Construction, Forestry, Mining and Energy Union v Mdgs-Jv

[2012] FWA 10529

[2012] FWA 10529

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Construction, Forestry, Mining and Energy Union
v
MDGS-JV
(C2012/1408)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 DECEMBER 2012

Summary: application for costs in relation to a s.418 application - role of registered organisations - s.611(2)(a) and s.611(2)(b) of the Act - could costs be identified - elements of application heard conterminously - statutory-driven business of a registered organisation.

[1] On 12 November 2012, an application was made on behalf of McConnell Dowell Geo Services joint-venture (“MDGS – JV”) under s.418 of the Fair Work Act 2009 (“the Act”) seeking an order that industrial action by employees stop etc.

[2] The Applicant, who came to file an order for substituted service, sought an order in relation to the relevant classes of employees who are members of the Construction, Forestry, Mining and Energy Union (“the CFMEU”), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”) (“the representative employee organisations”). The application also sought that the representative employee organisations in their own right be bound to the order such that they be ordered to stop organising the industrial action.

[3] The application for an order in these terms was part granted.

[4] The order came to apply to the relevant classes of employees, but not those employees who were members of the CEPU.

[5] The order did not extend to any of the representative employee organisations.

[6] At that time I made the following comments relevant to the request by the Applicant to bind the various unions to the order, or to extend or apply the order to the various unions:

The evidence is that industrial action commenced today at 10.40 am at the Hay Point site, the Hay Point Expansion 3 site, just south of Mackay. It is said in the evidence by those who hold a representative capacity to be ending the following morning. I infer from this, and whatever else the material sufficiently imply, that the industrial action is happening and will continue to happen until tomorrow morning inclusive.

In such circumstances where I make the necessary - or I make the appropriate or the requisite discretionary finding, it follows that an order under section 418(1) of the Act must be made; […] and it will apply to the employees of the employer who are members of the CFMEU and the AMWU. As is apparent from my description of the classes of employees to be covered by the order I will exclude from the coverage of the order employees who are members of the CEPU.

They are, on the evidence, employees who reasonably should be taken not to be currently taking industrial action, as the only shift on which they had completed their duties concluded earlier this afternoon; and there is nothing apparent in the evidence, or draws me necessarily or persuades me necessarily in this particular context at least, that that industrial action will continue given the conditioning comments of the various representatives, at least for today's or for current purposes.

I do not consider on the evidence before me, however, that I should extend - or rather that the evidence itself has sufficient force to extend to bind to the order any of the unions who are named in the order and sought to be covered by the order by the Applicant. There is some evidence of the involvement of representatives of the various unions in the iterations between it and the workforce, and in some cases, as I have said on other occasions, there might be sufficient surrounding evidence that could come to hand which may ground a reasonable inference […] that a union or unions were organising industrial action. But in this particular case the evidence falls short of creating the necessary foundation to […] such an inference being drawn […].. 1

The application for costs

[7] On 19 November 2012 the CFMEU made application for costs under s.611 of the Act, which provides as follows:

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all ofthe costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: FWA can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

[8] In summary, the CFMEU sought an order that costs incurred by the CFMEU in relation to the above application be paid by MDGS – JV and its paid agent (Draytons Workforce Consulting Pty Ltd) (“Draytons”).

[9] Its main concerns (again in summary) appear to be these. The evidence led in the proceedings in relation to whether or not the representative employee organisations were organising unprotected industrial action was limited to two paragraphs in the relevant affidavit material. That evidence was to the effect that a managerial representative (Ms Sharyn Larsen, the Human Resources Manager of the Hay Point Expansion 3 Marine Works) of MDGS – JV had approached employee representatives (of the AMWU, the CEPU and the CFMEU) and was informed that the workforce which had attended a meeting some short time earlier was leaving. Ms Larsen enquired as to how long the industrial action would continue for, to which she received the answer that the employees would return to work the following morning.

[10] Ms Larsen also sought information from the employee representatives as to the issues that employees were concerned about and was advised of four discrete concerns regarding payroll enquiries, the need for covered walkways, whether superannuation accrued during rest and recreational periods and an interpretation of a particular clause in relation to the agreement to which they were subject.

[11] The CFMEU contends that the evidence led by MDGS – JV provided no reasonable cause for making the application as it related to the CFMEU.

[12] The reasons in summary that the CFMEU so argues is that there:

• was no evidence led about the conduct of any official of the CFMEU;



• that there was no evidence led about the employee meeting preceding the work stoppage;



• there was no evidence led about what was said to Ms Larsen by the CFMEU employee representative;



• there was no evidence about the CFMEU employee representative purporting to act on behalf of the CFMEU;



• no position of CFMEU “employee representative” is known to the CFMEU;



• that all that could be claimed was that an employee representative was present during a conversation involving and initiated by Ms Larsen about the work stoppage that had commenced.

