Abigroup Contractors Pty Ltd v CFMEU

[2012] FMCA 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABIGROUP CONTRACTORS PTY LTD v CFMEU & ORS [2012] FMCA 639

INDUSTRIAL LAW – Building and construction industry – interlocutory relief – industrial action – industrial safety – picketing – whether industrial action was motivated by safety concerns – dispute with subcontractors – effect of industrial action on third parties.

Building and Construction Industry Improvement Act 2005 (Cth), s.39
Federal Magistrates Act 1999, s.17A

Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) [1998] HCA 30
Briginshaw v Briginshaw (1938) 60 CLR 336
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511
Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No.1) [2009] FCA 86

Applicant: ABIGROUP CONTRACTORS PTY LTD

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent: COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA

Third Respondent: AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION)

Fourth Respondent: CHRIS LYNCH

Fifth Respondent: STUART TRAILL

Sixth Respondent: BEAU MALONE

Seventh Respondent: MARK BATEMAN

Eighth Respondent: DAN BESSELL

Ninth Respondent: ADAM OLSEN

Tenth Respondent: TONY KONG

Eleventh Respondent: TIM JARVIS

Twelfth Respondent: MICK ROBINSON

File Number: BRG 457 of 2012

Judgment of: Burnett FM

Hearing dates: 30 May 2012, 4 and 12 June 2012

Date of Last Submission: 12 June 2012

Delivered at: Brisbane

Delivered on: 12 June 2012

REPRESENTATION

Counsel for the Applicant: Mr Murdoch

Solicitors for the Applicant: Minter Ellison

Counsel for the Respondents: Mr Plunkett

Solicitors for the Respondents: Hall Payne

Counsel for the Intervenor: Mr Pratt

Solicitors for the Intervenor: Office of Fair Work Building Industry Inspectorate

ORDERS

1. That the orders made 30 May 2012 be extended to 26 November 2012.

2. The hearing shall proceed on affidavit evidence with the affidavit of each witness, if adopted, to stand as the evidence in chief of the witness.

3. The Applicant is to file and serve affidavits on which it intends to rely by 4.00pm on 17 August 2012.

4. The Intervener is to file and serve any material on which it intends to rely by 4:00pm on 31 August 2012.

5. The Respondents are to file and serve any affidavits on which they intend to rely by 4.00pm on 28 September 2012.

6. The Applicant and Intervener are to file and serve any affidavits in reply on which they intend to rely by 4.00pm on 19 October 2012.

7. The parties are to exchange and file a written outline of submissions seven days prior to the commencement of the trial.

8. The proceedings be listed for hearing at 10.00am on 26 November 2012 for five days.

9. The proceedings be the subject of mediation on a date between 19 October 2012 and 12 November 2012 with the mediation to be conducted by a Registrar of the Court.

10. There be liberty to apply.

1. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 457 of 2012

ABIGROUP CONTRACTORS PTY LTD

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA

Second Respondent

AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS’ LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION)

Third Respondent

CHRIS LYNCH

Fourth Respondent

STUART TRAILL

Fifth Respondent

BEAU MALONE

Sixth Respondent

MARK BATEMAN

Seventh Respondent

DAN BESSELL

Eighth Respondent

ADAM OLSEN

Ninth Respondent

TONY KONG

Tenth Respondent

TIM JARVIS

Eleventh Respondent

MICK ROBINSON

Twelfth Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This dispute concerns the Cairns Hospital project.  It is a significant piece of public infrastructure, and patently needed in far North Queensland.  Its costs will run into many hundreds of millions of dollars, and the construction will take place over the next few years. 

2. The matter initially came before me on an urgent basis.  The application was filed late on 24 May 2012. An interim hearing was conducted the following day.  By the time of the interim hearing, the then named respondents had representation and had counsel appear for them. Subsequently, two further respondents were joined and they are represented by the same solicitor and counsel as the first 10 respondents.  On the occasion of the interim hearing, the Australian Building and Construction Commissioner sought and was granted leave to intervene. 

