from the financial members of the union (cl.6(b)). The Secretary is the senior of the paid officers of the union. The Executive Committee has the control and conduct of the business of the union between general meetings (cl.6(e)). The duties of various officers of the union are set out in cl.9. Clause 9(b) relates to the Secretary and provides:

"9(b) Secretary

The Secretary shall -

(i)

Attend all meetings and prepare documents for the Union and Executive Committee meetings and for the Auditor and Trustees.

(ii)

Conduct and file all correspondence and summon members to all meetings.

(iii)

Submit to the President any urgent information he may officially receive and the President, together with the Secretary shall decide on the best course to be pursued until the next meeting of the Executive Committee.

(iv)

Keep a register of the names and addresses of the officers and members of the Union.

(v)

He shall, in conjunction with anyone of the three Trustees and the Treasurer sign all cheques."

Clause 9(d) relates to the elected Organisers:

"9(d) Organisers

The Organisers shall assist the Secretary in organising, collecting Union fees and all general Union business."

There is provision in cl.11 for the appointment of further elected and unelected organisers:

"11. FURTHER ORGANISERS

(a)

The Union may have paid or unpaid organisers, the number of which shall be fixed by the Executive Committee before nominations for election are called pursuant to Rule 7 above.

(b)

Elections for organisers shall be conducted at the same time and in the same manner as the elections referred to in Rule 7 above.

(c)

The Executive Committee may at any time, in addition appoint a special Organiser or Organisers for such period as it thinks fit."

Organisers in the category covered by cl.11(c) are sometimes referred to as "temporary organisers". There is no other express power in the union to engage employees although no doubt such a power is to be implied.

BLF - Particular Officers

65. Kevin Reynolds is the secretary of the BLF and has held that office since April 1974. Although under the Rules of the BLF he services the Executive Committee, he is effectively the Chief Executive of the union. He sees it as part of his responsibility to make day to day decisions on all matters affecting the union.

66. Matthew Keogh has been employed by the BLF as an industrial officer since April 1986. He described his duties as generally advocacy in the Industrial Relations Commission and handling inquiries from members in relation to wages, under-payments and the like. Because of the length of time he has been at the union he has become a conduit passing messages from Reynolds to the Organisers. It was apparent from his evidence that there is a convention within the union organisation that no industrial action, especially action involving interdiction of supplies, could be undertaken without Reynolds' prior approval.

67. In relation to organisers employed by the union, Reynolds said that they were told when engaged that they were required to give him a daily report on their activities. And if there were any major dispute they all had two-way radios or mobile telephones by which he could be contacted. Organisers were instructed that they were to report directly to Reynolds if there were any major problems and if there were any question of setting up any form of picket line. Reynolds described the responsibilities of the organisers as visiting sites, representing the membership on such sites and seeking to recruit new members. Organisers are also required to represent members of the union in any dispute between their employer and themselves, to ensure that site amenities meet award standards, to inspect safety provisions, toilet facilities and generally to make sure that members enjoy a reasonable standard of working conditions. Reynolds could not recall any occasion in the last ten years in which an organiser or employee of the union had set up a picket without his prior approval. There had been picket lines set up, but the decision to establish them would have been taken by Reynolds himself or in conjunction with the union Executive.

68. Fox is employed by the BLF as a temporary organiser. His position is not an elected one. Pallott is also employed as a temporary organiser. Young has been employed as a safety co-ordinator with the BLF for about three years.

The BTA Rules

69. The registered Rules of the BTA provide that its business is to be controlled by a Management Committee comprising three Executive Officers from each affiliated union (cl.3(a)). The officers of the Management Committee are to be known as the Executive Committee and together with the Secretaries of each affiliated union shall form a working committee and shall transact the business of the association between meetings (cl.3(c)). The officers of the Management Committee are the President, Vice-President, Secretary, Treasurer and three Trustees of the association (cl.14(a)). The duties of the officers are set out in cl.14(a). Those of the secretary/treasurer are set out in cl.14(d)(3). That officer is required to carry out to the best of his ability such duties as are referred to him by the Executive. There is nothing in the Rules to indicate that the secretary has any executive power.

