Abigroup Contractors Pty Ltd v CFMEU and Ors (No.4)
[2012] FMCA 857
•7 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABIGROUP CONTRACTORS PTY LTD v CFMEU & ORS (No.4) | [2012] FMCA 857 |
| INDUSTRIAL LAW – Building and construction industry – interlocutory 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 Act 2009, ss.417(3), 348, 355, 545 |
| Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 819 Abigroup Contractors Pty Ltd v CFMEU & Ors (No.2) [2012] FMCA 820 Abigroup Contractors Pty Ltd v CFMEU & Ors (No.3); CFMEU v Abigroup Contractors Pty Ltd [2012] FMCA 822 Australian Broadcasting Corporation v O’Neill [2006] HCA 46 Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Cayne v Global Natural Resources plc [1984] 1 All ER 225 NLW Limited v Woods (1979) WLR 1294 |
| Applicant: | ABIGROUP CONTRACTORS PTY LTD |
| First Respondent: | AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
| Second Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Third Respondent: | JOSEPH MYLES |
| Fourth Respondent: | MICHAEL MYLES |
| Fifth Respondent: | MARK O’BRIEN |
| Sixth Respondent: | TROY JAMES |
| Seventh Respondent: | STEFAN TURNER |
| Eighth Respondent: | TONY FLORO |
| Ninth Respondent: | STEPHEN MCINTYRE |
| Tenth Respondent: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
| Eleventh Respondent: | CHRIS LYNCH |
| Twelfth Respondent: | KEITH MCKENZIE |
| Thirteenth Respondent: | PETER ONG |
| Fourteenth Respondent: | DENNIS STRANO |
| Fifteenth Respondent: | ROBERT CARNEGIE |
| Sixteenth Respondent: | PETER BRANSDON |
| File Number: | BRG 714 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing dates: | 5, 6, 7 September 2012 |
| Date of Last Submission: | 7 September 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Murdoch SC on 5 September, 2012 Mr Pratt on 6, 7 September, 2012 |
| Solicitors for the Applicant: | Minter Ellison |
| No appearance for the Sixth Respondent |
| Counsel for the Tenth Respondent: | Mr White |
| Solicitors for the Tenth Respondent: | Hall Payne Lawyers |
| Counsel for the Eleventh Respondent: | Mr White |
| Solicitors for the Eleventh Respondent: | Hall Payne Lawyers |
| Counsel for the Twelfth Respondent: | Mr White |
| Solicitors for the Twelfth Respondent: | Hall Payne Lawyers |
| Counsel for the Thirteenth Respondent: | Mr White |
| Solicitors for the Thirteenth Respondent: | Hall Payne Lawyers |
| No appearance for the Fourteenth Respondent |
| No appearance for the Fifteenth Respondent |
| No appearance for the Sixteenth Respondent |
ORDERS
The proceedings against the sixth, fourteenth, fifteenth and sixteenth respondents be adjourned to 9:30am 21 September 2012 for further hearing;
The sixth, fourteenth, fifteenth and sixteenth respondents each be served with:
(a)A copy of the further amended amended application filed 5 September 2012;
(b)Copies of all affidavits relied upon by the applicant to support its claim for relief against that particular respondent;
(c)A copy of the order made 5 September 2012; and
(d)A copy of this order.
THE COURT FURTHER ORDERS, UNTIL FURTHER ORDER, THAT:
Pursuant to ss. 417(3), 348 and/or 545 of the Fair Work Act 2009 the tenth respondent (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/as 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, including or conspiring with any employee of either the applicant, or any subcontractor to 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.
Pursuant to s.545 of the Fair Work Act 2009 the tenth respondent (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 Fair Work Act 2009 with the intent to coerce the applicant to only engage independent contractors to whom union based enterprise agreements apply.
Pursuant to ss. 417(3), 348 and/or 545 of the Fair Work Act 2009 the eleventh and twelfth 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 agreement 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.
Pursuant to s.545 of the Fair Work Act 2009 the eleventh and twelfth 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 Fair Work Act 2009 with the intent to coerce the applicant to only engage independent contractors to whom union based enterprise agreements apply.
