CPB Contractors Pty Ltd T/A CPB Contractors Pty Ltd v Construction, Forestry and Maritime Employees Union, Democratic Outcomes Pty Ltd T/A CiVS

[2024] FWC 1042

[2024] FWC 1042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

CPB Contractors Pty Ltd T/A CPB Contractors Pty Ltd
v

Construction, Forestry and Maritime Employees Union, Democratic Outcomes Pty Ltd T/A CiVS

(C2024/2471)

DEPUTY PRESIDENT CROSS SYDNEY, 21 APRIL 2024

Alleged industrial action at CPB Contractors Pty Ltd

1. At 4.57pm on Friday, 19 April 2024, CPB Contractors Pty Ltd (CPB/the Applicant) made an application pursuant to s.418 of the Fair Work Act 2009 (the Act) for the following orders (the Orders):

1. Stopping any industrial action deriving from the PAB Orders.

2. Setting aside the result of any ballot under the PAB Orders.

1. The Orders were sought against the following identified parties:

First Respondent - Construction, Forestry and Maritime Employees Union (CFMEU).

Second Respondent – Democratic Outcomes Pty Ltd t/a CiVS.

Employees of the Applicant presently employed or covered under:

• CPB Contractors Pty Ltd Cross River Rail – Civil and Surface Works Greenfields Agreement 2019 – 2023; or

• CPB Contractors Pty Ltd Cross River Rail – Tunnel and Shaft Greenfields Agreement 2019 – 2023.

1. As the Application was made at 4.57pm on Friday, 19 April 2024, the Commission was required to determine the Application by midnight on Sunday 21 April 2024[1]. The matter was listed for Hearing at 10.00am on 21 April 2024, with the parties having complied with a timetable for filing submissions and evidence.

Background

1. CPB is presently engaged in bargaining for new enterprise agreements for the work it conducts on the Cross River Rail project in Brisbane (the Project). The First Respondent is a bargaining representative for some workers subject to those new proposed agreements.

1. On 3 April 2024, the Fair Work Commission (the Commission) finalised orders (PR772775 and PR772781 respectively) for the conduct of protected action ballots related to those enterprise agreements, in matters B2024/260 and B2024/261 (the PAB Orders).

1. The Second Respondent is the balloting agent named in the PAB Orders.

1. Pursuant to the timetable for the ballot issued by the Second Respondent under the PAB

Orders, balloting was to be conducted electronically, commencing on 8 April 2024 and concluding on 12 April 2024.

1. CPB alleges that during the course of balloting, the ballot was interfered with in contravention of s.462 of the Fair Work Act 2009 (the Act) by the First Respondent and its organisers. This was brought to CPB’s attention by members of the First Respondent, as set out in:

(a)       A text message The Text Message that stated:

“ATTN: CPB MEMBERS – Voting will be conducted at a meeting with your delegate. Pls DO NOT vote separately. UNITED WE STAND.” (the Email)

(b)       Witness statements of un-named deponents (the Voter Statements) that outlined what CPB submitted were various attempts by the Union and its delegates to interfere in the secrecy of the ballot, and interfere with employees rights to freely approve or not approve the proposed industrial action.

1. On 12 April 2024, the Applicant filed an Originating Application in the Federal Court of Australia (the Federal Court Proceeding) seeking orders (inter alia):

   (a)       Under s.562 of the Act and s.23 of the Federal Court of Australia Act 1976 (Cth) permanently staying or setting aside the PAB Orders for the conduct of the protected action ballots; and

   (b) Under s.539 of the Act imposing penalties on (inter alia) the First and Second Respondents for breaches of s.462 of the Act; and

   (c)       Interim relief, including orders restraining the Respondents from taking further steps in completing the protected action ballots under the PAB Orders.

1. On 12 April 2024, Justice Collier issued an interim injunction restraining the Respondents from taking further steps in or completing the protected action ballots in the PAB Orders or organising any industrial action in reliance on those ballots.

1. The interlocutory application was listed for further hearing before Justice Rangiah on 19 April 2024. On 19 April 2024, Justice Rangiah dismissed CPB’s application for interlocutory relief in the Federal Court Proceeding.

1. Based on ex tempore reason delivered by his Honour, a substantial reason for the dismissal of the application was his Honour’s finding that the Voter Statements were inadmissible as hearsay.

1. On 19 April 2024, the Applicant filed this proceeding in the Commission seeking orders under s 418(2)(b) of the Act.

1. On 20 April 2024, the First Respondent filed in the Federal Court Proceeding an application for interlocutory orders seeking:

(a) An order under r 9.05 of the Federal Court Rules 2011 (Cth) that the Commission be joined as a respondent to the Federal Court Proceeding; and

(b)       An order that until the hearing and determination of this matter, the Applicant be restrained from taking any further step in relation to this proceeding (ie, the Application) and the Commission be restrained from hearing and/or determining the Application.