BTA Officers

70. Reynolds is Secretary/Treasurer of the BTA. He does not have authority on either a de jure or de facto basis to act as the Chief Executive of the association. Neither Fox, Pallott nor Young is employed by or holds any office in the BTA. None of Fox, Pallott or Young has any authority to do anything on behalf of the BTA other than carry out the functions of a duly accredited representative under the award.

The Letter from J-Corp's Solicitors

71. On 30 July J-Corp's solicitors sent a letter to the secretary of the BLF in the following terms:

"We advise that we act on behalf of the abovenamed. We are instructed that your Union has imposed a ban on all construction sites involving our client and are picketing our client's construction site for Homeswest on Great Eastern Highway in Rivervale. We are further instructed that officials and members of your Union have warned sub-contractors and suppliers of materials to our client's construction sites that if they supply labour or materials to our client, they will not work anywhere else in Perth, and would be banned from light industrial work in the City.

Such conduct is clearly in contravention of Section 45D of the Trade Practices Act and further constitutes an unlawful interference with our client's contractual relations. We are instructed to demand a written undertaking delivered to our office by 4.00 pm on Friday 31 July 1992 that your Union, its officials and all its members will immediately desist from threatening any suppliers or sub-contractors or take any action to prevent the supply of labour or materials to our client's construction sites and to disband the picket line currently in place to our client's site on Great Eastern Highway in Rivervale.

Should your written undertaking not be received within the time required, our client will commence proceedings in the Federal Court without further notice, seeking injunctive relief and damages for any losses suffered by our client as a result of the activity set out above.

Our client's claim will be made not only against your Union, but against each and every official whom, to our client's knowledge, is involved in the activity."

A reply from the solicitor for the BLF of the same date expressed surprise at and denied the allegations contained in the letter from J-Corp's solicitors and said that representatives of the BLF were willing to meet with representatives of J-Corp.

The Present Proceedings

72. The present proceedings were instituted on 5 August 1992. Interlocutory relief was sought but in lieu thereof an undertaking was given on behalf of the BLF in the following terms:

"The respondent undertakes until further order that it will not by its officers, employees or agents or otherwise howsoever:

(i)

obstruct or hinder or cause any other person or organisation to obstruct or hinder the supply of any labour or materials to the Applicant's site at the corner of Minora Place and Great Eastern Highway Rivervale;

(ii)

make or cause any other person or organisation to make any threats to any supplier of labour or materials to the applicant that they shall be subject to industrial or other action which has or may have the effect of causing that person to suffer loss or damages should the threat be carried into effect, for the purpose of preventing the supply of labour or materials by that supplier to the Applicant."

On 11 August, the BTA and the TWU were joined as respondents in the proceedings. Subsequently leave was given to the applicant to discontinue as against the TWU.

73. By its amended statement of claim, as further amended on 3 November 1992, J-Corp, so far as is relevant to the remaining respondents, alleges that on and from 24 July 1992:

(a)

The BLF acting in concert with members of the BLF and further or alternatively in concert with other persons;

(b)

The BLF in concert with the BTA obstructed and/or hindered the supply of goods and services to construction sites occupied by J-Corp. (para 4)

On and from 24 July it is alleged members of the BLF established a picket line at the Rivervale site for the purpose of preventing suppliers and sub-contractors entering to supply goods or services to J-Corp and pursuant to that purpose requested drivers employed by suppliers and sub-contractors not to cross the picket line and deliver supplies to J-Corp (para 5). The conduct of the BLF members is said to have been authorised by the BTA. Suppliers and sub-contractors to J-Corp were allegedly threatened by members of the BLF that they would be subject to industrial action preventing supplies of goods or services to their businesses unless they complied with the request that supplies not be delivered to J-Corp. Particulars of this allegation are given by reference to incidents involving Gericevich Earthmoving, Jiffy Foods and Advance Formwork.

