Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FCCA 1106

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABIGROUP CONTRACTORS PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2013] FCCA 1106

Catchwords:
INDUSTRIAL LAW – Building and construction industry – interim injunction – alleged unlawful industrial action – whether work permitted to be performed by relevant industrial instruments on a particular day – serious issue to be tried – where work can be carried out on following day without prejudice to either party – balance of convenience not favouring the grant of the injunction.

Legislation:  

Mobile Crane Hiring Enterprise Agreement 2011 – 2015
Mobile Crane Hiring Award 2010

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: COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Fourth Respondent: JOSEPH MYLES

Fifth Respondent: MICHAEL MYLES

Sixth Respondent: MARK O’BRIEN

Seventh Respondent: CHRISTOPHER LYNCH

Eighth Respondent: PETER ONG

Ninth Respondent: GERARD NIELAND

Tenth Respondent: STEFAN TURNER

Eleventh Respondent: TONY FLORO

Twelfth Respondent: STEPHEN MCINTYRE

Thirteenth Respondent: DEAN HALL

Fourteenth Respondent: MICHAEL RAVBAR

Fifteenth Respondent: STUART TRAILL

Sixteenth Respondent: ADAM OLSEN

Seventeenth Respondent	MICK ROBINSON
File Number:	BRG 771 of 2012

Judgment of: Judge Jarrett

Hearing date: 11 February 2013

Date of Last Submission: 11 February 2013

Delivered at: Brisbane

Delivered on: 11 February 2013

REPRESENTATION

Counsel for the Applicant: Mr Murdoch SC

Solicitors for the Applicant: Minter Ellison

Counsel for the First Respondent: Mr Friend SC

Solicitors for the First Respondent: Hall Payne Lawyers

ORDERS

1. The application to join Robert Graauwmans and Drew McDonald as further respondents to these proceedings is refused.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 771 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

COMMUNICATIONS, ELECTRICAL, ELECTRIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA

Third Respondent

JOSEPH MYLES

Fourth Respondent

MICHAEL MYLES

Fifth Respondent

MARK O’BRIEN

Sixth Respondent

CHRISTOPHER LYNCH

Seventh Respondent

PETER ONG

Eighth Respondent

GERARD NIELAND

Ninth Respondent

STEFAN TURNER

Tenth Respondent

TONY FLORO

Eleventh Respondent

STEPHEN MCINTYRE

Twelfth Respondent

DEAN HALL

Thirteenth Respondent

MICHAEL RAVBAR

Fourteenth Respondent

STUART TRAILL

Fifteenth Respondent

ADAM OLSEN

Sixteenth Respondent

MICK ROBINSON

Seventeenth Respondent

REASONS FOR JUDGMENT

Ex tempore

1. There are two applications that need to be dealt with.  The first is an application to join two more respondents to proceedings number BRG771 of 2012.  The second is an application in those proceedings for injunctive relief against the first respondent to those proceedings and the proposed 18^th and 19^th respondents. 

2. It was explained in the course of submissions by Counsel for the applicant why this application was brought in these proceedings and one can understand those reasons.  On balance, however, I think that the application against the first respondent and the proposed 18^th and 19^th respondents, that the applicant now wishes to pursue in relation to allegedly unlawful industrial action taken in Victoria is more appropriately the subject of a separate action or application.

3. I have come to that conclusion because, in my view, the relief which the applicant seeks against those respondents does not arise out of the same facts or series of transactions as the facts and transactions upon which application BRG771 of 2012, is based.  That application was based upon industrial action, said to have been unlawful, which occurred in Brisbane in August and September, I think, of last year.  That application has developed something of a life of its own as it has proceeded but it seems that the actions sought to be restrained by the current injunctive application are removed, both temporally and geographically from those matters that occurred in August and September.

