Abigroup Contractors Pty Ltd v CFMEU & Ors (No.2)

[2012] FMCA 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABIGROUP CONTRACTORS PTY LTD v CFMEU & ORS (No.2) [2012] FMCA 820

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

Fair Work Act 2009, ss.12, 550(1), 550(2)(a), 793

Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Meat & Allied Trades Federation of Australia v Australasian Meat Industry Union of Employees (1989) 90 ALR 187

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: 14 August 2012

Date of Last Submission: 14 August 2012

Delivered at: Brisbane

Delivered on: 16 August 2012

REPRESENTATION

Counsel for the Applicant: Mr Murdoch SC

Solicitors for the Applicant: Minter Ellison

Counsel for the First, Second, Third, Fourth and Fifth Respondents: Mr White

Solicitors for the First, Second, Third, Fourth and Fifth Respondents t: Hall Payne Lawyers

ORDERS

1. The orders of 9 August 2012 remain in full force and effect until further order.

2. This application be adjourned to a date to be fixed.

3. The parties bring in minutes of agreed directions for the further conduct of this application.

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

(revised from the transcript)

1. This is an application for interlocutory injunctions to restrain the respondents from taking what is alleged to be unlawful industrial action in breach of certain provisions of the Fair Work Act 2009. The applicant has secured some interim orders that were made last week. The respondents each say that those orders ought to be discharged. The applicant says that the orders ought to be continued. 

2. There is no dispute between the parties that the relevant principles for the granting of an interlocutory injunction are those stated in cases such as Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and Australian Broadcasting Corporation v O’Neill [2006] HCA 46. That is, the Court needs to be satisfied that there is a serious issue to be tried and that the balance of convenience favours the grant of the injunction. One of the matters to be taken into account in considering the balance of convenience is whether damages will be an adequate remedy.

3. The current applications arise against the following background. The applicant is the principal contractor for a major construction project which is presently being undertaken in South Brisbane. It comprises of two parts according to the material. The Queensland Children’s Hospital project and the Queensland Children’s Hospital Energy Plant project. The evidence suggests that the project is worth about $800 million. It is a project on which, from time to time, there are about 650 workers engaged. The work is conducted by some employees of the applicant but mainly by employees of subcontractors. 

4. Some of those subcontractors’ employees are members of the first and second respondents. Some are members of other unions and some are not members of unions. There are various industrial arrangements between the workers on site and those that employ them. 

5. There is no contention that the first and second respondents are not organisations that are capable of responding appropriately to these proceedings. The third respondent, Joseph Myles, and the fourth respondent, Michael Myles, are officers of the second respondent. The fifth respondent, Mr O’Brien, is an officer of the first respondent. 

6. The material discloses that there has been some concern at the site about a subcontractor called the Coastline Group or the Coastline Company and its employees. The evidence filed on behalf of the respondent’s suggests that since late July there have been concerns about the ability of that company to discharge its financial obligations to its employees. The concern seems to have been well founded because, at the very end of July, Coastline went into administration. It may be, according to some of the material, that it has since been placed into liquidation. 

7. The employees or former employees of Coastline were not paid some entitlements and, of course, have no certainty about ongoing employment. They have taken up their cause with the applicant. The first and second respondents have sought to represent those employees or former employees in relation to those unpaid entitlements and their continued employment at the site. 

8. The first and/or second respondents caused there to be a dispute notified to Fair Work Australia in which they sought to have the applicant engage. A conference was called by Fair Work Australia but the applicant refused to respond to it taking the view that as it was not a party to the relevant industrial agreement between Coastline and its employees, it was not obliged to do so.

9. A “workers’ protests” has been established at the QCH site and since 6 August, no, or very little, productive work has been carried out on the site. Thus, the dispute broadened from one with the former Coastline employees only, to one which has impacted upon and engaged generally the workforce at the site.

10. The applicant took its own proceedings in Fair Work Australia on 6 August, 2012 to attempt to deal with the cessation of productive work on the site. On 6 August, Fair Work Australia made an order that employees who were members of the first respondent and who were engaged in industrial action at the relevant project must not engage in any industrial action as defined in the Fair Work Act. The order bound the employees, but the first respondent was only bound to the extent that there were obligations upon it to bring the order to the notice of its members in certain ways.

