ABCC v CFMEU

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FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092

INDUSTRIAL LAW – application for interlocutory injunction to restrain unlawful industrial action – s 38 of the Building Construction Industry Improvement Act 2005 (Cth) – whether action taken was building industrial action – whether action was based on a reasonable concern by employees about an imminent risk to health or safety – application of accessorial liability to union officers – whether prima facie case – no evidence of any imminent risk to any employee’s health or safety – injunction granted

Workplace Relations Act 1966 (Cth), s 740
Industrial Relations Act 1966 (NSW), s 143(5)
Industrial Relations Act 1988 (Cth), s 124
Building and Construction Industry Improvement Act 2005 (Cth), ss 3(1), (2), 36(1), 36(2), 37, 38, 39(1), (3), 48(2), 49, 69
Federal Court of Australia Act 1976 (Cth), s 23
Trade Practices Act 1974 (Cth), s 80(4)

American Cyanamid Co v Ethicon Ltd [1975] AC 396 referred to
AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) referred to
Australian Broadcasting Commission v O’Neil (2006) 227 CLR 57 applied
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 considered
Bullock v The Federated FurnishingTrades Society of Australasia (No 1) (1985) 5 FCR 464 cited
Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41 cited
Cahill v Construction, Forestry Mining and Energy Union (No 2) (2008) 170 FCR 357 followed
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 considered
Kadian v Richards [2004] NSWSC 382 cited

Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272 considered
Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 distinguished

Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 cited
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 cited
Mobileworld Operating Pty Ltd vTelstra Corporation Ltd [2005] FCA 1365 cited
Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union of Australia (1987) 54 NTR 6 referred to

Sullman v Sullman [2002] NSWSC 169 cited

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOSEPH McDONALD and MICHAEL BUCHAN

WAD 106 of 2009

GILMOUR J
29 SEPTEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

FAIR WORK DIVISION

WAD 106 of 2009
BETWEEN:

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Applicant
AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

JOSEPH McDONALD
Second Respondent

MICHAEL BUCHAN
Third Respondent

JUDGE:

GILMOUR J

DATE:

29 SEPTEMBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

The Application

  1. This matter arises from strike action taken by employees of several contractors on 5, 6, 8, 24 and 25 June 2009 at a high rise building site at 915 Hay Street, Perth (“Site”) which is controlled by Diploma Constructions (WA) Pty Ltd. 

  2. In its substantive application filed in June 2009,…

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Details
Case
[2009] FCA 1092
Decision Date

CaseChat Overview and Summary

In the case of ABCC v CFMEU, the Australian Building and Construction Commission (ABCC) sought an interlocutory injunction against the Construction, Forestry, Mining and Energy Union (CFMEU) and its officials, Mr McDonald and Mr Buchan. The dispute centred on allegations of unlawful building industrial action that occurred at a construction site, leading to a three-day strike by employees. The respondents, CFMEU and its officials, contested the ABCC's application, arguing that the alleged industrial action was lawful.

The primary legal issue the court had to decide was whether the industrial action taken by the CFMEU and its officials constituted unlawful building industrial action under the relevant sections of the Workplace Relations Act 1996 (Cth). Specifically, the court needed to determine whether the actions of Mr Buchan and Mr McDonald were lawful under the right of entry obligations and whether the industrial action was in compliance with the federal guidelines.

The court examined the evidence presented regarding the events on 5 June 2009 and 24-25 June 2009. On 5 June, Mr Buchan, a CFMEU official, addressed the employees about safety concerns, leading to a stoppage. The court noted that there was conflicting evidence about whether Mr Buchan incited the employees to leave the site. On 24-25 June, Mr McDonald, another CFMEU official, attended the site and spoke to the employees, leading to another stoppage. The court had to assess whether these actions constituted unlawful industrial action. The court found that there was sufficient evidence to establish that the industrial action was building industrial action and that it was unlawful, as it did not comply with the right of entry obligations under the Workplace Relations Act 1996 (Cth).

The court granted the ABCC's application for an interlocutory injunction, finding that the CFMEU and its officials engaged in unlawful building industrial action. The court concluded that the evidence presented was sufficient to establish that the industrial action was unlawful, and therefore, the injunction was appropriate to prevent further occurrences of such actions.

