Abigroup Contractors Pty Ltd v CFMEU
[2012] FMCA 819
•9 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABIGROUP CONTRACTORS PTY LTD v CFMEU & ORS | [2012] FMCA 819 |
| INDUSTRIAL LAW – Building and construction industry – interim relief – industrial action – order from Fair Work Australia to return to work – whether respondents aiding ongoing unlawful industrial activity in contravention of Fair Work Australia order. |
| Fair Work Act2009, ss.550(1), 550(2)(a) |
| Applicant: | ABIGROUP CONTRACTORS PTY LTD |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Respondent: | AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION) |
| Third Respondent: | JOSEPH MYLES |
| Fourth Respondent: | MICHAEL MYLES |
| Fifth Respondent: | MARK O’BRIEN |
| File Number: | BRG 714 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 9 August 2012 |
| Date of Last Submission: | 9 August 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 9 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J E Murdoch SC with Mr C J Murdoch |
| Solicitors for the Applicant: | Minter Ellison |
| Counsel for the First, Second, Third, Fourth and Fifth Respondents: | Mr Friend SC |
| Solicitors for the First, Second, Third, Fourth and Fifth Respondents: | Hall Payne Lawyers |
ORDERS
THE COURT ORDERS THAT UNTIL 4.00PM ON 14 AUGUST 2012, OR EARLIER ORDER:
Pursuant to s.421(3) and s. 550 of the Fair Work Act 2009 (FW Act) the first respondent (whether by its officers, delegates, employees, or howsoever otherwise) be restrained from aiding, abetting, counselling, procuring, inducing, being knowingly concerned or conspiring with any person who is a member of the first respondent and who works at the Queensland Children’s Hospital and Queensland Children’s Hospital Energy Plant project in Queensland (QCH Project) to contravene the Fair Work Australia order to cease taking industrial action made by Senior Deputy President Richards on 6 August 2012 (FWA Order).
Pursuant to s.421(3) and s. 550 of the Fair Work Act 2009 (FW Act) that the Third Respondent, Fourth Respondent and Fifth Respondent be restrained from aiding, abetting, counselling, procuring, inducing, being knowingly concerned or conspiring with any person who is a member of the First Respondent and who works at the QCH Project to contravene the FWA Order.
Pursuant to s.417(3), 348 and 545 of the FW Act that the First and Second Respondents (whether by their officers, delegates, employees, or howsoever otherwise) be restrained from:
(a)organising, or being involved in organising, or engaging in or being involved in engaging in, any industrial action at the QCH Project prior to the nominal expiry date of the enterprise agreements of the following subcontractors:
(i)Aaction Traffic Services Pty Ltd;
(ii)Admiral Concreting (Qld) Pty Ltd;
(iii)A E Smith & Son (SEQ) Pty Ltd;
(iv)Allied Technologies Pty Ltd t/a Allied Technologies;
(v)Beenleigh Steel Fabrications Pty Ltd;
(vi)Caelli Formwork Qld Pty Ltd;
(vii)Christopher Contracting Pty Ltd;
(viii)Delta Pty Ltd;
(ix)Fairfield Services Pty Ltd;
(x)Global HR Pty Ltd;
(xi)Johnston Contracting;
(xii)LCE Queensland Pty Ltd;
(xiii)Scooter Commercial Pty Ltd;
(xiv)Southern Star Crane & Hoist Pty Ltd;
(xv)Specialised Concrete Pumping Pty Ltd;
(xvi)Structural Systems (Northern) Pty Ltd;
(xvii)Unispan Australia Pty Ltd (the Fair Work Subcontractors).
(b)organising, or being involved in organising, or engaging in or being involved in engaging in, any industrial action at the QCH Project prior to the nominal expiry date of the collective agreement based transitional instrument of the following subcontractor:
(i)Microfire Systems Pty Ltd (the transitional subcontractor).
(c)aiding, abetting, counselling or procuring, inducing or conspiring with any employee of either the applicant, or any subcontractor of the applicant, employed at the Applicant’s site at the QCH Project (employees) to take or to continue to take industrial action prior to:
(i)The nominal expiry date of the enterprise agreements of the Fair Work Subcontractors; or
(ii)The nominal expiry date of the collective agreement based transitional instruments of the transitional subcontractor;
(d)organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH project which has the effect of causing conduct the subject of sub clause, e, f or g herein;
(e)impeding, hindering or preventing entry or exit of persons or vehicles to and from the QCH Project;
(f)unlawfully counselling or procuring any employee not to work upon the QCH Project;
(g)verbally abusing or threatening any person in the vicinity of the QCH Project;
(h)placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the QCH Project;
(i)attending, or organising or procuring any person to attend, within 100 metres of any entrance or exit to the QCH Project, save for such entry;
I.As may be authorised by law;
II.For the purpose of using public road for reasons unconnected with the said QCH Project; or
III.For the purpose of complying with these orders; and
(j)affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of the QCH Project.
