Construction, Forestry and Maritime Employees Union v UGL Rail Services Pty Ltd
[2024] FWC 2167
•15 AUGUST 2024
| [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, office holders, employees or other representatives from:
·photographing, recording by any means, or creating or maintaining a record of the identity of, any person or vehicle entering or leaving a CRR Project work site;
·coming within 15 metres of points of entry to a CRR Project work site or going or remaining within 15 metres of any such point of entry.
These orders remain in force. The CFMEU asserts that it has complied with the Court’s orders,[3] and nothing before the Commission indicates anything to the contrary. Nonetheless, the pattern of significant numbers of UGL employees not attending for work when rostered to do so has continued. UGL contends that this constitutes unprotected industrial action.
The proceedings at first instance
On 5 August 2024, after working hours, UGL filed an application in the Commission for an order under s 418 of the FW Act that unprotected industrial action on the part of 183 named employees stop or not occur. The matter was listed for mention/directions before the Deputy President at 1:45 pm on 6 August 2024, at which the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) appeared in response to the application. The Deputy President made directions for the filing of evidence and submissions on an urgent basis and listed the matter for hearing on the following day (7 August 2024) at 2:00 pm. The Deputy President also made orders for substituted service of the application on the employees by email and by placement on UGL’s intranet and noticeboards. UGL filed witness statements and submissions in accordance with the Deputy President’s directions, as did the AMWU and the CEPU.
At 9:48 am on 7 August 2024, the CFMEU sent correspondence to the Commission indicating that it wished to be heard in the matter, and was consequently directed to file submissions and evidence by 12:00 pm. The CFMEU subsequently indicated that it was not in any position to file evidence or submissions by that time but stated that its members had raised concerns about the application and that it opposed the order sought on the basis that there was no industrial action which was threatened, impending or probable and no admissible or any evidence of ‘interference’ with work.
At the hearing of UGL’s application, the CFMEU indicated that it wished to be heard on the basis that it had some 35 members employed by UGL, but was unable to say whether any of the named respondents to UGL’s application were CFMEU members. The CFMEU ultimately submitted that it should be heard because it was in a position to inform the Commission about the pickets at CRR Project work sites, the effects of the Federal Court orders and the extent to which there might be any risk to workers arising from those pickets:
One of the important aspects about why you would want to hear from us is because there is a public interest aspect in the CFMEU picket, the order from the Federal Court in relation to the 15-metre barrier and the issue that has been raised by the other unions in relation to endangering life of a worker, which I think is fairly clear in relation to their witness statements. We would say, of course, that, you know, endangering the life of a worker prevails over any economic harm that might be suffered by the company, but that’s something to discuss or look at as we proceed with the matter today
I mean, the right of a worker to cease unsafe work is in the public interest. The CFMEU may well have something to say about that, and we do have something to say about that. We have been involved in this matter with CPB for a long time and UGL is just another matter that we should be heard on in relation to legitimate safety concerns at work, not just for the unions’ workers who are here today, but also for the CFMEU members who work at UGL, I would have thought. Those health and safety issues are something that you would want to hear about. PN54 Our members’ behaviour in the context of the purposes of the picket you would want to know about it. You would want to know about the reasonableness of the directions, I would have assumed, from UGL, in relation to identifying hazards or assessing risks, controlling risks, review of control measures in relation to primarily managing the risk and associated issues to do with the other unions’ applications today, if it please the Commission
One of the important aspects about why you would want to hear from us is because there is a public interest aspect in the CFMEU picket, the order from the Federal Court in relation to the 15-metre barrier and the issue that has been raised by the other unions in relation to endangering life of a worker, which I think is fairly clear in relation to their witness statements. We would say, of course, that, you know, endangering the life of a worker prevails over any economic harm that might be suffered by the company, but that’s something to discuss or look at as we proceed with the matter today.[4]
On the basis of the above submission, the Deputy President determined as follows:
Having heard from the parties, I am prepared to have the CFMEU be heard on a submission only basis to the extent that there might be submissions dealing with the interaction between the decisions in the Federal Court, or the orders made therein, and what we are dealing with today. The grant of leave or permission to be involved in the proceedings only extends to making those closing submissions.[5]
Following this, UGL adduced its evidence, with two of its witnesses being the subject of limited cross-examination by the CEPU. Midway through the hearing, the CFMEU asserted that it had identified a ‘large number’ of its members who were on the list of respondents and asserted that they had not been served with the application.[6] In response to this, UGL submitted that it had complied with the Deputy President’s directions for service of the application.[7] By this point, the hearing of UGL’s evidence had completed. A debate ensued about whether the CFMEU had been afforded a fair hearing, but the CFMEU at no stage requested an adjournment of the hearing and ultimately made the following submissions:
… I just wanted to say that a lot of the material in evidence, there’s a point in time where certain things may have been of concern to the company. They may not be of concern now given what your honour has said about the order. It’s hard to understand from the CFMEU’s position. This is what we’re submitting, that anyone would have any difficulty getting into work when we’re 15 metres from the actual gate at any of the sites.
