Abigroup Contractors Pty Ltd v CFMEU & Ors (No.3);; CFMEU v Abigroup Contractors Pty Ltd
[2012] FMCA 822
•21 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABIGROUP CONTRACTORS PTY LTD v CFMEU & ORS (No.3); CFMEU v ABIGROUP CONTRACTORS PTY LTD | [2012] FMCA 822 |
| INDUSTRIAL LAW – Building and construction industry – interim relief – industrial action – order from Fair Work Australia to return to work – whether respondents aiding ongoing unlawful industrial activity in contravention of Fair Work Australia order. |
| Fair Work Act 2009, ss.12, 550(1), 550(2)(a), 793 |
| Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Australian Broadcasting Corporation v O’Neill [2006] HCA 46 |
| 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 |
| Sixth Respondent: | TROY JAMES |
| Seventh Respondent: | STEFAN TURNER |
| Eighth Respondent: | TONY FLORO |
| Ninth Respondent: | STEPHEN MCINTYRE |
| File Number: | BRG 714 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 20 August 2012 |
| Date of Last Submission: | 20 August 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 21 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Murdoch SC |
| Solicitors for the Applicant: | Minter Ellison Lawyers |
| Counsel for the First, Second, Third, Fourth, Fifth and Seventh Respondents | Mr Friend SC |
| Solicitors for the First, Second, Third, Fourth, Fifth and Seventh Respondents: | Hall Payne Lawyers |
| No appearance for Sixth, Eighth and Ninth Respondents: |
ORDERS
Pursuant to s.421(3) and s.550 of the Fair Work Act 2009 (FW Act) the Seventh Respondent, Eighth Respondent and Ninth Respondent be restrained from aiding, abetting, counselling, procuring, inducing, being knowingly concerned or conspiring with any person who is a member of the First Respondent and who works at the QCH Project to contravene the FWA order.
The interlocutory application made against the Sixth Respondent be dismissed.
Pursuant to s.417(3), 348 and/or 545 of the FW Act that the Seventh, Eighth and Ninth Respondents be restrained from:
(a)organising, or being involved in organising, or engaging in or being involved in engaging in, any industrial action at the QCH Project prior to the nominal expiry date of the enterprise agreements of the Fair Work Subcontractors;
(b)organising, or being involved in organising, or engaging in or being involved in engaging in, any industrial action at the QCH Project prior to the nominal expiry date of the collective agreement based transitional instrument of the transitional subcontractor;
(c)aiding, abetting, counselling or procuring, inducing or conspiring with any of the employees to take or to continue to take industrial action prior to:
(i)the nominal expiry date of the enterprise agreements of the Fair Work subcontractors; or
(ii)the nominal expiry date of the collective agreement based transitional instruments of the transitional subcontractor.
(d)organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH Project which has the effect of causing conduct of the subject of subclause organising, encouraging, assisting or participating in a picket line at the entry or exit points of the QCH project which has the effect of causing conduct the subject of sub clause, e, f or g herein;
(e)impeding, hindering or preventing entry or exit of persons or vehicles to and from the QCH Project;
(f)unlawfully counselling or procuring any employee not to work upon the QCH Project;
(g)verbally abusing or threatening any person in the vicinity of the QCH Project;
(h)attending, or organising or procuring any person to attend, within 100 metres of any entrance or exit to the QCH Project, save for such entry:
(i)For the purposes of performing any work or the legitimate business of their employers;
(ii)For the purpose of using public road for reasons unconnected with the said QCH Project; or
(iii)For the purpose of complying with these orders; and
(i)affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of the QCH Project.