74. It is further alleged that the term "picket line" is commonly understood in the field of industrial relations to refer to a situation where members of a union congregate on premises to request or demand persons not to proceed into the premises, to provide goods or services to the employer or occupier of the premises. On and from 24 July 1992 and by reason of the establishment of the picket line and the common understanding of that term, it is said that sub-contractors and suppliers refused to deliver goods or services to the Rivervale site upon hearing of the existence of a picket line there. This is supported by reference to incidents involving steel fixers employed by J-Corp and Atlas Sand Supplies (para 10). The purpose and likely effect of the conduct engaged in by the BLF and BTA is said to have been to cause J-Corp to suffer substantial loss and damage to its business in contravention of s.45D(1)(b) of the Act. Injunctive relief and damages is claimed. No substantial evidence as to the quantum of damages was advanced at the hearing and after discussion with counsel I formed the view that if a contravention were made out then appropriate declaratory relief could be considered leaving over the question of the necessity for injunctive relief and any assessment of damages.

Statutory Framework

75. The relevant parts of s.45D of the Trade Practices Act 1974 provide:

"45D(1)

Subject to this section, a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person), where-

...

(b)

the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing-

(i)

substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or

(ii)

a substantial lessening of competition in any market in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services.

...

(2)

Paragraph 4F(b) does not apply in relation to sub-section (1) or (1A) of this section but a person shall be deemed to engage in conduct for a purpose mentioned in that sub-section if he engages in that conduct for purposes that include that purpose.

...

(7)

Nothing in this section affects the operation of any other provision of this Part.

"Conduct" is defined in s.4(2) of the Act in the following terms:

"4(2) Conduct

In this Act -

(a)

a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;

(b)

a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of an understanding or the requiring of the giving of, or the giving of a covenant;

(c)

a reference to refusing to do an act includes a reference to -

(i)

refraining (otherwise than inadvertently) from doing that act; or

(ii)

making it known that that act will not be done; and

(d)

a reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be."

Reference should also be made to s.84 which provides, in the relevant parts:

"84(1)

Where in a proceeding under this Part in respect of conduct engaged in by a body corporate, being conduct in relation to which section 46 or 46A or Pt. V applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of the person's actual or apparent authority, had that state of mind.

(2)

Any conduct engaged in on behalf of a body corporate-

(a)

by a director, servant or agent of the body corporate within the scope of the person's actual or apparent authority; or

(b)

by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,

shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.

...

(5)

A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the person's, intention, opinion, belief or purpose."

Section 84(1) does not apply in this case because this is not a proceeding in respect of conduct to which s.46, 46A or Part V applies. However sub-s.(2) of the section will apply. Its operation, as Lockhart J. said in Walplan Pty Ltd v. Wallace (1986) 8 FCR 27 is as an enlarging provision of general application. It is designed to eliminate the necessity to apply various and divergent tests of the common law relating to a corporation's responsibility for the acts of its servants or agents. Those common law principles are extended to facilitate proof of a corporation's responsibility.

The Case Against the BLF

76. The elements of a cause of action for contravention of s.45D relevant to the present case are:

1.

A person engaged in conduct.

2.

The conduct being engaged in in concert with another person.

3.

The conduct hindering or preventing the supply of goods or services by a third person to a corporation.

4.

The conduct being engaged in for the purpose of causing substantial loss or damage to the business of the corporation.

5.

The conduct having or being likely to have the effect of causing substantial loss or damage to the business of the corporation.