Whilst there may be a picket, there shouldn’t be any impediment to workers getting to work. That being said, what I do want to say about that is the issue of — and this goes to the state of mind of, obviously, the employee’s, workers or — you know, the employer’s workers or the union’s members who this matter is against, because the state of mind of those individuals in relation to entering a site that’s been picketed, I can understand from the perspective that there might be a lot of concern in relation to their welfare and safety, and the right of the worker to, you know, cease or enter unsafe work.
I can understand that argument from a union’s perspective in the public interest. That was something I wanted to bring to the Commission’s attention, but that point in time issue that I brought up before is very significant because you have to make an order, your Honour, in relation to the issue before you, an order that actually can be operative at the time in relation to any action being complained of.
And, of course, what we’ve got here is we say that there’s no reason to make an order because there’s no utility in making an order, because at the point in time of these proceedings filed in an F14 filed by the employer, there’s a futility in making the order which is evident. Because the matter complained of has fallen away as at the 18 July.[8]
In closing submissions, the CFMEU submitted that there was no probative evidence that industrial action was occurring, being organised or was threatened, impending or probable. The CFMEU also submitted that the evidence did not establish that any of the UGL employees had felt intimidated by the picket lines, but rather submitted that the non-attendance at work by UGL employees was the result of uninformed apprehension about crossing a picket line which created a ‘psychosocial risk’:
What I will say in relation to that is that those members of those unions here today and those employees of UGL, may have never dealt with a picket before. They may have no history of being involved in unionism in that way and I can understand why, if they have never been involved in unionism, pickets, strikes and that type of thing, it would be of concern to them. They would be inspired with fear. They may be rendered timid. It’s entirely possible that that’s the feeling and concern that those members or employees have from the picket line.
No one is to blame, but it is an incredibly volatile situation at a picket and what you’re dealing with here, Deputy President, is that evidence from the unions in relation to the Briginshaw standard. As we know, that is the standard that we’re dealing with here in those circumstances. What I might say to you is in such matters reasonable satisfaction - you would have to turn your mind to those not produced by inexact proofs or indefinite testimony or indirect references.
I think you do have that from the union evidence that there are members that are concerned, hence them leaving the site and that type of situation has arisen not through anyone’s fault, but because of the nature of the volatile situation that they find themselves in they have left the work site. What we are turning to here is section 418. By its terms it requires the Commission to consider whether industrial action by one party, or in this case against a number of unions, is not or would not be protected industrial action.
Now, of course it can’t be protected industrial action nor, in my view, we would submit from the CFMEU, is it industrial action. It is simply members of a union who have been concerned about their own health and safety, and have taken action to look to bring about an element of control into their working life. At that point we turn to Fair Work Act 2009, 19(2). You will be aware, your Honour, very clearly there it says industrial action does not include an employee if it was based on a reasonable concern about an imminent risk to their health and safety.
That’s what we have here; we have members of other sister and brother unions who are concerned about their own safety on site. The second limb of that, of course, is ‘the employee did not unreasonably fail to comply with a direction’ of their ‘employer to perform other work ... that was safe and appropriate for’ them to do so. I haven’t heard anything from the employer today about what other work they could direct those members of the unions to engage in that might be safe or appropriate for them to do so given the psychosocial hazards that were brought up today in relation to the evidence of the unions.[9]
At the conclusion of the hearing, the Deputy President issued a short ex tempore decision in which he stated his intention to make an order pursuant to s 418 of the FW Act. After having done so, the CFMEU recorded the following protest:
… It wasn’t a fair hearing from our perspective, and that’s our view. We haven’t been heard. We weren’t given the opportunity to cross-examine the other side. I pointed out to counsel at the start that we had up to 35 members. It was ignored. There was a decision made to soldier on without clarifying that, and I don't know whether all our members are being served.