11. That order, according to the evidence, has not been complied with. Work has not resumed on the site and the employees bound by the order have not returned to work. The applicant says there is a prima facie case that there is unlawful industrial action occurring at the site. 

12. The applicant argues here that it establishes the first matter required for the grant for the necessary injunctions. The applicant argues that the evidence demonstrates that the respondents have been involved in agitating an issue relating to the employment and payment of outstanding entitlements in respect of the former Coastline employees since late July, 2012. On the evidence, that proposition is uncontroversial. The applicants argue that, in addition, the respondents have been involved in agitating an issue concerning the use of contractors with non-union based enterprise agreements and that issue is also informing the current dispute. 

13. The first and second respondents disavow any connection between the current dispute and the use of contractors with non-union based enterprise agreements. It is put in dispute by the respondents’ material. The respondents argue that it was only after the applicant declined to attend Fair Work Australia and the conference convened by it in relation to the Coastline dispute that the current campaign of “picketing and failure to attend work” was set in train. On the uncontroversial evidence, it seems to be the case that the refusal to attend work by the majority of the workers on site only occurred after the applicant declined to attend Fair Work Australia for the Coastline conference. 

14. The evidence reveals that no safety concerns have been raised with the applicant by any of the workers or their employers on the site. There does not seem to be any suggestion in the respondent’s material that that is controversial. 

15. There is no controversy between the parties that on 7, 8, 9 August the three personal respondents, Joseph Myles, Michael Myles and Mark O’Brien, attended at the site and, whilst there, engaged in certain activities. It is alleged that they were present at entrances around the site. The principal evidence comes from Mr Brian Gildea, the senior project manager for the applicant. 

16. Mr Joseph Myles and Mr Mark O’Brien have filed affidavits in this application and they have responded to Mr Gildea’s evidence where they have seen it as appropriate to do so.

17. Mr Gildea gives evidence in his affidavit of 9 August, 2012 that at 7.15 am on 6 August, he saw Joseph Myles, Michael Myles and Mark O’Brien following some employees back from a meeting in the South Bank Parklands. He states that they came up to see him and they had a meeting at the site office. Joe Myles said words to the effect that the meeting had occurred with members of the CFMEU and the BLF that morning. Mr Gildea said, “What is going on?”  and Mr Joe Myles responded with words to the effect, “Both union secretaries had a lot of concerns about non-union based EBA companies on site and that they were looking for assureties of union based agreements.” There was some further conversation but nothing was resolved. In his affidavit, Mr Joe Myles confirms that that conversation took place. 

18. Mr Gildea gives some further evidence that the next day – 7 August –he went to site at about 5.30am and he saw Michael Myles standing at the eastern gate of the site. He said that later in the morning he spoke to Mr Myles and asked him what he was doing there standing at the eastern side of the gate. His response was, “Supporting the workers.” Mr Gildea observed him standing there with folded arms in front of the gate. 

19. At about 8.45 am on the same day, Mr Gildea spoke with a group of workers who were standing outside the eastern gate and told them that the site was open. One of the workers asked Mr Gildea to walk them through the entrance and Mr Gildea agreed to do so. He says that he walked through the turnstiles that were controlling the entry and as he turned back he realised that the workers were not following him. He says that he saw that Mick Myles was standing with his back to him and was talking to the workers that Mr Gildea thought he was escorting through the turnstiles. He said to Mick Myles words to the effect, “You are not telling these guys they can’t go to work, are you, Mick?”. Mr Mick Myles replied with words to the effect, “I am only telling them it is a moral decision as to whether they go in.” According to Mr Gildea’s evidence the workers did not enter the site following the discussion with Mr Mick Myles.

20. Later on that same day at about 9.15 am, Mr Gildea went for a walk around the site. He says that Mr Michael Myles and Mark O’Brien were standing at the Raymond Terrace corner of the site.  He spoke with both of the gentlemen and said words to the effect, “Why are you still here?” Mr O’Brien responded with words to the effect, “To support the workers.” Mr Gildea gave evidence that on the same day he observed a CFMEU flag present at the entrance to the site on Raymond Terrace. Later in that day, at about 2.30pm, he observed a Mr McIntyre (who Mr Gildea says is an organiser for the first or second respondent) packing up a banner reading “workers protest” at the Graham Street entrance. The banner had the initials of the CFMEU scratched out on it. 