The BLF as a registered organisation under the Industrial Relations Act (WA) 1979 is a body corporate and answers the description of a "person" within the meaning of s.45D. So far as the amended statement of claim relies upon an allegation that it engaged in conduct in concert with members of the BLF those members are the "second persons" for the purposes of s.45D(1). Suppliers of goods or services to J-Corp are the third persons contemplated by the Act and J-Corp as a corporation is the "fourth person" the target of the alleged conduct.

77. The actors having been identified, it is necessary to determine the conduct relied upon by the applicant and whether it took place as alleged. In this case the relevant conduct said to constitute the hindering and/or prevention of the supply of goods and services to J-Corp is set out in paras 5 to 10 inclusive of the amended statement of claim. It may be broken down into the following components relating to the BLF as they appear from the pleadings.

1.

The establishment of a picket line by members of the BLF on and from 24 July 1992 across the entrance to the Rivervale site.

2.

The making of requests by members of the BLF to drivers employed by suppliers and sub-contractors not to cross the picket line and deliver goods to J-Corp.

3.

The threats made to suppliers and sub-contractors to J-Corp by members of the BLF that they would be subject to industrial action preventing supplies of goods or services to their business unless they complied with requests that supplies not be delivered to J-Corp. In this respect incidents involving Advance Formwork, Jiffy Foods and Gericevich Earthmoving are particularised.

78. I am satisfied that, following the arrest of four union organisers, including two from the BLF, on Friday 24 July 1992, BLF members and others came to the site and established what could be called a de facto picket line. This was done without any authority from Reynolds or Keogh. Although Giffard had conveyed a warning to Skinner of DBS Fencing, he had acted without authority at the request of Manwaring who was an organiser for the Plasterers' Union. Giffard played no part in the establishment of the picket line. Neither Fox nor Pallott was involved in the establishment of the picket on that day. They had been arrested and were hors de combat. While the evidence suggests that Young spoke to the drivers of vehicles arriving at the site on the Friday, it does not disclose that he played an initiating or organising role in relation to the establishment of the picket. And going further beyond the establishment of the picket itself on the Friday, the evidence fails to disclose that Young or any other BLF official at the site made or authorised any threat to any driver on that day or otherwise obstructed the supply of goods or services to the site. I conclude therefore that the establishment of what I have called the de facto picket line on Friday, 24 July was not shown on the evidence to have been conduct engaged in by the BLF or any official with relevant actual or apparent authority. In so finding, I accept that BLF members, including the safety co-ordinator Young, did participate in the demonstration.

79. In relation to other aspects of alleged conduct on Friday, 24 July attributed to the BLF, I am not satisfied that any official of the BLF with actual or apparent authority threatened or otherwise acted in relation to drivers going to the site so as to hinder or prevent the supply of goods or services to J-Corp. So far as Giffard is concerned, the question arises whether his conduct in telling Skinner of DBS Fencing that the BLF did not want him to deliver any goods to the site until the matter was settled, was conduct deemed to have been engaged in by the BLF pursuant to s.84(2). There is no doubt that he was a servant or agent of the BLF at the relevant time and in speaking to Skinner he was purporting to act "on behalf of" the union. The words "on behalf of" appearing in s.84(2) were considered by the Full Court in Walplan Pty Ltd v. Wallace (1985) 8 FCR 27 at 37 in the judgment of Lockhart J. (Sweeney and Neaves JJ. agreeing) where his Honour said:

"The phrase "on behalf of" is not one with a strict legal meaning and it is used in a wide range of relationships. The words are not used in any definitive sense capable of general application to all circumstances which may arise and to which the subsection has application. This must depend upon the circumstances of the particular case, but some statements as to the meaning and operation of the subsection may be made. In the context of s.84(2) the phrase suggests some involvement by the person concerned with the activities of the company. The words convey a meaning similar to the phrase "in the course of the body corporate's affairs or activities". The words "on behalf of" also encompass acts done by a corporation's servants in the course of their employment, but those words are not confined to the notion of the master/servant relationship. Section 84(2) refers to conduct by directors and agents of a body corporate as well as its servants. Also, the second limb of the subsection extends the corporation's responsibility to the conduct of other persons who act at the behest of a director, agent or servant of the corporation. Hence the phrase "on behalf of" casts a much wider net than conduct by servants in the course of their employment, although it includes it."