Pursuant to s.417(3), 348 and 545 of the FW Act that the Third, Fourth and Fifth Respondents be restrained from;
(a)organising, or being involved in organising, or engaging in or being involved in engaging in, any industrial action at the QCH Project prior to the nominal expiry date of the enterprise agreements of the Fair Work Subcontractors.
(b)organising, or being involved in organising, or engaging in or being involved in engaging in, any industrial action at the QCH Project prior to the nominal expiry date of the collective agreement based transitional instrument of the transitional subcontractor;
(c)aiding, abetting, counselling or procuring, inducing or conspiring with any of the employees to take or to continue to take industrial action prior to:
(i)the nominal expiry date of the enterprise agreements of the Fair Work subcontractors; or
(ii)the nominal expiry date of the collective agreement based transitional instruments of the transitional subcontractor.
(d)organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH Project which has the effect of causing conduct of the subject of subclause organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH project which has the effect of causing conduct the subject of sub clause, e, f or g herein;
(e)impeding, hindering or preventing entry or exit of persons or vehicles to and from the QCH Project;
(f)unlawfully counselling or procuring any employee not to work upon th3e QCH Project;
(g)verbally abusing or threatening any person in the vicinity of the QCH Project;
(h)placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the QCH Project;
(i)attending, or organising or procuring any person to attend, within 100 metres of any entrance or exit to the QCH Project, save for such entry;
I.As may be authorised by law;
II.For the purpose of using public road for reasons unconnected with the said QCH Project; or
III.For the purpose of complying with these orders; and
(j)affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of the QCH Project.
Pursuant to s.545 of the FW Act that the First and Second Respondents (whether by their officers, delegates or employees, or howsoever otherwise) be restrained from organising or taking, or threatening to organise or take or being involved in organising or taking or threatening to organise or take, any action in breach of s.355 of the FW Act with the intent to coerce the applicant to only engage independent contractors to whom union based enterprise agreements apply.
Pursuant to s.545 of the FW Act that the Third, Fourth and Fifth Respondents be restrained from organising or taking, or threatening to organise or take or being involved in organising or taking or threatening to organise or take, any action in breach of s.355 of the FW Act with the intent to coerce the applicant to only engage independent contractors to whom union based enterprise agreements apply
The application be adjourned to 14 August 2012 at 2:15pm in the Federal Magistrates Court of Australia sitting at Brisbane for the hearing of any further interlocutory applications.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 714 of 2012
| ABIGROUP CONTRACTORS PTY LTD |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION) |
Second Respondent
| JOSEPH MYLES |
Third Respondent
| MICHAEL MYLES |
Fourth Respondent
| MARK O’BRIEN |
Fifth Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application for interim injunctive relief as set out in the application filed today, 9 August 2012 and as will be amended as foreshadowed in submissions by Mr Murdoch for the applicants. To the extent that it is necessary to do so, I grant leave to file an amended application which reflects the amendments that were discussed in submissions.
By the interim application, the applicant, who is the manager of a major construction project in inner Brisbane seeks an order that the first and second respondents be restrained from aiding, abetting, counselling, procuring, inducing, being knowingly concerned or conspiring with any person who is a member of the first respondent who works at the particular project concerned, to contravene an order of Fair Work Australia which was made on 6 August this year and directed to certain parties to whom I will refer shortly requiring them to cease taking industrial action.
A raft of other complementary orders are sought against the first and second respondents and the third, fourth and fifth respondents who are variously officers of the first and second respondent.
The gravamen of the application is this: there is, as I have indicated, a construction project under way in inner city Brisbane described in the material as the Queensland Children’s Hospital Energy Plant and the Queensland Children’s Hospital Project. The applicant is the project manager for those projects and it has come to pass that one of the subcontractors – Coastline – operating on that site went into voluntary administration leaving some 110 or so employees without pay and entitlements for some time.
