Bechtel Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2015] FCA 778

FEDERAL COURT OF AUSTRALIA

Bechtel Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCA 778

Citation:

Bechtel Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2015] FCA 778

Parties:

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD and BECHTEL AUSTRALIA PTY LTD v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JADE INGHAM, BEN LOAKES, MICHAEL ROBINSON, JODY MOSES, SCOTT VINK, KEVIN GRIFFIN, ROBERT GRAAUWMANS and JOHN LOMAX

File number:

QUD 442 of 2014

Judge:

LOGAN J

Date of judgment:

8 July 2015

Catchwords:

PRACTICE AND PROCEDURE – pleadings – strike out application pursuant to r 16.21(c) and (d) of the Federal Court Rules 2011 (Cth) – whether statement of claim embarrassing or ambiguous – whether claims and material facts properly pleaded – sufficiency of pleadings in terms of ensuring procedurally fair trial – pleadings adequate – degree of generality or ambition in damages sought a matter for evidence trial

INDUSTRIAL LAW – construction of pleadings – alleged coercion of employees and industrial action amounting to contravention of s 343(1) and s 348 of the Fair Work Act2009 (Cth), interference with contractual relations and public nuisance

Legislation:

Fair Work Act 2009 (Cth) ss 19, 343, 347, 348, 421
Federal Court Rules 2011 (Cth) r 16.21

Cases cited:

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61 cited
Patrick Stevedores Operations Pty Ltd v The Maritime Union of Australia (1988) 88 IR 34 cited

Date of hearing:

8 July 2015

Place:

Brisbane

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

26

Counsel for the Applicants:

Mr F Parry QC with Mr C Murdoch

Solicitor for the Applicants:

Norton Rose Fulbright

Counsel for the Respondents:

Mr E White

Solicitor for the Respondents:

Hall Payne

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 442 of 2014

BETWEEN:

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
First Applicant

BECHTEL AUSTRALIA PTY LTD
Second Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

JADE INGHAM
Second Respondent

BEN LOAKES
Third Respondent

MICHAEL ROBINSON
Fourth Respondent

JODY MOSES
Fifth Respondent

SCOTT VINK
Sixth Respondent

KEVIN GRIFFIN
Seventh Respondent

ROBERT GRAAUWMANS
Eighth Respondent

JOHN LOMAX
Ninth Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	8 JULY 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 442 of 2014

BETWEEN:

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
First Applicant

BECHTEL AUSTRALIA PTY LTD
Second Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

JADE INGHAM
Second Respondent

BEN LOAKES
Third Respondent

MICHAEL ROBINSON
Fourth Respondent

JODY MOSES
Fifth Respondent

SCOTT VINK
Sixth Respondent

KEVIN GRIFFIN
Seventh Respondent

ROBERT GRAAUWMANS
Eighth Respondent

JOHN LOMAX
Ninth Respondent

JUDGE:	LOGAN J
DATE:	8 JULY 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Bechtel Construction (Australia) Pty Ltd (Bechtel Construction) and Bechtel Australia Pty Ltd (Bechtel Australia) are the applicants in the proceedings instituted against nine respondents, the first of which is the Construction, Forestry, Mining and Energy Union (CFMEU). 

2. Of those respondents, all, save the third respondent, have, by an amended interlocutory application filed by them today, sought the striking out of those paragraphs of the statement of claim set out in paragraph 1 of that application. The basis upon which the CFMEU (collectively referring to each of the moving parties on the amended interlocutory application) seeks to have those paragraphs of the statement of claim struck out is that they are embarrassing or perhaps ambiguous in terms of r 16.21(1)(c) and (d) of the Federal Court Rules 2011 (Cth). The effect of s 551 of the Fair Work Act 2009 (Cth) (Fair Work Act) is that Bechtel Construction and Bechtel Australia are obliged to comply with that pleading rule.

3. In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61 at [55] – [65], the Full Court recently had occasion to make observations in relation to the place of pleadings in matters arising under the Fair Work Act. It is not necessary to repeat what is there stated, only to emphasise that, at the heart of the Court’s pleading rules, lies the intent that a case be conducted in a procedurally fair way. A pleading which is truly confusing, evasive or otherwise embarrassing is not conducive to the conduct of a procedurally fair hearing and thus antithetical to an exercise of Commonwealth judicial power. Even so, a pleading is not to be read in a pedantic way. Further, it must be read as a whole.

4. The objection by the CFMEU parties to this pleading is, in my view, premised on a misunderstanding of the nature of the case which Bechtel construction and Bechtel Australia seek to make.  In order to highlight why that is so, it is necessary to descend in some detail into the statement of claim. 