[13] The CFMEU therefore claims that it is entitled to a costs order “against the Applicant in relation to costs incurred in responding to the application as there was no “reasonable cause” in making the application”.

[14] The CFMEU also contends that it should have been reasonably apparent to the Applicant that it had no prospect of success in relation to their application as it related to the CFMEU.

[15] I have taken from this that the CFMEU appears to seek an order for costs under s.611(2)(a) and s.611(2)(b) of the Act as distinguishable grounds.

Consideration

[16] The CFMEU is correct to the extent that it argues that the evidentiary case led by the Applicant in relation to the capacity of the application to extend the scope of the order sought against itself as a legal entity was not particularly strong. I came to find as much myself.

[17] Yet the evidence of Ms Larsen did allude to the role of a CFMEU employee representative (a term defined under clause 21 the Agreement) in an exchange with other union employee representatives concerning the reasons for the withdrawal of labour for the day and the date and time labour would return to perform its contracted services. Evidence of this kind is far from uncommon in urgent interlocutory-type applications of this kind (under s.418 of the Act), as MDGS-JV has argued.

[18] I add that evidence as led was not without some connection with the terms of the order sought. Unprotected industrial action had occurred on the site in April 2012. There was unprotected industrial action happening again, and various union employee representatives possessed information about the various specific reasons why the industrial action was taking place and the precise circumstances in which the industrial action would conclude. I came to part grant the relief as sought, and made an order that extended only to the employees who were members of the CFMEU (amongst others), and not to the CFMEU as a legal entity.

[19] Ms Larsen’s evidence must be considered in full and contextualised. When it is, there is nothing in the application that strikes me as falling foul of either under s.611(2)(a) and s.611(2)(b) of the Act. Ultimately, Ms Larsen’s evidence did not succeed in persuading me to make an order to the extent sought. But merely because it so failed is not determinative of the application having been without reasonable cause or else having no reasonable prospect of success.

[20] As I have mentioned above, the application sought an order against the relevant classes of employees who were members of the CFMEU, and an order for substituted service was issued subsequently in respect of these employees.

[21] It appears to me that the application properly sought the appearance of the CFMEU to fulfil its representative role as a registered organisation under the Act in respect of its members whose conduct was subject to a compliance-related application.

[22] The CFMEU responded to the application and participated in the relevant hearing in its representative organisational capacity. The CFMEU made submissions in relation to the application for the order to be made against the members of the CFMEU (which was granted). It made such submissions conterminous with argument in respect whether the order should extend to the CFMEU itself (which was not granted). The CFMEU made other submissions as to duration and the drafting of the terms of the order.

[23] If only as a matter of discretion for purposes of s.611(2) of the Act (and putting aside my findings above in relation to s.611(2)(a) and s.611(2)(b) of the Act) , there does not appear to me to an obvious case in these circumstances to award any costs. There are two reasons for this.

[24] The first reason is because the CFMEU’s involvement in the application does not allow for ready segmentation such that its administrative costs could be identified in respect of one element of the application (concerning itself as a legal entity) as opposed to another (concerning its members). The CFMEU’s administrative costs, therefore, are not readily discernible (assuming an application could be segmented in the manner sought in the first instance, of course).

[25] The second reason why as a matter of discretion the application to award costs would not (and is not to) be exercised is that registered organisations (as defined under the Act) have representational functions that will ordinarily require their attendance at proceedings where their members are subject to compliance action. Participation in a workplace representative capacity in an interlocutory-type application under s.418 of the Act appears to me to constitute the statutory-driven business of a registered organisation. Generally speaking, responding to such an application of the kind in question would not in its own right make a strong case at a discretionary level for the award of costs against an applicant (particularly where that applicant was seeking relief in relation unprotected industrial action).

[26] Perhaps particular exceptions to this generalised proposition might arise from time to time, but I very much doubt that this case represents such an exception.

[27] I do add by way of conclusion that it was necessary to cure and complete various procedural aspects of the application after such time as it had been made, and this caused delay in the hearing of the substantive matter for a time on the relevant evening. That delay was very obviously a source of annoyance and inconvenience to the CFMEU. But I cannot take that concern any further as it does not agitate any issues for purposes of s.611 of the Act.

[28] I dismiss the application for costs.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T. O’Brien, for the Construction, Forestry, Mining and Energy Union.

Mr G. Power, of Draytons Workforce Consulting Pty Ltd, for the Employer.

Hearing details:

2012

14 December.

Brisbane.

 1   Transcript of proceedings dated 12 November 2012, PNS267-269.

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