The parties bring in directions for the further conduct of this matter by no later than 4.00pm on 24 August, 2012.
| CFMEU v ABIGROUP CONTRACTORS PTY LTD | [2012] FMCA 822 |
| INDUSTRIAL LAW – Building and construction industry – interlocutory relief – adverse action by reason of membership of industrial organisation – no adverse action. |
| Fair Work Act 2009, ss.12, 342(1) item3, 346 |
| Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Australian Broadcasting Corporation v O’Neill [2006] HCA 46 |
| Applicant: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Respondent: | ABIGROUP CONTRACTORS PTY LTD |
| File Number: | BRG 736 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 20 August 2012 |
| Date of Last Submission: | 20 August 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 21 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Friend SC |
| Solicitors for the Applicant: | Hall Payne |
| Counsel for the Respondent: | Mr Murdoch SC |
| Solicitors for the Respondent: | Minter Ellison Lawyers |
ORDERS
The interlocutory application made in the application filed on 20 August, 2012 be dismissed.
The parties bring in directions for the further conduct of this matter by no later than 4.00pm on 24 August, 2012.
| 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
| TROY JAMES |
Sixth Respondent
| STEFAN TURNER |
Seventh Respondent
| TONY FLORO |
Eighth Respondent
| STEPHEN MCINTYRE |
Ninth Respondent
BRG 736 of 2012
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
Applicant
And
| ABIGROUP CONTRACTORS PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
Before the Court are two applications for interlocutory injunctions. The first is in the application BRG714 of 2012 between Abigroup Contractors Pty Ltd, the Construction, Forestry, Mining and Energy Union, the Australian Building Construction Employees & Builders Labourers Federation Queensland Branch Union of Employees and seven other respondents. Five of those respondents have been the subject of orders that have already been made by me: the two Unions and Mr Joseph Myles, Michael Myles and Mark O’Brien.
The current application seeks orders against four further respondents: Troy James, Stefan Turner, Tony Floro and Steven McIntyre. The terms of the injunction sought against them are in the same terms as the injunctions that have been made against the three personal respondents, Joseph Myles, Michael Myles and Mark O’Brien.
The second application before the Court is that in file number BRG736 of 2012. That is an application by the Construction, Forestry, Mining and Energy Union against Abigroup Contractors Pty Ltd. In that application, which was amended before me yesterday, the applicant seeks declaratory relief and, in particular, a declaration that Abigroup has contravened s.346 of the Fair Work Act by taking adverse action against delegates of the applicant by issuing proceedings against them for contraventions of an order made by Fair Work Australia on 6 August, 2012. That is to say, by taking proceedings BRG714 of 2012 against the delegates, it is alleged by the CFMEU that Abigroup is contravening s.346 of the Fair Work Act.
The latter proceedings also seek an order imposing penalties on Abigroup for contraventions of the Fair Work Act and an order restraining Abigroup from taking adverse action against the CFMEU’s delegates in the future. An interlocutory injunction is sought restraining Abigroup from taking any further steps against Mr Floro, Mr Turner, Mr McIntyre and Mr James in proceedings BRG714/2012 without the leave of the Court. I will deal with the latter application first, that is, the application by the CFMEU.
The test to be applied when determining whether to grant an interlocutory injunction is whether there is a serious issue to be tried and whether the balance of convenience favours the ground of the injunction: Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and Australian Broadcasting Corporation v O’Neill [2006] HCA 46.
The CFMEU argues that by taking proceedings against the delegates and, in particular, Mr James, Mr Turner, Mr Floro and Mr McIntyre, Abigroup is contravening s.346 of the Fair Work Act. Section 346 of the Fair Work Act provides that a person must not take adverse action against another person because the other person is, or is not, or was, or was not, an officer or member of an industrial association.
As I apprehend the argument, it is s.346(a), which is relied upon by the CFMEU in this case. Thus, it says that Abigroup is taking adverse action against the delegates because they are members of an industrial association.
There is no dispute between the parties that the CFMEU is an industrial association for the purposes of the Fair Work Act. There is no dispute between the parties that each of the four respondents is an officer of that industrial association.
The evidence reveals that three of them seem to be officers of the CFMEU and one seems to be an officer of the Australian Building Construction Employees & Builders Labourers Federation Queensland Branch Union of Employees, that is, the second respondent in file number BRG 714 of 2012. There is no dispute between the parties that each of the gentlemen is a delegate and therefore an officer of the industrial associations, having regard to the definition of officer in s.12 of the Fair Work Act.
