Baulderstone Pty Ltd v CFMEU - [2012] FMCA 972

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAULDERSTONE PTY LTD & ORS v CFMEU & ORS

[2012] FMCA 972

INDUSTRIAL LAW – Building and construction industry – interim relief – unprotected industrial action.

Fair Work Act 2009, ss.343, 348, 417, 530, 793

Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15
Optus Networks Proprietary Limited v City of Boroondara (1997) 2VR 318

Applicant:

BAULDERSTONE PTY LTD & OTHERS

Respondent:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & OTHERS

File Number:

BRG 770 of 2012

Judgment of:

Jarrett FM

Hearing date:

25 September 2012

Date of Last Submission:

25 September 2012

Delivered at:

Brisbane

Delivered on:

26 September 2012

REPRESENTATION

Counsel for the Applicants:

Mr J. Murdoch SC with Mr C. Murdoch

Solicitors for the Applicants:

Minter Ellison

Counsel for the Respondent:

Mr Friend SC

Solicitors for the Respondent:

Hall Payne

ORDERS MADE ON 25 SEPTEMBER, 2012 UNTIL FURTHER ORDER:

In this order:
‘Baulderstone Project’ means any building or construction project in Australia at which the first, second or third applicant, is the principal contactor, project manager, or is otherwise contracted to deliver building or construction services, and includes (without limitation):
(a)The Darwin Prison – Northern Territory New Secure Facilities Public Private Partnership Project at Taylor Road, Holtze in the Northern Territory (NTSF Project);
(b)The Brisbane Container Terminal Project at Curlew Street, Port of Brisbane (BCT Project);
(c)The Prince Charles Hospital Project at Rode Road, Chermside, Brisbane (Prince Charles Project);
(d)The Mackay Hospital Project, Mackay (Mackay Hospital Project);
(e)The Adelaide Convention Centre at North Terrace, Adelaide (Adelaide Convention Centre Project);
(f)The Adelaide Oval Project at corner King William Street and War Memorial Drive, Adelaide (Adelaide Oval Project);
(g)The illuminate Project at Adelaide University, Adelaide (Illuminate);
(h)The Tonsley TAFE SEIC Project in Adelaide (Tonsely TAFE Project);
(i)The Southern Expressway Project in South Australia (Southern Expressway Project);
(j)A civil construction project at the corner of Mains and Kessels Roads, Mt Gravatt in Brisbane (Mains and Kessels Project);
(k)A civil project associated with the ANZAC Bridge in New South Wales (ANZAC Bridge Project);
(l)A grade separation project at Port Botany in Sydney (Grade Separation Project);
(m)A construction project at Swinburne University in Melbourne (Swinburne University Project); and
(n)A civil construction project at Box Hill near Melbourne (Box Hill Project).
‘Baulderstone Project Employee’ means an employee of the first, second or third applicants or any subcontractor engaged by one or more of the first, second and third applicants to carry out work on any Baulderstone Project.
Pursuant to ss.343, 348, 362, 417, 545(1), 545(2) and 550 of the Fair Work Act 2009 that the first and second respondents (whether by their officers, delegates or employees, or howsoever otherwise) and the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth and twenty-sixth respondents be restrained from:
(a)Advising, encouraging, inciting, aiding, abetting, counselling or procuring any industrial action by any Baulderstone Project Employee at any Baulderstone Project;
(b)Advising, encouraging, inciting, aiding, abetting, counselling or procuring any Baulderstone Project Employee not to attend work as required by his or her employer;
(c)Impeding, hindering, preventing or discouraging the entry or exit of persons or vehicles to and from any Baulderstone Project;
(d)Organising, encouraging, assisting or participating in a picket line at the entry or exit point of any Baulderstone Project which has the effect of impeding, hindering, preventing or discouraging the entry or exit of persons or vehicles to and from any Baulderstone Project;
(e)Placing or leaving any vehicle, trailer or other thing within 100 metres of any entrance or exit to any Baulderstone Project.
Pursuant to s.343 and 545 of the Fair Work Act2009 that the first and second respondents (whether by their officers, delegates or employees, or howsoever otherwise) and the third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-fifth and twenty-sixth respondents, be restrained from organising or taking, or threatening to organise or take any action with the intent to coerce the first applicant, second applicant or third applicant to enter into an Enterprise Agreement covering Baulderstone Project Employees engaged at the NTSF Project.
The costs of the production of agreements be reserved.
Costs reserved.

