Construction, Forestry, Maritime, Mining and Energy Union v Doric Contractors Pty Ltd
[2019] FCCA 1744
•21 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION v DORIC CONTRACTORS PTY LTD & ORS | [2019] FCCA 1744 |
| Catchwords: INDUSTRIAL – Intervention of ABCC – whether such intervention is subject to leave of the Court. |
| Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth), ss.3, 16, 108, 109, 110 Fair Work Act 2009 (Cth), ss.503, 504 Federal Court Rules 2011 (Cth), r.9.12 |
| Cases cited: Project Blue Sky v Australian Broadcasting Corporation [1998] 194 CLR 355 Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 Bovis Lend Lease Proprietary Limited v Construction Forestry Mining and Energy Union [2009] 254 AOR 306 |
| Applicant: | CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
| First Respondent: | DORIC CONTRACTORS PTY LTD |
| Second Respondent: | KEVIN AITKEN |
| Third Respondent: | ANDREW CLARKE |
| Fourth Respondent: | GUY MEADE |
| Fifth Respondent: | LUKE PRUYN |
| Intervener: | AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
| File Number: | PEG 480 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 21 May 2019 |
| Date of Last Submission: | 21 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 21 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Agius SC |
| Solicitors for the Applicant: | Construction, Forestry, Maritime, missing and Energy Union |
| Counsel for the Respondents: | Mr Felman |
| Solicitors for the Respondents: | S Billing & Associates Pty Ltd |
| Counsel for the Intervener: | Mr Bourke QC |
| Solicitors for the Intervener: | Corrs Chambers Westgarth |
ORDERS
That the Australian Building and Construction Commissioner (ABCC) be joined as party to these proceedings.
That the Application filed 10 May 2019 is dismissed.
That the Applicant and Respondent are to each serve on the Intervener:
(a)(all documents filed in these proceedings by the relevant party prior to the date of this order within seven (7) days of the date of this order if such documents have not already been served on the Intervener; and
(b)any document filed in these proceedings by the relevant party on an after the date of this order.
That the Orders made by the Court in this proceeding on 22 October 2018, 26 February 2019, 5 March 2019 and 29 April 2019 be set aside and replaced with the following.
That the Intervener file and serve any affidavits on or before 31 May 2019.
That the Respondents file and serve any affidavits on or before 25 June 2019.
That the Applicant file and serve any affidavits in reply on or before 16 July 2019.
That the Applicant file and serve an outline of submissions and a list of authorities on or before 23 July 2019.
That the Intervener file and serve an outline of submissions and a list of authorities on or before 6 August 2019.
That the Respondents file and serve an outline of submissions and a list of authorities on or before 6 August 2019.
That each party give notice of any objections to affidavits and of its intention to cross-examine a deponent no later than 12 August 2019.
That this matter remain listed for hearing commencing at 10:00am 9 September 2019 (for not more than five (5) days) in the Federal Circuit Court of Australia sitting at Perth.
That costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 480 of 2018
| CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION |
Applicant
And
| DORIC CONTRACTORS PTY LTD |
First Respondent
| KEVIN AITKEN |
Second Respondent
| ANDREW CLARKE |
Third Respondent
| GUY MEADE |
Fourth Respondent
| LUKE PRUYN |
Fifth Respondent
| AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER |
Intervener
REASONS FOR JUDGMENT
(Ex tempore)
Notwithstanding that there are two applications in a case before me, the question really here, that I have to decide, is whether or not the legislation, in particular s.109 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (“the BCIIP Act”) gives the Commissioner, as of right, the power to intervene in this particular matter.
The background of the matter is that there is an allegation that members of the Applicant union had gone to a particular construction site. At that particular construction site, the actions of the contractors and of individuals named are alleged to have had the effect of breaching s.503 and s.504 of the Fair Work Act 2009 (Cth) (“the FW Act”).
The union had brought an application against both the company and those individuals for that breach seeking both declarations and pecuniary penalties and asking that the pecuniary penalties be paid to the union. The matter had been filed on 12 September 2018. There were some administrative mentions before Judge Kendall and one before me in Chambers before the matter came on before me on 26 February 2019.
On that date, I made orders as to the directions for trial and set the matter down for trial on 9 September 2019. On 16 April 2019, the Australian Building and Construction Commissioner gave a notice of address for service indicating that he was intervening in this matter pursuant to s.109 of the BCIIP Act. That notice then was followed up with an application in a case seeking that the trial directions be varied so that each party serve material on the commissioner and for the commissioner to also serve material and to serve submissions.
The application included the request that the trial date of 9 September remain. There was some correspondence with my Chambers which caused me to list the matter for mention on 29 April 2019. On that date the legal representatives for the union told me that they were objecting to the intervention. The commissioner wanted the matter dealt with there and then and sent me some submissions which were handed to the legal representatives of the union. The actual Respondents, Doric Constructions, indicated that they were not putting on their material in accordance with my orders because they were unsure of the material that they should put on if it is that the Commissioner was going to intervene.