4. There may be a connection:  it may be that what is said to be unlawful industrial action that the applicant seeks to restrain by this application is a response to some proceedings in this Court that apparently took place today in Brisbane and which arise out of orders that were made in application BRG771 of 2012 but even if that is so, it seems to me that the connection is, at best, tenuous and this application ought to be the subject of its own proceedings.  For those reasons, the joinder of the proposed 18^th and 19^th respondents to BRG771 of 2012 is refused.

5. The application for an injunction, nonetheless, can be pressed.

6. As in any other case, it is an urgent injunction and upon the undertaking of the applicant to file an initiating application in accordance with the Federal Magistrates Court’s Rules, it seems to me that the application that has been argued today can be dealt with as part of those proceedings yet to be commenced.

7. I turn then to the application for the injunctive relief.  The application arises out of these facts, it seems.  The applicant is a construction contractor.  It is engaged in the performance of construction work in Victoria.  More particularly, the work is the construction of a pedestrian bridge or an overpass over the Princess Highway.  Works have reached a point where the bridge, in a prefabricated form, is ready to be lifted into place across the highway.  The work is to be carried out by the use of a 600 tonne crane, which will manoeuvre the bridge across the highway.

8. For that purpose, the highway needs to be closed.  There are obvious safety considerations and for that purpose, the applicant has obtained a permit to enable it to close the Princess Highway during certain hours tonight and tomorrow night.  The material demonstrates that the applicant has arranged matters so that the necessary work can commence tonight.  The material demonstrates that 11pm is said to be the starting time and the highway can be closed from then or thereabouts until about half past four tomorrow morning.

9. The crane to be used for the job is hired from another company, referred to in the material as Metcalf, and according to the applicant’s material, Metcalf is ready to go.  Given the nature of the work to be done, the weather is an important factor and there is evidence that the weather forecast for this evening and for tomorrow evening, for the two days, I think, is favourable. 

10. The applicant’s evidence reveals, however, that the first respondent, through its agents and organisers and in particular the proposed 18^th and 19^th respondents to BRG771 of 2012, intends to disrupt the work tonight.

11. There is evidence before me that the proposed 18th and 19th respondents to BRG771 of 2012, and I will call them that for convenience, have on various occasions in the last few days, and especially since Friday last, said things which might lead one to draw the very clear inference that they intend to disrupt the work that the applicant has planned for this evening. 

12. Whether proposed 18th and 19th respondents admit that they have in fact said the things that they are asserted to have said is not clear because, although the first respondent in BRG771 of 2012 is aware of the allegations, those allegations made against the proposed respondents have not yet been put to them.  Nonetheless, on the evidence that the applicant brings to court, there is a clear threat to disrupt that work. 

13. The first respondent argues, however, that even on the applicant’s evidence there is no unlawful industrial action planned or threatened, rather all that is occurring is that the first respondent is ensuring that the applicant adheres to the industrial agreements and other instruments that govern the terms and conditions of the employees, both of the applicant and of the contractor, Metcalf. 

14. In that regard, I was taken to the Mobile Crane Hiring Enterprise Agreement 2011 - 2015 and an award which is associated with that, the Mobile Crane Hiring Award 2010.  The respondent argues by reference to the Enterprise Agreement and the Award that the proposed work this evening is not work which is authorised by either of those instruments because today is a rostered day off for the purposes of those instruments and according to the Enterprise Agreement in particular, work cannot be performed on a rostered day off except in certain circumstances.  See, for example, the circumstances set out in cl.36.4(a) through to (d) of the Enterprise Agreement.  The first respondent argues that the work can still proceed tomorrow night, because tomorrow is not a rostered day off.

15. The applicants argue that the first respondent’s construction of the relevant circumstances is erroneous because when one has regard to the terms of the Enterprise Agreement; clause 31, clause 33 and clause 36.4 in particular, it is clear that the work that is scheduled to be performed this evening is overtime work for the purposes of the relevant instruments.  It might also be shift work for the purposes of the relevant instruments, but whatever be the case, it is work which is otherwise authorised or permitted by the Enterprise Agreement and by the Award. 