3. Although each of the parties made valiant efforts to position themselves for the making of interlocutory orders on the first return, it was plain, given the timing and the time permitted for preparation, that the application could not proceed then on that basis. The application was treated and determined as an interim application consistent with the approach outlined by the court in Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (No.1) [2009] FCA 86. Based on the material then before the court, interim orders were made affording the applicant relief, and the application was adjourned until the following Wednesday 30 May 2012 for hearing of an interlocutory application.

4. On the return of the interlocutory application, the applicants sought an enlargement of the interim orders to trial, which I have foreshadowed can occur in August this year.  The intervener joined with the applicant in seeking an enlargement of the orders, however, the respondents opposed that course. They contend the application should be refused and the injunction dissolved. 

5. The applicant is the principal contractor for the construction of the Cairns Base Hospital. It is a $300 million, three stage project in two portions, including the construction of new buildings and the refurbishment of existing facilities.  The works are due for completion in October 2013 for portion 1 of the works and 2015 for portion 2.  The applicant has engaged various subcontractors to undertake works in the project.  They are no fewer than 14 in number and they employ no less than 150 workers.  Some of those workers are either members of the respondent union or are engaged in activities for or within the works covered by the union. 

6. One such group include the electrical trades. In recent times, the applicant put the electrical works out to tender. One of the prospective tenderers was JPG Electrical CQ Pty Ltd or ‘John Goss.’ It was selected as the successful tenderer and appointed a subcontractor to the project on 23 May 2012. Difficulties between the applicant and the respondents and its members can be traced to these early events. 

7. John Goss has an enterprise bargaining agreement that is a non-union agreement. The JPG Electrical CQ Pty Ltd Employee Collective Agreement 2009-2012 is an approved enterprise bargaining agreement lodged with Fair Work Australia (FWA). In April this year, correspondence passed between Mr Stuart Trail, a union official of the ETU, and Mr Anthony Latimer, relating to John Goss. 

8. In that correspondence, Mr Trail noted, among other things, he had been attempting to locate a copy of the John Goss agreement that had been referred to as being “code compliant.” He noted that he was unable to locate any document from the FWA website and requested a copy:

   “So I can assess the differences between your Agreement and the standard ETU Agreement they are currently employed under?

   My members are seriously concerned that the tender price submitted for the CBH [Cairns Base Hospital] job by JGP [John Goss Projects] is based on paying significantly inferior conditions than they currently enjoy, I have been asked to provide them with feedback asap.”

9. No satisfactory response seems to have been received by Mr Trail to those emails, leading to further discussion between Mr Latimer of the applicant and Mr Trail towards the end of April or early May 2012, whereby Mr Latimer says Mr Trail stated words to the effect of,

   “If you appoint John Goss on this project you will have industrial unrest on this project.  We will plague you forever.”

10. Subsequently, a media release was published on 27 April 2012.  It was entitled “Attention general and political reporters – John Goss Projects CQ ripping off workers to win Cairns Hospital Job: ETU.”

    “Comparisons on rates of pay and allowances confirm that construction electricians will be paid up to $16,700 per year less if John Goss Projects CQ wins the Cairns Base Hospital redevelopment tender.”

11. There were further observations concerning the dire effect that the award of that tender would have on the local economy and observations that it was:

    “A race to the bottom. We’ve seen it happen before when electrical contractors undercut each other with dodgy non-union agreements to win contracts we all lose.”

12. Likewise, a further media release was published on or about 30 April 2012, where again, in a statement entitled “Far North Queensland Regional News – Attention: ALL ELECTRICAL WORKERS,” included the following:

    “Below is a comparison of the rates for both shortlisted companies tendering for the electrical component on the CHB redevelopment, have a close look at the huge differences JGP CQ expect workers to accept if they are successful. 

    If John Goss Projects Central Queensland is allowed to win this job, wages and conditions for all construction workers are at risk.

    No construction worker should have to accept huge reductions in their pay as a result of a company expecting to win jobs on the basis of ripping off workers.”

13. There is a table which shows a comparison of the various wages and the release finishes noting:

    “Stand up for your industry wages and conditions. 