Because of that, I was not going to decide the matter there and then that day; firstly, because of the workload that I had that day, but, secondly, it was unfair on the union to be pushed straight into an argument when they clearly were not prepared for the matter. I instead adjourned the matter for hearing to today, and because I wished to keep the trial date of 9 September, I am giving this decision ex tempore which is why it is somewhat rough and ready.
The notion of a non-party intervening in a matter before this Court is not unknown to the Court. The Federal Circuit Court Rules 2001 (Cth) are silent about interveners; however, in default, the Federal Circuit Court reverts to the rules of the Federal Court.
The Federal Court Rules 2011 (Cth) at r.9.12 says this about interveners:
Interveners
(1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court.
(2) The Court may have regard to:
(a) whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding; and
(b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and
(c) any other matter that the Court considers relevant.
(3) When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including:
(a) the matters that the intervener may raise; and
(b) whether the intervener’s submissions are to be oral, in writing, or both
It is very clear when one looks at s.109 of the BCIIP Act that the intervention that is foreseen by this Act is quite a different intervention than that which is envisaged by the Federal Court Rules 2011 (Cth). Section 109 reads as follows:
109 ABC Commissioner may intervene in court proceedings
(1) The ABC Commissioner may intervene in the public interest in a civil proceeding before a court in a matter that:
(a) arises under this Act; or
(b) arises under the Independent Contractors Act 2006, the FW Act or the FW Transitional Act and involves:
(i) a building industry participant; or
(ii) building work.
(2) If the ABC Commissioner intervenes in a proceeding under subsection (1), the ABC Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
Therefore, we are talking about a totally different type of intervention. The question is “how should this be interpreted?” I have been helpfully referred to by Mr Agius of Senior Counsel who appears for the union to the following authorities:
a)Project Blue Sky v Australian Broadcasting Corporation [1998] 194 CLR 355 at paragraph 71;
b)Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 at paragraph 73;
c)CPB Contractors Proprietary Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70 at paragraphs 48 to 61 with particular emphasis on paragraph 61; and to
d)Fair Work Ombudsman v Spotless Services Australia Limited [2019] FCA 9 particularly at paragraph 12.
The principles enunciated in all of those cases speak to the proposition that the Court must really look at the text itself and its positioning within the particular statute. It is only when those aspects do not give sufficient help that the Court should be looking to extraneous materials.
The particular Act, that is, the BCIIP Act, has the Main Object of the Act legislated in s3 as:
(1) The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively, without distinction between interests of building industry participants, and for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
And then there are eight areas in which the Act aims to achieve that main object. Section 16 of the BCIIP Act talks of the functions of the Australian Building Construction Commissioner. Subsection (1)(aa) says:
(1) The ABC Commissioner has the following functions:
(aa) promoting the main object of this Act (see section 3);
…
(c) instituting, or intervening in, proceedings in accordance with this Act.
It is then helpful to look at where s.109 sits within the BCIP Act. It is part of three sections that sit within the heading of Part 3 – Powers of ABC Commissioner etc.
Section 108 of the Act says this:
108 ABC Commissioner may publicise non‑compliance
If the ABC Commissioner considers that it is in the public interest to do so, the ABC Commissioner may publish details of:
(a) non‑compliance with the Building Code, including the name of the person who has failed to comply; and
(b) non‑compliance by a building industry participant with this Act or designated building laws, including the name of the participant who has failed to comply.
I’ve already read s.109 into the record. Section 110 is the:
110 ABC Commissioner may make submissions in FWC proceedings
(1) The ABC Commissioner may intervene or make a submission in a matter before the FWC that arises under the FW Act or the FW Transitional Act if the matter involves:
(a) a building industry participant; or
(b) building work.
(2) If the ABC Commissioner intervenes in a proceeding under subsection (1), the ABC Commissioner is taken to be a party to the proceeding and has all the rights, duties and liabilities of such a party.
The ABCC submits to me that, when one looks at section 109, the phrase, “The ABC Commissioner may intervene in the public interest in a civil proceeding”, means that the ABC Commissioner must come to the view that intervention in the public interest is warranted and then he may intervene. Counsel for the CFMMEU says that it is actually an objective test to be administered by a Court as to whether the intervention is in the public interest.
It is common ground that no one has ever challenged the right of intervention in any decided case. The closest that the intervention comes to having been challenged was a matter in which the ABC Commissioner had intervened and during the course of that hearing it was alleged that what occurred by one of the parties amounted to contempt. The hearing for contempt had to be constituted by a different judge and was decided, and correctly so in my view, that it was a different proceeding to the actual proceeding under the FW Act.
There was a challenge to the right of the ABCC to intervene. It would seem that because s.109 says that the intervention must be in a civil proceeding before a Court in a matter that either arises under the Act or arises under the Independent Contractors Act, the Fair Work Act or the Fair Work Transitional Act, that a contempt proceeding is none of those matters. If it is none of those matters, then the power to intervene does not exist.
It would seem to me on my reading of that case, Bovis Lend Lease Proprietary Limited v Construction Forestry Mining and Energy Union [2009] 254 AOR 306, that Tracey J has decided that the ABCC does not have the right to intervene in that case; however, in that particular matter, because it ended up being a matter going to the question of penalty, he allowed the appearance as amicus for that proceeding.
