Bechtel Australia Pty Limited v Construction, Forestry, Mining and Energy Union

[2014] FWC 5435

[2014] FWC 5435 [Note: Appeals pursuant to s.604 (C2014/5826 and C2014/6133) were lodged against this decision - refer to Full Bench decision dated 15 December 2014 [[2014] FWCFB 8490] for result of appeal.]

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.418—Industrial action

Bechtel Construction (Australia) Pty Ltd; Bechtel Australia Pty Limited
v
Construction, Forestry, Mining and Energy Union
(C2014/5792)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 11 AUGUST 2014

Application to stop industrial action at Curtis Island - interim decision.

[1] On 8 August 2014, Bechtel Construction (Australia) Pty Ltd and Bechtel Australia Pty Limited (Bechtel) applied under s.418 of the Fair Work Act 2009 (the Act) for orders to stop and prevent alleged unprotected action, and the organisation of it, being taken by employees in respect of its operations at the Curtis Island LNG Projects and/or PJET at Curtis Island. The orders were directed to the Construction, Forestry, Mining and Energy Union (CFMEU), (and its officers, employees and agents) and persons employed to work at the Curtis Island LNG Projects and/or PJET who were participating in or did participate in the industrial action.

[2] Bechtel Australia Pty Limited is undertaking construction of three Curtis Island LNG projects (Queensland Curtis LNG Project; Australia Pacific LNG Project and Gladstone LNG Project) (the LNG Projects). Bechtel Construction (Australia) Pty Ltd is contracted by Bechtel Australia Pty Limited to provide construction services on each project. Each of the LNG Projects involves the construction of a liquefied natural gas processing plant. PJET is a division of Bechtel Australia Pty Limited that is specific to the LNG Projects with responsibility for procurement, purchase and delivery of all cargo to the LNG Projects.

Service

[3] Service of the initial hearing on 8 August 2014 occurred by way of an order for substituted service which required service of the application, order and the notice of hearing on the CFMEU and the posting of the notices on notice boards usually accessible to employees. In the hearing of 8 August 2014, I expressed a concern that a substantial number of employees to whom the order was directed –“several hundred” according to Bechtel –would have received no notice because they were neither members of the CFMEU and had no access during the stoppage of work on Curtis Island to notice boards. This concern was addressed by Bechtel sending a text message to all employees advising them of the application, notice of the 10 August 2014 hearing and directing them to a web-page on which the application, order and notice of listing were posted. I am satisfied that all employees potentially subject to the order sought by Bechtel were given notice of the application, order and the hearing, and had an opportunity to defend the application.

Interim decision

[4] On Sunday 10 August 2014, I made an interim order under s.420 of the Act. 1

[5] After proceedings concluded on 10 August 2014, Bechtel requested that the matter be relisted. The matter was relisted on 11 August 2014 and Bechtel sought that the interim order be amended in light of a communication by the CFMEU to its members indicating that the interim order prohibits only unprotected industrial action. I issued an amended interim order on 11 August 2014. 2

[6] However, uncertainty clearly exists as to what industrial action is protected and unprotected action. In light of that uncertainty, I have decided to expedite the making of the final order and to publish brief reasons which disclose my reasons in respect of industrial action, said by CFMEU to be protected industrial action by way of this interim decision. These reasons will be supplemented by full reasons in due course.

[7] The industrial action concerns two groups of employees:

1. Those employees subject to the notice of protected industrial action issued by the CFMEU on 31 July 2014, following a protected action ballot 3 in respect of “those employees for whom the CFMEU is the bargaining representative and who will be covered by the proposed enterprise agreement. The proposed enterprise agreement covers those employees currently employed by Bechtel Construction (Australia) Pty Ltd in on-site construction work on LNG Projects in Queensland”; and

2. A significant number of employees not subject to that notice.

[8] There is a dispute between the CFMEU and Bechtel as to whether a group of CFMEU members are eligible to be members and, as a result, whether they are subject to the notice of protected industrial action. Depending on the outcome of that issue, such employees are either in group 1 or group 2 above. It is unnecessary to determine that matter for present purposes, given my decision that the industrial action by each group is unprotected action subject to the final order I have made.

[9] In respect of each group of employees, I am satisfied on the uncontested evidence of Bechtel witnesses that industrial action is happening and is threatened, probable and impending. I am satisfied that it is being organised by the CFMEU in respect of the employees in group 1.

[10] I am satisfied that the action by the employees in group 2 is unprotected industrial action.

[11] In respect of the group 1 employees, the CFMEU contends that the action is protected industrial action, being action authorised by the ballot pursuant to the protected action ballot order and having been subject to the requisite notice of the protected industrial action on 31 July 2014 under s.414 of the Act.

[12] I find that the notice of 31 July 2014 is not a valid notice under s.414 of the Act in that it did not specify the nature of the action as required by s.414(6) of the Act. The notice set out each of the forms of industrial action authorised in the ballot (and one which was not put to the ballot) and did not, in my view, make Bechtel aware of the nature of the intended action, 4 which on the basis of the notice could have been any one of, or any combination of several, or all of the types of industrial action notified, and did not provide Bechtel with an opportunity to respond to the actions by making relevant preparations.5 As a result, I find that the industrial action taken in reliance of the 31 July 2014 notice is not protected industrial action and should be subject to the order to stop and prevent industrial action.

[13] I note that subsequent notices of protected industrial action were issued by the CFMEU on 7 August 2014, in relation to action to commence on 13 August 2014 and 8 August 2014 in relation to action to commence on 14 August 2014. The notices were in similar terms as the 31 July 2014 notice and, in my view, suffer from the same deficiencies. A further notice was issued by the CFMEU to Bechtel on 10 August 2014. It revoked the notice of 8 August 2014 and provided further notice of industrial action to commence on 14 August 2014 in different terms to the earlier notices. The notice of 10 August 2014 gave notice of a stoppage of work for an indefinite period commencing 12.01 a.m. on Thursday, 14 August 2014 and does not suffer from the same deficiencies as the earlier notices.

[14] The final order will, to make it effective, include a requirement on both Bechtel and the CFMEU to bring the terms of this interim decision to the attention of the employees subject to it.

SENIOR DEPUTY PRESIDENT

Appearances:

C Murdoch (of Counsel) for Bechtel Construction (Australia) Pty Ltd and Bechtel Australia Pty Limited.

D Kent (QC) for the Construction, Forestry, Mining and Energy Union.

Hearing details:

2014.

Melbourne via video link to Brisbane:

August 8, 10 and 11.

 1   PR554105

 2   PR554109

 3   PR552432.

 4   Energy Australia Yallourn Pty Ltd v CFMEU, [2013] FWCFB 3793.

 5   Davids Distribution Pty Ltd v National Union of Workers, [1999] FCA 1108.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR554115>