Brookfield Multiplex FSH Contractor Pty Ltd v McDonald

[2013] FCA 153

FEDERAL COURT OF AUSTRALIA

Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2013] FCA 153

Citation:		Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2013] FCA 153
Parties:		BROOKFIELD MULTIPLEX FSH CONTRACTOR PTY LIMITED (ACN 135 322 084), BROOKFIELD MULTIPLEX CONSTRUCTIONS PTY LTD (ACN 107 007 527) and BROOKFIELD MULTIPLEX AUSTRALASIA PTY LTD (ACN 146 787 395) v JOSEPH MCDONALD, GRAHAM PALLOT and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
File number:		WAD 44 of 2013
Judge:		GILMOUR J
Date of judgment:		15 February 2013
Catchwords:		INDUSTRIAL LAW – urgent application made under s 545(1) & (2) of the Fair Work Act 2009 (Cth) for interim injunctive relief – whether a strong prima facie case of breach of s 417 of the Fair Work Act 2009 (Cth) established
Legislation:		Fair Work Act 2009 (Cth) ss 417(1), 545(1) & (2)(a) Federal Court Rules 2011 (Cth) r 1.39
Date of hearing:	15 February 2013
Place:	Perth
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Applicants:	Mr S Harben
Solicitor for the Applicants:	Clayton Utz
Counsel for the Third Respondent:	Mr J Nicholas
Solicitor for the Third Respondent:	Construction, Forestry, Mining & Energy Union

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 44 of 2013

BETWEEN:

BROOKFIELD MULTIPLEX FSH CONTRACTOR PTY LIMITED (ACN 135 322 084)
First Applicant

BROOKFIELD MULTIPLEX CONSTRUCTIONS PTY LTD (ACN 107 007 527)
Second Applicant

BROOKFIELD MULTIPLEX AUSTRALASIA PTY LTD (ACN 146 787 395)
Third Applicant

AND:

JOSEPH MCDONALD
First Respondent

GRAHAM PALLOT
Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Third Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	15 FEBRUARY 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.That the time for service of this application be abridged pursuant to Rule 1.39 of the Federal Court Rules 2011 (Cth).

2.Until the hearing and determination of this proceeding or further order, Joseph McDonald and the Construction, Forestry, Mining and Energy Union (whether by their officers, employees, agents or howsoever otherwise) be restrained from:

(a)       attending within 100 metres of any entrance or exit to:

(i)Fiona Stanley Hospital Project located at Murdoch Drive, Murdoch, Western Australia;

(ii)Western Australia Institute of Medical Research located at Murdoch Drive, Murdoch, Western Australia;  and

(iii)St John of God Murdoch Hospital, located at Murdoch Drive, Murdoch, Western Australia,

(together, the Sites), save for such entry to the Sites as may be authorised by law pursuant to the provisions of Part 3-4 of the Fair Work Act 2009 (Cth), or for the purpose of using a public road for reasons unconnected with the Sites;

(b)encouraging, persuading, directing or procuring any person (including any employee, sub-contractor or contractor) who performs work at the Sites to:

(i)        fail or refuse to attend for work at the Sites;

(ii)refuse to perform any work after attending the Sites;

(iii)leave the Sites when required to perform work at the Sites;  and/or

(iv)perform work at the Sites in a manner different from the way in which the person customarily performs work at the Site -

save and except where such conduct in (i) to (iv) above is authorised and/or agreed to in advance and in writing, by the employer or contractor of any worker, or such conduct is based on a reasonable concern held by workers about an imminent risk to their health or safety and the worker did not unreasonably fail to comply with a direction of their employer or contractor to perform other available work, whether at the same or another workplace, that was safe to perform.

3.        Costs of this application be reserved.  

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION	WAD 44 of 2013

BETWEEN:

BROOKFIELD MULTIPLEX FSH CONTRACTOR PTY LIMITED (ACN 135 322 084)
First Applicant

BROOKFIELD MULTIPLEX CONSTRUCTIONS PTY LTD (ACN 107 007 527)
Second Applicant

BROOKFIELD MULTIPLEX AUSTRALASIA PTY LTD (ACN 146 787 395)
Third Applicant

AND:

JOSEPH MCDONALD
First Respondent

GRAHAM PALLOT
Second Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Third Respondent

JUDGE:	GILMOUR J
DATE:	15 FEBRUARY 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The following are the edited ex tempore reasons given in this matter on 15 February 2013.

2. I have before me an application for interim injunctive relief, as against the three respondents.  Mr Joseph McDonald, the first respondent and Mr Graham Pallot, the second respondent, are each, I understand, assistant secretaries of the Construction, Forestry, Mining and Energy Union which is the third respondent (the CFMEU).  The applicants, who I will refer collectively as Brookfield, are as a group, carrying on construction work at the Fiona Stanley Hospital Project, located at Murdoch Drive, Murdoch, in this State, as well as at the Western Australian Institute of Medical Research and the St John of God Murdoch Hospital, both of which are also located there (collectively, the Sites).

