Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd

In the case of Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd, the respondents, who were the applicants in the original proceeding, sought leave to appeal from the Federal Magistrates Court of Australia's decision to grant interlocutory orders restraining them from engaging in conduct said to be in contravention of the Building and Construction Industry Improvement Act 2005 (Cth). The court was required to consider the principles governing the grant of an interlocutory injunction, the effect of the repeal of certain sections of the 2005 Act by the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) on the jurisdiction of the Federal Magistrates Court to grant interlocutory orders, and the transitional effect of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulation 2012 (Cth). The court was also required to consider the construction to be attributed to Regulation 2.3 of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulation 2012 (Cth) in preserving the operation of the 2005 Act to the extent necessary to allow a relevant proceeding to be dealt with.

The court found that the Federal Magistrate erred in exercising the discretion to grant interlocutory orders by failing to recognise that by reason of the repeal of ss 36, 37, 38 and 39 of the 2005 Act, the conduct the subject of the interlocutory orders made under s 39 on the statutory footing required by s 39(1) that the court is “satisfied” that “unlawful industrial action” is occurring, threatened, impending or probable (in contravention of s 38), simply could not be conduct in contravention of the 2005 Act because on and after 1 June 2012 the law of the Commonwealth did not comprehend a notion of “unlawful industrial action” nor any prohibition upon it, nor any power or jurisdiction to grant an injunction restraining a person from engaging in conduct that prior to 1 June 2012 may have fallen within the definition of unlawful industrial action and may have involved a prima facie contravention of the former s 38. The court found that on 12 June 2012, when the two interlocutory restraining orders and the mandatory order were made, there was simply no power and no jurisdiction to make the orders. The court also found that the transitional or savings provision contained in the Regulation has the effect of preserving the jurisdiction and power of the Federal Magistrates Court to make, in and for the purposes of the proceeding, the interlocutory orders of 12 June 2012.

Leave is granted to appeal from Order 1 of the orders of the Federal Magistrates Court of Australia made on 12 June 2012. The appeal is upheld. Order 1 of the orders of the Federal Magistrates Court of Australia made on 12 June 2012 is set aside. That part of the interlocutory application before the Federal Magistrates Court of Australia relating to the relief reflected in Order 1 is dismissed. The respondent is ordered to pay the costs of the applicants of and incidental to the appeal.