Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 8563

[2013] FWC 8563

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.418—Industrial action

Broad Construction Services (WA) Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/6495)

DEPUTY PRESIDENT MCCARTHY PERTH, 31 OCTOBER 2013

Application for an order that industrial action by employees or employers stop etc.

Background

[1] This matter concerns an application by Broad Construction Services (WA) Pty Ltd (Broad) for an Order pursuant to s.418 of the Fair Work Act 2009 (the FW Act). I issued a decision on 24 October 2013 where I found that it did not appear to me that the requirements for an Order had been met. I indicated when I issued that decision that reasons would be published at a later time. These are those reasons.

[2] Broad engages persons, directly or indirectly, through contractors and subcontractors to perform work at the Perth Airport T1 Expansion Site (T1 Site). The TI Site involves provision of a new extension to the arrivals and baggage hall and once the extension has been completed refurbishment of the baggage reclaims hall and the security screening area. The project value is over $60 million. The contractors and subcontractors at the T1 Site employ employees who are, or are eligible to be, members of the Construction, Forestry, Mining and Energy Union (CFMEU).

[3] Essentially, Broad argues that unprotected industrial action took place on the morning of 22 October 2013 at the T1 Site. At the time of the hearing it was not contended that industrial action was happening, but rather that it had happened the previous day. What was contended was that industrial action was threatened or probable and that the CFMEU is organising, and it is probable that the CFMEU will organise further industrial action.

The Evidence

[4] Broad lead evidence from four witnesses. Mr Peter Cope (the Project Manager for the T1 Site), Mr Patrick Shoesmith (a Health and Safety Executive adviser for Broad), Mr Tristan Howard (a senior Site Manager at the T1 Site), and Mr David Lewis (a Site Supervisor at the T1 Site).

[5] Mr Howard arrived at the T1 Site at about 5:30am. Mr Vinnie Molina (Mr Molina), a CFMEU representative was walking back towards the car park from the T1 Site. Mr Molina made the comment that there would be “more to come today”. Mr Howard assumed from that comment that there could be attendance by some union representatives at the T1 Site that day. At about 5:55am he received a phone call from a tiler working on the T1 Site who informed him that there was a large contingent of union representatives gathering at the T1 Site entrance.

[6] Mr Howard then called Phil Hird (Mr Hird), the Director of Concealed Ceilings and Partitions Pty Ltd (Concealed) and advised him that there were union members making a presence on the T1 Site as a result of Concealed not having paid their employees. It is not clear how Mr Howard was aware of this but it appears he was aware of the concerns on 21 October 2013. Mr Howard says he was told by Mr Hird that the situation had been previously resolved and that the unions were incorrect at attending the T1 Site on this issue. Mr Howard also spoke to Mr Peter Bogamazzo of Concealed who also told him that the payment situation with Concealed employees had already been resolved.

[7] At 6:00am Mr Howard went towards the T1 Site entrance where he observed five vehicles parked around the roundabout up against the T1 Site hoarding and across all T1 Site entrances. There were approximately 25 to 30 union representatives and CFMEU flags were already displayed on the site boundary. He spoke to a CFMEU official (Mr Joe McDonald) and advised that as a minimum the Smarte Carte route must be kept clear as this could affect the airport operations and was not a part of the T1 Site activities. The Smart Cart route is to the rear of the T1 Site at present which leads the baggage handling trolleys back to their storage and was described as, a critical route for baggage handling.

[8] Mr Shoesmith evidenced that he arrived at the T1 Site at about 6:35am and observed that at the gate there were about 100 people, including CFMEU members and subcontractors. Mr Cope arrived at the T1 Site at about 6:40am. He says that at that time there were about 50 union members barricading the front gates. There were vehicles across the main gates and pedestrian access and were also blocking the Smarte Carte route.

[9] At about 6:50am Mr Cope was approached by some CFMEU officials and he was informed that they were going to hold a meeting with the CEO of Perth Airport. Mr Cope later learned that the allegations concerned non-payment or underpayment of wages to the subcontractor’s employees. The subcontractor in question was referred to as Concealed.

[10] At about 7:30am the Federal Police arrived at the T1 Site.

[11] Mr Cope approached Mr McDonald to try and establish what the allegations against Concealed were, the reasons for picketing, and to see if there were any further allegations against any other contractors. Mr McDonald said words to the effect of, “the issue runs deeper than imagined” and then went on to state that the workers of Concealed had not been paid for up to 7 to 8 weeks and were owed a total of $250,000.

[12] Mr Cope then advised Mr McDonald that the T1 Site gates were to be opened and workers were to enter the T1 Site. Mr McDonald replied back with words to the following effect, “If you open the gates, I have another 200 to 300 on standby. No one is entering this site”.

