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

[2010] FWA 8762

[2010] FWA 8762

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Abigroup Contractors Pty Ltd
v
Construction, Forestry, Mining and Energy Union; Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2010/5499)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 NOVEMBER 2010

Summary: section 418 – unprotected industrial action – scope of order.

[1] This application was made by Abigroup Pty Ltd (“the Applicant”) seeking orders under s.418 of the Fair Work Act 2009 (“the Act”) that industrial action that is unprotected stop in respect of its projects across Australia.

[2] I have found that it appeared to me that industrial action was threatened or probable in relation to the Applicant.

[3] I have further made an order of 14 working days duration. “Working days” are defined in s.12 of the Act.

[4] The order is binding on the various employee organisations as cited in the order and above.

[5] My reasons for decision in these respects are preserved on the transcript of proceedings.

[6] There is one residual issue concerning the scope of the orders that I have reserved for decision, as it required a measure of reflection that a decision in transcript might not afford.

[7] This particular issue in contention was whether the scope of the order should extend to states and territories in which the Applicant has projects, but about which there is no evidence of any unprotected industrial action having taken place or otherwise being probable or threatened. The effective scope of the order as sought would give it national application.

[8] The determination of such an issue will turn on the circumstances of the particular case, balancing the need, having found that an order should be made, to provide protection for the Applicant but not making an order that is unreasonably onerous, or simply unnecessary or unwarranted in scope.

[9] This matter is finely balanced.

[10] I am aware from the materials before me of apparent acrimony in the relationship with one of the unions. But I am uncertain whether that acrimony will manifest itself in threatened unprotected industrial action in states other than those in which unprotected industrial action has occurred to date (Victoria and Queensland). There is some potential scope for establishing a nexus between the industrial action today in Victoria and Queensland, such that the industrial action in two states was not coincidental. But in the end, I cannot go so far as to accept on the basis of what has been put to me that there is in train a nationally organised campaign (utilising unprotected industrial action) against the Applicant. It is premature to infer from the evidence, as it was, that there is such an intention. Only time will tell.

[11] For this reason, I will restrict the order to the Applicant’s projects in Queensland and Victoria. That is, I will not give the order national application as sought by the Applicant.

[12] The Applicant, clearly, will not achieve the degree of comfort from an order in these terms that it sought.

[13] However, in the event of further disruption to its business because of further unprotected industrial action, the Applicant, given the added weight to its evidentiary case, may seek another  order from the tribunal that affords it more complete and enduring protection (than that which I have been prepared to make in the current case).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D Williams of Minter Ellison for the Applicant

Mr K Crank for the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees

Mr J Ingham for the Construction, Forestry, Mining and Energy Union

Ms P Rogers for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Hearing details:

2010.

Brisbane.

November 11.

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