The application generally be adjourned to 21 September 2012 at 9.30 a.m. for directions in the Federal Magistrates Court of Australia sitting at Brisbane.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 714 of 2012
| ABIGROUP CONTRACTORS PTY LTD |
Applicant
And
| AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
First Respondent
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Second Respondent
| JOSEPH MYLES |
Third Respondent
| MICHAEL MYLES |
Fourth Respondent
| MARK O’BRIEN |
Fifth Respondent
| TROY JAMES |
Sixth Respondent
| STEFAN TURNER |
Seventh Respondent
| TONY FLORO |
Eighth Respondent
| STEPHEN MCINTRYE |
Ninth Respondent
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
Tenth Respondent
| CHRIS LYNCH |
Eleventh Respondent
| KEITH MCKENZIE |
Twelfth Respondent
| PETER ONG |
Thirteenth Respondent
| DENNIS STRANO |
Fourteenth Respondent
| ROBERT CARNEGIE |
Fifteenth Respondent
| PETER BRANSDON |
Sixteenth Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
This is an application for interlocutory injunctions against four respondents to these proceedings. Those four respondents were joined to the proceedings by an order I made 2 days ago. The primary proceedings were commenced some time ago.
The interlocutory applications now before me seek injunctions against the tenth respondent, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the eleventh respondent, Chris Lynch, the twelfth respondent, Keith McKenzie and the thirteenth respondent, Peter Ong.
When those parties were joined to the proceedings, three further respondents were also joined (the fourteenth, fifteenth and sixteenth respondents) and on 5 September, 2012 I granted interim injunctions against those respondents as well as the sixth respondent.
Only the tenth, eleventh, twelfth and thirteenth respondents have participated in this application. All of the other respondents to the proceeding generally have not participated. Leaving aside the sixth, fourteenth, fifteenth and sixteenth respondents, no relief is claimed in this application against the remaining respondents to the principal proceedings.
The further amended amended application filed on 5 September, 2012 seeks, as against the tenth respondent, an order pursuant to ss.417(3), 348 and 545 of the Fair Work Act 2009 that that respondent be restrained from a number of things. The first is from organising or being involved in organising or engaging or being involved in engaging industrial action at a particular work site, prior to the normal expiry date of certain enterprise agreements between the applicant in this case and a number of sub-contractors – there are 17 of them.
A similar order is sought in respect of one collective agreement based transitional instrument, specified in the application. Further relief is sought against the same respondent from aiding, abetting, counselling or procuring and using or conspiring with any employee of either the applicant or any sub-contractor to the applicant employed at the relevant site, to take or to continue to take industrial action prior to the nominal expiry dates of the relevant industrial instruments with the sub-contractors that I have just referred to.
A number of other orders are sought restraining the tenth respondent from encouraging, assisting or participating in a picket line at the entry or exit points of the Project which has the effect of causing the conduct, namely impeding, hindering or preventing the entry or exit of persons or vehicles to and from the Project, unlawfully counselling or procuring any employee not to work at the Project and verbally abusing or threatening any person in the vicinity of the Project.
Orders are sought restraining the tenth respondent from placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the Project. Orders are sought restraining the tenth respondent from attending or organising or procuring any person to attend within 100 metres of any entrance or exit to the Project, save for certain specified purposes or from affixing or displaying any offensive poster, banner, photograph or any material whatsoever and any hoarding, poster or any other surface in the vicinity of the Project.
Another order is sought against the tenth respondent restraining it from organising or taking or threatening to organise or take or being involved in organising or taking or threatening to organise to take, any action in breach of s.355 of the Fair Work Act 2009 with intent to coerce the applicant to only engage independent contractors to whom union based enterprise agreements apply.
As against the personal respondents, the eleventh, twelfth and thirteenth respondents, orders are sought in the same terms as those set out in paragraphs 4 and 6 of the further amended amended application filed on 5 September 2012. Essentially but not precisely, the orders sought against the personal respondents reflect the orders sought against the union respondent.
The background to the dispute has been set out on a number of occasions now (see Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 819; Abigroup Contractors Pty Ltd v CFMEU & Ors (No.2) [2012] FMCA 820; Abigroup Contractors Pty Ltd v CFMEU & Ors (No.3); CFMEU v Abigroup Contractors Pty Ltd [2012] FMCA 822) but it is as well to set it out again.