[13] At about 9:15am Mr Lewis was approached by a Union official (Mr Peter Joshua). Mr Lewis claims Mr Joshua said to him words to the following effect, “You guys need to sort out your CA’s as Concealed are a shower of shit. They need to make it happen and pull the pin on them. We are doing exactly the same thing this morning as we did with them six months ago”.

[14] At 9.34am, Mr Joshua along with three other union members passed the T1 Site office in a utility vehicle. They were beeping the horn and as they approached the T1 Site office, they slowed down the vehicle and shouted, “see you tomorrow morning!”

[15] At about 9:30am Mr Shoesmith overheard Ms Eilish Williams (Ms Williams) from Classic Contractors, painting contractors at the T1 Site, saying she could not get her workers onto the T1 Site. Mr Shoesmith observed Ms Williams direct about six painters to go onto the T1 Site. Mr Shoesmith states that she said to the painters, “No, come onsite; come onsite”, and the gate had a water barrier pulled in front of it with three people standing behind it.

[16] Mr Shoesmith then directed a number of those he believed were preventing employees from accessing the T1 Site to allow them access.

[17] Mr Shoesmith evidenced that the following interchange occurred with Mr Molina. Mr Shoesmith said:

“Shoesmith: ‘Vinnie, you’ve got to let them in. You can't stop them from going in.’

Molina: ‘Yes, we can; yes, we can.’

Shoesmith: ‘No, you can’t. You’ve got to let them in.’

and then Molina came over and whispered in Shoesmith’s ear

Molina: ‘Come on, Pat, do us a favour here. Just let them – send them off to another

site.’

Shoesmith: ‘No, I can’t do that. You’ve got to let them in.’”

[18] Mr Shoesmith stated that at that point:

“Joe McDonald was standing – I didn’t realise he was standing behind me and that’s when I felt – I felt a bump in my back and I turned around and Joe McDonald was there. I felt he’d bumped into me on purpose and then he apologised. He said, “Oh, sorry,” as if he’d accidentally tripped and bumped into me and then at that point they all through their hands up in despair and said, “All right. We’re getting out of here,” and I think Joe McDonald – well, yes, Joe McDonald said, “You’ve done it now. We’re getting a hundred guys back here tomorrow morning,” which was going to be this morning, “You’ve crossed the line. We’re going,” and they all just left and that’s when we pulled the water barrier out the way and the painters all went onto site.”

[19] Mr Shoesmith evidenced that when painters entered the T1 Site abuse was shouted at the painters to the effect that “they would not work in WA again” and that “they would not get paid their super”.

[20] A number of abusive comments were then directed at or about Ms Williams and the painters who entered. She was called or referred to as “a pisshole” and “a bitch” and comments directed at the painters such as “You’re being pussy-whipped.”

Consideration and Conclusions

[21] It is apparent that unprotected industrial action did occur on 22 October 2013. It is also apparent that officials of the CFMEU were involved in organising the industrial action.

[22] There is no assertion that industrial action was happening at the time of the proceedings. Broad asserted that industrial action was impending or probable.

[23] The evidence does not establish that contention. Some of the comments made on the morning of the 22 October 2013 may have given an appearance at that time that there was a probability of industrial action, however those comments must be taken in the context of what was occurring then and if anything had developed or happened since.

[24] The comments of Mr Joshua of “see you tomorrow morning”, could be taken to infer there would be industrial action, but equally they could be taken as simply meaning they would be present at the T1 Site. The comment of Mr McDonald that “we’re getting a hundred guys back here tomorrow morning” could also infer an intention of further industrial action. However, that action did not occur. It did seem to me that there may be a possibility of further industrial action, but it did not appear to me that there was a probability and nor that industrial action was impending.

[25] I stated above that it appeared to me that the CFMEU had organised unprotected industrial action. The condition necessary for an order of the nature sought that the CFMEU not organise industrial action, is that industrial action “is being organised”. It did not appear to me that at the time of the proceedings and when I issued my decision that the CFMEU was currently organising or even that there was a probability that the CFMEU would organise further industrial action. The only conclusion I could arrive at from the evidence and submissions made is that there was a possibility that the CFMEU may organise further industrial action. That is insufficient to reach the condition required for an order against the CFMEU and its officials.

[26] It is with this background and for these reasons that I dismissed the application.

DEPUTY PRESIDENT

Appearances:

Mr A. Kennedy and Mr M. Stutley of K&L Gates for the Applicant.

Ms S. Walker of the Construction, Forestry, Mining and Energy Union for the Respondent.

Hearing details:

2013.

Perth:

October 22.

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