After going on to observe that the words govern both limbs of sub-s.84(2), his Honour said at 38:

"Section 84(2) attributes responsibility to a corporation for a wide range of conduct engaged in by others provided that it was engaged in on behalf of the corporation, whether actually authorised by it or not."

Giffard was acting on behalf of the BLF in the relevant sense when he telephoned Skinner. It is plain however, that he was not acting within the scope of his actual authority in so doing. Nor is there any evidence apart from his claim to speak on behalf of the BLF when he spoke to Skinner that he was acting within the scope of any apparent authority. If that were the case, any member of a corporation could bind it by claiming to act on behalf of it.

80. In my opinion and for these reasons, the case against the BLF so far as it depends upon the events of Friday 24 July, cannot succeed. The BLF did not engage in any of the relevant conduct on that day and cannot be taken by virtue of s.84(2) to have engaged in such conduct.

81. It is necessary next to consider the events of the week commencing 27 July 1992. It is clear that an official picket line was established on Monday, 27 July. It was established with the express authority of Reynolds. Keogh took a general supervisory role with respect to it and each of Fox, Pallott and Young took responsibility for its organisation on site and for communicating the concerns of those involved in the picket to suppliers approaching the site. Members of the BLF and probably of some other building unions participated in the sense of being part of the assembly that was maintained outside the gates. Neither Reynolds nor Keogh authorised any physical obstruction to vehicles bringing supplies to the site. Nor did they authorise the making of any threats or requests to drivers of supply trucks directed to preventing them from entering. They were conscious of the legal implications of such conduct and had received advice in relation to it from the BLF's solicitors.

82. The findings in relation to threats or requests not to enter the site made to suppliers may be summarised as follows. No such threat or request was made to Jacques from Aaron Lee Pest Control on 27 July, although none was necessary as he had already decided that as a BLF member he could not cross the picket line. On the same day however, Ricci of Advance Formwork was asked by Fox when he arrived at the site "You are not going to cross the picket line are you?" That was not merely a request for information but a direction not to cross the line. In giving that direction Fox was acting on behalf of the BLF in the sense contemplated by s.84(2) although not within the scope of his actual authority. But given the findings I have made about the nature of the picket line and the common understanding of its purpose, I am satisfied that he was clothed with apparent authority from the BLF to act as he did and that the request thus made is deemed to be the conduct of the BLF. The Jiffy Foods incident, while indicative of the attitudes of some of those participating in the picket line, did not involve interference with the supply of goods or services to J-Corp as the food deliveries were to individual workers on site. In relation to Gericevich Earthmoving, I am not satisfied that on 28 July any official of the BLF or any member of the picket made an explicit direction or request either to Clarke to Gericevich that they were not to cross the line.

The evidence does establish, as I found, that Gericevich did not enter the site because there was a picket line there. The Maddington Concrete truck driver, Owen, refused to enter the site on 28 July because he was told to turn around and go away by persons involved in the picket. However, in the absence of any evidence that he was given that direction by a BLF official I am not prepared to attribute that conduct to the BLF by virtue of s.84(2). A mere direction or request by a member of a picket line is not necessarily to be seen as conduct "on behalf of" the BLF in the extended sense contemplated by s.84(2). There was also evidence that Telecom technicians refused to enter the site because of the existence of the picket line, but no evidence on which

I am prepared to infer any threat or direction.

