Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

[2009] FCA 1587

FEDERAL COURT OF AUSTRALIA

Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union [2009] FCA 1587

INDUSTRIAL LAW – scope of interlocutory injunction – s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) – minimum relief necessary to do justice between the parties – fact that applicant invested with important statutory role toward improving the building and construction industry is a relevant consideration.

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

WAD 106 of 2009

GILMOUR J
23 DECEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 106 of 2009

BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Appellant
AND:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent
JOSEPH McDONALD Second Respondent
MICHAEL BUCHAN Third Respondent

JUDGE:	GILMOUR  J
DATE OF ORDER:	23 DECEMBER 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Until further determination of this application or until further order, each of the respondents (whether by their officers, delegates, agents, employees or other representatives) be restrained from:

(a)being engaged in or involved in any contractor (and their employees) or employee who is required to perform building work for Diploma Constructions (WA) Pty Ltd (Diploma):

(i)failing or refusing to attend for building work or failing or refusing to perform any work after attending for building work; or

(ii)placing a ban, limitation or restriction on the performance of building work adopted in connection with an industrial dispute, (together action)

save and except in relation to action by any employee of a contractor or of  Diploma, required to perform building work for Diploma if the action by the employee is authorised or agreed to, in advance and in writing, by the employer of the employee; or action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or action based on a reasonable concern held by the employee about an imminent risk to his or her health or safety and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe to perform.

(b)attending or organising or procuring any person or persons, to attend, within 100 metres of any entrance to the Diploma construction site located at 915 Hay Street, Perth, Western Australia, save for such entry to the site as may be authorised by law pursuant to the provisions of Part 3-4 of the Fair Work Act 2009, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders. 

(c)Costs reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 106 of…