    Tell Abi Group and JGP CQ, hands off your pay.”

    The flyer was also posted on various points around the project and there was video evidence taken by officers of the applicant showing the posters being attached to the project.  The officers of the respondent who were involved included the fifth respondent, Mr Trail, and the fourth respondent, Mr Lynch. 

14. Against that background, it should be noted that there had been some earlier complaints by Mr Trail to the applicant of an event involving a safety issue on a site at Carindale and unrelated to the Abigroup site in Cairns.  Without descending into any great detail about that, an issue arose and appears to have been the subject of discussion between John Goss and an installer on a project at Carindale. 

15. That background led to events on 9 May 2012, when at about 6.30am a site meeting was conducted by Mr Latimer.  At about 7.00am am, Mr Trail, Mr Lynch and Mr Mark Bateman (the seventh respondent), Bill Bijou, and Mr Adam Olsen (the ninth respondent) arrived at the office where the meeting was being conducted and barged into the meeting room. 

16. Mr Latimer spoke with Mr Lynch at that time, and he says on that occasion, Lynch proceeded to verbally abuse him, calling him, among other things, “a fucking grub,” saying that he was useless and that he “ignored safety.” I should note that this was the first time the issue of safety had arisen aside from the earlier emails, which were exchanged concerning the Carindale project, at which time the union sought to identify to the applicant its concerns with safety issues related to John Goss. 

17. At about 7.30am, Mr Latimer was called out to the project site to where the electrical switchboards were located.  It appears that there had been an issue there with the safety committee, and when he arrived he saw Mr Trial, Mr Lynch, Mr Bateman and Mr Olsen with members of the safety committee about the switchboard. Mr Latimer states that:

    “The safety committee is made up of 15 members. The majority of members are the safety representatives from sub-contractors on the Project. There are also three Abigroup representatives on the Safety Committee [as well as the union organisers].”

18. He noted that the safety committee, together with the union organisers and the representatives were all present, and Mr Trail informed him that the unions were shutting down the power at the site.  There was said to be an issue in relation to the clearance of the switchboard.  From the material, there was an issue as to whether or not the clearance around the switchboard complied with a relevant standard.  One is said to be standard AS3000 and the other is said to be AS3012, the former being an as permanent standard and the latter being a construction standard. In any event, discussion occurred between the parties and ultimately it was determined that the matter would be rectified. 

19. Present at this meeting was also a Mr Vicenzino who was the Construction Manager Northern Region for the applicant.  His role was to oversee and ensure the applicant’s projects were delivered within their contractual obligations.  At the time, he raised the issue about whether or not the switchboard was AS3000 compliant, which is a permanent wiring standard, or whether it was an AS3012 standard, compliant for construction wiring.  At the time, he sought advice from Wayne Pitt, who is the applicant’s safety manager, to clarify that particular matter. He said that Mr Pitt informed him that the AS3012 applied and that it required clear and safe access to the switchboard. Accordingly, based upon that advice, he did not consider that the switchboard installation posed an imminent risk to safety.

20. He then says he telephoned the general manager of LCE, Damien Drury, and had further discussion with him, and, following that, determined that the best course would be to improve the access around the switchboard, although at that time he was still very much of the view that the switchboard did not present an imminent risk of safety. 

21. In order to effect the work around on the switchboard, it was necessary to turn the power for the site off completely. Mr Latimer instructed that to occur.  It seems that he then left the site and while away he subsequently received a telephone call from a Mr Lyndon Pearce, another employee of the applicant, who informed him that one of the union officials had stated that Abigroup was in breach of its safety obligations because there was no power to the amenities building and, as a result, everyone had to leave the construction site and go home before there could be a safety walk conducted by the safety committee.

22. He says he went back to the site.  He again spoke with the organisers and was told by them “you don’t have amenities, you will have to send them home.”  He said he was also called at this stage a “lying cunt,” a “short man,” “gutless” and afforded other insults by a combination of four other organisers and was told he should be sacked. He was unable to identify who those particular organisers were. In any event, the fact that was there was no power to the amenities facility and so he made a decision on that occasion to send the employees home.

