Construction, Forestry and Maritime Employees Union v UGL Rail Services Pty Ltd - [2024] FWC 2167

[2024] FWC 2167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Construction, Forestry and Maritime Employees Union & Ors
v

UGL Rail Services Pty Ltd

(C2024/5463)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 15 AUGUST 2024

Appeal against order PR777942 of Deputy President Boyce at Sydney on 7 August 2024 in matter number C2024/5313 – stay application – partial stay ordered.

Introduction

On 9 August 2024, the Construction, Forestry and Maritime Employees Union (CFMEU) and five other individuals, all of whom are members of the CFMEU (together, the appellants), lodged a joint appeal, for which permission is required, against an order[1] (Order) made by Deputy President Boyce on 7 August 2024. The Order was made on the application of UGL Rail Services Pty Ltd (UGL) pursuant to s 418 of the Fair Work Act 2009 (Cth) (FW Act). The Order prohibits certain types of unprotected industrial action on the part of by UGL employees working on the Cross River Rail Project (CRR Project) in and around Brisbane. As part of their appeal, the appellants seek a stay of the Order and an expedited hearing of the appeal. This decision concerns those aspects of the appeal.

The background to the matter is as follows. The head contractor on the CRR Project is CPB Contractors Pty Ltd (CPB). CPB is currently engaged in bargaining for new enterprise agreements with its employees working on the project, some of whom are represented by the CFMEU. At least up until the time of the hearing before the Deputy President, the bargaining had not been going well. The employees of CPB represented by the CFMEU have, since 30 April 2024, embarked upon a campaign of protected industrial action. Associated with this campaign, the CFMEU has organised pickets at various CRR Project construction sites.

UGL is a subcontractor for CPB on the CRR Project and employs about 192 employees working on the project. Three enterprise agreements apply to these employees. The nominal expiry date of each agreement is 31 January 2025, meaning that the UGL employees are prohibited by s 417 of the FW Act from engaging in industrial action prior to this date. The CFMEU pickets have disrupted UGL’s work on the project. A number of its employees have failed to attend for work on the basis of an alleged concern for their health and safety if they are seen crossing the CFMEU picket lines.

On 1 May 2024, CPB obtained an interlocutory order from the Federal Court of Australia prohibiting, relevantly, the CFMEU and its delegates, office holders, employees or other representatives from:

·physically obstructing or physically impeding the free movement of goods or people to and from points of entry at CRR Project work site;
·abusing, threatening, harassing or intimidating any person entering or leaving a CRR Project work site; or
·aiding, abetting, counselling, procuring or inducing any person to engage in the above conduct.

On 18 July 2024, the Federal Court made a further interlocutory order[2] restraining the CFMEU and its delegates,…

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.

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Details

AGLC: Construction, Forestry and Maritime Employees Union v UGL Rail Services Pty Ltd [2024] FWC 2167
Case: [2024] FWC 2167
Decision Date: 15 AUGUST 2024

CaseChat Overview and Summary

The appeal in Construction, Forestry and Maritime Employees Union v UGL Rail Services Pty Ltd was heard by Justice Hatcher of the Fair Work Commission. The appellants, which included the Construction, Forestry and Maritime Employees Union (CFMEU) and five other individuals, challenged an order made by Deputy President Boyce that prohibited certain forms of unprotected industrial action by UGL employees working on the Cross River Rail Project in and around Brisbane. The appellants sought a stay of the order and an expedited hearing of the appeal. The legal issues before the court involved the procedural fairness of the proceedings, the validity of the orders made, and the balance of convenience in granting a stay. The court found that while some grounds of appeal raised arguable cases with reasonable prospects of success, particularly regarding the ambiguity of certain clauses in the order and the lack of a basis for a 'not organise' order, the balance of convenience did not favour a stay of the entire order. The court refused the application for a stay of the entire order but granted a partial stay on certain clauses, and scheduled the appeal for hearing in the October appeals roster.

Orders