Blomfield v Bechtel Construction (Australia) Pty Ltd (No 2)

[2013] FCA 228

FEDERAL COURT OF AUSTRALIA

Blomfield v Bechtel Construction (Australia) Pty Ltd (No 2) [2013] FCA 228

Citation:		Blomfield v Bechtel Construction (Australia) Pty Ltd (No 2) [2013] FCA 228
Parties:		BENNETT BLOMFIELD, JOSEPH MUNRO and CAMERON TOWNSLEY v BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
File number:		QUD 683 of 2012
Judge:		LOGAN J
Date of judgment:		7 March 2013
Legislation:		Fair Work Act 2009 (Cth) Work Health and Safety Act 2011 (Qld)
Date of hearing:	4 - 7 March 2013
Place:	Brisbane
Division:	FAIR WORK DIVISION
Category:	No Catchwords
Number of paragraphs:	8
Counsel for the Applicants:	Mr WL Friend SC
Solicitor for the Applicants:	Hall Payne Lawyers
Counsel for the Respondent:	Mr J Murdoch SC with Mr CD Murdoch
Solicitor for the Respondent:	Norton Rose Australia

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 683 of 2012

BETWEEN:

BENNETT BLOMFIELD
First Applicant

JOSEPH MUNRO
Second Applicant

CAMERON TOWNSLEY
Third Applicant

AND:

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	7 MARCH 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Leave is granted for the applicants to discontinue their application.

2.Leave is granted for the respondent to discontinue its cross-claim.

3.No order as to costs.

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
FAIR WORK DIVISION	QUD 683 of 2012

BETWEEN:

BENNETT BLOMFIELD
First Applicant

JOSEPH MUNRO
Second Applicant

CAMERON TOWNSLEY
Third Applicant

AND:

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
Respondent

JUDGE:	LOGAN J
DATE:	7 MARCH 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. After hearing the evidence of Mr Bennett Blomfield, the first applicant and also Mr Joseph Munro, the second applicant, together with that of Mr Ramsay, a union official, it did not prove possible because of an unfortunate and, happily, short-term medical affliction suffered by the third applicant, Mr Townsley, forthwith to proceed to hear his evidence.  It therefore became necessary yesterday to adjourn the proceedings to today for the purpose of receiving more precise evidence concerning Mr Townsley’s medical condition.  Such evidence has been furnished on behalf of the applicants this morning.

2. Prior to adjourning yesterday, and in a necessarily tentative and also, in a sense, theoretical way, I raised with senior counsel for the applicants a contingency which might arise on the evidence in relation to whether, having regard to the evidence which I had heard, the case was one which might attract a conclusion that there was no reasonable cause for its institution. 

3. At the heart of the case is a controversy as to whether or not on 23 November 2012 there was cause for the applicants, each then workers at the Curtis Island LNG (Liquefied Natural Gas) construction project to walk off the job that day.  In turn, that entailed considering whether they had, in so doing, engaged a work place right either arising under the Work Health and Safety Act 2011 (Qld) or under the Fair Work Act 2009 (Cth) (Fair Work Act) itself. For present purposes, it is neither necessary nor desirable to explore whether there is in substance any difference between those two sources. Suffice it to say there is an overlap, at least in the sense that it falls to a worker to have a right immediately to cease work in the event that he or she holds a reasonable concern that there is an imminent risk to life or health. In the event that there were no such right then, having regard to the terms of the governing industrial agreement, the cessation of work would amount to unlawful industrial action.

4. In the course of industrial affairs, as in human affairs generally, sometimes rancour can arise for reasons which have at their heart a lack of communication, or at least a lack of receptiveness to attempts to communicate.  Further, the adage that all can seem jaundiced to a jaundiced eye has a unique application at times in industrial relations.  I do not doubt, having regard to the evidence that I have heard, that there was, on the part at least of the first and second applicants, a concern about work place health and safety.  Neither do I doubt, having regard to the nature of the respondent employer, Bechtel Construction (Australia) Pty Ltd’s (Bechtel) evidence as has been revealed in the course of cross-examination, that there is a genuine understanding that one of the main responsibilities of a modern employer is work place health and safety. 

5. Sometimes in the course of discourse between worker and employer on that subject views are formed that one side or the other is either not reacting quickly enough to a voiced concern, or that a worker is not assimilating that that particular concern is indeed being addressed. One of the objects, indeed, the primary object of the Fair Work Act, is to provide a balanced framework for cooperative and productive work place relations. This morning, having heard from Mr Friend SC, who appears for the applicants, as to Mr Townsley’s medical condition, I was also asked to grant leave to the applicants to discontinue the proceedings. The riposte on the part of Bechtel was to seek leave to discontinue its cross-claim. Neither side sought costs in that regard.

6. The attitude displayed by each of the parties in bringing these proceedings, or seeking to bring these proceedings to a conclusion in that way, is to be commended. Particularly to be commended also is the attitude on the part of Bechtel in not seeking costs in respect of the proceeding. There can be no doubt that proceedings they have visited, as between solicitor and client, costs on Bechtel. The attitude, both in seeking discontinuance and in not seeking costs, is, in my respectful opinion, well in accordance with the object of the Fair Work Act which I have mentioned.

7. Understandably, unions take seriously questions of work place health and safety.  Sometimes, though, the best way of dealing with a particular, heated situation which has arisen for causes that I have mentioned is the parties concerned to take what one might term “a deep breath”.  Unions have a very important role to play in counselling workers to take such a breath.  It is not in every case where a worker in the heat of the moment walks off a job professing safety concerns that, objectively, it will be possible to say that there is a “reasonable concern” arising from an “imminent risk”. 

8. There will be orders accordingly.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        15 March 2013