23. He noted that it took about an hour and a half for the difficulty to be rectified but of course by that time the workers had left the site and, as a consequence, no further work took place on the site that day.  The next day, that is 12 May 2012, there was another incident. On this occasion, at about 11.30am, Mr Latimer was onsite and he walked across to address a meeting of workers taking place on the ground floor of the southern end of block D.  He said words to the effect that the site was open and had been open all morning and he confirmed that the current action in not working constituted unlawful action and requested the workers to return to work.

24. It seems that that progressed but, as he returned to his office, he passed Mr Trial who shouted at him and told him words to the effect that the union would be continuing to harass Abigroup over the proposed use of John Goss as the new electrical contractor.  Mr Latimer says he made no response and continued walking towards his office.  There was then another incident a short time later involving a Mr Lynch which gave rise to a contest as to whether or not Mr Lynch was assaulted by Mr Latimer or whether Mr Latimer assaulted Mr Lynch, a matter which I need not discuss further here.

25. Subsequently, on 10 May 2012, a media release was issued by the union which was entitled “Cairns Hospital redevelopment – no compromise on safety – unions,” which observed:

    “The project manager on site sent the workers home yesterday acknowledging he could not guarantee their health and safety however this morning he has back - flipped and said the workers walked off the job and would not be paid for yesterday.”

26. It continued:

    “There is a standoff at the moment with Abigroup also obstructing and hindering the unions onsite including the elected safety committee from exercising the rights under sect 117 of the Act to do a safety audit of the site, this is a clear breach of union rights.”

27. It continued:

    “The ETU the CFMEU and BLF will not compromise on safety, we will not allow AbiGroup and Lend Lease to walk over the rights of our members to go to work and come home safe.”

28. There were subsequent events on the site on 11 and 14 May 2012 which purportedly involved safety complaints.  On 15 May, there was a further event involving the establishment of a picket line which was observed to be at every place of entry to the site.  Mr Latimer says that on that day, he phoned each of the subcontractors to ask them to get their workforce back to work onto the site.  He received responses which, for instance, included responses from Tacoma Plumbing where they said, in response to Mr Latimer’s request:

    “As instructed by yourself, our staff have continued to work on Block C and, as advised by our employees, we can see no reason to stop work.

    We agree with Abigroup that the strike action does not appear to be legal.”

29. Likewise, Mr Osborne of Southern Star Crane & Hoist who said:

    “Lewis Equipment has contacted it’s employees this morning 16/05/12 and advised them that the current industrial action is not acceptable and may be deemed as being illegal. Therefore an immediate return to work is effective.”

30. And then from LCE Queensland:

    “As discussed on the phone earlier.

    1/. All employees have been advised the site is open. 

    2/. All employees have been advised they are involved in illegal industrial action. 

    3/. All employees have been made aware of their responsibilities regarding industrial action in the building and construction industry. 

    4/. The attached PDF has previously been given to employees and has been posted on the wall of the shed.

    5/. All employees have been asked to return to work.”

31. Mr Latimer says that he recalled that about 44 employees of subcontractors were actually working on that day, although he noted that there were to be approximately another 80 who were expected to be on site and, by inference, it appears they were not.  On 16 May, the picket line was observed to remain in place and the Abigroup safety audit team also arrived to conduct an audit.  That team comprised Mr Sylvester, who was the General Manager Safety, Mr Rutherford, Mr Pitt and Mr Latimer.

32. They arrived at about 6.30am and they looked at the entire job, noting any concerns from a safety perspective.  Mr Latimer noted the safety issues identified included live switchboards and pieces of plant and equipment that were not registered properly, a water fountain which was spouting water over an electric line and some formwork and scaffolding issues, but he contended that none of those issues meant that the work site had to close and works completely cease. A spreadsheet was prepared of the matters identified.  However, he noted that some of the issues were not able to be immediately resolved because there was no labour on site to address the issue, nor were there any cranes.