THE COURT FURTHER ORDERS THAT:

The application be adjourned to 3 October 2012 at 10.00 a.m in the Federal Magistrates Court of Australia sitting at Brisbane.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 770 of 2012

BAULDERSTONE PTY LTD & OTHERS

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & OTHERS

Respondent

REASONS FOR JUDGMENT

Ex tempore

This application was commenced on 28 August, 2012. On 30 August, 2012 I delivered some reasons for judgment in an interlocutory application for certain injunctive relief by the applicants against the then first to 16^th respondents. I dismissed the application; directions were made with the consent of the parties. One of the directions I made was that the application for interlocutory orders be adjourned sine die with liberty to apply on two hours notice.
Yesterday, on 25 September, 2012 the applicants sought to activate that liberty and had the matter listed at 2.15 pm. They sought, and I granted, leave to add some further respondents to the application and in particular, respondents numbered 17 through to 26. The applicants claimed injunctive relief against each of the respondents as set out in the amended application which yesterday I granted them leave to file, restraining the respondents and each of them from engaging in, essentially, unprotected industrial activity at any construction site at which the applicants or any of them are the principal contractor, project manager or are otherwise contracted to deliver building and construction services. I granted the injunctions sought and stood over the delivery of my reasons for making the orders to this morning.
There are a number of particular sites specified in the amended application. The evidence reveals that the first applicant has building and civil infrastructure projects in Queensland, New South Wales, Victoria, South Australia and the Northern Territory. There is evidence that suggests that any form of industrial action, particularly unprotected industrial action such as strikes or stop work events, has the potential to damage the first applicant’s reputation as a reliable construction company and that, in turn, has an effect upon its ability to manage risks, such as industrial relations risks.
The applicants claim that they are currently the subject of a targeted, coordinated and unlawful industrial campaign which is being organised by the first and second respondents. The campaign is identified, in the evidence before me, as being in support of an enterprise agreement which has been demanded by the CFMEU in respect of a project at Holtz in the Northern Territory, described in the material in summary form as the Darwin Prison. The campaign is also identified in the material as being in support of an industrial campaign against a related company, Abigroup Contractors Pty Ltd.
The applicants claim that the industrial campaign is progressively escalating, in that:
a)It commenced on 7 August, 2012 with industrial action in the Northern Territory and Queensland;
b)It recommenced on 28 August, 2012 with industrial action in Queensland and South Australia;
c)It has escalated again on 25 September, 2012 with industrial action (or attempts to organise industrial action) at Baulderstone projects in Queensland, New South Wales, Victoria and South Australia;
d)There is evidence that the industrial action is proposed for at least 48 hours.
The applicants allege that the industrial action yesterday on 25 September, 2012 has been organised in a targeted, coordinated way, despite the fact that these proceedings were on foot and despite the fact that, on 28 August, 2012 the Court declined an application by the applicants for interlocutory relief on the basis that there was insufficient evidence of a continuing threat of unprotected industrial action. The applicant suggests that there is an element of defiance of the Court’s processes in that regard.
The respondents appeared today by Senior Counsel (although he did not appear for the newly joined parties) and made some submissions, although was not in a position to effectively argue against the grant of the injunctions because the fresh material relied upon by the applicants had only come into the respondents’ hands shortly prior to the hearing.
Nonetheless, there was no dispute between the parties as to the principles that need to be applied, namely that for the applicants to secure the relief that they seek, they must establish that:
a)They have a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, they will be held entitled to relief;
b)The inconvenience or injury which would likely result if an injunction were refused outweighs the injury the respondents would suffer if an injunction were granted and;
c)Unless the relief is granted, injury not adequately compensable by damages will likely result.
