Built QLD Pty Limited v Construction, Forestry, Mining and Energy Union

[2015] FCCA 1612

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUILT QLD PTY LIMITED v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2015] FCCA 1612

Catchwords:
INDUSTRIAL LAW – Interlocutory injunction – where respondent on short notice.

Legislation:

Fair Work Act 2009, ss.341(1)(b), 341(2)(e), 343(1), 343(2), 348

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Cruse v CFMEU (2008) 175 IR 447
John Holland Pty Ltd v AMWU (2009) 174 FCR 562
National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114
Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union & Ors [2009] FCA 86

Applicant: BUILT QLD PTY LIMITED

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent: SCOTT VINK

Third Respondent: TIM JARVIS

Fourth Respondent: STEVE TOYER

Fifth Respondent: STEPHEN ANDERSEN

Sixth Respondent: TEVITA AVININDRA

File Number: BRG 514 of 2015

Judgment of: Judge Jarrett

Hearing date: 10 June 2015

Date of Last Submission: 10 June 2015

Delivered at: Brisbane

Delivered on: 10 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Murdoch

Solicitors for the Applicant: Minter Ellison

Counsel for the Respondents: Mr Kent QC

Solicitors for the Respondents: Hall Payne

ORDERS

A.In the following orders:

‘Event Cinemas Project’ means the construction project located at the Event Cinemas site (previously Birch, Carroll & Coyle Cinemas) within the Pacific Fair Shopping Centre at Broadbeach, Queensland.

‘Event Cinemas Project Employee’ means an employee of the applicant or any Event Cinemas Project Subcontractor engaged to carry out work on the Event Cinemas Project.

‘Event Cinemas Project Subcontractor’ means any company or organisation carrying out work on the Event Cinemas Project including as a subcontractor to the applicant or its client, as a subcontractor to a subcontractor to the applicant or as an entity who has entered into an agreement (whether orally or in writing) with the applicant to complete work on the Event Cinemas Project and includes:

(a)Cree8 Commercial Pty Ltd;

(b)Delta Pty Ltd;

(c)Disability Lifts Pty Ltd trading as Platform Lift Company;

(d)Edge Digital;

(e)Enviro-Acoustics Pty Ltd;

(f)F.I.P Electrical (QLD) Pty Ltd;

(g)IFire Protection Pty Ltd;

(h)Lindores Construction Logistics Pty Ltd;

(i)McGahon Building Service Pty Ltd trading as Dewpont Air;

(j)Microfire Systems Pty Ltd;

(k)PHP Contractors Pty Ltd;

(l)Queensland Glass Pty Ltd;

(m)Usher and Son Commercial Coatings Pty Ltd; and

(n)WERX Engineering Pty Ltd trading as S.J.C Engineering.

THE COURT ORDERS THAT UNTIL 4.00 P.M. ON 16 JUNE 2015 OR UNTIL FURTHER ORDER:

1. Pursuant to sections 343, 363, 545, 550, and 793 of the Fair Work Act 2009 that the first respondent (whether by its officers, delegates, or employees, or howsoever otherwise) and the second to sixth respondents be restrained from:

   (a)advising, encouraging, aiding, abetting, counselling or procuring any stoppage of work by any Event Cinemas Project Employee at the Event Cinemas Project;

   (b)advising, encouraging, aiding, abetting, counselling or procuring any Event Cinemas Project Employee not to attend for work as required by his or her employer;

   (c)impeding, hindering, preventing or discouraging the entry or exit of persons or vehicles to and from the Event Cinemas Project;

   (d)organising, encouraging, assisting, or participating in a picket line at any entry or exit point of the Event Cinemas Project which has the effect of impeding, hindering, preventing, or discouraging the entry or exit of persons or vehicles to and from the Event Cinemas Project;

   (e)placing or leaving any vehicle, trailer, apparatus, equipment, or other thing within 50 metres of any entrance or exit to the Event Cinemas Project;

   (f)attending, or organising or procuring any person to attend, within 50 metres of any entrance or exit to the Event Cinemas Project, save for such entry:

   (i)as may be authorised by law;

   (ii)for the purpose of using a public road for reasons unconnected with the said Event Cinemas Project; or

   (iii)for the purpose of complying with these orders.