1. The list was attached to his affidavit and is quite lengthy.  He stated that an:

   “Action plan was prepared at Abigroup’s initiation in accordance with our usual approach to identification and management of potential safety hazards and risks at our sites.”

2. Some of the matters were attended to quite quickly but, in his view, none of the matters ought to have caused the site to shut down.  There was further difficulty on the site on 17 May with the picket line still in place and also on 18 May, as illustrated in a photograph which shows the nature of the line involved.  It was, in essence, a line of people walking in a circular manner across a pedestrian crossing. On the occasion of 18 May, there were about 90 employees of subcontractors who were expected to be on site but were not working.

3. Mr Latimer says that at about 11am Mr Dan Bissell, who was the eighth respondent, approached him and said words to the effect that there were three things which needed to be resolved prior to the workers returning to work.  They were, firstly, that the workplace health and safety representatives within the safety committee must return to the workers a vote of confidence in the function of the safety committee going forward.  Secondly, that Abigroup must confirm that the workers would be paid for the time that they had been off work or at least made an offer. And, finally, that the unions have heard that John Goss was to be given the electrical contract for the project.  If that was the case, the workers would not be happy and the dispute was likely to continue. 

4. There was more difficulty on 19 May when, again, the picketers appeared.  Whilst they did not, on this occasion, obstruct the entry of a concrete pumping truck, they did create difficulty with the delivery of a concrete truck which required the assistance of police for the purpose of that particular pour.

5. There were more events on 21 May.  This time incorporating conduct on the part of the eleventh and twelfth respondents who came onto the site without entry permits and were assisted onto the site by other employees.  When they were challenged, they said words to the effect that they had received complaints from the workers that the jump form systems to the concrete building cores were unsafe and that they had observed people walking on the jump section in the rain without a hard hat and using a sabre saw. There was contest in relation to those matters.

6. On 22 May, there was another event, purportedly involving concerns in relation to safety.  This time, the incident raised concerns in relation to the fact that the wall and column shutters had no identification numbers or weights.  Mr Royce, who was BLF organiser, was apparently arranging for a government engineer to come and inspect the site to check the jump form cores. An issue was also said to arise concerning the use of small weight scaffold stairs instead of ladders to access the jump systems.

7. There was a reference to the Formwork Code of Practice to confirm that the formwork needs protection and that in place on the jumps was not correct and that Abigroup should have additional vertical posts and an additional horizontal kneel rail.  Events again progressed in a like vein on 23 May.  On this occasion, work was progressing on block C but it was running out because there were no electricians working on site.  Approximately 20 formworkers continued on block D where it could, to be completed, but again, the amount of work which could be performed was restricted without the use of tower cranes.

8. There were approximately another 45 subcontractors who were expected to be on site working on 23 May who were not working and it was complained that Mr Jarvis and Mr Robinson came back onto the site and to the office, noting that they complained about what they perceived were safety issues with the lifting formwork.  Those matters were amplified later that day when there was a further meeting held, which gave rise to issues involving the jump form systems and the column shutters.

9. It is to be noted that Mr Latimer says that the applicant does not accept that there were issues in relation to those systems, although he was prepared to ensure that the issues raised would be examined and that the shutters would not be used until those matters were resolved.

10. There were broadly the issues that were raised through the course of the works as Mr Latimer saw them.  Despite the events detailed between early and late May, being largely said to be directed to safety issues, the applicant’s case was that that was not so.

11. The applicant complains that, in effect, the respondents’ safety case is something of a ruse, and that the underlying motives relate to industrial issues particularly relating to choice of subcontractors by Abigroup rather than safety. It says, for instance, during the course of these events, the issue of John Goss was alive and well, and Mr Pearce, who I have earlier mentioned, was the General Foreman of Structures for the project says that:

    “At approximately 6.15am on 10 May I arrived at work and observed Chris Lynch from the ETU addressing workers as they arrived at the Project site. It appeared to me that he was ‘cornering’ workers as they tried to walk through the turnstile at the pedestrian access to the Project on Lake Street.”