The dispute centres upon work which is not being conducted at a Project described in the material as the Queensland Children’s Hospital Project and associated Energy Plant Project, which I will refer to in these reasons and which is referred to in the material as the QCH Project.
The applicant is the appointed principal contractor for the Project. The Project is apparently an $800m project and involves the design and construction of a children’s hospital. The Project is situated in South Brisbane on Vulture Street and when completed, it will be a 15-storey hospital building with a two-storey energy plant facility. The applicant has a number of sub-contractors engaged on the Project.
One of the sub-contractors that was engaged on the Project is described in the material as the Coastline Group. The Coastline Group ran into financial difficulty and was placed into administration (and may now be in liquidation). As a result of that financial difficulty, the employees of that sub-contractor were without employment and a dispute developed between the first and second respondents to the principal application and the applicant about how those employees ought to be treated and how their entitlements that had accrued to the date when they ceased to work and thereafter, might be accommodated.
To cut a very long story short, there was industrial action at the relevant project site, productive work all but ceased and as a result, on 6 August this year, the dispute found its way to Fair Work Australia. On that day, an order was granted by Senior Deputy President Richards of Fair Work Australia, which required that the employees who were members of the first respondent and who worked at the QCH Project, to not engage in any industrial action as defined in the Fair Work Act 2009. Essentially, the workers who were members of the CFMEU and who had ceased work were ordered to return to work.
Following on from that, and at about the same time, an application was made to this Court for injunctive relief against the first and second respondents and a number of individuals who were organisers or officials of the first and second respondents. On 9 August, 2012 I granted an interim injunction against the first and second respondents as sought by the applicant. I also granted some other injunctions against the individuals.
On 16 August this year, after a further interlocutory hearing, those injunctions were continued in force until further order and the action is to take its usual course.
Notwithstanding the order made at Fair Work Australia and the injunctions that have been made in this Court, it is tolerably clear that work has not resumed at the Project site.
On 5 September 2012, some of the sub-contractors of the applicant and the applicant on the one hand, and the tenth respondent and some others on the other hand were involved in further proceedings at Fair Work Australia. As between the applicant, the first, second and tenth respondents to these proceedings, there was a decision given and orders made by Fair Work Australia which, according to the terms of the orders, required the employees, who are the subject of that order, to not engage in any further industrial action at the site.
The orders required that each of the unions and its officers, employees and delegates to:
a)not organise or be involved in organising any industrial action;
b)not organise, direct, procure, authorise, incite, advise or encourage any employees to take industrial action; and
c)not threaten or propose to do any of those things.
There were some other matters set out in the order that required the unions to do certain things. Those orders, as I understand it, are in place. It may be the case that they are the subject of an appeal.
In these proceedings, as I have indicated, injunctions are sought against the tenth respondent and the eleventh, twelfth and thirteenth respondents who are organisers or officers of the tenth respondent.
It is worth recording at this stage, that there does not seem to be any contention by any party, that there are any safety concerns with the performance of work at the site. I say that, conscious of the argument raised by the respondents that there is a concern from the respondents’ point of view that if its members return to work and essentially cross a “picket line”, it may be that their wellbeing will be in jeopardy from the picketers. But in terms of the performance of work at this site, from an occupational health and safety point of view, there does not seem to be any particular concerns raised about the performance of work at the site by any particular employee or any particular respondent.
The cessation of work at the site has not been agreed to or authorised by the applicant or any of the relevant sub-contractors.
These are proceedings seeking an interlocutory injunction. The tests are well known. They have been formulated in any number of ways but the parties in this case seem to agree that in order to secure an interlocutory injunction, the applicant must establish that it has a prima facie case, in the sense that, if the evidence remains as it is, there is a probability, that at the trial of the action, it will be held entitled to relief. Some cases put the test a little differently – whether the applicant has established a serious issue to be tried. See generally Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and Australian Broadcasting Corporation v O’Neill [2006] HCA 4.
Secondly, there needs to be a consideration of the balance of convenience, and the balance of convenience must favour the grant of the injunction. Put in terms of some of the authorities, that means that the Court needs to consider whether the inconvenience or injury which would likely result if an injunction were refused outweighs the injury that the respondent would suffer if an injunction were granted. As part of the consideration of the balance of convenience, one needs to consider whether damages will be an adequate remedy.
