Construction, Forestry, Mining and Energy Union v Multiplex Constructions - [2000] FCA 101

FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Mining & Energy Union v Multiplex Constructions [2000] FCA 101
INDUSTRIAL LAW – Interlocutory relief – injunction sought by applicant to restrain the respondent companies from allegedly continuing to contravene s170NC(1) of the WorkplaceRelations Act 1996 (Cth) – serious issue to be tried – whether action taken with intent to coerce the applicant with respect to a certified agreement – whether action taken by union members is “protected action” within the meaning of s170ML of the Act – balance of convenience.
Workplace Relations Act 1996 (Cth) ss 127, 166A, 170MJ, 170MK, 170MI 170ML, 170MM, 170MO, 170MW, 170NC, 170NG, s170MT
Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550, applied
Australian Workers’ Union v Yallourn Energy Pty Ltd [2000] FCA 65, followed
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641, referred to
Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, applied
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v MULTIPLEX CONSTRUCTIONS PTY LTD & ORS
V 52 of 2000
MARSHALL J
14 FEBRUARY 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V52 OF 2000

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENGERGY UNION
APPLICANT

AND:

MULTIPLEX CONSTRUCTIONS PTY LTD
FIRST RESPONDENT

BAULDERSTONE HORNIBROOK PTY LTD
SECOND RESPONDENT

THEISS CONSTRACTORS PTY LTD
THIRD RESPONDENT

WALTER CONSTRUCTIONS GROUP LIMITED
FOURTH RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

14 FEBRUARY 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
Until the hearing and determination of the application or further order and upon the applicant giving the usual undertaking as to damages, the respondents by themselves, their servants or agents –
1.Refrain from taking any further step in the proceeding commenced by them in the Supreme Court of Victoria against the applicant, being proceeding number 4237 of 2000 (“the Supreme Court action”), insofar as the Supreme Court action deals with or concerns any issue concerning any industrial action taken by those employees of sub-contractors of the respondents who are members of CFMEU (“the employees”).

2.Refrain from commencing any proceedings, other than in the Australian Industrial Relations Commission, in relation to matters referred to in paragraph 1 of the Indorsement of Claim in the Supreme Court action which deals with or concerns any industrial action taken by the employees.

And it is further ordered that: -
3.The directions hearing in the application be adjourned to 10.15 am on 6 March 2000.

4.There be liberty to apply on not less than 48 hours written notice to each other party.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V52 OF 2000

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENGERGY UNION
APPLICANT

AND:

MULTIPLEX CONSTRUCTIONS PTY LTD
FIRST RESPONDENT

BAULDERSTONE HORNIBROOK PTY LTD
SECOND RESPONDENT

THEISS CONSTRACTORS PTY LTD
THIRD RESPONDENT

WALTER CONSTRUCTIONS GROUP LIMITED
FOURTH RESPONDENT

JUDGE:

MARSHALL J

DATE:

14 FEBRUARY 2000

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

Case: [2000] FCA 101
Decision Date: 14 FEBRUARY 2000

CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Mining and Energy Union (CFMEU) and Multiplex Constructions, among others. The dispute arose when Multiplex Constructions initiated legal proceedings in the Supreme Court of Victoria, which CFMEU argued was barred under section 170MT(2) of the Workplace Relations Act 1996. This section prohibits actions under State law in relation to "protected action." The primary issue for the court was whether the Supreme Court action taken by Multiplex Constructions against CFMEU was indeed barred by the provisions of the Act. Specifically, the court needed to determine whether the action constituted a breach of section 170NC of the Act and whether it was permissible under the circumstances outlined in section 170MT(2).

The court considered the statutory framework provided by the Workplace Relations Act 1996 and the nature of the industrial action taken by CFMEU. The Act grants certain rights to employees and their unions, including the right to initiate a bargaining period and take protected industrial action. In this case, CFMEU had served notices initiating a bargaining period and notices of intention to take industrial action on sub-contractors, many of whom were party to certified agreements binding CFMEU. The court also noted the Supreme Court's previous order restraining certain industrial action by CFMEU. The key legal question was whether Multiplex Constructions' Supreme Court action was an impermissible attempt to circumvent the protections afforded to industrial action under the Act.

The court found that Multiplex Constructions' action in the Supreme Court was indeed barred by the provisions of the Act. The court held that the action sought to address matters concerning industrial action taken by employees of sub-contractors who were members of CFMEU. Such matters fell squarely within the scope of "protected action" as defined by the Act, and thus, the Supreme Court action was prohibited under section 170MT(2). The court concluded that Multiplex Constructions' legal action was an attempt to challenge the industrial action directly, rather than pursuing the appropriate remedies available under the Act.