2. Pursuant to sections 343, 363, 545, 550, and 793 of the Fair Work Act 2009 that the first respondent (whether by its officers, delegates, or employees, or howsoever otherwise) and the second to sixth respondents be restrained from organising or taking, or threatening to organise or take, or being involved in organising or taking or threatening to organise or take, any action with the intent to coerce the applicant to enter into an enterprise agreement with the first respondent.

3. The orders in paragraphs 1 and 2 do not apply to the organising or taking by any person of protected industrial action in accordance with section 408 of the Fair Work Act 2009 or activity which is not industrial action because of the operation of section 19(2) of the Fair Work Act 2009.

4. Pursuant to sections 343, 363, 545, 550, and 793 of the Fair Work Act 2009 that the first respondent:

   (a)Within 24 hours of this order being issued:

   (i)Post a copy of this order on its website;

   (ii)Issue and distribute a circular to each of the Event Cinemas Subcontractors and to its members who are employed to perform work at the Event Cinemas Project which sets out the terms of this order.

5. Until the final determination of these proceedings or further order, the first respondent (whether by its officers, delegates, or employees, or howsoever otherwise) and the second, third, fourth, fifth, and sixth respondents:

   (a)Be restrained in the terms set out in paragraphs 1, 2, and 3 above; and

   (b)Comply with paragraph 4 above.

6. The application be adjourned to 16 June 2015 at 11.30 a.m. for further hearing in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 514 of 2015

BUILT QLD PTY LIMITED

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

SCOTT VINK

Second Respondent

TIM JARVIS

Third Respondent

STEVE TOYER

Fourth Respondent

STEPHEN ANDERSEN

Fifth Respondent

TEVITA AVININDRA

Sixth Respondent

REASONS FOR JUDGMENT

1. This an application for interlocutory injunctive orders pursuant to s.545(1) of the Fair Work Act2009 (Cth) restraining the first to sixth respondents from acting in contravention of s.343(1) of the Act. On the evening of 10 June, 2015 I made the orders set out at the commencement of these reasons and indicated that these reasons would follow.

2. Only the first respondent has been served with the proceedings.  The other respondents have not been served with the proceedings and so, as against them, the application is ex parte. 

3. The first respondent and its advisors have only had the relevant initiating application and supporting affidavit for a few hours before the application came on for hearing.  Senior counsel who appeared for the first respondent sought that the application be adjourned until early next week so that the first respondent could give instructions to its solicitors and organise any factual material upon which it might wish to rely in opposition to the application.  He made it clear that he was unable to advance any arguments of substance in the circumstances.

4. For reasons that will appear, I determined to proceed with the application by making interim orders that will remain in force until early next week when the matter returns to Court.  Although the first respondent has been served with the proceedings, given the short period for which the first respondent has had notice of the application it is reasonable to approach the application as if it was made ex parte against all respondents.

5. The application is supported by an affidavit from Peter Randell, who a project manager employed by the applicant.  Mr Randell is currently responsible for a construction project undertaken by the applicant within the Pacific Fair Shopping Centre at Broadbeach for its client Birch Carroll and Coyle Limited.  The project involves the refurbishment and fitout of a cinema complex at the shopping centre.  Mr Randell’s affidavit refers to the project as the Event Cinema Project.  I shall refer to it simply as the project.

6. The gravamen of Mr Randell’s evidence is that the applicant is currently the subject of a targeted, coordinated and unlawful campaign that has caused the stoppage of work at project.  The applicant alleges that the campaign is being organised by the respondents with the intent to coerce the applicant into entering into an enterprise agreement with the first respondent.

7. According to Mr Randell’s evidence the project site consists of four floors: the ground floor loading dock, levels one and two, and a mezzanine.  Hours of work on the project site are typically between 6.30 am to 5.00 pm Monday to Friday and 6.30 am to 2.00 pm Saturday.  Access to the project site for the applicant and its subcontractors is coordinated through an area for which another entity, Scentre Design and Construction Pty Ltd (the contractor engaged by the owner of the site for the redevelopment of the shopping centre more generally), initially had responsibility.  The project site has one main entrance for subcontractors and one loading dock for vehicles, equipment and materials.

8. There is evidence that Mr Jade Ingham is the Assistant State Secretary of the first respondent, the second respondent Mr Scott Vink is an organiser of the first respondent, the fourth and sixth respondents, Steve Toyer and Tevita Avininra are delegates of the first respondent

9. Although it is not entirely clear, it seems that the applicant commenced work on the project in late April or early May, 2015.  Prior to commencing work at the project site on or around 21 April, 2015 Mr Randell attended a pre-start meeting with Mr Ingham, the second respondent, Matt Erskine, Construction Manager for the applicant, Craig Boyd and Justin Robinson, who was Mr Randell’s predecessor and the original project manager.