21. On 8 August, 2012 Mr Gildea says that he undertook a site inspection or a site walk. He gives evidence at paragraph 54 of his affidavit that after having a discussion with Mr O’Brien, he walked across to a site supervisor and a group of approximately eight to ten employees from a bricklaying subcontractor. He said words to the effect, “Let me know of any grievances you have.  You don’t need to talk in front of me but please let me know.” 

22. He says in paragraph 56 that he then walked over to another group of workers from Admiral Concreting and asked them to let him know what their grievances were. Joe Myles and Mark O’Brien walked over to the group he was talking to and Mr Gildea says that Joe Myles said words to the effect, “We will do the talking for you.  We will do the reporting of those issues back.” 

23. There is evidence from Mr Angus Falstein who is employed by Abigroup Limited. He gives evidence of an incident that occurred on 8 August, 2012 when he was manning gate 1 on Stanley Street from 5.30 am in the morning. At approximately 6.15 am, four men from a subcontractor he says he knows to be Brooks Marchant entered the site. As they entered the site, a man called Stefan Turner from Uni-span – identified in a subsequent affidavit by Mr Gildea as a delegate for the second respondent – said words to the effect, “Wait until next week.  We will sort you guys out.” Subsequently, Mr Turner said in response to an inquiry from the supervisor from Brooks Marchant, “No.  But if you enter the site we will sort it out next week.” Those particular workers walked and stood outside of the site. Shortly thereafter, there was a conversation between the supervisor from Brooks Marchant and Mr Michael Myles. 

24. There is also evidence from Mr Timothy McCann. Much of his evidence is not controversial. His evidence set out in paragraph 29 of his affidavit is that there was a truck registered to the second respondent on the roads outside of the site. It was blocking the carriageway. It was be used to support the workers protests on site and was moved around the site from time to time. That evidence is not in contest. 

25. There are some other affidavits upon which the applicant relies but it seems to me that it is not necessary to refer to them in any detail. 

26. In their evidence neither Mr O’Brien nor Mr Myles take issue with the proposition that they were on site to “support the workers”.  However, they take issue with some of the matters described by Mr Gildea.  There are disputes about the fine detail. There is some dispute about some of the conversations and some acceptance of some of the conversations. The focus of Mr O’Brien’s affidavit, however, is on the suggestion that his attendance on site was to support the former Coastline workers. Mr Myles’ affidavit is less clear on that point but it seems to be suggested by him that he was also there to support the former Coastline employees and nothing more.   

27. The applicant’s case is that there were very few workers on site who were prepared, to use the words in Mr Gildea’s affidavit, “cross the picket line” that had been established by the former employees of Coastline. The clear suggestion from the applicant is that the picket line was set up with the support of other employees at the site and the support of the first and second respondents. The respondent’s case, the first and second respondents’ case is that they have not authorised any unlawful industrial activity. 

28. The third, fourth and fifth respondents’ argument seems to be that they were entitled to be present and “support the workers”. There is a dispute on the evidence about which particular workers they are supporting and whether it was just the former Coastline employees.

29. But it seems to me that on the evidence it is plainly arguable that the support offered by the third, fourth and fifth respondents extended beyond support for just the former Coastline employees and extended to all of the members of the first and second respondents who were also supporting the former Coastline employees. 

30. Section 550 of the Fair Work Act is the section upon which the applicant relies to establish a right to relief against the third, fourth and fifth respondents. It provides, in summary, that a person who is involved in a contravention of the Act is liable for that contravention. A person can said to be “involved” in a contravention in a number of ways, but of particular relevance to the present matter is involvement by aiding, abetting, counselling or procuring a contravention.

31. During the course of argument, I raised with each counsel who appeared for the parties the notion that the mere presence on site of the third, fourth and fifth respondents might be sufficient to constitute aiding. That is, their presence on site in a supportive role was enough for it to be said that they were aiding whatever unlawful industrial action was taking place. Indeed, it seems to be the case that each of the third, fourth and fifth respondents were there to support the workers. The precise words used, it seems, are in dispute - the respondents say they were there to support the Coastline workers. But whatever the case might be, the fact that they are there to offer support seems to me to come within the definition of the word “aid” where it appears in s.550(2)(a) of the Fair Work Act.