12. He said while he was there he spoke to Andy, a crane driver employed by Lewis Cranes, who said to him words to the effect that: 

    “There had been decision to stop work until Abigroup agrees to pay all workers for the previous day.”

    This was a reference to the day when workers left the site because of the first major safety events complained. 

13. Likewise, on 11 May there were conversations with Mr Vicenzino, who says that during the course of the safety discussion that was had on that day a concern was raised about the water coolers. At this time, Chris Lynch also asked to speak with him about the matter of contracting. He says that he agreed and they suggested that they walk across the street for the discussion which he says that they did.  He says that Mr Lynch then asked him what was happening with electrical contractors and “where Abigroup was at” in tendering for the electrical work.  Mr Vicenzino says that he said words to the effect that:

    “We [Abigroup] had tendered for the work and evaluated the tender.”

14. He then says that Mr Lynch said words to the effect that:

    “There was word around that [Abigroup] were going to award the contract to John Goss Electrical.”

15. Mr Vicenzino acknowledged that and said it was accurate and then he says Mr Lynch said words to the effect:

    “That the John Goss Electrical pay rates were unlawful. He said words to the effect that it would be a problem for Abigroup if John Goss were awarded the contract because there was evidence of JGP being involved in sham contracting practice.”

16. Mr Vicenzino says he said words to the effect to: 

    “That the timing of this conversation is quite strange given we had just been in the middle of a discussion about safety issues and it had come out of the blue.”

17. Subsequently, on 16 May, Mr Vicenzino says he had conversation with Mr Jurie from Unispan who said words to the effect: 

    “That as soon as Abigroup got rid of non union electrical sub-contractor from site, the industrial action would stop.”

18. And he said that the workers were intimidated by the unions even though workers understood that it was illegal not to work. Similarly, on 18 May, Mr Vicenzino says that a meeting between Chris Lynch and Peter Ong words to the effect were said:

    “Where does Abigroup stand on the electrical contract on the Project. We have heard you are going to give the contract to John Goss.” 

19. Mr Vicenzino says he responded by saying words to the effect that:

    “The tender process was complete and it looked like John Goss would get the job.” 

20. Vicenzino then says that Ong said words to the effect that:

    “Thiess had experienced a picket line for 6 weeks at its project on 400 George Street because John Goss had not wanted to sign their EBA and ran with a non-union EBA.” 

    and further that:

    “The non-union EBA was about to expire and the ETU had a bargaining notice in with John Goss and that if he was in my [Vicenzino’s] position he wouldn’t go with Goss.” 

21. Vicenzino then says he said to Ong words to the effect that:

    “What he was saying was that if Abigroup did give the job to John Goss ‘we’re going to cop some hell from you guys.’” 

22. He then says Ong said words to the effect “well of course their EBA’s expired and we will be heading into industrial action on your job” and that it was an “industrial risk” to go with John Goss. He then told Ong and Lynch words to the effect that: 

    “We were experiencing issues already on the site and it appeared to me that the issues we were experiencing on the Project were directly related to the issue of whether Abigroup appointed John Goss.” 

23. Ong and Lynch denied that and said words to the effect that:

    “The work had been stopped due to an imminent safety risk to health and safety and because of non-payment of wages.” 

24. However, Vicenzino noted that safety and non-payment of wages was not the primary discussion at the meeting with Ong and Lynch. In fact, he noted that it was hardly mentioned.  The meeting had been arranged to discuss the appointment of John Goss,  and during the meeting Ong said words to the effect:

    “That he wanted to ‘warn me’ and make sure that Abigroup ‘put the right subbies on that aren’t going to cost Abigroup money.’” 

25. He said he formed the view from those discussions and posters at the project by the ETU and the ongoing industrial action that the project was directly related to whether or not Abigroup appointed John Goss as the electrical contractor.  Finally, there were statements also made to Mr Pearce on 18 May when he was likewise informed by Mr Ong.  He says: 

    “That if Abigroup used the right contractors there would be industrial harmony.”

26. As I have noted, Abigroup acknowledged that there were certain safety issues on the site but contends that they were in order and that they were not of such a gravity as to occasion a stoppage of works. The applicant contends that the respondent in effect sought to make ‘mountains out of molehills’ with respect to safety issues and that the concerns have been trumped up. 

