Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Inner City South State Secondary College Case)

The case before the Federal Court of Australia involved an application by the Australian Building and Construction Commissioner for interlocutory injunctive relief against the Construction, Forestry, Maritime, Mining and Energy Union (the Union). The dispute arose from alleged workplace bullying by a project manager of the subcontractor’s employees, which was said to pose an imminent threat to the completion of a major State educational facility by the start of the first term in 2021. The Commissioner sought to prevent the Union from engaging in industrial action that would pressure the head contractor to redeploy the project manager. The legal issues included whether the Commissioner had a prima facie case and whether the balance of convenience favoured granting interlocutory injunctive relief.

The court examined whether the allegations of workplace bullying constituted an imminent threat and whether the Union had followed the processes provided in the enterprise agreements for dealing with workplace health and safety threats. The Union argued that an investigation into the alleged bullying was already underway under State Work Health and Safety Legislation. However, the court found that the alleged bullying was severe and immediate enough to warrant urgent action. The court also considered the role of public interest in the balance of convenience, noting the importance of completing the educational facility on time. Furthermore, the court highlighted the need for unions to adhere to processes in enterprise agreements when addressing threats to workplace health and safety. The court granted the interlocutory injunctive relief, restraining the Union from organising, encouraging, or inducing any unlawful industrial action at the project site.

The court ruled that the Commissioner had demonstrated a prima facie case for interlocutory injunctive relief, given the severity and immediacy of the alleged bullying and the potential impact on the project's completion. The balance of convenience clearly favoured granting the relief, as the public interest in completing the educational facility on time outweighed the potential harm to the Union and its members. The court also noted that the Union had not followed the consultation process provided for in the enterprise agreements. Therefore, the court issued an order restraining the Union from engaging in unlawful industrial action, defined as a ban, limitation, or restriction on work performance or refusal to attend or perform work to pressure the head contractor to remove the project manager. The court further ordered the Union to notify its members of the order and withdraw any prior authorisation for industrial action. Personal service of the order on the Union was dispensed with, and service by email or facsimile was permitted instead.