I don’t even know what substituted service means. We don’t even have a copy of the documents. We have a copy of nothing. In fact, I don’t even have counsel’s submissions. It would be useful just to get something so we know what there was before the Commission today. That’s what I’ve got to say in relation to this matter. I think that really at some point it should have been clearly understood by everybody that if you have a member, you might like to represent that member in the most fulsome way possible.[10]
The Deputy President issued the Order at 8:51 pm on 7 August 2024. The operative part of the Order provides:
4.INDUSTRIAL ACTION MUST STOP, NOT OCCUR AND NOT BE ORGANISED
4.1From the time of this Order:
The Employees must stop, and must not engage in or organise the following types of unprotected industrial action:
(a)an Employee failing or refusing to enter a CRR Construction Site at which the Employee has been rostered for the performance of work;
(b)an Employee failing or refusing to attend for work at a workplace located within a CRR Construction Site where the Employee has been rostered for work; and
(c)an Employee engaging in the conduct in paragraph (a) or (b) above at a CRR Construction Site because of an alleged health and safety concern arising out of:
(i) the existence of a picket at that site, or
(ii) crossing the picket at that site; and
(d)a ban, limitation or restriction on the performance of work:
(i) underneath a point of entry to a CRR Construction Site;
(ii) underneath a picket outside a CRR Construction Site; or
(iii) otherwise.
4.2For the purposes of this order, the expression ‘industrial action’ does not include:
4.2.1protected industrial action within the meaning of s.408 of the Fair Work Act 2009;
4.2.2action by an Employee/s that is authorised or agreed to by or on behalf of UGL; or
4.2.3action by an Employee if:
4.2.3(i)the action was based on a reasonable concern by the Employee about an imminent risk to his or her health or safety; and
4.2.3(ii)the Employee did not unreasonably fail to comply with a direction of UGL to perform other available work, whether at the same or another workplace, that was safe and appropriate for the Employee to perform.
On 12 August 2024, the Deputy President issued reasons for the Order made.[11] In his reasons, the Deputy President referred to the evidence adduced by UGL and then made a finding that ‘the evidence discloses that industrial action has been occurring in the form identified in UGL’s submission’.[12] He then dealt with the submissions advanced by the unions that the actions of each of the UGL employees fell within the exception to the definition of ‘industrial action’ in s 19(2)(c) of the FW Act, namely that they were based upon ‘a reasonable concern of the employee about an imminent risk to his or her health or safety’. The Deputy President rejected this submission:
[43] I note that those words, ‘if it appears’ to the Fair Work Commission (at s 418(1) of the Act), identify that the relevant finding as to industrial action only be apparent, not essentially definitive. Notwithstanding that, in this case I consider (and find on the evidence before me) that the action (or conduct) by UGL Employees disclosed on the evidence, and as specified or summarised in UGL’s submissions, is ‘industrial action’ within the meaning of s 19 of the Act, being action (or conduct) that is not to be excused on the basis of it being in response to an imminent risk to health and safety.
[44] I am comforted in that later view (about the exception concerning an imminent risk to health and safety not being sustained on the evidence), having regard to the fact that issues as to imminent risk to health and safety were not raised or properly articulated by any named UGL Employees, at least on the evidence, with the management of UGL at the various times or sites, at least prior to the on-site meeting today (7 August 2024), i.e. beyond what is said or otherwise blandly or broadly asserted in text messages.
(footnotes omitted)
The appeal and the applications for a stay and an expedited hearing
The appellants in their amended notice of appeal dated 13 August 2024 raise the following grounds of appeal:
1.The Commission’s decision and orders were made on a basis which was procedurally unfair, including in that:
a.there was no evidence on which the Commission could find that the respondent workers had proper notice of the application;
b.the first appellant (CFMEU) was denied the opportunity to participate in the proceedings except by making limited closing submissions;
c.the respondent workers were directed to prepare materials in opposition to the application between 6pm on Tuesday 6 August and 10am on Wednesday 7 August 2024, which was a manifestly inadequate opportunity in the circumstances of the case; and/or
d.the process adopted by the Commission denied the respondent workers a real opportunity to participate in the proceedings.
2.It was not open to the Commission to make the orders which it made because:
a.the orders required each employee to attend for work whenever rostered and without qualification;
b.the orders require employees to attend for work regardless of any reasonable concern about their health and safety; and/or
c.the orders are ambiguous.