27. They contend that this can be seen by reference to the nature of the matters identified in the safety committee’s list, and if one looks in particular at the major issues such as the issue raised with the water cooler, which they contend really amounted to a non-issue. It had been readily rectified with the removal of the cooler and the replacement in its place of a manual water facility. 

28. Likewise, the difficulties that occasioned in part were so because of the catch-22 caused by the difficulties with the crane.  The applicant also relies on the evidence of the witnesses indicating that the respondents are seeking to discourage and interfere with access to the site by others.  For instance, there is the evidence of Sean McNamara, the plumbing contractor, and of Andy, a labourer for Global HR, referred to in Mr Pearce’s material. 

29. At this stage, this being an interlocutory hearing, it is not appropriate to make any findings of fact, and I make no such findings, but I simply outline some of the detail on the history of this application to illustrate the contest which exists between these parties as to whether or not the true motivation for the conduct of the respondent is safety or whether indeed it is, as the applicant contends, an industrial matter being the choice of Abigroup’s third party contractors. 

30. They are matters that can only be resolved upon the hearing of evidence.  However, it is at least accepted in part by the respondents that there is some issue also in relation to these matters.  In its material, the respondents concede for instance the poor industrial history concerning John Goss and some of the contraventions that occurred concerning it prior to these events – see in particular the matters addressed in Mr Ong’s affidavit. 

31. However, notwithstanding the fact that the motivation alleged by the applicant is denied, the circumstances cannot be entirely ignored when viewed as a whole.  Notwithstanding the respondent’s efforts to place an industrially innocent and safety focussed emphasis on the events and exchanges, there is plainly much at issue between these parties concerning whether the conduct was industrially motivated. Those matters can only be resolved following a close examination of the factual context and considering what was said together with the various issues identified concerning safety and their seriousness. 

32. At its heart, the facts will address the question of motivation which ultimately is one to be resolved by reference to all the facts and both for and against each of the parties. Coming then to this application, the applicant now seeks to prosecute the application pursuant to its entitlement under s.39 of the Building and Construction Industry Improvement Act 2005 (Cth) which is to seek to restrain the respondents from undertaking unlawful industrial action which it contends is occurring at the moment.

33. For present purposes, each of the parties agree that the relevant test for interlocutory relief is that which is articulated in the Australian Broadcasting Corporation v O’Neill [2006] HCA 46 decision, which requires the court to determine whether first the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that following the trial of the action the applicant will be entitled to relief. Secondly, whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were granted outweighs or is outweighed by the injury which the respondents would suffer if the injunction were granted, and thirdly, whether the applicant is likely to suffer injury for which damages would not be an adequate remedy.

34. So far as the first point is concerned, although it was urged upon me that there is not sufficient evidence to demonstrate a prima facie case, I think that the facts of this case demonstrate there is.

35. In particular, it was urged upon me that when one has regard to the Briginshaw[1] standard, which requires measuring the weight of evidence necessary to justify the relief which is sought against the gravity of the relief which is sought, one ought tend to require a higher standard of satisfaction. However, respectfully, that submission, whilst a submission which would have great weight in the context of an application for final relief, is one that has to be tempered against the background of a case where the relief sought is simply interlocutory. 

    [1] Briginshaw v Briginshaw (1938) 60 CLR 336

36. While there is no doubt that the granting of an injunction constitutes a significant interference with the rights of the respondents, there is nothing in my view which calls for, in this instance, a departure from the usual approach provided for by the High Court in the Australian Broadcasting Corporation v O’Neill. That is, given the denials contained in the respondent’s case are contended to give rise to an inference that the applicant’s case is weak, in a competition which largely will be resolved by reference to credit, the strength of the respective cases and bearing matters will have upon the degree of satisfaction the court might ultimately conclude are, as I have noted, matters which can only be resolved after a trial. 