There are, as the respondents point out, a number of nuances to the test. Its necessary to have regard to the relative strengths and weaknesses of the cases proposed by each of the parties, and it should be borne in mind that the Court should not ordinarily undertake a preliminary trial or give or withhold interlocutory relief as something of a forecast as to the ultimate result in the case.
Although it is necessary to make some assessment about the strengths and weaknesses of the opposing cases the authorities tend to suggest that where the decision to grant or refuse the interlocutory injunction will, in a practical sense, determine the substance of the matter in issue then greater consideration needs to be given to the relative strengths and weaknesses. But where that is not likely to occur, then the consideration perhaps need not be as detailed: NLW Limited v Woods (1979) WLR 1294, Cayne v Global Natural Resources plc [1984] 1 All ER 225.
Neither party suggested that in this case the granting or withholding of the relevant interlocutory relief will, in substance and in a practical sense, determine the substance of the matter in issue. It is difficult, in my view, to see how it could. The case made for the applicant against the tenth respondent hinges upon the applicant’s evidence about the actions and perhaps the omissions of the eleventh, twelfth and thirteenth respondents, that is, its organisers. As I apprehend the case that was put to me, it was not suggested that there is any reasons to think that injunctions ought to go against the tenth respondent but not against the eleventh, twelfth and thirteenth. It seems that it is an all or nothing proposition.
It is necessary then to consider the evidence as it exists in respect of each of the three named personal respondents. The eleventh respondent is Chris Lynch; he is employed by the tenth respondent as an organiser. The applicant sets out, most helpfully, as part of its outline of submissions, a reference to the relevant evidence upon which the applicant relies in respect of each of the individual respondents. I have not treated that table of evidence as exhaustive because on my view, it is not but it is, nonetheless, a useful guide. I have had regard to the evidence summarised and set out in that table, although I may not refer to all of it in these reasons.
Mr Lynch gives evidence, in his affidavit, that he has been aware of this dispute for some time; that in his role as an organiser he has attended the QCH Project site on almost a daily basis and in doing so, he has had contact with workers who are members of the tenth respondent and other workers who are not members of the union but who are eligible to be so. He says that consistently, his message has been that the Project is open for work, the CEPU does not support the taking of industrial action at the Project, the CEPU is concerned to ensure the safety of its members working at the Project and it is up to individual workers to decide whether they will go back to work.
There is nothing controversial about that. The evidence relied upon by the applicant is in accordance with what Mr Lynch says. The evidence of Mr Gildea, one of the principal witnesses for the applicant, in all three of his affidavits, the evidence of Mr McCann, the evidence of Mr Phelan and the evidence of Mr Willis and Mr Hogarth all tend to be confirmatory of the statements made by Mr Lynch. They have each heard him say those things to members of the tenth respondent.
Mr Lynch gives evidence that he has also told members that the CEPU has sought assurances from the various employers on site that their employees who entered the work site whilst the protest is taking place will be safe during their passage to work and will not be the subject of physical violence once the protest has ended.
I have some concern about that evidence, in that first of all, none of the witnesses relied upon by the applicant confirmed that they had heard those thing said. Secondly, there is no particularity at all given by Mr Lynch in his affidavit, as to the identity of those from whom he sought such assurances and particulars of the responses that he received.
He also swears in his affidavit, at paragraph 16, that at no time during any of the meetings has he encouraged members to refrain from going to work, told members that they should support the workers who were on strike nor told members that if they support the CFMEU and the BLF, the CFMEU and the BLF will repay the favour.
It seems to be that the deposition in paragraph 16 of Mr Lynch’s affidavit is really at the heart of the issues in this interlocutory application. As to the first matter, set out in paragraph 16(a) of his affidavit, he says that at no time has he encouraged members to refrain from going to work. That is a statement of conclusion by Mr Lynch because it may be that some of the things that he has said, the way in which they have been said and the circumstances in which they were said would convey a message that workers ought to refrain from going to work.