3.It was not open to the Commission to find as a matter of fact in respect of all of the respondents, or any of them [that]:
a.industrial action was threatened, impending or probable;
b.industrial action was being organised; and/or
c.industrial action of the kind described at order 4.1(d) had occurred.
4.It was not open to the Commission to find that the alleged conduct was industrial action in the relevant sense because it was not ‘industrial in character’ and/or was not action taken in support of any claim or demand.
5.The Commission did not find that industrial action was threatened, impending or probable or was being organised and there was therefore no basis for any order other than an order that the alleged industrial action stop.
The appellants contend that it is in the public interest to grant permission for the appeal because:
1.The orders made by the Commission in the decision under appeal manifest an injustice upon and have serious consequences for the affected workers including:
a.requiring them to attend for work whenever rostered and without exception or qualification; and
b.exposing them to civil penalties for breach of orders which are ambiguous.
2.The decision under appeal involved gross procedural unfairness and a series of obvious errors. It is in the public interest that it be corrected.
3.The appeal raises issues of general application and importance in respect to the Commission’s procedure to determine applications of this nature and the Commission’s power to make orders under s.418 of the Act.
As earlier stated, in their notice of appeal the appellants sought an expedited appeal, citing a concern that that the Order gave rise to immediate and serious consequences for the affected workers and exposed them to civil penalties on any occasion on which they did not, for any reason, attend work in accordance with their roster. They also sought a stay in respect of the whole of the Order.
The matter was listed for mention and directions on 12 August 2024 and the following directions were issued:
1.The Construction, Forestry and Maritime Employees Union is to file, and serve on UGL Rail Services Pty Ltd t/a UGL (respondent)
(a)any evidence on which it and the other appellants seek to rely in support of their stay application; and
(b)a brief outline of submissions by 1:00 pm (AEST) on Tuesday, 13 August 2024.
2.The respondent may file (and if it does so, must serve on the appellants) an outline of submissions in response to material filed pursuant to item 1 of these directions by 9:00 am (AEST) on Wednesday, 14 August 2024.
3. The stay application will be listed for hearing by video using Microsoft Teams at 11:00 am (AEST) on Wednesday, 14 August 2024.
On 13 August 2024, the appellants filed an outline of submissions, a witness statement of Madeleine O’Brien, a solicitor representing the appellants, dated 13 August 2024 and a witness statement of Elliott Dalgleish, an industrial officer of the CFMEU, dated 13 August 2024. The following morning, the appellants filed a further witness statement made by Joseph Kennedy, another solicitor representing the appellants, dated 14 August 2024.
In respect of the prospects of the appeal, the appellants argued that the appeal had strong prospects of success and submitted:
·The Deputy President did not make any finding that industrial action was threatened, impending or probable or was being organised, and therefore, there was no basis for the Order to be made to the extent that it required industrial action not to occur or not to be organised;
·The making of orders in respect of the named UGL employees was preconditioned on a finding that industrial action by each of the employees was happening or threatened, impending or improbable, however, no such finding was made, nor could it have been made on the material before the Commission;
·The positive finding by the Deputy President that none of the UGL employees who were absent from work held a concern of the kind identified in s 19(2)(c) of the FW Act[13] is mistaken in light of the unchallenged and uncontested evidence below that workers had attempted to raise concerns to UGL only to receive a response of ‘no work, no pay’;
·Prima facie, and when considered in light of Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[14] and Construction, Forestry, Mining and Energy Union v Delta Coal Mining Pty Limited,[15] the Order is beyond power because they require each of the named employees to attend work whenever rostered without qualified exception and as such, are not necessary for, incidental to or consequential upon the making of an Order that industrial action stop, not occur or not be organised;
·The exceptions in item 4.2 of the Order are ambiguous and apt to be misconstrued because, noting that the workers to which the Order applies are neither lawyers nor experienced industrial practitioners, it is unlikely a UGL employee would understand that the categorical language of clause 4.1 (particularly clause 4.1(c)) should be read as subject to clause 4.2; and
·The witness statement of Mr Dalgleish demonstrated that UGL took positive steps to attempt to exclude the CFMEU from the application before the Commission by not serving any material upon them and the CFMEU was then inexplicably prevented from participating in the hearing except by making limited closing submissions.