As a result, the court ordered that Multiplex Constructions refrain from taking any further steps in the Supreme Court action concerning the industrial action taken by employees of sub-contractors who are members of CFMEU. Additionally, the court prohibited Multiplex Constructions from initiating any proceedings, other than in the Australian Industrial Relations Commission, in relation to the industrial action. The directions hearing in the application was adjourned, and parties were granted liberty to apply on notice.

Orders

Orders of the court

Until the hearing and determination of the application or further order and upon the applicant giving the usual undertaking as to damages, the respondents by themselves, their servants or agents –

1. Refrain from taking any further step in the proceeding commenced by them in the Supreme Court of Victoria against the applicant, being proceeding number 4237 of 2000 (“the Supreme Court action”), insofar as the Supreme Court action deals with or concerns any issue concerning any industrial action taken by those employees of sub-contractors of the respondents who are members of CFMEU (“the employees”).

2. Refrain from commencing any proceedings, other than in the Australian Industrial Relations Commission, in relation to matters referred to in paragraph 1 of the Indorsement of Claim in the Supreme Court action which deals with or concerns any industrial action taken by the employees.

And it is further ordered that: -

3. The directions hearing in the application be adjourned to 10.15 am on 6 March 2000.

4. There be liberty to apply on not less than 48 hours written notice to each other party.

Background

Background to the litigation

The action of the respondents, said by CFMEU to constitute a breach of s170NC of the Act, was the commencement of an action in the Supreme Court of Victoria on 7 February 2000. In that action the respondents are the plaintiffs and CFMEU is the defendant. CFMEU submitted that the action in the Supreme Court is barred by s170MT(2) of the Act, which apart from certain immaterial circumstances, prohibits the taking of any action which may lie under State law in respect of action which is “protected action”.Factual background CFMEU is an organisation of employees registered pursuant to the Act. Each respondent is a corporation which is engaged in the building and construction industry in the State of Victoria. Each respondent engages its own direct employees and in addition engages sub-contractors to assist in the performance of its work. Each sub-contractor also engages employees to carry out work on building and construction sites operated by the respondents. On or about 7 December 1999, CFMEU served notices initiating a bargaining period pursuant to s170MI of the Act on the respondents’ sub-contractors who employ persons eligible to be members of CFMEU. The notices contained a catalogue of demands concerning industrial matters. The overwhelming majority of such sub-contractors were party to certified agreements also binding CFMEU, the nominal expiry date of those agreements was 30 November 1999. On or about 5 January 2000, CFMEU served on the sub-contractors notices of intention to take industrial action under s170MO of the Act. The industrial action that has ensued since 11 January 2000 is in support of the demands contained in the notices initiating the bargaining periods under s170MI of the Act. On Sunday 6 February 2000, in an ex parte hearing, the Supreme Court made an order restraining the taking of certain industrial action by CFMEU. The first order of the orders made on that day provided that:“The CFMEU must not until 4.30 pm on 8 February 2000 (through its officials or agents) or until further order encourage or authorise members of the Union employed by the plaintiffs to strike or stop work or otherwise breach their contracts of employment with the plaintiffs.”The further hearing of the application for interlocutory relief in the Supreme Court was adjourned to 8 February 2000. On 7 February 2000 the respondents filed a Writ and an Indorsement of Claim in the Supreme Court in proceeding no 4237 of 2000. In par 1 of the Indorsement of Claim the respondents claim the following relief:“1.An injunction restraining the Defendant [CFMEU] … from directing, procuring, advising, authorising and/or encouraging its members (otherwise than in the exercise of the rights which the Defendant has pursuant to Division 8 of Part VIB of the Workplace Relations Act 1996) not to perform the work which their contracts of employment (with any of the plaintiffs or with any sub-contractor engaged on the Plaintiffs’ sites) require them to perform.… ”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MARSHALL J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V52 OF 2000

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENGERGY UNION APPLICANT
AND:	MULTIPLEX CONSTRUCTIONS PTY LTD FIRST RESPONDENT BAULDERSTONE HORNIBROOK PTY LTD SECOND RESPONDENT THEISS CONSTRACTORS PTY LTD THIRD RESPONDENT WALTER CONSTRUCTIONS GROUP LIMITED FOURTH RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	14 FEBRUARY 2000
WHERE MADE:	MELBOURNE