10. During the meeting and after some apparently general discussion about various matters, Mr Randell swears that Mr Ingham said words to the effect that the first respondent wanted:

    (a)    a relationship with Built;

    (b)    to see EBA subbies on the job and delegates on the job if it was big enough (though he thought it might not be);

    (c)     for the building trade subcontractors on site to have EBAs and blokes in the union on the job;

    (d)    Built on a CFMEU enterprise bargaining agreement (EBA).

11. After Mr Erskine pointed out that at that point in time there was no need for the applicant to have an enterprise bargaining agreement because the applicant did not have any construction workers employed in Queensland, Mr Ingham said words to the effect that the applicant only needed one worker to be able to do an EBA.

12. Mr Randell swears that during the meeting, Mr Erskine maintained the position that the applicant did not have the requirement for an EBA nor any labourers or construction workers at that point in time Mr Ingham apparently stated words to the effect that:

    (a) Built could still do an EBA;

    (b) the CFMEU would like to see Built with an EBA;

    (c) Built only had to employ one labourer to be able to do an EBA;

    (d) an EBA would be critical to the relationship between the CFMEU and Built;

    (e) the CFMEU wanted Built ‘in the same tent’ as everyone else;

    (f)there would surely be a need for construction workers for the type of work Built would be chasing;

    (g) the law did not require Built to enter into an EBA but that was what the CFMEU was asking Built to do;

    (h) the CFMEU had the majority of tier 1, 2 and 3 builders on EBAs;

    (i) the CFMEU’s position was that they wanted Built to do an EBA.

13. After some further discussion about the nature and size of the work that was presently undertaken by the applicant and after Mr Erskine reiterated his view that the applicant did not need a EBA presently, Mr Ingham indicated:

    (a) that to do the EBA and to get a relationship with the CFMEU Built could find a spot for a labourer on one of those projects;

    (b) he was unhappy with this as it was the CFMEU’s position that it wanted an EBA.

    (c) he considered if Built wanted a relationship with the CFMEU’s it would be able to work out a way to get an EBA by employing at least one labourer.

    (d) it would be of financial benefit to Built to have a labourer because Built could move them from project to project and that towards the end of a project, when finances tend to be stretched, Built could use their own labourer, rather than using labour hire.

14. After some further discussion about the work for which the applicant had been tendering, Mr Ingham said words to the effect that:

    over the last few years:

    (a) the CFMEU had a campaign regarding shopfitters;

    (b) that this campaign had been successful because shopfitters were now somewhat regulated; and

    (c) this had been achieved by making shopfitters sign EBAs.

15. Mr Ingham further said words to the effect that:

    a)he considered the Event Cinemas Project to be like a large fit-out;

    b)other shopfitters have signed EBAs, including those that engaged subcontractors to do most of the work and had only a few or no direct employees;

    c)these other shopfitters had signed EBAs because they understood the CFMEU’s ‘objective’ and would rather be ‘inside the tent than outside the tent’;

    d)it was going to be hard to tell those 700 blokes (Mr Randell understood that this was a reference to the workers on the entire Pacific Fair Project which had just reached 700 in number) that Built will not do an EBA.

16. Further discussion ensued about the present need for an EBA from the applicant’s point of view and the first respondent’s desire for there to be an EBA in place.  Mr Randell swears that since those discussions, the applicant employed a construction worker who is based on another project in Brisbane.

17. Mr Randell swears that he was informed by David Vicenzino, General Manager Queensland for a related entity of the applicant that on 25 May, 2015 Mr Vicenzino attended a meeting in Melbourne with Mr Ingham, Michael Ravbar, the State Secretary of the first respondent’s Queensland and Northern Territory Branch, Elias Spernovasilis, the Assistant State Secretary of the first respondent’s Victorian Branch and Peter Radovanovic, the Construction Manager Victoria for a related entity of the applicant.  During the meeting:

    a)There was a discussion about the fact that works on the project had stopped;

    b)Elias Spernovasilis said words to the effect that there cannot be a builder on the project without an EBA and that the applicant’s related entities in Victoria and New South Wales could ‘catch a cold’ if the issues were not resolved at the project;

    c)Mr Vicenzino said words to the effect that the applicant was genuine about entering into discussions with the first applicant that may eventuate in an agreed EBA with the first applicant and others;

    d)Mr Ingham indicated that the applicant would need to sign an ‘off the shelf’ version of the first respondent’s EBA and stated words to the effect ‘why would the first respondent negotiate with Built on the content of the EBA when Built do not have an EBA at present?’