The appellants also submitted the following reasons skewed the balance of convenience in favour of granting the stay:
·Given the valid concerns UGL employees may possess in respect of the CFMEU’s industrial action and the unsatisfactory nature of UGL’s response, the Order effectively forces employees to attend rostered work notwithstanding the serious and reasonable concerns they have;
·The employees will be forced to either comply with the Order and place themselves in an apparent dangerous position, or breach the Order and face prosecution;
·Whilst the potential exposure of UGL to unprotected industrial action is a factor that weighs against the grant of a stay, UGL delayed the making of its application by 14 weeks after the start of the alleged industrial action and, in that context, it cannot contend there are serious concerns with any delay until the appeal is heard;
·UGL’s conduct before the Commission, including by filing an application late on Monday to minimise the time available for the Commission to deal with the application, failing to ‘alert the [Deputy President] to any term sought that is beyond power or contrary to authority’ and not ‘[canvassing] with the [Deputy President] the doubt as to power or [arguing] that the contrary authority was incorrectly decided or is otherwise distinguishable’,[16] was unsatisfactory and therefore, the burden of prejudice associated with the stay should lie with UGL, not its employees; and
·Since the industrial dispute is likely to be resolved one way or another in the coming months, the appeal will be rendered inutile if the stay is not granted and the appeal is not determined expeditiously.
Consideration
Relevant principles
Paragraph [5] of Kellow-Falkiner Motors Pty Ltd v Edghill,[17] a decision of the Australian Industrial Relations Commission, articulates the principles frequently applied by the Fair Work Commission when determining stay applications as follows:
In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.
In assessing whether a stay application has the requisite prospects of success, it must be borne in mind that the Commission is necessarily engaging in an assessment of the merits that is ultimately preliminary in nature. This is because the Commission will not have had the benefit of hearing the appellants’ arguments in full and usually will not have had the opportunity to properly peruse the materials filed.[18]
Arguable case?
I am satisfied, on a preliminary assessment, that at least some of the grounds of appeal raise an arguable case with reasonable prospects of success (including as to the grant of permission to appeal). Ground 1, which is a complaint of a denial of procedural fairness, appears to me to be weak. Section 420(1) of the FW Act requires applications for orders under s 418 to be determined, as far as practicable, within two days after the application is made, and this requirement necessarily shapes the contours of what constitutes a fair hearing of any such application. The directions, arrangements for service and listing for the hearing determined by the Deputy President appear to me to have been reasonable within the context of the s 420(1) constraint. As to the particulars of this ground:
·There is no positive assertion, let alone evidence, that the five individual appellants were not served in accordance with the Deputy President’s directions as to service.
·The extent of the CFMEU’s participation in the proceedings largely reflected the basis upon which it sought to be heard, as set out in the extracts from the transcript of the hearing above, and it did not positively identify that it had members who were named respondents to the application until after UGL had closed its evidentiary case. Additionally, UGL did not seek any order binding on the CFMEU itself, so there was no obligation for the CFMEU to be served. This largely explains its late notice of the application and the hearing.
·The directions to the respondents to prepare their materials was, it may be accepted, very tight, but as earlier stated this must be assessed within the constraint imposed by s 420(1). The Deputy President did not foreclose any party from adducing oral evidence and making oral submissions at the hearing. The appellants have not disclosed the nature of any evidence they might have adduced at first instance had they had any greater opportunity to do so, so it is difficult to assess whether they were denied the possibility of an alternative outcome.
As to ground 2, particulars (a) and (b) do not appear to me to be reasonably arguable at this stage. It was suggested by the appellants that the Order does not accommodate reasonably foreseeable circumstances in which an employee might be absent from work. However, consistent with that part of the definition of ‘industrial action’ in s 19(2)(a), the Order at clause 4.2.2 excludes action by any of the employees which is authorised or agreed to by UGL. This would encompass any form of leave or absence from work approved by UGL. Attendance at work in accordance with the roster would otherwise be a normal incident of the employees’ employment. The Order does not require attendance for work regardless of any reasonable concern about their health and safety because, consistent with s 19(2)(c) of the FW Act, clause 4.2.3 of the Order excludes from its operation any action by an employee that is based on a reasonable concern on the part of the employee about an imminent risk to their health and safety (provided that any alternative work direction is complied with). This is so regardless of what construction may be placed on clause 4.1(c) of the Order.