3. The application for interim injunctive relief is brought pursuant to s 545(1) and (2)(a) of the Fair Work Act 2009 (Cth) (the Act). The applicants’ claims to that relief are supported by two affidavits: one by Mr Brett Robert Beattie, sworn on 15 February 2013. He is the Senior Site Manager for the Fiona Stanley site, to which I have referred. The other is by Mr Kim Young, the Employee Relations Manager of the applicants, sworn by him also on 15 February 2013.

4. Beattie deposes in his affidavit to a conversation he had with the first respondent, McDonald, early this morning:

   [Mr Beattie]:            “Is there any truth to the rumour of a planned meeting today at 9.00 am?” 

   Mr McDonald:         “Yes”

   [Mr Beattie]:            “This is bullshit, we have had no notice of any meeting to take place today.”

   Mr McDonald:         “The meeting is important, a young man has been knocked off his bike.”

   [Mr Beattie]:            “I don’t know anything about that or about any of those issues and I’m pissed off that you are interfering with my job.”

   Mr McDonald:         “I apologise for not letting you know, but it has only just come up.  The young man was working for G&N at another site. He came off his bike and fractured his pelvis. Someone needs to pay for his 24/7 cover, and I want Brookfield Multiplex to force G&N to pay for his 24/7 cover.”

   [Mr Beattie]:            “That is sad, but it has nothing to do with Brookfield Multiplex or the Site.  Under no circumstances are you to come on site, we will not be paying the workers during the meeting as it is their smoko time. How long will the meeting take?”

   Mr McDonald:         “It will take as long as it takes.”

   (Emphasis added.)

5. Not long after that discussion a meeting was held just outside of the Fiona Stanley site, at approximately 9.00 am.  Beattie, although not present at the meeting, has deposed to seeing a crowd of workers, from his position approximately 50 metres from the crowd and watched the meeting take place over approximately 25 minutes.  McDonald is known to him, and he deposes that the meeting was addressed by McDonald, because he saw him talking to the crowd, although he could not hear what McDonald was saying.

6. Another person addressed the crowd at the meeting, but Beattie could not see who that was.  He also observed Graham Pallot, the second respondent, present at the meeting, although it appears that Pallot took no active part in the meeting in the sense of saying anything to the meeting.  There were, according to Beattie, approximately 450 workers at the meeting.  Of those, approximately 90 workers were from the St John of God site and 360 from the Fiona Stanley site.  He deposes that at one point during the meeting the workers present held up their hands and cheered.  He has stated his belief that there was a vote taken that the workers go on strike until next Tuesday, 19 February 2013.  This belief is based on his observations as well as his conversations with various workers following the meeting, who informed him that they were going on strike until Tuesday next.

7. Relevantly, Brookfield Multiplex Australasia Pty Ltd, the third applicant, has entered into an Employees Enterprise Agreement 2011-2014, with the CFMEU (WA). It is a contravention of s 417(1) of the Act, where an employee organisation such as the CFMEU, or an officer of an employee organisation, such as McDonald, organises or engages in industrial action whilst such an agreement, which is approved by Fair Work Australia, is alive, in the sense that its nominal expiry date has not yet passed. That is the case in relation to the Brookfield CFMEU (WA) agreement.

8. I am satisfied, for present purposes, in relation to interim injunctive relief, that the applicants have made out a reasonably strong prima facie case of breach of s 417 by the CFMEU through the conduct of McDonald. I do not think that the evidence supports making any finding, at present, in relation to Pallot. Accordingly, I am not prepared, presently, to make any orders in relation to him. However, in turning to the balance of convenience, I am advised that whilst next Monday, 18 February 2013, is a rostered day off for CFMEU members who are employees of the applicants or its subcontractors, that is not so in relation to tomorrow, Saturday, 16 February 2013, which is a normal working day at which somewhere between 40 to 50% of the workforce, will be members of the CFMEU.

9. It is tolerably clear, therefore, that the applicants, as a group, will suffer loss if work is not carried out tomorrow, but there is little or no countervailing prejudice in relation to the first and third respondents. For those reasons I am prepared to make orders pursuant to s 545(1) and (2)(a) of the Act, granting interim injunctive relief. The question, then, is the extent of the injunctive relief. I have a minute of proposed orders and am minded to make orders in terms of paras (1) and (2). I am not prepared to make an order in terms of proposed Order 3.

10. The costs of this application will be reserved.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       18 March 2013