83. Having identified the conduct in which the BLF may be said to have engaged, it is next necessary to consider whether it was conduct which hindered or prevented the supply of goods or services by suppliers to J-Corp. In Australian Broadcasting Commission v. Parish (1980) 43 FLR 129 at 153, Deane J. said of the concepts of "hindering" and "preventing" as used in s.45D(1):

"The actual cessation of supply or acquisition of goods or services is commonly the object and can represent the culmination of conduct in breach of s.45D of the Act. The conduct hindering or preventing supply or acquisition to which the section refers can be engaged in by threat and verbal intimidation as well as by physical interference with the actual activities. The fact that the supplier or acquirer of goods or services is a party to the actual cessation of supply does not preclude the activities of others involved in the cessation from amounting to their engaging in conduct in concert of the type proscribed by the section. The section does not however include the actual supplier or acquirer of the services as one of the relevant parties to the conduct in concert..."

Bowen C.J. agreed with the reasons of Deane J. in this respect (at p 131) as did Franki J. (at p 139). Having regard to the conclusions I have reached about the common understanding of the function of the picket line both by those participating in it and those supplying goods and services to J-Corp, the establishment and maintenance of the line involved an implied direction that it should not be crossed and an implied threat of unspecified sanctions in the event that it were crossed. In my opinion, in a real and practical sense and consistently with the observations of Deane J. which I have quoted, the establishment and maintenance of the picket line by the BLF was conduct which at least hindered and in some cases prevented the supply of goods or services to J-Corp. To the extent that there is evidence of explicit directions attributable to the BLF that suppliers should not enter, those directions also constitute conduct hindering supply.

84. The next question which arises is whether the conduct so found can be said to have been engaged in in concert by the BLF and those of its members and others who participated in the picket. The notion of engaging in conduct "in concert" with another involves knowing conduct which is the result of communication between the parties and not simply simultaneous actions occurring spontaneously. It also involves contemporaneity and community of purpose. The requirement of contemporaneity does not mean that the acts constituting the relevant conduct must coincide precisely with the notion of concert - Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 373; AMIEU v. Mudginberri Station Pty Ltd (1985) 61 ALR 417 at 424; Epitoma Pty Ltd v. AMIEU (No. 2) (1984) 54 ALR 730 at 734; Flower Davies Wemco Pty Ltd v. BLF (WA Branch) (1987) 20 IR 88 at 96.

85. The concept of "concert" was recently considered by the Full Court in AMIEU v. Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 . Gray J. referred, at 328-329, to the difficulties that arise when the conduct allegedly in concert is engaged in at separate locations and at different times:

"Difficult questions arise as to the point in the causative chain of events at which a person whose act has contributed to some event will be treated as not having acted in concert with those whose acts were performed more closely in time and space to that event."

And at 329:

"The difficulties in the concept of "in concert" are acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act."

86. His Honour there rejected the proposition that the mere advocacy of strike action by a trade union and its officials would place them in concert with workers who took that advice. Nevertheless, the position of a trade union might be different if its rules empowered its governing committee or its officers to direct the taking of action, and obliged its members to comply with such directions:

"In such a case, the giving of the direction and the compulsory observance of it would go to make up the end result."

Olney J. in the same case held, in effect, that the mere fact of "input" by the union into the events which resulted in a series of stoppages did not mean that it and those who stopped work at a number of employer establishments were acting in concert. The notion of conduct "in concert" imports elements of combination, co-operation or union (see Oxford English Dictionary). While it may be readily suggestive of arrangements of a horizontal character, there is no reason dictated by policy or statutory construction that requires it to be so limited. Conduct involving direction and response may, according to the circumstances of the case, be conduct in concert on part of the person directing and the person acting upon that direction.

87. In my opinion, the establishment and maintenance of the picket line at the Rivervale site on and from 27 July 1992 was conduct engaged in by the BLF in concert with its members and those other persons who participated in the picket. It was knowing conduct which was the result of communication between those participating in the line and officials of the BLF up to and including Reynolds. These were not simply simultaneous actions occurring spontaneously. The necessary degree of contemporaneity existed and there was a community of purpose to the extent that the common purpose contemplated the establishment and maintenance of the line. There is nothing to suggest that the members of the BLF who participated in the picket line were doing so as the result of a direction which obliged them under the Rules or some convention of the union to participate. Nevertheless, the community of purpose and contemporaneity place it outside the considerations which were of concern to Gray J. in AMIEU v. Meat and Allied Trades Federation of Australia (supra).

