BGC Contracting Pty Ltd v The Construction Forestry Mining - [2004] FCA 272

FEDERAL COURT OF AUSTRALIA
BGC Contracting Pty Ltd v The Construction Forestry Mining
and Energy Union of Workers [2004] FCA 272
BGC CONTRACTING PTY LTD v THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
W38 of 2004
CARR J
20 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W38 OF 2004

BETWEEN:

BGC CONTRACTING PTY LTD
APPLICANT

AND:

THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
RESPONDENT

JUDGE:

CARR J

DATE OF ORDER:

20 FEBRUARY 2004

WHERE MADE:

PERTH

The Court notes the respondent’s undertaking through counsel as expressed in paragraph 32 of the affidavit of Timothy Robert Kucera, sworn and filed today, namely: The CFMEUW undertakes that it will not seek any orders from the Western Australian Industrial Relations Commission against BGC Contracting Pty Ltd in Commission matter C13 of 2004 and will upon the acceptance of this undertaking immediately discontinue that matter insofar as it seeks any relief against BGC Contracting Pty Ltd.
AND THE COURT ORDERS THAT:
1.The applicant's application for the interlocutory relief sought in its amended application filed on 19 February 2004 is refused, but with liberty to renew that application on two days written notice to the respondent.
2.The application is otherwise adjourned to a directions hearing on a date to be fixed, at which time the Court will also consider the motion filed by SNC-Lavalin (SA) Inc on 19 February 2004 to be joined as a respondent to this application.

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

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W38 OF 2004

BETWEEN:

BGC CONTRACTING PTY LTD
APPLICANT

AND:

THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS
RESPONDENT

JUDGE:

CARR J

DATE:

20 FEBRUARY 2004

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

As part of the relief sought by the applicant in its amended originating application, it seeks an interlocutory injunction to restrain the respondent, by its officers or authorised representatives, from taking any further steps in certain proceedings in the Western Australian Industrial Relations Commission and also to restrain them from exercising rights of entry which they claim under the Industrial Relations Act 1979 (WA) (“the State Act”).
From the affidavit evidence filed to date the facts would appear to be as follows. I emphasise the words “would appear to be” because, of course, no facts have been finally found. At the trial of this application the facts may be found not to accord with the facts as placed before the Court for the purposes of this urgent interlocutory application.
The applicant is a building contractor which, on 28 November 2003, entered into a contract with Oil Field Construction Services Ltd [now called Paramount (WA) Ltd], which I shall refer to as “Paramount”, to provide design and construction services in relation to the design and construction of a liquid anhydrous ammonia plant to be constructed on a site on the Burrup Peninsula (“the Site”). Paramount is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 272
Decision Date: 20 FEBRUARY 2004

CaseChat Overview and Summary

The case before the court involved BGC Contracting Pty Ltd, the applicant, and The Construction Forestry Mining, the respondent. The applicant sought interlocutory relief to prevent the respondent from exercising certain rights under the State Act, which included the right to enter the applicant’s site to hold discussions with the employees. The applicant argued that these rights were inconsistent with the Federal Act and sought an injunction to restrain the respondent from exercising these rights. The court had to decide whether the provisions of the State Act were inconsistent with the Federal Act and if the balance of convenience favoured granting the interlocutory relief.

The legal issues before the court were twofold. Firstly, whether the provisions of the State Act, which allowed the respondent to enter the applicant’s site, were inconsistent with the Federal Act. Secondly, whether the balance of convenience favoured granting the interlocutory relief to the applicant. The court considered these issues separately and together, finding that the applicant's case raised serious questions to be tried regarding the inconsistency between the State Act and the Federal Act. The court also found that restraining the respondent from exercising its rights under the State Act might go beyond merely preserving the status quo.

The court reasoned that the applicant’s case raised serious questions to be tried, as it was uncertain whether the State Act’s provisions were inconsistent with the Federal Act. The court observed that the balance of convenience was not in watertight compartments but needed to be considered both separately and together. The court concluded that the status quo was that the respondent could continue to seek entry and have recourse to the relevant Tribunal if the State Act’s provisions were found to apply. The court found that granting an interlocutory injunction might go beyond preserving the status quo by restraining the respondent from exercising its rights of entry.

The court made two orders. Firstly, it refused the applicant’s application for interlocutory relief but granted liberty to renew the application on two days written notice to the respondent. Secondly, the application was adjourned to a directions hearing to consider the motion filed by SNC-Lavalin (SA) Inc to be joined as a respondent to the application.

Orders

Orders of the court

1. The applicant's application for the interlocutory relief sought in its amended application filed on 19 February 2004 is refused, but with liberty to renew that application on two days written notice to the respondent.

2. The application is otherwise adjourned to a directions hearing on a date to be fixed, at which time the Court will also consider the motion filed by SNC-Lavalin (SA) Inc on 19 February 2004 to be joined as a respondent to this application.