5. It is said by the CFMEU that the statement of claim adopts a discursive style.  That is put as a criticism, although, on reading this particular statement of claim, I can well see why its author cast it in the way that he did.  By that, I mean that the proceeding arises out of alleged conduct at three different sites on Curtis Island near Gladstone in Central Queensland.  The pleading is constructed in a way which seeks to differentiate the conduct said to have occurred at each of those sites and the results of that conduct and particular activities directed to or in respect of the undertaking of that conduct.  It may well be that in so doing, there has been something of a blending of the allegation of what truly are material facts with evidence.  But this blending does not, in my view, lead to a confusing or embarrassing pleading.  It does, though, lead to a lengthy pleading.  Even so, as I have said, there is a discernible reason for that length. 

6. Against that background then, the following does not appear to be controversial.  Bechtel Australia is the engineering procurement and construction contractor for the three projects which I have mentioned, each of which concern liquefied natural gas.  In respect of those three projects, Bechtel Construction is the employer of what are described as craft workers.  For its part, Bechtel Australia is the employer of non-craft workers in respect of those projects. 

7. So far as the craft workers were concerned they were, in their employment, governed by the Bechtel Queensland Liquefied Natural Gas Projects Union Greenfield Agreement.  That particular agreement had a nominal expiry date of 5 June 2014.  Negotiations in respect of a replacement agreement had commenced on Bechtel Construction’s part in late 2013 with a number of employee organisations, including the CFMEU.  By August 2014, those negotiations had reached an impasse.  The conduct alleged in the statement of claim is said to have occurred in ways which give rise to disparate causes of action. 

8. The structure of the pleading, apart from first relating by way of background the facts that I have just mentioned, is to allege, commencing at paragraph 15, particular industrial action as having occurred in August 2014.  The gravamen of that alleged industrial action is to be found in paragraph 18 of the statement of claim.  That industrial action is alleged to have been constituted by a failure on the part of employees employed by Bechtel Construction to attend at each of the respective sites on 7, 8, 11, 12, 13 and 14 August 2014.  Between paragraphs 28 and 44, the statement of claim contains allegations of particular conduct at particular sites. 

9. Those allegations having been made, paragraphs 50 and 51 respectively allege contraventions of s 343(1)(b) and s 348 of the Fair Work Act in the following way:

   50The conduct pleaded in paragraphs 28 to 44 was organised and/or taken by the First to Eighth Respondents, respectively, with intent to coerce the First Applicant to exercise a workplace right in a particular way in contravention of section 343(1)(b) of the [Fair Work] Act, namely to request employees to approve a proposed enterprise agreement containing particular terms sought by the First Respondent (as pleaded in paragraph 12).

   51The conduct pleaded in paragraphs 28 to 44 was organised and/or taken by the First to Eighth Respondents, respectively, with the intent to coerce employees of the First Applicant to engage in industrial activity within section 347 of the Act, namely to take part in industrial action in contravention of section 348 of the Act.

10. An important feature of paragraph 50 of the statement of claim is that the intended coercion there alleged is said to have been directed against Bechtel Construction to the end of its exercising a workplace right in a particular way.  That is said to be requesting its employees to approve a proposed enterprise agreement containing terms of the kind alleged in paragraph 12.  It bears repetition that the target of the intended coercion is alleged to be Bechtel Construction, and that its intended effect is that which I have mentioned. 

11. There is not just substance but accurate observation in the submission made on behalf of Bechtel Construction and Bechtel Australia that a particular criticism made by the CFMEU entails a misunderstanding of paragraph 50 of the statement of claim.  The attack made on this particular part of the pleading is, in my view, truly predicated upon a false premise, namely that the coercion is directed to requesting the employees of Bechtel Construction to vote to approve the proposed enterprise agreement.  That is not what is put in paragraph 50.  Further, what is put there is not coercion in respect of any employees.  And it is not alleged there that requesting employees to approve an enterprise agreement amounts to coercion. 

12. What follows from that is that the submission made in paragraph 89 of the CFMEU’s outline of submissions and developed today orally is based on a false premise.  What is put there is that there is an inconsistency between the coercion causes of action pleaded in paragraphs 50 and 51 of the statement of claim because:

    Coercion of employees to behave in a particular way is inconsistent with the making a request of those employees such that a material internal inconsistency arises and the alternative characteristics of the conduct alleged creates confusion.

13. That same error infects the submission in paragraph 92 of the written submissions also developed in oral submissions today, namely that:

    [T]he allegation that particular individuals were coerced to act in a particular way is inconsistent with the same conduct amounting to a request of employees to act in a particular way.

14. The pleading at paragraph 50 of the statement of claim, read as that paragraph asks, against the background of the allegations in paragraphs 28 to 44, pleads the elements necessary to establish a contravention of s 343(1)(b).