88. The provisions of s.45D next require a consideration of the purpose of the conduct of the BLF and those of its members who participated in the picket. The question to be addressed is whether or not the establishment and maintenance of the picket and the other conduct to which I have referred was engaged in for the purpose of causing substantial loss or damage to the business of J-Corp. The purpose which attracts the application of s.45D(1)(b) is the "operative subjective purpose of those engaging in the relevant conduct in concert". It is identified "by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert": Tillmanns Butcheries Pty Ltd v. Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-349 per Deane J.; Leon Laidely Pty Ltd v. Transport Workers Union of Australia (1980) 28 ALR 129 at 141 per Lockhart J.; Chevron Transport Corporation v. Seamen's Union of Australia (1983) 49 ALR 180 at 184 per Beaumont J. The relevant purpose may not be the ultimate purpose for which the participants acted in concert - Wribass Pty Ltd v. Swallow and Australasian Meat Industry Employees' Union (1979) 38 FLR 92 at 102-103 per Smithers J.; Barneys Blu-Crete Pty Ltd v. Australian Workers Union (1979) 43 FLR 463 at 473 per Northrop J.; Mudginberri Station Pty Ltd v. Australasian Meat Industry Employees Union (1985) 61 ALR 280 at 283 per Morling J. As the Full Court said in BWIU v. Odco (1991) 99 ALR 735:

"...the party applying the pressure may have the purpose proscribed by s.45D(1) notwithstanding that this purpose is a means to a greater end."

89. The ultimate purpose of the picket line in this case was to obtain, by placing pressure on Homeswest, assurances that organisers would have the right to enter the Rivervale site to inspect conditions and amenities there and ensure compliance with the relevant requirements of the award. I accept that it was not part of that ultimate purpose as contemplated by Keogh and possibly Reynolds, to either embarrass or place economic pressure on J-Corp. I do not accept that that purpose would have been absent from the contemplation of Fox, Pallott and Young and others participating in the picket line. It was, however, highly likely and in the contemplation of all concerned in the hierarchy of the BLF and on the picket line that the existence of the picket would cause suppliers to turn away from the site. While Reynolds and Keogh expressly eschewed conduct which would amount to "stopping" suppliers they did so, I think, in the belief that the avoidance of physical obstruction or explicit threats or directions would take the case out of the reach of s.45D. It is not possible however, to avoid the conclusion that they would have known and accepted that in the absence of any express disclaimer the picket would in all probability have the effect of deterring entry by suppliers on to the site. I consider that Reynolds and Keogh accepted that probability although I allow the possibility that they may well have regarded it as a consequence explicable at law as the exercise of the free choice of the supplier rather than as a consequence of the picket. In my opinion, however, it was a likely consequence of the picket line. It was accepted as a likely effect and in my opinion formed part of the purpose of the conduct.

90. The question then arises whether the purpose so established embraced a purpose of causing substantial loss or damage to the business of J-Corp. The word "substantial" requires loss or damage that is more than trivial or minimal. It cannot be said that it requires any specific level of loss or damage. In the context in which it appears it imports a notion of relativity. That is to say one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business - Tillmanns Butcheries Ltd v. Australasian Meat Industry Employees' Union (supra) at 338 per Bowen C.J. (Evatt J. agreeing). In the same case Deane J. said at 348:

"In the context of s.45D(1) of the Act the word "substantial" is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular, actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s.45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal. It is, however unnecessary that I form or express any concluded view in that regard since the ultimate conclusion which I have reached is the same regardless of which of the alternative meanings to which reference has been made is given to the word "substantial" in s.45D(1)."