32. The word “aid” in that section is not used in any technical sense. It seems to me that it must have its ordinary meaning and according to the Macquarie Australian dictionary, “aid” means: “to afford support or relief to, to provide support”. The expressed purpose of the presence on site of the third, fourth and fifth respondents was to support the workers.  It seems to me, therefore, that there is a triable issue about whether the third, fourth and fifth respondents have been and continue to be involved in the contraventions of the Act by aiding those workers who are bound by the orders of the Fair Work Australia to return to work but who have not done so. 

33. To support the workers is to aid, it seems to me. It may be that there is no counselling or procuring. It may be that the other parts of s.550(2)(a) are not met. But it is not necessary that all of the particular parts of the section are met for the section to be engaged.

34. The position of the first and second respondents is, in my view, a little clearer. It is clear from the evidence of Mr Gildea – particularly the second of his affidavits that has been filed – that there have been various union delegates from both the CFMEU and the BLF on site. 

35. Those delegates include Mr Tony Fluro, Mr Stephen McIntyre, Mr Troy James and Mr Stefan Turner. They have been engaging in aiding as well by their presence on site, by taking possession of banners when they have been taken down and by supporting the workers in ways such as the provision of a BBQ: see the affidavit of Mr Gildea most recently filed. 

36. In those circumstances, it seems to me that having regard to s.12 and s.793 of the Fair Work Act, there is a serious issue to be tried as to whether the actions of those delegates, and the third, fourth and fifth respondents were actions for which the first and second respondents are responsible. The first and second respondents argue that their organisers and delegates are not actually authorised to engage in, or support, unlawful industrial action, but the issue if one of apparent or ostensible authority.

37. I am satisfied that there are serious issues to be tried about the matters raised by the applicants against each of the respondents. It is not, it seems to me, a matter where damages will be an adequate remedy. This is a major project and there is evidence that the costs to the applicant run to the order of some $300,000 per day each day the project is delayed. That is in addition the prospect of other costs and penalties that might be payable by the applicant if the project is not practically complete by the contractually stipulated date for completion – in the case of the energy plant, by the end of this year and in the case of the hospital, by the end of next year. 

1. In my view, the balance of convenience favours the grant of the injunctions sought by the applicant.

2. In those circumstances, the orders that have already been made and which were expressed to be discharged at 4.15pm today will continue until further order. 

   RECORDED   :   NOT TRANSCRIBED

3. There were two matters that I meant to address that I have not. I will just address them now. The first is that there were some objections taken to the evidence relied upon by the applicant. The list of objections is exhibit 2. The objections, in the main, related to the form of the evidence. That is, there was some evidence which was plainly hearsay but which was characterised in the objections as “unidentified hearsay”. I think the objections probably accurately stated the position in the sense that the evidence identified is hearsay and the source of the information and belief is not identified in the affidavit in the sense that particular people are not named as being the source of the relevant hearsay. Having said that, it is equally the case that large parts of the respondents’ affidavit material – that is, the affidavit of Mr Myles and the affidavit of Mr O’Brien – suffer from exactly the same defects. In those circumstances, it seemed to me to be inappropriate to exclude one set of evidence without then excluding evidence which suffers from the same formal defects in the other parties’ cases. For those reasons, I decline to make any particular rulings on the admissibility of the evidence and the objections set out in exhibit 2. 

4. It was also argued on behalf of the respondents that having regard to a circular memorandum that was distributed by the applicant after the interim orders were made and having regard to the decision of Pincus J in Meat & Allied Trades Federation of Australia v Australasian Meat Industry Union of Employees (1989) 90 ALR 187 I should, as a matter of discretion, decline to grant relief. It is apparent, no doubt, that I am not satisfied that I should, as a matter of discretion, decline to grant relief. It may be the case that the memorandum that the respondents are concerned about overstates the position but I am not satisfied in the circumstances of this case that it necessarily disentitles the applicant to relief. It may be that if Mr Gildea’s evidence contained in his second affidavit is accepted, that the respondents themselves are also not compliant or at least the first and second respondents are not compliant with the interim orders. Those matters are matters that can only be sorted out when the court has the forensic advantage of being able to make findings of fact at a trial.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date:  10 September 2012