    e)Mr Vicenzino said words to the effect that it was important for the construction industry to ensure that the terms of any proposed EBA were sustainable for the industry.

    f)Mr Ravbar said words to the effect that the first respondent were not going anywhere and that ‘it would not be good to see another major dispute such as QCH’.

    g)On 2 June, 2015 Mr Ingham had a meeting with David Vicenzino.  During this discussion when asked by Mr Vicenzino if work on the project could recommence Mr Ingham stated to the effect:

    i)he (being Mr Ingham) could not go down to Pacific Fair and tell the boys there has only been one meeting and no agreement had been arrived at with the EBA and ask them to go back to work;

    ii)‘the boys have now been out for 3.5 weeks so that would be unjust to make such a request of them’.

18. Mr Randell swears that from the commencement of the project until 25 May, 2015 access to the loading dock was typically controlled by the fifth respondent Stephen Andersen.  He apparently worked for Scentre Design and Construction Pty Ltd as the gateman or loading dock controller.  There is evidence that the fifth respondent is currently a branch council member of the first respondent.  After 25 May, 2015 control of the loading dock passed from Scentre Design and Construction Pty Ltd to the owner of the shopping centre.

19. Mr Randell identifies ten subcontractors that the applicant has engaged to complete work on the project.  In addition there are others yet to be engaged.  The applicant must also coordinate some of its work with other contractors engaged on the site.

20. The events upon which the applicant relies to base its claim for relief commenced on 11 May, 2015.  According to Mr Randell, the conduct about which the applicant complains continues.

21. Mr Randell sets out a detailed chronological history of the relevant events in his affidavit.  I do not intend to repeat all that he swears in these reasons.  In summary, however, his evidence if accepted in its entirety, would establish that:

    a)From 11 May to the time of swearing his affidavit a number of subcontractors were regularly prevented from accessing the project site and completing productive work.  Employees from two subcontractors, Cree8 Commercial Pty Ltd and F.I.P. Electrical (QLD) Pty Ltd were expected to attend at the project on each day from 11 May, 2015 but on the majority of those days have they been unable to access the project.

    b)Another subcontractor, McGahon Building Services Pty Ltd was expected to complete approximately one week of work but has not been able to do so.  Other subcontractors were scheduled to complete work during the period but have not been able to do so, because of the delays to the construction program caused by the stoppage of works at the site.

22. During May and June, 2015 Mr Randell has observed that:

    (a) Stephen Andersen, an employee of SGDC who controlled access to the SGDC loading dock from 22 April, 2015 until the handover to AMP on 25 May 2015, was in the SGDC loading dock on each day I attended site until 25 May 2015.

    (b) Following the handover of the loading dock to AMP, from around 25 May Mr Andersen would sit in the SGDC area marked in pink on the second page of PR-l.

    (c) the SGDC Safety Committee has introduced additional requirements for individuals and vehicles accessing the SGDC loading dock.

    (d) Steve Toyer is the Chairman of the SGDC Safety Committee. Steve regularly attended in the loading dock and the SGDC area throughout the period.

    (e) SGDC has a number of CFMEU delegates at the Pacific Fair site including Tevita Avinindra and Steve Toyer. Throughout the period set out below, a number of these delegates have stood with members of the picket line.

    (f) a number of CFMEU organisers and officials including Jade Ingham, Scott Vink, Steve Toyer, Tim Jarvis and Stephen Andersen have attended at the Event Cinemas Project and have spoken with subcontractors and members of the picket line on the days set out below.

    (g) From 11 to 19 May 2015:

    (i) CFMEU organisers including Andrew Sutherland, Scott Vink and Tim Jarvis attended at the Event Cinemas Project and raised alleged safety concerns about the site which lacked substance, and which did not result in an imminent risk to health and safety;

    (ii) CFMEU organisers including Scott Vink had directed workers, including from Cree8, not to carry out work on the Event Cinemas Project;

    (iii) The SGDC safety committee (which included Steve Toyer), Stephen Andersen and Scott Vink delayed and prevented delivery to and collection from the Event Cinemas Project;

    (iv) The SGDC safety committee (which included Steve Toyer) introduced further requirements for drivers entering the SGDC loading dock.