There is, however, a good argument to be made that clause 4.1(c) of the Order is ambiguous, as the appellants contend in appeal ground 2(c). Clause 4.1(c) neither operates as an exclusion from nor as an extension of the types of industrial action which the Order identifies in clauses 4.1(a) and (b). Its purpose is therefore obscure. It attempts to describe the prohibited industrial action in clauses 4.1(a) and (b) by reference to the employee’s subjective motive for taking the action — a matter which, apart from the operation of clause 4.2.3, appears to me to be irrelevant to whether the employee is engaged in industrial action. To the extent that clause 4.1(c) may be read as attempting to pre-empt the operation of clause 4.2.3, it is clearly ineffective because, as earlier stated, the Order makes clear that action encompassed by clause 4.2.3 is not industrial action prohibited by the Order.
Appeal ground 3 was not elaborated upon to any substantial degree in the appellants’ submissions in connection with its stay application, but it appears to be directed to whether the evidence adduced by UGL concerning the occurrence of industrial action was sufficient to demonstrate that each of the named employee respondents had themselves engaged in such action and that the exclusion in s 19(2)(c) did not apply to this. On my preliminary assessment of the evidence, this appears to be reasonably arguable.
Appeal ground 4 is not reasonably arguable. The Federal Court Full Court decision in Adams v Director of the Fair Work Building Industry Inspectorate[19] at [59] makes it clear that the definition of ‘industrial action’ in s 19 of the FW Act is not to be read down by reference to any notion that the relevant action must have an ‘industrial character’.
In relation to ground 5, the appellants certainly have a strong case that there was no basis for the Deputy President to make a ‘not organise’ order. The Deputy President did not find that industrial action was being organised, nor did UGL even contend this. Accordingly, such an order was beyond power.[20] It is also arguable that the Deputy President had no power to make a ‘not occur’ order since he made no finding in terms that the relevant industrial action was threatened, impending or probable. However, I accept that, on a generous reading of the decision, such a finding may be inferred from the Deputy President’s apparent acceptance of UGL’s submissions in this regard.
Balance of convenience
Noting that the appellants seek a stay of the entire Order, I consider that the following matters are relevant to the assessment of the balance of convenience.
First, a continuation of the action being undertaken by employees by way of not attending for work when rostered to do so is likely to cause loss and damage to UGL and disrupt the timely completion of the CRR Project. Mr Christopher Newitt, UGL’s National Industrial Relations Manager – Projects, gave the following unchallenged evidence in his witness statement below:
[28] This loss to UGL of a significant portion of its workforce has in turn affected UGL’s ability to deliver the works which it is contractually obliged to provide within the timeframes required.
…
[54] UGL cannot plan work with the current non-attendances, particularly given that it is not known that a person isn’t coming (and should be marked as LWOP) until they have failed to attend for pre-start. Some days, there are sizeable numbers of employees absent as LWOP, other days there are only a few.
[55] Scheduled works are not being performed in accordance with the schedule.
[56] It is likely there will be significant disruption to the project timeline as a consequence of the industrial action, and this will inevitably lead to significant losses being incurred by UGL as a result of it being unable to comply with its contractual obligations including the possibility of liquidated damages being imposed.
In this respect, the CFMEU has not proffered any undertaking as to damages in connection with the grant of a stay.
Second, this is not a case where the refusal of a stay would affect any capacity on the part of the CFMEU’s members employed by UGL and bound by the Order to take lawful and protected industrial action. As earlier stated, the employees bound by the Order are prohibited by s 417 of the FW Act from taking any industrial action prior to 31 January 2025.
Third, it is not contended by the appellants that the existence of the CFMEU pickets at CRR Project work sites, as constrained by the Federal Court orders, objectively posed any health or safety risk to UGL employees attending for work. This was expressly disavowed by the CFMEU at first instance, as seen in the transcript excerpts extracted above. It was also disavowed by the CFMEU at the stay hearing, who submitted that there was no probative evidence to suggest that the CFMEU had by its conduct put any employee crossing the picket line at risk. Thus, I conclude that, to the extent that the continuation of the order pending the hearing and determination of the appeal might require employees to cross the CFMEU picket line in order to attend for rostered work, this will not give rise to any actual health and safety risk for the employees.