15. I turn then to paragraph 51 of the statement of claim. That paragraph does not, in terms, allege the industrial activity said to comprise the industrial action. That is not, though, the criticism which is made of the pleading. Nor, reading the pleading as a whole, would that be a fair criticism, even though one might have wished for a more precise identification to be present in paragraph 51. Paragraph 215 of the statement of claim alleges that the employees who failed to attend work on the projects on 10 August 2014 engaged in industrial action. That gives the clue to what is said to be industrial action in paragraph 51, although not the whole answer. By section 19(1)(c) of the Fair Work Act:

    (1)      Industrial action  means action of any of the following kinds: 

    (a)       …

    (c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; 

16. By section 347(f):

    A person engages in industrial activity if the person:

    (f)       takes part in industrial action; or

    [emphasis in original]

17. The failure to attend for work is the failure in this case alleged in the several ways found in paragraph 18 of the statement of claim. Bechtel Construction and Bechtel Australia have, once the pleading is analysed in this way, pleaded material facts necessary to establish a contravention of s 348 in that they have pleaded that there was organisation for the taking of specified action, that that action was done with intent to coerce and that the relevant intent was to coerce employees of Bechtel Construction to engage in materially the conduct which is alleged in paragraph 18. Insofar as it was put on behalf of the CFMEU that there was a need to identify the target of the coercion, paragraph 51, read in the way that I have indicated, does this by identifying particular groups of persons.

18. Apart from alleged contraventions of s 343 and s 348 of the Fair Work Act, there are other causes of action pleaded in the statement of claim. An alleged interference with contractual relations is pleaded in paragraph 53, again, by reference to paragraph 28 to 44, namely:

    53By the conduct pleaded in paragraph 28 to 44, the First to Eighth Respondents knowingly and intentionally interfered with the contractual relationship between the First Applicant and its employees employed to work on the QCLNG and the GLNG Projects.

19. In my view, paragraph 53 of the statement of claim, read with the awareness allegation found in paragraph 52 and the particular paragraphs to which paragraph 53 directs attention, coupled with the allegations of damage found in paragraphs 300 and 301 plead adequately the cause of action in respect of an intentional interference with contractual relations. 

20. Another cause of action pleaded in the statement of claim which is said to result in embarrassment or to be inadequate is the allegation of public or private nuisance made in paragraph 56 by reference first to paragraph 55 and in turn having regard to that paragraph by reference to the conduct alleged in paragraphs 28 to 44.  Paragraph 55 is in these terms

    55The conduct pleaded in paragraphs 28 to 44 was besetting conduct which prevented and/or obstructed employees from attending the QCLNG and GLNG Projects to perform work as scheduled and as a result interrupted the business of the Applicants.

21. To establish a public nuisance, it is necessary to allege and then to prove an interference with a public or common right such as obstruction of a road:  see Patrick Stevedores Operations Pty Ltd v The Maritime Union of Australia (1988) 88 IR 34.

22. The conduct alleged at paragraph 28 to 44 goes beyond mere picketing.  The allegation is that that conduct constituted besetting of those who wished to enter the particular project sites alleged in the statement of claim.  The allegations in the pleading are sufficient to plead a cause of action in either public or private nuisance. 

23. It is further alleged in the statement of claim that there was conduct in contravention of s 421 of the Fair Work Act in that there was contravention of one or more orders of the conciliation and arbitration commission known as the Fair Work Commission (Industrial Commission). The pleading sets out the Industrial Commission orders concerned. It then alleges that, by particular conduct, those orders were contravened. I see nothing confusing or embarrassing about the way in which the alleged contraventions of s 421 are pleaded.

24. There is a general allegation made in paragraphs 300 and 301 of the statement of claim in respect of damages said to have flowed from the causes of action collectively.  Whether or not that is so would be a matter for proof at trial.  I do not see that the pleading in paragraphs 300 and 301 is confusing or embarrassing.  It may well be, when one recalls the particular contracts, namely those with employees, that there is a degree of ambition in the loss and damage set out in paragraph 301 as being referrable to the particular contracts pleaded.  That though is a matter for evidence at trial. 

25. In short, then, I do not see any basis for the striking out of any of the paragraphs detailed in the amended interlocutory application.  The pleading is one which, in my view, is sufficient to ensure a procedurally fair trial.  Further, the application is unusual in the sense that pleadings have closed.  That is not to say that an application to strike out is incapable of being made after that, only that one might have thought, had there been some truly embarrassing quality about the pleading, that an application to strike out particular paragraphs would have been made before a defence which engaged with the statement of claim was filed and served. 

26. For these reasons, the application will be dismissed. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:       

Dated:       30 July 2015