(the Respondent’s FC Interlocutory Application)

1. On 20 April 2024, Justice Rangiah heard and dismissed the Respondent’s FC Interlocutory Application. In giving ex tempore reasons for his decision, his Honour held that:

(a)       This Application was not an abuse of process; and

(b)       The evidence in the Federal Court Proceeding and this Application were not the same because, while the Federal Court had to exclude the Voter Statements as inadmissible hearsay (s.75 of the Evidence Act), the Commission was not so constrained as it had a discretion whether or not to admit those documents.

The Voter Statements

1. The issue of the admission of the Voter Statements was dealt with as a preliminary issue.

1. Regarding the admissibility of hearsay evidence in the Commission, CPB submitted the following principles are well established:

(a) The Fair Work Commission is not bound by the rules of evidence and procedure (s 591) and may (except as provided by the FW Act) inform itself in relation to any matter before it in such manner as it considers appropriate (s 590).

(b) The rules of evidence ‘provide general guidance as to the manner in which the Commission chooses to inform itself’. They cannot be ignored if that would cause unfairness between the parties, or if a conclusion of fact would lack “rational probative force”.

(c) The strength of evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. For this reason, the Commission is more likely to apply the rules of evidence (or the principles underlying those rules) in making findings of fact involving serious allegations, or the inherent unlikelihood of an occurrence, or the gravity of consequences flowing from a particular finding. 

(d) Commission Members are expected to act judicially and in accordance with ‘notions of procedural fairness and impartiality’.

1. CPB submitted the Commission should exercise its discretion in the instant case to allow the Voter Statements into evidence as they are relevant, and consistent with the Text Message, which clearly shows that the First Respondent intended that its members who are eligible to vote in the ballots should not vote alone, and that they should only vote together and in a meeting with delegates or officials of the First Respondent.

1. The CFMEU submitted that whilst the Commission is not bound by the rules of evidence, it is well-settled that those rules provide useful guidance to ensure that fairness and justice is done between the parties. The rule against the admission of hearsay evidence has at its core notions of procedural fairness. A party and the tribunal should be able to test the evidence given before it. Further, the hearsay contained in the Voter Statements should be excluded on discretionary grounds under s 135 of the Evidence Act. The failure to identify the deponents of the Voter Statements was clearly prejudicial to the CFMEU, which was effectively unable to challenge the evidence relied upon.

1. I determined that the challenged parts of the Voter Statements in issue, consisting of unattributed hearsay, should not be received into evidence.  Section 591 of the Act provides:

FWC not bound by rules of evidence and procedure

The FWC is not bound by the rules of evidence and procedure in relation to a matter before it (whether or not the FWC holds a hearing in relation to the matter).

1. However, the Commission is also bound by the countervailing factors of ss. 577(1) and 578(b) of the Act, which respectively provide:

Performance of functions etc. by the FWC

(1)  The FWC must perform its functions and exercise its powers in a manner that:

(a)  is fair and just; and

(b)  is quick, informal and avoids unnecessary technicalities; and

(c)  is open and transparent; and

(d)  promotes harmonious and cooperative workplace relations.

And:

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

…

(b)  equity, good conscience and the merits of the matter;

1. It would be unfair, and a denial of natural justice, for unattributed and untestable evidence to be admitted in the proceedings.

Statement of Mr Howard

1. After the ruling regarding the Voter Statements, the CFMEU indicated that it would not read any of the statement it had filed in the Application. Over an objection of the CFMEU, CPB sought, and was allowed, to rely additionally on one of the statements filed by the CFMEU, being that of Mr Dylan Howard. Passages relied on by CPB included:

(a)       That in a meeting on 8 April 2024, "If you haven't voted already, then do it soon because it closes soon. Now is your chance to all vote together."

(b)       That in a meeting on 8 April 2024, the following exchange occurred,

Mr Mattas: “Howd the boys go on the other side?”

Mr Emmerton: “All good”.

Mr Mattas: “Good job!”

(c)       “At  no  point  did  Mr  Mattas  tell  people  to  get  their  phones  out  and  tick  all  of the  boxes together. As I have outlined in paragraph 48 above, he invited people to get their phones out so they could ask any questions they had about the ballot.”

(d)      “I recall  Mr  Mattas  saying  that  it  was  the  CFMEU's  position  that  members  should  stick together and vote yes.  He did tell people that they had to vote yes”.

(e)       “At  no  point  did  Mr  Mattas  tell  people  to  get  their  phones  out  and  vote  yes.  As I have outlined in paragraph 48 above, he invited people to get their phones out so they could ask any questions they had about the ballot.”

(f)       “No  one was  pressured  to vote. We simply said that it was the CFMEU’s position that people should vote yes and they should stick together.”