It is not difficult to envisage that a repetition of a warning about a worker’s wellbeing, that is, that they might be subject to threats, intimidation and actual violence should they cross a picket line, might be said on a repetitive basis with a view to reinforcing to those workers that, should they make the wrong decision, there will be significant consequences for them. That is a possibility, I say nothing higher than that.
Mr Lynch says, secondly, that at no time during any of the meetings has he told members that they should support the workers who are on strike. There is, however, some direct evidence to the contrary. Mr Phelan swears, in his affidavit of 5 September 2012, that he heard Mr Lynch say words to the effect of “Boys, we have to stick together”. Now, that statement, of itself, is capable of bearing any number of meanings but in the context of what is occurring at the QCH Project site, it is clearly arguable, in my view, that that statement might well convey a message that solidarity, not only amongst the CEPU members but the broader union community on site, is what is desired or desirable.
Mr Phelan also gives direct evidence that he heard Mr Lynch say, “One day, the BLF and the CFMEU will return the favour”. That statement, in conjunction with the first, indeed, even on its own, might carry with it the implication that what in fact is expected of CEPU members is some form of cohesion or solidarity, not just within the members of their own union but also with the other unions present on the site.
Mr Phelan also gives evidence that there were statements from Mr Lynch to the effect of, “Let me know if you are suffering financial hardship, we are here to support you”. That type of statement, it seems to me, is neutral. One of the entirely legitimate roles of a union, one would have thought, is to support workers who are in a position of need or financial hardship by reason of the very type of industrial activity that is going on at the QCH site. That is, workers who are wishing to work, but perhaps are not able to for whatever reason and who are suffering financially because of it, might well be entitled to expect that their union will make provision for them. The statement is, it seems to me, at best neutral.
Mr McCann is employed by the applicant as the Operations Manager, Northern Region Building and he has deposed two affidavits that were relied upon in this application. One of them, the second, annexes a statutory declaration made by Mr McCann of the purposes of the hearing that recently occurred at Fair Work Australia. At paragraph 6 of that statutory declaration, he says this:
At around 6.30 am the same day, the services trades workers held a meeting with the CEPU at the top end of Graham Street in the Mater Hospital car park. This included workers from Logan City Electrical, Christopher Contractor, Allied and AE Smith subcontractors. I was later advised that Chris Lynch, who I know to be an organiser with the CEPU, addressed this group. I was also told that Chris Lynch said words to the effect that:
a) the site is open for work;
b) the union can’t guarantee your safety (getting bashed in dark corners) if you cross the picket line;
c) in reply to a question from one of the workers regarding letters they had received, the Fair Work building inspectorate, Chris said words to the effect that the workers should “rip them up, pay no attention to them and that if you do, you’ll be in a worse position than crossing the picket line”;
d) “if they hold out, Abi will be forced to come to the table and negotiate with us” (I took this to be a reference to the unions wanting Abigroup to sign a new enterprise agreement that has been proposed by the unions) and;
e) that they would meet again tomorrow at the same time to discuss.
Of those five purported statements, two of them are consistent with what Mr Lynch and many of the other witnesses have said in their evidence. One of the statements simply talks about meeting again “tomorrow” and the remaining two are, on one interpretation, capable of suggesting that the involvement of Mr Lynch and the CEPU is something more than really looking out for their members’ best interests. Mr Lynch, in his affidavit, provides an explanation for what was said on that occasion. He does not agree that what is recorded in Mr McCann’s statutory declaration is an accurate record of what was said; he gives his own version of events. He gives an explanation as to why he told the workers to ignore the letters from the Fair Work Building Inspectorate. He suggested that the letter were an invitation to attend a voluntary interview, that if a worker provided information at a voluntary interview, it might be that ultimately, a matter ends up in Court and the worker would be required to give evidence in Court and if the worker was forced to go to Court and give evidence against somebody else, then it may be that the worker would end up in a worse position than if they had crossed the picket line.
As to the second statement: “If they hold out, Abi will be forced to come to the table and negotiate with us”, Mr Lynch denies that anything to that effect was said. He says that there would be no reason for him to make any such comments. Except if the evidence to which I have earlier referred, about assisting the CFMEU and the BLF and one day, them returning the favour, is accepted by a Court to be true. In that event, there may be reason to make such a statement.