37. The second substantial matter which was raised by the respondents in resisting the prima facie case was a matter raised concerning the subsequent repeal of the Building and Construction Industry Improvement Act 2005. There is in my mind a serious issue to be resolved in relation to this matter.  Plainly, the legislation has repealed the Act as it stood but the transitional provisions provide that, at least in respect of proceedings that were on foot in respect of conduct which took place before the repeal of the Act, those proceedings remain.

38. The relevant sub-clause in the transitional Act provides that if an application, proceeding, appeal or other action were started under the 2005 Act but not completed before the commencement of this regulation, the 2005 Act continues to be in force to the extent necessary to allow the proceeding to be dealt with. The argument advanced by the respondent has some appeal but respectfully I think that it might be somewhat superficial. 

39. That is to say that what is being sought to be restrained into the future is conduct which is no longer unlawful under the new Act.  However, the serious issue to be tried in my view is as to what is meant by the term “proceeding.” A proceeding is simply more than just a statement of claim.  A proceeding includes not only the claim or the basis for the claim but also the relief which is sought in respect of the claim. 

40. Arguably, the drafting of the legislation and in particular the drafting of the transitional Act, particularly the words “to the extent necessary to allow the proceeding to be dealt with,” contemplated the prospect that any proceeding that had been commenced and yet to be exhausted could have involved any of various forms of relief including relief in the nature of declarations, injunctions and damages. 

41. On one reading of the section, the Parliament did not seek to fetter any particular proceeding which had been commenced before the repeal of the Act on the basis of the relief sought. That issue, in my view, remains a serious issue that ought be tried, and, notwithstanding the arguments advanced by the respondent at this early stage, I am not inclined to simply dismiss the application and dissolve the injunctions until there has been a detailed consideration and argument on that matter. 

42. In considering that point I am mindful of the court’s general power under s.17A of the Federal Magistrates Act 1999 in respect of summary relief. This is not an appropriate case for summary relief when one considers the principles, particularly those for instance articulated in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. This is not a case where the Court would quickly race to dismiss the action without proper argument being heard in respect of that matter.

43. It follows in my view that the applicant has made out a prima facie case in the sense that if the evidence remains as it is at least for the applicant’s part, there remains a probability that at the conclusion of the trial of the action the applicant would be entitled to the relief sought. 

44. Moving then to the question of the balance of convenience. As I earlier noted, the application involves a significant piece of public infrastructure. It does not require judicial notice to understand that the nature of this construction, being a piece of long-term construction, will be subject to a very detailed works programme, and although no evidence has been placed before me concerning the work’s critical path, the fact is that the works are at a very early stage where there is less likely to be scope for float to pick up any delay which may arise by reason of inconvenience or delay in the project at this early stage. 

45. Putting aside questions of the direct impact that might have upon the applicant itself, there are also likely to be significant impacts upon the interests of the community of far North Queensland with the delay of this infrastructure. Additionally, of course, there is also the impact upon other third parties who have a material interest in the project proceeding in a timely and organised way, such as the sub-contractors who are engaged in the works – see generally the observations in the Patrick[2] case.

    [2] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30

46. The competing interests of the trade union and the various respondents must also be considered. There is nothing to demonstrate from the evidence that the applicant has not taken a proper and considered approach in a timely and appropriate way to the complaints which are raised by both concerning safety issues. 

1. It seems from the material that the CFMEU’s concerns are being adequately addressed. If they are adequately addressed in a proper and appropriate way there would seem no reason why it would suffer any undue inconvenience by reason of the extension of the orders until trial of this matter, when the matter can be finally resolved.  It follows that the balance of convenience favours the extension of the relief. 

2. Finally, of course, is the question of damages. In part, that is a matter that I do not need to address because, as I have noted, convenience for third parties in this instance far outweighs the inconvenience associated to either of the applicant or the respondents.  There is no formal evidence before me addressing the prospect of damages or whether or not damages would be an adequate remedy, but by reason of the matters that I have earlier identified it is unnecessary in my view to address that matter. 

3. It follows that I will make orders enlarging the orders earlier made to the date of the trial or such other later time as is ordered. 

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  24 July 2012