    (h) From 20May 2075, a number of individuals including CFMEU organisers and delegates gathered each day in the SGDC loading dock, near the entry to the Built loading dock and near the Built stairway entrance to site forming a picket line. Members of the picket line have:

    (i) stopped people and vehicles entering the loading dock and the Event Cinemas Project;

    (ii) stopped the unloading and loading of materials and equipment to and from the Event Cinemas Project;

    (iii) permitted vehicles, equipment and materials to be placed in locations that have disrupted access to the cinema loading dock.

    (i) From 27 May 2075, members of the picket line have gathered in the SGDC area near the entry to the Event Cinemas Project and when people and vehicles seek to enter the loading dock or attempt to enter the site through the stairway, they speak with these individuals and either:

    (i) advise them not to carry out work at the site;

    (ii) advise them that there is a picket line in effect by the CFMEU at the site;

    (iii) advise them that they must meet certain requirements to enter site or collect or deliver materials from the site.

1. The evidence of Mr Randell, if accepted at a trial, would establish that on 11 – 16 May, 18 – 23 May, 25 - 29 May, 1 - 5 June and 10 June, 2015 the first respondent (acting through the other personal respondents) and the personal respondents in their own right have conducted themselves in a manner which would probably lead to the conclusion that they have advised, encouraged or incited various employees of the applicant’s subcontractors to not attend at the project, not to complete productive work and have impeded and prevented the access and completion of work by them.  Mr Randell’s evidence would establish that the respondents have:

   a)attended at the project and monitored arrivals of people and vehicles at the entrances to the project site;

   b)blockaded and picketed the entry point to the project so that project employees are unable to enter the project;

   c)stated to project employees words to the effect that they should not attend at or enter the project site;

   d)stated to project employees words to the effect that they should not complete work at the project site;

   e)blockaded and prevented access to the project loading bay.

2. Mr Randell swears that as a result of those matters, from 11 May 2013:

   a)three subcontractors have been unable to complete their scheduled works on the project;

   b)because that work has not been completed, there has been a delay of approximately 23 working days and 29 calendar days to the schedule of works for the project;

   c)as a result of this delay, five other subcontractors have not been able to commence works on the project;

   d)the crane contractor has been stopped from providing services at the site;

   e)materials have not been able to be delivered to the project to allow work to continue in accordance with the schedule of works;

   f)skip bins have not been able to be collected and removed, so materials from demolition have not been able to be removed from site;

   g)further site facilities, including site sheds and further water supply have not been completed, limiting the number of personnel permitted on site;

   h)high level services and scaffold have not been able to be arranged.

3. According to Mr Randell’s evidence these delays have directly impacted the critical path of the works on site.  As a result, the end date of the project will either be pushed back approximately one month together with each additional day the difficulties with site access continue.  Alternatively, the applicant will need to attempt to accelerate the works to recover the lost time.  According to Mr Randell’s evidence either scenario represents significant additional cost to the applicant which it might, or might not be able to pass on to its client.  Mr Randell estimates that the additional costs to the applicant of the delays already incurred are $202,768.00 based on a contractually fixed maximum daily delay rate ($8,816) over 23 days of stopped work from 11 May to 10 June, 2015.

4. The applicant has sought extensions of time under its contract with its principal.  Those applications have been rejected by the principal.  Mr Randell swears that if the applicant is not entitled to extensions of time under the contract and the date for practical completion is not moved, the applicant may face a claim for liquidated damages at a rate of $14,692.00 per calendar day for each day after the contractual determined date of practical completion for the project.  According to Mr Randell the “liquidated damages risk” to date is up to $426,068.00.

5. Mr Randell swears that this is the first significant industrial issue he is aware of occurring for the applicant in Queensland.  He claims that the industrial issues and consequent delays have real potential to affect the applicant’s reputation with both its client and in the industry more generally. 

Consideration

1. The applicant prosecutes its application pursuant to s.343(1) of the Act. That section provides that a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

   a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

   b)exercise, or propose to exercise, a workplace right in a particular way.

2. Section 343(2) provides that s.343(1) does not apply to protected industrial action, however there is nothing in the evidence to suggest that the action in which the respondents are allegedly engaging is protected industrial action.