The respondent, Abigroup, argues that there is no serious issue to be tried because one cannot conclude that there is adverse action being taken against any of the respondents. It may be the case that action is taken against the respondents because they are delegates of the union or the unions involved but it is argued that taking action against them is not adverse action for the purposes of the Fair Work Act.
Adverse action is defined in s.342(1), of the Act. It is defined by reference to a table. The table in s.342(1) has three columns: an item column, a column headed Column 1 and a column headed Column 2. In column 2, there are five alternatives in item 3 and it was made clear by Senior Counsel for the applicant union that the relevant category was that set out in part (c) of item 3 in column 2. That provides:
Adverse action is taken by
a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor
If…
the principal:
…
(c) alters the position of the independent contractor to the independent contractor’s prejudice
Senior Counsel for the applicant Union argued, by reference to the judgment of the High Court in the Patrick Stevedores Operations No2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 and in particular, a paragraph that appears at the top of the page at page 18, that the words, “alters the position to the prejudice of the particular person concerned,” are words of wide input and ought to be given a wide meaning. I accept that is so.
Nonetheless, Abigroup, the respondent, argues that by reason of the words that appear in column 1 in item 3 and then the words that appear in part (c), item 3 in column 2 the particular circumstances of this case mean that there is no adverse action taken against the sixth, seventh, eighth and ninth respondents.
There is no dispute between the parties that none of the sixth to ninth respondents are employed directly by Abigroup. They are not employees of that company, rather they seem to be employees of independent contractors, that is, parties who have contracted with Abigroup to perform work at the relevant site. The evidence tends to suggest that Mr McIntyre and Mr Floro are employees of an entity referred to in the material as Caelli Formwork, Mr James is an employee of an entity referred to in the material as A Action and Mr Turner is an employee of a scaffolding company referred to in the material as Uni-span.
In my view, the correct interpretation of item 3 in s.342(1) of the Fair Work Act is that the principal must take action which alters the position of the independent contractor, not the employees of the independent contractor. The words that appear in column 1 refer to the “target” or subject of the alleged adverse action. That could be an independent contractor or a person employed or engaged by an independent contractor. That is, adverse action is taken by a person who has entered into a contract for services with an independent contractor against the independent or a person employed or engaged by the independent contractor if the principal then, referring to column 2, “alters the position of the independent contractor,”. Nothing is said of the position of an employee or other person engaged by the independent contractor.
It is not difficult to envisage how that item might be engaged because there may well be adverse effects for persons employed or engaged by an independent contractor if a principal, such as Abigroup, altered the position of the independent contractor by, for example, changing the way in which the work is to be carried out or the circumstances in which the work is to be carried out. It may also be that there is some overlap between items (a) and (b) in column 2 and item (c) but item (c), of course, could operate independently. However, it seems to me that action against the independent contractor is what is required by item 3, column 2, rather than action against the employees of that independent contractor.
If that be the correct interpretation of s.342(1), item 3, then in my view, no serious issue arises and no serious issue is to be tried as between the applicant and the respondent because although it may be that Abigroup is taking action against the sixth to ninth respondents because they are delegates or officers of the union, that action is not adverse action within the meaning of the Fair Work Act. I may be wrong about that, however. In the event that I am, it is necessary to consider the balance of convenience.
When considering the balance of convenience, it seems to me, appropriate to consider the other application which is before me, before I reach any conclusions about the balance of convenience. I turn then to the application for interlocutory injunctions against the four respondents in BRG 714 of 2012. The first question to be determined is whether there a serious issue to be tried as between Abigroup and the sixth to ninth respondents in respect of the relief claimed against them as set out in the further amended application that was filed in Court last Friday.
The injunctions that have already been granted against Joseph Myles, Michael Myles and Mark O’Brien were granted on the basis that they had, or there was at least a serious issue to be tried about whether they had aided, abetted, counselled or procured a contravention of the Fair Work Act by aiding others who had failed to comply with the orders of Fair Work Australia issued on 6 August, 2012. The view I took when the injunctions were made against those respondents was that it was not simply their presence at the relevant site which attracted the relevant relief. It was the things that they did and the words that they said which, in my view, could quite arguably be construed as offering aid to those who were in breach of the Fair Work Australia order.