That seems to have sparked something of a dispute and it led to there being a cessation of work at the projects. The affidavit of Brian Gildea, filed today by leave supports the proposition that from 6 August this year, workers at the relevant site have ceased to perform work and Mr Gildea describes a series of observations and investigations that he made which led to an application being made in Fair Work Australia for an order that members of the first respondent who were no longer engaging in work so as to support the “Coastline employees” should return to work.
On 6 August, 2012 Senior Deputy President Richards of Fair Work Australia made an order against the Construction, Forestry, Mining and Energy Union. The order applies to work carried out at the Queensland Children’s Hospital and Queensland Children’s Hospital Energy Plant project, South Brisbane. The parties bound by the order are: Abigroup Contractors Proprietary Limited, the applicant in these proceedings; the Construction, Forestry, Mining and Energy Union – that is, the first respondent; the employees who work at the QCH project who are employed by any subcontractor to Abigroup and who are members of the CFMEU.
The orders provide that the employees must not engage in any industrial action. “Industrial action” is defined in the order. By the terms of the order, the applicant was to place a copy of the order on noticeboards at the QCH project, and given its representational role, the CFMEU was to use its best endeavours to communicate the terms of the order to its members. The Union, however, was not otherwise bound by the operational parts of the order.
The order came into effect at 4 pm on 6 August, 2012 and remains in force until 5 pm, Monday 3 September, 2012. Mr Gildea’s evidence reveals that after the order was made and perfected; a copy of it was placed on the relevant notice boards at the project in accordance with the terms of the order, but despite that the relevant employees have failed to return to work. His evidence reveals that since that time, there have been very few, if any, employees return to work on site.
Most of the employees who are not covered by the order but who have not performed any work on site are employees of subcontractors and the evidence reveals that those employees are reluctant to enter the work site for fear of harassment and intimidation by reason of them working on a site where there are other employees who are refusing to work and who have established a “workers’ protest”.
The evidence reveals that the third, fourth and fifth respondents have all played a part in being present at the work site and in summary, providing support, to use as neutral a term as I can think of, to the workers who have refused to return to work.
It was said earlier today in submissions that the evidence does not support the proposition that either the first, second, third, fourth or fifth respondents have provided support to the workers, but one might think that the mere presence of officers of the first and second respondent, and the third, fourth and fifth respondents themselves being present, by the fact of their very presence provides support for the industrial action which is ongoing.
To aid and abet in some circumstances merely requires presence. There are some analogies to be drawn in other areas of the law, and it seems to me that at least on this interim basis, it is appropriate to consider that there is an arguable case that the mere presence of the officials at the relevant site to provide support, albeit moral or some other form of support, is sufficient to engage the provisions of s.550(2)(a) of the Fair Work Act.
The test for the grant of an injunction is twofold. The court needs to determine that there is a serious issue to be tried and that the balance of convenience favours the grant of the injunction sought.
On this interim basis I am satisfied that there is a serious issue to be tried. If the applicant’s material is accepted, then it seems to me plainly arguable that the relevant respondents have engaged s.550(2)(a) of the Act and are thereby involved in the contraventions represented by the failure to comply with the order of Fair Work Australia made on 6 August, 2012.
It was said that it might be argued with some force that really this application is a means by which the order made by Fair Work Australia is reworked. That is, this is a back door way of obtaining orders against the Union respondents when the Union was not the subject of the Fair Work Australia order. As I have already indicated however, the Union is a party bound by the order according to the terms of it: see section 3.2 of the order although paragraph 4 of the order makes no particular order against the Union itself. Nonetheless, it is plainly arguable that s.550(2)(a) of the Act is engaged.
In my view, the balance of convenience favours the grant of the injunctions. There is significant prejudice deposed to by Mr Gildea in terms of the progress of this particular project. There are financial penalties, as one would expect, if work does not proceed, and it seems according to the evidence that work has not proceeded since at least 6 August.
Against that, there is no suggestion of prejudice to the particular respondents in this application. It might be the case that once the respondents are in a position to have material before the court, a different conclusion is drawn about that, but at the moment, there is no material that suggests that there might be any particular prejudice: indeed, there is in place an order that the particular parties bound by that order (who are not parties to these proceedings) return to work. The balance of convenience, in my view, favours the grant of the injunction.
Injunctions will be granted in terms of the relief sought in the application as amended. Those orders will continue until 4 pm on Tuesday, 14 August, 2012.
On Tuesday, the matter will reconvene at 2.15pm and the Court will consider any further applications for the continuation of the injunctions or for their discharge.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 10 September 2012
0
1