I accept that the applicants do not need to show that it is more probable than not that it will succeed at trial. It is sufficient that the applicant shows a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending trial. How strong the probability needs to be depends upon the nature of the rights the applicants assert and the practical consequences likely to flow from the orders they seek. In making assessments of the potency of the applicants’ case and the balance of convenience, the relative strengths and weaknesses on those matters may be weighed together; those assessments need not be made in isolation.
I accept that the applicants’ material demonstrates that there is a triable issue in relation to the likelihood of ongoing unprotected industrial action if an injunction is not granted because:
a)This is the third example of unlawful industrial action targeting multiple Baulderstone sites since 7 August, 2012;
b)On each occasion, the industrial action is progressively more widespread and progressively more serious;
c)Current industrial action is against most of the indentified Baulderstone construction projects in four states;
d)It is occurring despite the existence of these proceedings and despite the fact that the applicants have previously sought interlocutory relief;
e)The issues which, on the evidence, have led the CFMEU to engage in this conduct are not resolved, there is an unresolved claim for an enterprise agreement on the Darwin Prison project and there is no resolution to the issue concerning Abigroup Contractors Pty Ltd;
f)The evidence is that the current industrial action will last for at least 48 hours and;
g)There is a strong inference to be drawn from the evidence that the campaign is escalating and intensifying and is highly likely to continue in the near future unless orders are granted.
I accept that the evidence demonstrates the requisite likelihood that the industrial action that is occurring is in breach of s.417 of the Fair Work Act 2009 is being organised by the respondents and that the respondents are liable for it for the purposes of s.550 of the Act. I further accept that the evidence of the orchestration of this unprotected industrial action and the reason for the respondent’s behaviour also demonstrates the requisite likelihood that the behaviour is in breach of ss.343 and 348 of the Act. I accept that pursuant to s.793 of the Act, any action engaged in by an officer, employee or agent of a body within the scope of the actual or apparent authority is taken to be the action of the body corporate.
I accept that the balance of convenience is clearly in favour of granting the interim injunction that is presently sought. I accept that, in considering the balance of convenience, there is a strong prima facie case that the respondents are engaging in industrial action contrary to the scheme put in place by the Fair Work Act2009. I accept that it is likely that if the industrial action that is sought to be restrained by these injunctions continues, the applicants, and Baulderstone in particular will suffer significant financial damage and may suffer significant reputational damage. Those matters weigh heavily in favour of the grant of the injunction.
In opposition to the orders sought by the applicants, Counsel for the respondents suggested that the orders sought were too wide. He pointed to two decisions, Optus Networks Proprietary Limited v City of Boroondara (1997) 2VR 318 and Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 and suggested that the terms of the injunction sought by the applicant were far too wide.
I accept that the reference to “or any related entity of the first, second or third applicant” in the first paragraph of the first order sought by the applicants is too wide. Mr Murdoch SC for the applicants conceded as much and consented to those words being struck from the proposed order.
I do not consider that the words “or is otherwise contracted to deliver building and construction services and includes (without limitation)” is too wide to properly identify the relevant projects. Clearly, the evidence demonstrates, at this preliminary point at least, that the industrial action is taking place at various construction sites operated by the applicants and it would be, in my view, appropriate to make an order which was wide enough to prevent any unlawful industrial action at any of the construction sites operated by the applicants until further order. I accept the submission for the applicants that to not make the order in those terms almost invites the respondents to move the industrial action to other construction sites operated by the applicants.
For those reasons, the orders sought by the applicants will be made on an interim basis, the matter will be adjourned for further interlocutory hearing on 3 October, 2012 at 10.00am.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 22 October 2012