The issue in this interim application is whether there is a serious issue to be tried concerning the presence and activities of the CEPU and its organisers on the QCH site and whether that carries with it support, in the sense of aiding and abetting the industrial action that is taking place at the site organised by the persons who are the subject of the first Fair Work Australia order.
In the earlier decisions that I have given in this matter concerning the CFMEU and the BLF, I concluded that the mere presence of officials can sometimes or might arguably amount to aiding or abetting depending upon the facts of the particular case at hand. Amongst other reasons, that was one of the bases upon which the injunctions were made against the first and second respondents. But in respect of those respondents the evidence was of a different character to the evidence in relation to Mr Lynch and Mr Ong and Mr McKenzie, for that matter. There was clearer evidence that some of the relevant respondents were, in fact, impeding entry to the site; were manning entry points and were engaging in verbal communications designed to prevent people from entering the site. Nothing like that is alleged against the three individuals who are the eleventh, twelfth and thirteenth respondents.
The only evidence which comes close to that is the suggestion contained in the evidence of Mr Smith, an industrial officer, that on 27 August he observed Mr Ong and Mr Lynch walk up a street – and it is not clear from the evidence whether it was Raymond Terrace, Hancock Street or Graham Street – through a group of perhaps 80 workers who were moving towards an assembly point in Raymond Terrace with a view to attempting to enter the site via an alternate entry point. If Mr Smith’s evidence was accepted, then that evidence, together with the evidence to which I have already referred about the statements that were allegedly made by Mr Lynch, might demonstrate on the balance of probabilities, that the presence of the union officials, the CEPU union officials on site, was something more than a presence which was designed merely to support their own members. Arguably it has a broader purpose of assisting or aiding or abetting the industrial action – the failure to return to work, of the other workers.
Mr Lynch, according to his affidavit, and Mr Ong, according to his, suggests that Mr Smith’s recollection of the Raymond Terrace/Hancock Street/Graham Street incident is entirely wrong. They describe a quite different scenario to that described by Mr Smith. Mr White, who appeared for the respondents, pointed out by reference to exhibit BG8 to Mr Gildea’s affidavit, that the photograph which purported to be of the particular incident in question was more supportive of the respondents’ version than that of Mr Smith’s. Ultimately, that might prove to be correct, but at the moment, it is difficult to come to a conclusion that it is.
There are at least four versions of what occurred on 27 August in the evidence. Mr Gildea describes an episode which he centres on Hancock Street. Mr Smith describes an episode which he centres on Raymond Terrace and Mr Lynch and Mr Ong describe an episode which centres on, perhaps Graham Street and the intersection of Raymond Terrace and Graham Street. It may be that they are all describing the same incident. I expect that they are. But it may be also be that they are describing different parts of that incident as it developed over time. A photograph is but a snapshot in time and it is not at all clear to me from the evidence, as to when in the continuum of that episode, the photograph was taken.
Insofar as Mr Lynch is concerned, it seems to me that the applicant establishes a triable issue. It may be that, if the applicant’s evidence is preferred to that of the respondents, the Court concludes that the applicant is entitled to relief.
However, I am not satisfied that the same conclusion ought to be arrived at in respect of the thirteenth respondent Mr Peter Ong. The evidence in respect of Mr Ong is less substantial and, apart from his participation in the episode of 27 August however it occurred, and apart from his presence at meetings where the uncontested statements to which I have already referred made, there is little else to suggest he has engaged in any conduct which might be offensive under the Act.
The twelfth respondent, Mr Keith McKenzie, is in a different position again. In my view, the evidence does establish a triable issue against Mr McKenzie. The evidence, particularly that of Mr Willis, is that Mr McKenzie encouraged Allied Technology workers to leave their work site to attend a meeting which, having regard to Mr Phelan’s evidence, was a meeting conducted by the CFMEU and the BLF off-site, with a view then to continuing the protest at the applicant’s head office in South Brisbane. That in my view, amounts to industrial action on any view and it is consistent with the theory propounded by the applicants that the presence on site of the CEPU is more than simply to support their members, but has a broader purpose to support whatever action is being undertaken by the CFMEU, the BLF or the workers who are bound by the Fair Work Australia orders.
