CBI Construction Pty Ltd v Abbott - [2008] FCA 1629

FEDERAL COURT OF AUSTRALIA
CBI Construction Pty Ltd v Abbott [2008] FCA 1629
INDUSTRIAL LAW – interlocutory injunction – respondents engaged in industrial action by failing to attend work without authorisation – continued to do so contrary to an order made by the Australian Industrial Relation Commission - threats made to continue to strike – consideration of terms used in the Building Construction Industry Improvement Act 2005 (Cth) - source of Courts power to grant injunctions – serious issue to be tried – effect on applicant of further industrial action significant – respondents returning to work is not a reason not to grant an injunction – other relevant considerations - balance of convenience strongly in favour of grant of injunction - injunction granted.
Building Construction Industry Improvement Act 2005 (Cth) s 3, 5, 36(1), 49(1), (3), (6)
Building and Construction Industry Long Service Leave Payments Act 1974 (NSW) s 4
Federal Court of Australia Act 1976 (Cth) ss 23, 37, 38, 39
Income Tax Assessment Act 1997 (Cth) s 83-175
Trade Practices Act 1974 (Cth) s 80(4)
ATO draft Ruling TR 2008/D6
Belgrave Nominees Pty Ltd & Ors v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 cited
Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 cited
EPM Concrete Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 23 IR 430 referred to
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 cited
Evans Marshall & Co Ltd v Bertola SA and Sherry Imports Ltd [1973] 1 WLR 349 cited
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 referred to
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 144 IR 418 referred to
Johns v R (1980) 143 CLR 108 cited
Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 referred to
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228 cited
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 cited
Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 cited
Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87 cited
Reid v Smith (1905) 3 CLR 656 cited
R v Thomson [1997] 1 Qd R 623 cited
United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 cited
CBI CONSTRUCTORS PTY LTD (ACN 000 612 411)
WAD 230 of 2008
GILMOUR J
28 OCTOBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 230 of 2008

BETWEEN:
CBI CONSTRUCTION PTY LTD (ACN 000 612 411)
Applicant

AND:
BENJAMIN ABBOTT & ORS
Respondents

AND: AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER
Intevener

JUDGE:

GILMOUR J

DATE OF ORDER:

28 OCTOBER 2008

WHERE MADE:

PERTH

UPON THE APPLICANT UNDERTAKING TO:
(a)Submit to such order (if any) as…

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.

Keep reading for free

Create a free CaseChat account to read CBI Construction Pty Ltd v Abbott and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FCA 1629
Decision Date: 28 October 2008

CaseChat Overview and Summary

CBI Construction Pty Ltd applied to the Federal Court of Australia for an injunction to restrain certain employees from refusing to work on specified packages of the North West Shelf LNG Phase 5 Expansion Project. The employees, who were initially part of a larger workforce, demanded termination of their employment, payment of redundancy entitlements taxed at concessional rates, and immediate reemployment under new contracts for the S6 and VRL packages. They argued that the S6 and VRL work did not form part of the Phase V Project and sought to enforce their demands through their union representatives. The legal issues the Court had to decide included whether the S6 and VRL work constituted part of the Phase V Project and whether the employees' demands would result in a breach of federal taxation laws. The applicant argued that the S6 and VRL work was part of the Phase V Project and that rehiring the employees under new contracts would breach taxation laws as the redundancy would not be bona fide. The Court found that the S6 and VRL work was part of the Phase V Project and that rehiring the employees would breach taxation laws. Consequently, the Court granted the application and issued an order restraining the respondents from failing to attend for work or failing to perform work in the manner customarily performed for the applicant.

The final orders included restraining the respondents from refusing to work on the specified packages, permitting alternative methods of serving the order on the respondents, taking the application and notice of motion to have been served under certain conditions, abridging the time for service of the originating documents, granting liberty to the applicant to apply to discharge or vary the order, adjourning the directions hearing, and reserving the costs of and incidental to the interlocutory application.