That is the only matter where it seems this particular provision had been discussed, and I should say it wasn’t this particular provision; it was its predecessor in the Act that was in effect in 2009 which was in very much the same terms as the current s.109.
As I noted during the course of argument, there has been one matter before me in which the commissioner intervened, but there were no submissions made as to the right of the commissioner to intervene and it was something that I did not judicially consider.
It seems that no one else has ever judicially considered this aspect. The lack of judicial consideration up until now does not in any way determine this matter. All it does mean is that no one has had a look at this point. The argument may seem an attractive one to begin with. If one looks at the three sections, s.108, s.109 and s.110, they all talk about the power of the commissioner to intervene or to do something.
Section 108 talks about the actual publicising of people who have not been compliant with either the Act or the Building Code. What it says there is that the ABCC Commissioner, if he or she considers that it is in the public interest to do so, may publicise those details. The submission is that, in that section, there must be a subjective consideration by the ABC Commissioner and the legislation talks about that subject of consideration.
In s.109, the section begins: “The ABC Commissioner may intervene in the public interest in a civil proceeding.” The absence of words to the effect “considers that it is in the public interest or believes that it is in the public interest” has the CFMMEU submitting to me that the absence of such words shows that the public interest must be assessed not subjectively by the ABC Commissioner, but objectively by the Court.
Section 110 starts with this line: “The ABC Commissioner may intervene or make a submission.” There is no caveat on that section such that the ABC Commissioner “must consider” or that “the intervention must be considered to be in the public interest” or that “the intervention is in the public interest” before the intervention can take place.
It is when one looks at the three sections together that the CFMMEU says that one can discern both the proper interpretation and the legislative intent; that is, that, because there has been a deletion of the words “considers that it is in the public interest” and simply says that the intervention is in the public interest, this means that the Court must objectively assess the public interest before allowing the ABC Commissioner the right to intervene.
It seems to me that whilst that may be somewhat attractive, it fails to really look at the text in its proper context. The s.108 does talk about the ABC Commissioner doing something over which there is no oversight and no recourse. If it is that the ABC Commissioner considers that it is in the public interest to, in effect, name and shame people, then the ABC Commissioner can do that. That is a very wide power and a very great power and it must be exercised with a great deal of responsibility.
It seems to me for that reason, the legislature has very properly made sure that the ABC Commissioner must consider that it is in the public interest. The argument, then, is that, in s.109, the absence of the requirement for consideration is telling. However, I do not see it that way. What s.109 entails is that once there is an intervention in the public interest, then there are risks and consequences. Unlike what has happened in s.108, there is an actual oversight because the intervention occurs in Court proceedings.
In the end, the commissioner’s intervention in the public interest will be viewed by a Court. This is because any intervention under the FW Act will come with it, the consequences of s.570 of the FW Act. It would seem to me that, if a Court determines in the end that the intervention was not in the public interest, the Court would have no trouble finding that the intervention was unreasonable and, therefore, the Commonwealth would face a costs order.
It is notable, though of no real consequence to looking at the statutory interpretation of this matter, that the predecessors of this particular section did have a provision that a Court may make an order of costs against the Commonwealth. Such a caveat is not needed here given the provisions of s.570 of the FW Act.
It seems to me though, and more importantly than the question of consequences, that there is no other mechanism detailed as to how the ABC Commissioner may intervene.
If it were that, as the CFMMEU has submitted, that the ABC Commissioner needs the permission of the Court to intervene, then one would have expected that there be a mechanism inserted into that provision.
It is trite to say that in other instances where the legislation or the rules allow intervention, the imprimatur of the Court is needed. One only needs to contrast r.9.12 of the Federal Court Rules2011 (Cth) to see that.
The fact that the legislature has not spelled out that there is a need for permission or spelled out what the mechanism is as to how it is that the Commissioner is able to intervene, is telling, in my view. The fact is that if the ABC Commissioner intervenes in a proceeding then they are automatically taken to be a party to the proceedings and have the rights, duties and liabilities of such a party.
It is strange that under a heading of “Powers of the ABC Commissioner, etcetera”, where power is given under s.108 to be publicly naming and shaming people, and under s.110 to simply appear as of right to the Fair Work Commission, that s.109 should be read as putting a fetter upon the powers of the ABC Commissioner. It seems to me if that really were the intention of the legislation that such a fetter would have been written into the legislation.
It seems to me, then, that the only way in which the section can be properly read is that the ABC Commissioner may intervene if the ABC Commissioner is of the view that the intervention is in the public interest.
The consequences of him making a mistake in that view, is going to be the liabilities of being a party to the proceedings. That interpretation is in keeping with all of the principles that have been enunciated in the cases that I have already mentioned.
The argument also proceeded that if I were of the view that the public interest had to have been objectively assessed by the Court that there would be certain ways in which the Court should view the matter. As I have determined that such an interpretation is not a valid interpretation, I need not consider any of those arguments any further.
Having made that decision, now I will ask for some submissions by the parties as to the timetable for the trial, noting that the trial will be on 9 September, and I do note what it is that the Commissioner has given as a draft order.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Vasta.
Date: 27 June 2019
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