Fourth, the CFMEU contended that, notwithstanding that there is no objective health and safety risk, the employees bound by the Order are likely to hold a subjective apprehension of a risk to safety which, it was submitted, had been generated by an ‘atmosphere of crisis’ fomented by CPB and amplified by the media. Sitting uncomfortably with its contention that the picket lines posed no objective risk to safety, the CFMEU submitted that such concerns would be ‘serious and reasonable’. Somewhat contradictorily, the CFMEU also submitted that it would be open for me to infer that the CFMEU’s members (including, presumably, the individual appellants) did not hold any such concerns. In any event, this is not in my view a matter which weighs in favour of the grant of a stay because:
(1)clause 4.2.3 of the Order accommodates action by an employee based on a reasonable concern about an imminent risk to their health or safety; and
(2)the CFMEU itself, which is plainly organising the pickets, is in the best position to dispel any unfounded concern on the part of its members employed by UGL concerning the safety of crossing the picket line to attend work.
The appellants raised a number of other matters in connection with the balance of convenience, including the delay on UGL’s part in bringing its s 418 application, the timing of the filing of its application, its failure to serve the CFMEU and its conduct in seeking orders which were beyond the authority of the Commission to make. I do not consider any of these matters to be of significant relevance to my consideration of the balance of convenience.
The appellants have failed to demonstrate that the balance of convenience weighs in favour of the grant of the stay that it seeks. Indeed, I am satisfied that, because of the four matters identified above, the balance of convenience weighs significantly against the grant of such a stay.
The appellants’ application for a stay of the entire Order is therefore refused.
A partial stay?
I am, however, satisfied that the Order should be, in two respects, partially stayed. The first is that, insofar as the Order prohibits the organisation of the identified forms of industrial action, it should be stayed. As earlier stated, the appellants have a strong case that a ‘not organise’ order was beyond power. Since UGL did not even contend that the relevant industrial action was being organised (presumably explaining why it did not seek that the order apply to any of the unions), it would be unconscionable in my view for this aspect of the Order to continue in operation.
Second, I consider that clause 4.1(c) should be stayed. For the reasons earlier stated, it is ambiguous and its purpose is not apparent. Its continuation is likely to cause confusion about compliance with the Order. The Order serves its purpose without the inclusion of clause 4.1(c).
A partial stay order (PR778359) giving effect to the above will issue together with this decision.
Expedited hearing
I do not consider that a case has been made out for an expedited hearing of the appeal by reason of the matters set out in paragraphs [32] to [36] above. The matter will be able to be heard in the Commission’s October appeals roster (14–18 October 2024) which, in any event, constitutes a relatively early hearing. Directions and a listing for hearing will be issued from my chambers in the near future.
PRESIDENT
Appearances:
O Fagir, counsel, with J Kennedy, solicitor, for the Construction, Forestry and Maritime Employees Union, Lucas Holmes, Benjamin Clinch, Tobias Ferris, Darren Sisson and Carly Rigby.
S Moody, counsel, with M Davis, solicitor, for UGL Rail Services Pty Ltd.
Hearing details:
2024.
Sydney and Brisbane by video link using Microsoft Teams:
14 August.
Final written submissions:
Construction, Forestry and Maritime Employees Union, Lucas Holmes, Benjamin Clinch, Tobias Ferris, Darren Sisson and Carly Rigby: 13 August 2024.
[1] PR777942.
[2] [2024] FCA 797.
[3] Transcript, 7 August 2024 PN 26.
[4] Ibid PNs 52–54.
[5] Ibid PN 55.
[6] Ibid PNs 311, 313.
[7] Ibid PNs 319–320.
[8] Ibid PNs 369–372.
[9] Ibid PNs 617–621.
[10] Ibid PNs 706–707.
[11] [2024] FWC 2104.
[12] Ibid [37].
[13] Section 19(2)(c) of the FW Act stipulates that industrial action does not include action by an employee if (1) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety and (2) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
[14] [2013] FWCFB 7735, 237 IR 1.
[15] [2017] FWCFB 7.
[16] Allen & Ors v Fluor Construction Services Pty Ltd[2014] FWCFB 174, 240 IR 254 [45]–[49].
[17] [2000] AIRC 785, Print S2639.
[18] Supreme Caravans Pty Ltd v Pham[2013] FWC 4766 [9].
[19] [2017] FCAFC 228, 258 FCR 257.
[20] Transport Workers Union (NSW) v Australian Industrial Relations Commission [2008] FCAFC 26, 166 FCR 108, 171 IR 84; Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736, 237 IR 1.
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