16. The arguments from both sides, having regard to the terms of the Enterprise Agreement and the Award, bristle with serious issues to be tried.  The construction of the relevant terms of the Enterprise Agreement and the Award contended for by each of the parties are each fairly arguable, despite the descriptions in the submissions for both parties that their particular interpretation is clear.  I think that the true construction is far from clear.  I am satisfied that there is a serious issue to be tried which arises out of the relevant clauses of the Enterprise Agreement to which I have already referred.

17. However, the test for the grant of an injunction is two fold.  The second matter of importance is for the Court to decide of the balance of convenience favours the grant of the injunction sought.  In that respect, it is said by the applicant that the evidence of the three witnesses relied on primarily by it, Mr Vasta, Mr Pierre and Mr Nunn, clearly establish that the balance of convenience favours the grant of the injunction.  The evidence is that there is an operation scheduled, commencing this evening, at the relevant project in Victoria by which the prefabricated pedestrian bridge will be lifted into place.

18. There does not seem to be any dispute that to perform that task, the Princess Highway will have to be closed and that there is a permit in place for that to occur.  Again, it does not seem to be in contention that there is a window of opportunity to perform this work and on the applicants’ case, that window is this evening and tomorrow evening.  The existing permits authorise the road closure and otherwise permit the work to happen today or tomorrow.  If it does not happen today or tomorrow, then according to the evidence the existing authorities or permits will have to be renewed.  The authorisation process will have to be recommenced, although the evidence does not reveal in any particular detail what is required from that point of view. 

19. There are, of course, any number of events that might mean that the work can not proceed tonight if it was otherwise permitted to proceed;  the weather, for one.  But the only evidence before me about the weather is that the weather forecast for the next two days is favourable. 

20. On the evidence before me I am satisfied that if the work is not carried out today or tomorrow there is likely to be a delay which, in turn, is likely to cause considerable inconvenience.

21. There is some evidence that the closure of the highway requires some notification to the public.  There does not seem to be any evidence – and perhaps I missed it – that relates to the cost of re-advertising or re-notification of the public about the closure of the highway.  There is some evidence that if the crane that is now in place and which takes some days to set up cannot be used and has to be brought back at some later time, there will be some costs associated with that.  The applicant’s witness, Mr Nunn, assesses that cost at about $70,000.  But the crane is presently in place and is likely to be so to carry out the work either this evening or tomorrow evening.  Those matters are all matters which are important when assessing the balance of convenience.

22. As against that, the respondents say that it is important that the integrity of the Enterprise Agreement and the Award not be undermined.  Whether or not the work is capable of being performed under the terms of the Enterprise Agreement or whether or not the performance of the work is contrary to the terms and conditions of the Enterprise Agreement and Award, as the respondent contends, is something of importance because the strength of the prima facie case, the strength of the applicants’ case for the injunctive relief it seeks is something which weighs on the balance of convenience.

23. I would not describe either the applicant’s or the respondent’s case as particularly strong; both are clearly arguable.  That is a matter which weighs in the balance of convenience.

24. The first respondent points out that the work will only take one day, although the relevant permits authorise the closure of the highway tonight and tomorrow night.  In those circumstances, and given that the weather is likely to be favourable for the carrying out of the work both tonight and tomorrow night, and given that there is no argument that the Enterprise Agreement does not prevent the carrying out of the work tomorrow (only today is a rostered day off), the balance of convenience does not favour the grant of the injunction because the work can be carried out tomorrow evening.

25. I accept that it is likely that the work can be carried out on Tuesday evening.  The evidence shows that the weather conditions are likely to be favourable.  There is nothing to suggest that any additional expense of any particular moment will be incurred if the work is delayed until tomorrow evening.  There is nothing to suggest in the evidence that even if the applicant’s concerns are realised and the relevant work does not proceed tonight, the delay of one evening will cause any particular prejudice to either party.

26. In those circumstances, I am not satisfied that the balance of convenience favours the grant of the injunction.  The application is refused.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  15 August 2013