CPB Submission

1. CPB submitted that there was no industrial action threatened, impending or probable.

1. CPB submitted that a protected action ballot must be held in secret, and the PAB Orders contained a clear term requiring the ballots to be conducted in secret. It is also a requirement of the Act that a protected action ballot be secret.[2]

1. CBP noted, in particular, the Fair Work Regulations provide:

(a)       Reg 3.16(1), for s 455(1)(a) of the Act, the form of a ballot paper for a protected action ballot that is to be conducted by attendance voting or postal voting is set out in Form 1 of Schedule 3.2;

(b)       Reg 3.16(2), for s 455(1)(b) and 469(c) of the Act, a ballot paper for a protected action ballot that is to be conducted by electronic voting must include the information and the content set out in Form 1 of Schedule 3.2;

(c)       Reg 3.11(2), a protected action ballot agent must be capable of ensuring the secrecy and security of votes cast in the ballot;

(d)      Reg 3.19(8), in the case of a postal or electronic vote, to preserve the secrecy of a postal vote or an electronic vote, the protected action ballot agent must ensure that the independent advisor or a scrutineer does not have access to any evidence that may allow the ballot paper to be identified as having been completed by a particular employee; and

(e)       Schedule 3.2 of the Fair Work Regulation, Form 1, prescribes the form for a ballot paper, which must contain (inter alia) the words:
“YOUR VOTE IS SECRET, AND YOU ARE FREE TO CHOOSE WHETHER OR NOT TO SUPPORT THE PROPOSED INDUSTRIAL ACTION.”

1. CPB submitted that in breach of the PAB Orders and the Act, the PABO Ballots were not conducted in secret. Employees were directed by the CFMEU only to vote in a meeting with other employees and delegates and officials of the CFMEU, were directed to vote yes, were clearly scrutinised in the manner of their voting, and were made to feel intimidated by the CFMEU.

1. By reason of the above interference, the fair, democratic and secret conduct of the ballot has been vitiated. Any result of the ballot is unsound, and any industrial action taken in reliance on the outcome of the ballot is consequently unprotected.

1. CPB submitted the conduct of the CFMEU and it’s organisers and delegates indicates it is probable that industrial action that is not or would not be protected industrial action is threatened, impending, probable or being organised. In that circumstance, the Commission must make a stop order pursuant to s.418 of the Act.

CFMEU Submission

1. The CFMEU opposed the orders sought because:

(a)      There is no industrial action which is threatened, pending or probable because the protected action ballots have not yet been declared and may or may not approve the taking of industrial action;

(b)      Even if the ballots were declared authorising industrial action, the Commission has no power to go behind any declaration of a protected action ballot order made pursuant to s.458 of the Act; and

(c)      The evidence, in any event, reveals no interference.

Consideration

1. The Application falls at the first hurdle as there is no industrial action, protected or unprotected, which is threatened, pending or probable. Until the ballot is returned, and some or all of the actions the subject of the ballot are approved, I do not consider action threatened, pending or probable.

1. If action(s) are approved by the ballot, they will not be threatened, pending or probable until notified, with three days notice, pursuant to s.414(2)(a) of the Act.

1. I do not, however, accept the CFMEU’s submission that if the protected action ballots were declared authorising industrial action, the Commission has no power to go behind any declaration of a protected action ballot order, or consider alleged contravening conduct under s.462.

1. S.418 by its terms requires the Commission to consider whether industrial action by one party “…is not, or would not be, protected industrial action”. The Commission must specifically assess the question of whether the subject action is protected or not. Actions in relation to interference with a PABO, however, are reserved to nominated Courts.[3]

1. The conduct of the CFMEU, and its organisers and delegates, fell short of conduct that could have the effect of impugning the otherwise protection of action that is at present only a suggestion. Even augmented with the representations advanced from the statement of Mr Howard relied upon in the proceedings, the evidence rose no higher than evidence that the CFMEU sought to persuade employees to vote in the ballots whilst they were at a meeting and to vote “Yes”. No threats were made either expressly or implicitly, and there was no suggestion that there would be any adverse consequences for any employee who did not vote or did not vote “yes”. S.462 proscribes influencing a person to vote in a certain manner when done so by intimidation (Para. (1)(b)), threats (Para. (1)(c)), or offer of advantage (Para. (1)(d)).

Conclusion

1. There is no industrial action threatened, impending or probable, and there is no basis to question the protected nature of action that may follow if any such action is authorised by the ballot pursuant to the PAB Order.

1. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Murdoch of Counsel on behalf of the Applicant.
S. Moody of Counsel on behalf of the Applicant.

W.L. Friend of Counsel on behalf of the Respondent.
C.A. Massy of Counsel on behalf of the Respondent.

Hearing details:

21 April 2024.

10:00AM (Sydney Time) over Microsoft Teams.

[1] S.420(1) of the Act.

[2] Sections 406, 435, 455(1)(a) and (b), and 469 (b) and (c) of the Act.

[3] S. 462 and s.536, Item 18.

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