Background

Background to the litigation

I granted Lavalin leave to intervene in these interlocutory proceedings. It filed two affidavits and Mr Caspersz made submissions in support of the applicant's arguments. He also made other submissions to which I shall refer in a moment, but first, I shall refer to the statutory framework. THE STATUTORY BACKGROUND Some of the relevant provisions of the State Act are as follows. Section 12 of the State Act provides that the Commission is a Court of Record and shall have an official seal. Section 23 provides that subject to the State Act, the Commission has cognisance of and authority to inquire into and deal with any industrial matter. Section 24 gives the Commission jurisdiction to determine in any proceedings before it whether any matter is an industrial matter. Section 44 empowers the Commission to summon any person to attend at a conference. Section 44(6)(ba) provides that the Commission may at such a conference give such directions with respect to industrial matters and make such orders as will in its opinion prevent the deterioration of industrial relations in respect of that matter until conciliation or arbitration has resolved the matter, or will enable conciliation or arbitration to resolve the matter or encourage the parties to exchange or divulge attitudes or information. Paragraph (bb) of that subsection provides that the Commission may also with respect to industrial matters, at such a conference, give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under the State Act. Under s 44(9), where such a conference has not settled any question, dispute or disagreement in relation to an industrial matter, the Commission may hear and determine that question, dispute or disagreement and may make an order binding the parties in relation to whom the matter is not settled. Section 49G defines an authorised representative as meaning a person who holds an authority in force under Div 2G of Part II of the State Act. Section 49H provides that an authorised representative of an organisation may enter during working hours any premises where relevant employees (a term also defined by s 49G) work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions. It is that subsection under which the respondent’s officers sought entry to the Site on 17 January 2004. Section 49M of the State Act relevantly provides that an occupier of premises must not refuse or intentionally and unduly delay such entry. Contravention of that section may give rise to civil penalties. THE FEDERAL ACT Part VID of the Federal Act makes provision for AWAs to be made between an employer which is a constitutional corporation (there is no argument that the applicant is not such a corporation) and an employee, being an agreement that deals with matters pertaining to the relationship between an employer and employee. Such an agreement may be made before the commencement of the employment, see s 170VF.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CARR J

Section 414 relevantly provides that the jurisdiction of the Court under s 422 (i.e. the appellate jurisdiction just identified) is exclusive of the jurisdiction of any court of a State to hear and determine such an appeal. FURTHER CONSIDERATION OF THE CONTENTIONS AND MY REASONING In addition to its reliance on ss 170VQ(1) and (4) and s 170VR(1), as I understand the applicant’s case, both in the Commission and in this Court it argues that the provisions in the State Act which purport to provide rights of entry to the Site are inconsistent with the provisions of s 285B and s 285C (and related sections) of the Federal Act, either because the Federal provisions were intended to regulate that subject matter completely, exhaustively or exclusively, or because the provisions of the State Act alter, impair or detract from the operation of the Federal Act in that respect. The provisions of the AWAs are not in evidence at this stage in this Court. In my view, as I held in Woodside Energy v MacDonald [2003] FCA 69 which raised very similar questions, the applicant’s case raises serious questions to be tried both in relation to whether the right of entry provisions under the State Act are inconsistent with the provisions of the Federal Act to which I have just referred, and also as to the application of ss 170VQ(1) and (4) and 170VR(1). I now turn to the balance of convenience. As I observed in Woodside (at par 120) the phrase balance of convenience is a convenient shorthand reference to the risk of doing an injustice to the party to be enjoined if an interlocutory injunction is granted, in comparison with the risk of doing an injustice to the party seeking the interlocutory injunction if such an order is not made. Of course, those two factors – the serious question to be tried and the balance of inconvenience – are not in watertight compartments; they are considered separately and also together. I also observed in Woodside, that usually an interlocutory injunction is granted to preserve the status quo pending the hearing and determination of the principal proceedings in which final relief is sought. Embodied in that question, so far as is relevant to the present matter, is the question whether restraining the respondent from exercising its rights to resort to the Commission for what are in substance equivalent to enforcement orders and also restraining it from exercising the entry rights which it claims, amounts to maintaining the status quo. In my view, the status quo is that the respondent may continue to seek entry and, if it is denied entry and if subsequently the relevant provisions of the State Act are held to have application (i.e. there is a finding in its favour), the respondent could have recourse to the relevant Tribunal for the appropriate penalties. It might be said that all it would be deprived of in the meantime (by an interlocutory injunction) is access to the Site and the workers by virtue of a mandatory order from the Commission. But an injunction restraining the respondent from exercising or seeking to exercise its rights of entry might be seen as going beyond merely preserving the status quo.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W38 OF 2004

BETWEEN:	BGC CONTRACTING PTY LTD APPLICANT
AND:	THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS RESPONDENT
JUDGE:	CARR J
DATE OF ORDER:	20 FEBRUARY 2004
WHERE MADE:	PERTH

JUDGE:	CARR J
DATE:	20 FEBRUARY 2004
PLACE:	PERTH