Orders

Orders of the court

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Background

Background to the litigation

However, in their written closing submissions delivered to the Court registry late on 31 July 2009 the respondents now also put in issue whether building industrial action occurred, as defined in s 36(1)(c) and (d) and whether the respondents engaged in that building industrial action. Background Before 21 April 2009, officials of the CFMEU were allowed access to the Site by Diploma without complying with the right of entry obligations under the Workplace Relations Act 1996 (Cth) (WR Act). Also prior to that day, CFMEU officials did in fact access the Site regularly. Mr Buchan held a valid permit under s 740 of the WR Act, but it contained a condition that he not attend, or remain on a site in company with or in concert with Mr McDonald: Order of Australian Industrial Relations Commission dated 18 November 2008. Mr McDonald held no permit under s 740 of the WR Act and hence had no greater authority to enter a site than a member of the public. The CFMEU had been notified by the Diploma Guidelines that Mr McDonald’s entry would not be permitted at all. The lawfulness of entry by either Mr McDonald or Mr Buchan is not essential to the ABCC’s application. In the period from December 2008 through to June 2009, no industrial action had been taken for health or safety reasons. This was despite the frequent attendance by Mr Buchan, the CFMEU organiser with responsibility for safety issues, and his view that certain difficulties had emerged at the beginning of 2009. On 21 April 2009, Diploma wrote to the CFMEU advising that Mr McDonald would no longer be allowed access to the Site, or to any Diploma sites. The letter also confirmed that Diploma would thereafter adhere to a procedure that it called the “Rights of Entry to Comply with Federal Guidelines”. The action by Diploma was in furtherance of Diploma’s application for Federal Accreditation. The Implementation Guidelines for the National Code of Practice for the Construction Industry June 2006 require an employer to allow union access only in accordance with the governing procedures. On the next day, 22 April 2009, a CFMEU official attended the Site, and recorded the visit as relating to health and safety. This was the first visit that was expressly recorded as related to safety, but thereafter six were. CFMEU officials subsequently made other Site visits, but nothing was of note until 5 June 2009 when Mr Buchan attended the Site and spoke to the employees. The police were called, a Diploma representative told Mr Buchan to leave but he declined. The police arrived, as did Mr McDonald. The police took Mr Buchan and Mr McDonald to the boundary of the Site. Shortly thereafter, employees other than Diploma’s employees and those working for Global Electrotech Pty Ltd left the Site and a three-day strike began. There was a return to work on 9 June 2009. Mr McDonald again attended the Site on 24 June 2009. Mr McDonald met with and spoke to the employees. A number of employees then went on strike for another two days on 24 and 25 June 2009, returning on 26 June 2009.

Evidence

Evidence Before The Court

If the exception does not apply then the next question is whether, for the purposes of s 37, the building industrial action in each case was unlawful industrial action. I do not apprehend there to be any issue taken by the respondents on this question in the event that a prima facie case is made out that the action was building industrial action. The evidence 5 June 2009 On Friday 5 June 2009 at the Site, employees of several contractors stopped work. The stoppage commenced at approximately 10.15 am when those employees left the site. The employees did not return to work that day. It seems to me very likely that at trial it will be established that the stoppage was initially instigated by Mr Buchan, who first addressed the employees at a “tool-box” meeting on the Site about safety on all Diploma sites although he did not mention specific safety concerns. Mr Buchan says that, as he addressed them about “issues” on other Diploma sites, Wes Francis, the Diploma site manager suggested that the employees get a petition up. This, says the respondents, amounts to a denial of the evidence of Mr Day that he heard Mr Buchan say “I am going to raise a petition for all of the Diploma sites with regards to general safety concerns and send it to John Norrup (a Diploma Director) …”. I do not consider it to be a denial. Mr Buchan does not expressly deny what he is alleged to have said but only that it was Francis who (first) raised it. At this meeting only one safety related matter was raised by some employees. It concerned the failure in the static pump line elbow which was part of equipment through which fluid concrete was pumped during concrete pours at the Site. Mr Buchan described this as a serious safety incident. It seems that there was a failure in the pump line elbow as a result of which a large piece of stone aggregate, approximately 50mm in diameter, shot out of the pump like a bullet and ended up 50 metres away hitting and damaging a window on the adjacent Woodside building. This incident occurred on 26 May 2009. Mr Buchan went to investigate the equipment with Wes Francis because he said concerns had been raised about signs of leakage of slurry on two other locations on the static pump line. Leaks were noticed and Francis said he would make arrangements to check out the leaks. Prior to this time, Mr Buchan said that he had a good rapport with Diploma management and that safety issues he had raised were addressed quickly. Mr Day says that Mr Francis informed him that Mr Buchan, as he was leaving the Site, told the employees to come outside the gate for another meeting to vote on taking action to leave the Site for a three day period. Mr Day’s recollection as to this matter was rather vague when cross-examined. According to Mr Buchan, however, the employees had already left the Site by the time he got to the ground floor in the company of Mr McDonald, the police and Mr Francis. There is a conflict in the evidence. The mere fact that Mr Buchan was not cross-examined on his version is not determinative: Sullman v Sullman [2002] NSWSC 169; Kadian v Richards [2004] NSWSC 382 at [127].

Decision

Reasons for decision

GILMOUR J

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Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

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