3. Section 348 of the Act also provides that  a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

4. To succeed, the applicant must establish that:

   a)it has a prima facie case, in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, it will be held entitled to relief;

   b)the inconvenience or injury which would likely result if an injunction were refused outweighs the injury that the respondent would suffer if an injunction were granted; and

   c)unless the relief is granted, injury not adequately compensable by damages will likely result.

5. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 , Gummow and Hayne JJ said (at p 82):

   By using the phrase “prima facie case”, their Honours [in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618] did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [118 CLR at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [118 CLR at 622]:

   How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

6. To demonstrate an intent to coerce, the applicant must show is an intent to negate choice, and not merely an intent to influence or to persuade or induce.  In Cruse v CFMEU (2008) 175 IR 447 Marshall J described the position:

   [18] Intention to coerce requires intent to exert pressure that would in a practical sense negate choice: see National Tertiary Education Industry Union at 143. Negation of choice can be contrasted with a desire to influence, persuade or induce. The question will be, as Weinberg J said in National Tertiary Education Industry Union at 143, whether “a person is left with a realistic choice as to whether or not to comply”.

7. A case based upon coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply: National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114, see also John Holland Pty Ltd v AMWU (2009) 174 FCR 562.

8. The applicant’s evidence presently establishes that senior representatives of the first respondent have indicated that the first respondent seeks an enterprise agreement with the applicant.  An available inference, that might be described as compelling if the applicant’s evidence is accepted is that the action about which it now complains is occurring as a means of negating the choice that the applicant has to make an enterprise agreement pursuant to s.341(1)(b) and (2)(e) of the Act.  As the applicant puts it in counsel’s written submissions: “The intent to negate choice is clear - in order for construction to resume an enterprise agreement must be made. If it is not the applicant’s reputation, capacity to complete the project and income will likely suffer.”

9. The pressure that the respondents are bringing to bear upon the applicant through the actions set out above, if proved at trial, would likely be found to be unlawful in the sense that they amount to unlawful industrial action for the purposes of the Fair Work Act. It is also likely to be found to be illegitimate in the way described by Jessup J in Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union & Ors [2009] FCA 86 at [38].

10. The evidence of the applicant, if accepted for present purposes demonstrates that the individual respondents have taken steps to advise, encourage or incite project employees to not attend at the project and complete productive work.  They have attended at the project as part of a picket line.  They have attended at the project and monitored entrants to the project.  They have, through their words and/or presence, advised or encouraged employees of subcontractors and others attempting to enter the project not to attend at the site and not to complete productive work at the site.  The sixth respondent has permitted the blocking of the project loading bay.  The fifth respondent has been involved in limiting access to the project including stopping vehicles from entering the project site and completing deliveries to or collections from the project.  The fourth, fifth and sixth respondents, have been involved in the introduction of requirements for access to the project that are above and beyond what is required of other construction site tenancies on the greater Pacific Fair construction site.

11. I am satisfied that on this interim basis the applicant has demonstrated a prima facie case in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, it will be held entitled to relief against each of the respondents.

12. The balance of convenience favours the granting of an interim injunction. There is a strong prima facie case that the respondents are engaging in action contrary to s.343(1) of the Act.

13. If the applicant’s evidence is accepted, the actions of the respondents have resulted in disruption of work on the project.  Due to the actions of the respondents, the applicant cannot perform the construction work it is entitled to perform at the project.  If the applicant’s evidence is accepted, the applicant is suffering financial loss for which it might have no recourse against its principal.  There is a real risk on the evidence of reputational damage to the applicant as Mr Rendell explains.

14. There is presently no suggestion of loss or damage to the respondents if the injunction is granted on an interim basis.

15. In my view, injury not adequately compensable by damages will likely result if an injunction for a short time is not granted.  Whilst the ultimate costs to the applicant of the stoppage might be able to be calculated in the calm environment of an accountant’s office long after the dust has settled, the inconvenience, disruption and loss caused on the ground, in the course of the performance of a contract which relates to only one part of a larger redevelopment, is not likely to be fully taken up in any award of damages.

16. As the applicant submits, there is real potential for this action to be particularly disruptive to the applicant’s business and affect the progress of works, the applicant’s reputation and its business relationships.

17. The orders proposed by the applicant are appropriate in my view subject to some minor variations.  They will be made until 4pm Tuesday next.  The application will return for further interlocutory hearing at 9.30am on Tuesday next.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 10 June, 2015.

Associate: 

Date: 11 June 2015