Taking the same approach to the applications now before me, I have concluded that an arguable case has been made out for relief against Stefan Turner, an arguable case has been made out for relief against Tony Floro and an arguable case has been made out against Steven McIntyre, but no arguable case has been made out against Troy James.
In respect of Troy James, the evidence which is conveniently collected in a document entitled “Extracts of evidence regarding involvement of sixth, seventh, eighth and ninth respondents” suggests that Mr James’ involvement is limited to being present. The evidence does not suggest that James has said anything to any person which would suggest support for the industrial action that is taking place. His presence with some of the other union delegates might be suggestive of support for what is going on, but in the absence of any other evidence, apart from his presence, I am not satisfied that there is a serious issue to be tried. The same, however, cannot be said for Messrs Turner, Floro and McIntyre.
In respect of Stefan Turner, the evidence of Mr Falstein is that at approximately 6.15 am four men from a subcontractor, who he now knows to be Brooks Marchant, arrived at the QCH site. Mr Falstein says, “As they entered the site a guy called Stefan Turner from Uni-span (who I know to be the Uni-span delegate for the BLF) said words to the effect, ‘Wait until next week, we will sort you guys out’. The Brooks Marchant guys kept walking but then turned around and came back outside. ….. the supervisor from Brooks Marchant then confronted Stefan and asked if he was threatening them. Stefan Turner said, ‘No, but if you enter the site we will sort it out next week’ …and his guys walked and stood outside the site.” There is something more than mere presence on Mr Turner’s part.
In respect of Mr Floro, there is evidence, again, from Mr Falstein to this effect, “On 7 August 2012 at 11.45 am I was standing at the gate and two workers tried to enter the site through gate 2, Stanley Street side. A person wearing BLF gear was sitting at the turnstile at the gate, and he stopped the two guys from entering the site. He said words to the effect, that there was “action” and they could not enter the site. I did not say anything to him. The two workers just walked off. I have subsequently confirmed with the workforce that his name was Tony Floro. I understand that he is a BLF delegate with Caelli.”
In respect of Mr McIntyre, there is evidence from Mr Gildea that Mr McIntyre was responsible for collecting and – packing up and collecting a banner which no doubt was used as an aid to the protest that was going on. There was also evidence that he was setting up and then later packing up and taking away a barbecue, and there is evidence from Mr Gildea of conversations that he has had with Mr McIntyre generally.
I am satisfied, for the reasons that I have given, that there is a serious issue to be tried as to whether the three respondents that I have named, Turner, Floro and McIntyre are aiding, abetting, counselling or procuring a breach of the Fair Work Act by the workers who are the subject of the order of Fair Work Australia made on 6 August, 2012.
The question of the balance of convenience arises next. For the reasons that I have delivered already in the previous application, it seems to me that the balance of convenience favours the grant of an injunction. There are significant costs being incurred by the applicant for each day that passes and no productive work is performed. As against that, there is nothing pointed to by the respondents which is suggestive of prejudice on their part. The relief that is sought against Messrs Turner, Floro and McIntyre will not prevent them from attending at the QCH site. They are employees of subcontractors on the site and have a legitimate purpose in being there whilst on their employers business. The terms of the injunctions sought against them seem to recognise that.
I return then to the injunction sought by the CFMEU and the balance of convenience argument. Given that the terms of the relief which I propose to grant in BRG 714 of 2012 does not prevent the relevant delegates from attending at the work site for the purpose of work or for any other legitimate business, but simply restrains them from aiding, abetting, counselling or procuring in the particular ways set out in the orders, a breach of the Fair Work Act by reference to the orders made by Fair Work Australia on 6 August, 2012 it seems to me that there is no particular prejudice to the respondents if I do not grant the injunction. Against that, there is significant prejudice to the applicant, Abigroup, to which I have already referred.
In those circumstances, the interlocutory application by the CFMEU will be dismissed. The orders will be as I have pronounced in BRG 714 of 2012.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 10 September 2012
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