Orders

Orders of the court

1. Until determination of the application or further order, each of the Respondents identified in the attached Schedule, while employed by the Applicant to work on the Stabiliser 6 or Vapour Return Line packages, be restrained from failing to attend for work and/or failing to perform work in the manner as customarily performed for the Applicant.

2. Without limitation as to other means of service, service of this Order as required by Order 37 Rule 2 of the Federal Court Rules is dispensed with and, instead, service of this Order on the Respondents is permitted by any one of the following methods:

(a) leaving an original or copy (including a facsimile copy) of the Order with or tendering an original or copy of the Order to the Respondent intended to be served;

(b) providing or forwarding by facsimile transmission an original or copy of the Order to the solicitors of the Respondent intended to be served; or

(c) leaving a copy (including a facsimile copy) of the Order with a person apparently over the age of 16 years at the residential address of the Respondent intended to be served, being the address provided by that Respondent to the Applicant and held by the Applicant as part of the personnel records of that Respondent.

3. Pursuant to Order 7 Rule 10 the Application and Notice of Motion and the affidavits of Stuart Kenneth Macaree sworn on 22 October 2008, Damien Peter Swingler sworn on 23 October 2008 and Marlon Nilan Gerard Cooray sworn on 22 October 2008 (Originating Documents) be taken to have been served when the Respondent intended to be served has been provided personally with copies of the Originating Documents or copies of the Originating Documents have been left with a person apparently over the age of 16 years at that Respondent's residential address, which is the address provided by that Respondent to the Applicant and held by the Applicant as part of the personnel records of that Respondent.

4. Pursuant to Order 4 Rule 11 and/or Order 19 Rule 3, the time for service of the Originating Documents be abridged so far as is necessary to enable the motion of which notice is hereby given to be heard on 28 October 2008.

5. Liberty to the Applicant to apply on such notice as a judge shall allow to discharge or vary this Order.

6. The directions hearing in the proceedings be otherwise adjourned to a date to be fixed.

7. The costs of and incidental to the interlocutory application be reserved.

SCHEDULE

Respondent Name

2. Louise Andrews

4. Moses Asiata

7. Craig Bailey

9. Francisco Barraza

11. Richard Bauer

13. Leon Becker

15. Peter Best

16. Patrick Bird

17. Terrance Bishop

19. Romeo Boncato

23. Kristian Brinkley

24. Dennis Brockmann

25. Robert Brown

32. Robert Clark

35. Donald Colyer

39. Lance Cronin

42. Kenneth Cumming

43. Alastair Cunliffe

46. Juliana Davies

50. Claude Devos

51. John Dickson

54. Andrew Donnon

55. Daniel Doyle

57. Michael Duggan

59. Johannes Duplessis

61. Don Elcock

66. David Fergusson

67. Jose Ferreira

71. George Fitzroy

72. David Fraser

73. Salvatore Fronte

76. Scott Gardner

87. Nikola Grubic

92. Daryl Hendrick

95. Stephen Honicke

98. Vincent Howes

108. Raymond Jones

110. Turipi Karutjindo

112. Shaun Keily

113. Lenko Korljan

114. Vlado Kukulj

115. Darrin Lane

116. Shane Lavelle

118. Charlie Liness

120. Kenneth Logan

122. Michael Lord

123. Donald Mackay

125. Allan Marold

126. Denis Marriner

130. Gregory McCarthy

131. Paul McGeady

132. Russell McGhie

134. Alastair McGuire

137. Dean Medland

141. Pasko Mitreski

147. Jamie Nicolaou

148. James Odiam

150. Jonathon Ott

152. Mandy-Lee Palmer

153. Brett Parry

154. Frank Patteri

156. Andrew Peck

160. Sheree Pike

166. Baden Richer

168. John Rogusz

171. Phillip Rowell

172. Mike Rowlett

173. Tom Sabine

174. Wayne Salt

177. Anton Saxer

183. Felix Smith

185. Dusko Sobot

186. Richard Southern

187. Graeme Sowden

189. Graham Sparke

190. Benjamin Spronk

191. Richard Stott

195. Ken Thach

198. Bryan Tonkin

200. John Tuivasa

201. Greg Uchwal

204. Mitchell Weir

205. David Whitehead

207. Simon Young

208. Lesley Young

Note:

Background

Background to the litigation

The application is supported by the affidavits of Stuart Kenneth Macaree sworn 22 October 2008 and 27 October 2008, Damien Peter Swingler sworn 23 October 2008 and 24 October 2008. I have also had the benefit of detailed written and oral submissions which I generally accept and adopt for the purpose of these reasons. The Intervener made submissions broadly in line with those of the applicant. BACKGROUND On 11 September 2006 the applicant entered into a contract with Woodside Energy Limited (Woodside) to perform construction work on the Project under the management of Foster Wheeler Worley Parsons (Contract 6421). At the time of entering into Contract 6421 the applicant entered into the following collective agreements to apply to the work: 4.2.1 CBI Constructors Pty Ltd North West Shelf LNG Phase 5 Expansion Project (AMWU) Collective Agreement 2006, lodged with the Workplace Authority Director on 15 August 2006; 4.2.2 CBI Constructors Pty Ltd North West Shelf LNG Phase 5 Expansion Project (CFMEU & AWU) Collective Agreement 2006, lodged with the Workplace Authority Director on 15 August 2006. The agreements are relevantly identical and each has a nominal term which expires 3 years from the date of lodgement. Each of the collective agreements contain in it issue resolution procedures. On 23 November 2007 Contract 6421 was varied to include the construction of a sixth stabilizer unit (S6 package). On 19 August 2008 Contract 6421 was varied to include the construction of a second vapour return line (VRL package). The respondents were initially part of a larger workforce of 1200 engaged by the applicant to perform other work on the Phase V Project and elected to stay on when the other work finished to work on the S6 and VRL packages. They are variously engaged in the classifications of mechanical fitter, boiler makers, structural riggers, scaffolders, crane operators and storepersons. The respondents were initially engaged on the Phase V Project pursuant to standard contracts of employment which referred to the conditions of the applicable collective agreement. Prior to their agreeing to stay on to work on the S6 and VRL packages the respondents were informed that the work was a continuation of the Phase V Project and that their conditions of employment would continue uninterrupted. The vast majority of respondents are likely to be members of the Australian Manufacturing Workers Union (AMWU) or Construction, Forestry, Mining and Energy Union (CFMEU). Since at least 1 October 2008 the respondents, through their union representatives, have demanded that the applicant terminate their employment, pay out their redundancy entitlements taxed at concessional rates and then immediately reemploy them to continue to work on the S6 and VRL packages (the Demand). The respondents, through their union representatives, say this should occur because, in their opinion, the S6 and VRL work does not form part of the Phase V Project. The applicant has refused the Demand and has repeatedly pointed out to the respondents:(a)that the S6 and VRL work is part of the Phase V Project;(b)that, in any event, if the applicant were to terminate the employees, pay out their redundancy entitlements and immediately reemploy them, it would be breaching federal taxation laws because the redundancy would not be bona fide: as to which see s 83-175 Income Tax Assessment Act 1997 and ATO draft ruling TR2008/D6;(c) that the respondents will be no worse off if they are not paid their redundancy entitlements until the end of their employment on the Phase V Project because those entitlements will continue to accrue and will then be able to be paid out at concessional rates;

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GILMOUR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GILMOUR J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 230 of 2008

BETWEEN:	CBI CONSTRUCTION PTY LTD (ACN 000 612 411) Applicant
AND:	BENJAMIN ABBOTT & ORS Respondents
AND:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Intevener

JUDGE:	GILMOUR J
DATE OF ORDER:	28 OCTOBER 2008
WHERE MADE:	PERTH