In BWIU v. Odco (supra) at 769, while accepting that the word "substantial" imports a notion of relativity, the Full Court said:

"But it is not for a corporation complaining of a contravention of s.45D to show that the loss or damage would be a major blow to its business. It is sufficient that the loss would be, in the circumstances, "real or of substance and not insubstantial or nominal": see per Deane J. in Tillmanns Butcheries (FLR at 348)."

Interference with the provision of materials and services to a major building contract of the kind undertaken in this case will necessary cause delay and expense to the builder. And in the circumstances of this case, the continuation of this picket line for any period of time would in all probability have inflicted loss or damage on the business of J-Corp that could not be said to be ephemeral or trivial. The concept of substantiality does not require a consideration of the full range of building contracts undertaken by J-Corp or its gross annual revenue or profitability. It is sufficient to say that the likelihood of non-trivial loss or damage in the context of this major building contract was a necessary consequence of the commonly contemplated effect of the establishment and maintenance of the picket line. It was, in that way, embraced in the relevant purpose and it was, in my opinion, a likely effect of the continuation of the conduct. It is to be borne in mind that "the event stipulated by s.45D is not the incurring of actual loss or damage but the likelihood that the relevant conduct would have that effect, so it is really no answer to say that in any event, no loss or damage was sustained" - BWIU v. Odco (supra) at 769.

91. In my opinion therefore the applicant has succeeded in establishing as against the BLF that by establishing and maintaining the picket line at the Rivervale site from 27 July 1992 it contravened s.45D of the Trade Practices Act 1974.

The Case Against the BTA

92. There is little that needs to be said about this aspect of the proceedings. In my opinion the case against the BTA is close to non-existent. It did not as a body authorise or participate in the establishment or maintenance of the picket line or any associated conduct. No meeting of the relevant decision-making committees was held at any material time. No decision was taken by the association through any resolution of its committees or otherwise to establish or participate in the picket line. Nor did it give any authority to any of its officers or unions in relation to the establishment or participation in the line. As I have already found, apart from the production of accreditation documents referred to earlier in the reasons and the occasional invocation of the name of the BTA at the picket line, the only clear references to the BTA were in the sign which bore the designation "BTA/TLC Picket Line" and an advertisement which appeared in the West Australian Newspaper on 5 August 1992. It does not appear that that advertisement was in fact authorised by Reynolds in his capacity as secretary of the BTA. As secretary of the BTA he did not have authority either under the Rules or as a matter of convention to commit the association to industrial action. Nor am I satisfied that any conduct on the part of Young or Pallott who are accredited representatives of the BTA for the purposes of the right of inspection conferred by cl.40 of the Award, was conduct attributable to the BTA for the purposes of s.45D. The claim as against the BTA will therefore be dismissed.

CONCLUSION

93. This decision is not to be taken as advancing a general proposition that the establishment and maintenance of an official picket line by a union is always and in all circumstances unlawful. Each case must depend on its own facts. Contemporary usage of the term "picket" does carry implications of direction and threat of sanction to those who seek to enter a site or premises the subject of a picket. While the threat of sanction remains, albeit unspoken, the possibility of characterising the use of the picket as a hindering or prevention of supply is also present. The implication may be defeated and the possibility averted by a combination of steps. These might include some explanation that the assembly is a demonstration to draw attention to an industrial issue and some explicit clearance to suppliers to enter which would negative any threat of sanction. The provisions of s.45D do not and should not affect rights of assembly and free expression. They do prohibit the concerted use of threats to suppliers whether express or implied with the purpose and likely effect of causing damage to the business of another.

94. In this case I have decided to make a declaration that the BLF has engaged in conduct contravening s.45D. The question of further relief, including any claim for damages, will stand over for further submission. In the meantime the parties will be offered the opportunity of mediation involving the District Registrar of this Court in the hope that their dispute can now be resolved. The case against the BTA will be dismissed with costs.