CFMEU v Mirvac Constructions Pty Ltd

The case of CFMEU v Mirvac Constructions Pty Ltd involves a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Mirvac Constructions Pty Ltd. The CFMEU has brought proceedings against Mirvac alleging that the latter has threatened to deny access to one of its sites in South Yarra to a sub-contractor, J Z Lee Interiors Pty Ltd, in an attempt to prevent the sub-contractor's employees from working overtime. The CFMEU seeks interlocutory injunctions to prevent Mirvac from bringing or continuing certain proceedings against it and its members. The court must decide whether the proceedings in the Supreme Court and the threatened proceedings are in contravention of the relevant sections of the Fair Work Act 2009 (Cth). The court also must determine whether the CFMEU's case on these questions is strong enough to warrant the grant of interlocutory injunctions.

The court considered the legal issues raised by the CFMEU's application for interlocutory injunctions. The court had to determine whether an action for a quia timet injunction is an action in tort within the meaning of s 166A of the Fair Work Act 2009 (Cth) and whether the industrial action in question is protected action within the meaning of s 170MT of the same Act. The court also had to decide whether the proceedings in the Supreme Court and the threatened proceedings are in contravention of s 170NC of the Act. The court examined the principles applicable to interlocutory injunctive relief and the balance of convenience and other discretionary considerations. The court found that the CFMEU's case on each of the questions was not of equal strength but that each one answered the description of a serious question to be tried.

The court decided not to grant the CFMEU's application for interlocutory injunctions because the respondents had indicated that they were prepared to give an undertaking similar to that accepted in Master Builders. The court held that the first two questions identified in the reasons would necessarily arise for determination in the existing Supreme Court proceedings or any other action which may be instituted by the respondents against the CFMEU and its members. The court noted that the CFMEU had the facility to raise, at an early stage in the Supreme Court proceedings, the alleged non-compliance with s 166A and the immunity afforded by s 170MT as barring the remedy sought in those proceedings. The court also observed that the principles applicable to applications for interlocutory anti-suit injunctions required it to consider whether it was an appropriate forum for the resolution of the matter urged in support of the injunction before making interlocutory orders.

The court made no orders in relation to the CFMEU's application for interlocutory injunctions.