It was not contended, as I said at the outset, that the tenth respondent ought to be treated any differently to the eleventh, twelfth and thirteenth respondents and it seems to me that there is no suggestion in the evidence that the activities engaged in by Mr Lynch, Mr Ong and Mr McKenzie, were not engaged in by them except in their role as organisers of the tenth respondent. It follows therefore, that there is a serious issue to be tried as against the tenth respondent, having regard to the findings against the eleventh and the twelfth respondents.
The question then becomes one of the balance of convenience. The first thing to say is that I agree with the submissions for the respondents that the terms of the injunctions sought are too wide and if it was the case that the only alternative was to make injunctions in the form set out in the further amended amended application, I would refuse them. But, as Counsel for the respondent demonstrated by reference to the authorities, the Court has the capacity, indeed the obligation, to ensure that the injunctions that are granted are no wider than are necessary.
There is evidence contained in Mr Gildea’s affidavit, referred to by affidavit of 9 August, referred to by reference in his current affidavit, that delay on this site is costing the applicant or has the potential to cost the applicant about $300,000 a day. There are other significant penalties that might accrue if completion of construction is delayed. It is important to recognise, I think, the significance of this Project – this public infrastructure project – generally.
As against that, the respondents by the grant of an injunction, appropriately drawn, would not be, it seems to me, prejudiced in any particular way. Indeed, no particular prejudice was identified. It was suggested that the members of the CEPU were entitled to have representation on site and they were entitled to have their representatives remind them that crossing a picket line, to use the summary phrase, can be dangerous. I agree. They are entitled to that. The balance, it seems to me however, demands that there be some form of order which is designed to prevent any of the matters which might be described as, engaging in, encouraging, aiding or assisting the ongoing industrial action at the site.
I accept the submissions made by Counsel for the respondent that union officials engaging in meetings with members of the union at the site or near the site, is not necessarily industrial action for the purposes of the Act. But as my reasons have attempted to make clear, the evidence in respect of Mr McKenzie at least tends to suggest that the meetings were beyond that – at least one of them – and it is that encouragement, that organisation which in my view, is industrial activity which ought to be restrained.
Having regard then to the further amended amended application, as against the tenth respondent, there will be an order in the same terms as paragraph 3 (a), 3 (b), 3 (c) of that document. I do not intend to make an order which covers 3 (d), 3 (e), 3 (f), 3 (g), 3 (h), 3 (i) or 3 (j) because I am not satisfied that the evidence establishes that any of that has occurred at the hands of the tenth respondent.
I will make an order in terms of paragraph 5 against the tenth respondent. It was said in submissions for the respondent that there was no warrant whatsoever for making such an order. But in my view, and I accept immediately that I have not articulated this earlier, but in my view, the evidence does demonstrate a triable issue in respect of the reasons for the support of the ongoing industrial action at the site. The evidence suggests that there has been a change, over time, of the reasons for the industrial action that is occurring at the site. Originally it centred upon the Coastline workers. It seems then, that other reasons were given and in particular the desire of some of the unions on site, the structural industries unions, to have union based enterprise bargaining agreements in place with all of the sub-contractors on site. It seems, from the evidence, that the organisers of the CEPU are aware of that and it follows in my view, that to the extent that the statements that I have already recorded in these reasons, and, which if are found to have been made, are supportive of the stance taken by the first and second respondents, that there is an aiding and abetting of that industrial action for the purposes of ensuring that the applicant only engage independent contractors or sub-contractors, to whom union based enterprise agreements apply.
In respect then of the eleventh and twelfth respondents, I will make an order in the same terms as paragraph 4 (a), (b) and (c) of the further amended amended application. For the same reasons, I do not make an order as sought in paragraphs 4 (d), (e), (f), (g), (h), (i) and (j) and, for the same reasons, I make an order under paragraph 6 – in the same terms as paragraph 6 – of the further amended amended application.
Those orders will continue until further order. I have already indicated that I will adjourn the application insofar as it concerns the sixth, fourteenth, fifteenth and sixteenth respondents to 21 September, 2012. I wonder whether the application as against the respondents that I have just dealt with, ought to stand over to that date, so that in the meantime, the applicant and those respondents can agree on some further directions that might carry the matter forward.
RECORDED: NOT TRANSCRIBED
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 14 September 2012
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