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

The Australian Building and Construction Commissioner brought proceedings against the Construction, Forestry, Mining and Energy Union (CFMEU) seeking an interim injunction to prevent unlawful industrial action. Probuild, a construction company, had reported issues with blocked toilets on their construction site, leading to a workforce stoppage. The Commissioner argued that this stoppage constituted unlawful industrial action, potentially threatening further disruptions. The CFMEU, on the other hand, maintained that the stoppage was justified due to health and safety concerns arising from the blocked toilets.

The central legal issue before the court was whether the circumstances warranted the grant of an interim injunction to prevent further unlawful industrial action. The court had to determine if the stoppage of work constituted unlawful industrial action under the Fair Work Act 2009 (Cth) and if such action was occurring, threatened, impending, or probable. The court also needed to consider the principles governing the grant of injunctions, including whether the usual tests for such relief applied in this statutory context.

The court concluded that an interim injunction could only be granted if unlawful industrial action was either occurring or threatened, impending, or probable, as per section 39(1) of the Fair Work Act 2009 (Cth). The court emphasised that the statutory power to grant an injunction was contingent upon the presence of unlawful industrial action and not merely on the potential for substantial damage or the defendant’s past conduct. The court noted that while it could grant an injunction under certain circumstances outlined in section 39(3), these were not independent grounds for relief but rather exceptions to the usual equitable principles.

After considering the evidence and submissions, the court decided not to grant the interim injunction. The court found that while the stoppage constituted unlawful industrial action, the specific circumstances did not justify the immediate intervention of an injunction. The court also highlighted that the main action would continue, leaving open the possibility of seeking further relief if circumstances changed.

The final order of the court was to dismiss the application for an interlocutory injunction, allowing the main action to proceed without the immediate imposition of an injunction.