CPB Contractors Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3)
[2024] FCA 797
•18 July 2024
FEDERAL COURT OF AUSTRALIA
CPB Contractors Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3) [2024] FCA 797
File number(s): QUD 189 of 2024 Judgment of: COLLIER J Date of judgment: 18 July 2024 Catchwords: INDUSTRIAL LAW – application for urgent interlocutory injunction – whether serious question to be tried – whether damages inadequate remedy – form of orders sought – balance of convenience Legislation: Fair Work Act 2009 (Cth) ss 19(1), 340 (1)(a), 342(1) Item 7(a), 343, 346(b), 347, 348, 363, 408, 414 Cases cited: Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 80 ALJR 1672
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148
Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd [2017] FWC 5380
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383
Newton v Australian Postal Corporation (No 2) [2019] FCA 2192
State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160, 218 FCR 172
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 67 Date of hearing: 18 July 2024 Counsel for the Applicant: Ms S Moody Solicitor for the Applicant: Ferrous Advisory Counsel for the Respondent: Mr C Massy Solicitor for the Respondent: Hall Payne Lawyers ORDERS
QUD 189 of 2024 BETWEEN: CPB CONTRACTORS PTY LTD
Applicant
AND: CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
18 JULY 2024
PENAL NOTICE
TO: THE CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING
WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER
MAY BE SIMILARLY PUNISHED.NOTING THE PROVISION OF THE USUAL UNDERTAKINGS AS TO DAMAGES BY THE APPLICANT, THE COURT ORDERS THAT:
1.In this Order:
CRR Project means the Cross River Rail Project.
CRR Construction Site means the construction sites established for the CRR Project at the date of this order, being those at the following addresses in Brisbane:
(a)the project site known as the Albert Street Precinct (Lot 1, Lot 2, Lot 3), bound by Mary, Edward, Elizabeth and George Street, Brisbane City;
(b)the project site known as the Roma Street Precinct, bound by Roma Street, Countess Street and Parkland Boulevard and the Queensland Rail Corridor, Brisbane City;
(c)the project site known as the Woolloongabba Precinct, bound by Stanley, Main, Leopard and Vulture Streets, Woolloongabba;
(d)the project site known as the Boggo Road Precinct, bound by Boggo Road, Peter Doherty Street and Boggo Road Busway/ Queensland Rail Corridor in Dutton Park;
(e)the project site known as the Southern Area work area, bound by Cornwall Street, Kent Street and Queensland Rail Corridor;
(f)the project site known as the Northern Portal, bound by the Queensland Rail Corridor, Bowen Bridge Road, Gregory Terrace and Kalinga Avenue;
(g)Hamilton Yard at 222 MacArthur Avenue, Hamilton;
(h)BlueWater Yard at 2-6 Bishop Drive, Port of Brisbane;
(i)271 Gilchrist Avenue, Herston;
(j)33 Lanham Street, Bowen Hills;
(k)48 O'Connell Terrace, Bowen Hills;
(l)58 Chale Street, Yeerongpilly;
(m)Corner of Nobel Street and Annerley Road, Dutton Park;
(n)Corner of Brooke Street and Pegg Road, Rocklea;
(o)Corner of Wilkie Street and Green Street, Yeerongpilly; and
(p)19 Orient Avenue, Pinkenba.
Point of Entry means any point of entry to (or exit from) a CRR Construction Site, and includes without limitation any gate, turnstile, entrance way, driveway or door.
2.Until further order, the First Respondent (whether by its officers, delegates, employees, or other representatives) be restrained from:
(a)photographing, recording by any means, or creating or maintaining a record of the identity of, any person or vehicle entering or leaving a CRR Construction Site;
(b)coming within 15 meters of a Point of Entry, or going or remaining within 15 meters of a Point of Entry, excluding:
(i)transit to and from a school; or
(ii)to catch public transport; or
(iii)travel in a moving vehicle on a public roadway; or
(iv)persons seeking to enter the site for the purpose of performing work in accordance with their contract of employment, or a person with a valid right of entry exercising that right of entry in accordance with applicable legislation or as otherwise permitted by law; or
(v)legal and other professional third-party representatives.
3.The First Respondent take all reasonable steps forthwith, but no later than 9.00am on 19 July 2024, to:
(a)bring the existence and content of this order to the attention of its officers, delegates, members, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch; and
(b)direct its officers, delegates, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch to comply with paragraphs 2(a) and (b) above; and
(c)direct its officers, delegates, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch to comply with the Order of the Court made on 1 May 2024.
4.The First Respondent is to notify the Applicant and the Court by 12:00PM on 25 July 2024 as to whether it intends to seek the discharge of these orders.
5.In the event that the First Respondent notifies the Applicant and the Court in accordance with paragraph 4 above, the matter be listed before a Duty Judge for case management and the hearing of any application for the discharge of these orders.
6.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
BACKGROUND
Late on 17 July 2024 CPB Contractors Pty Ltd filed an interlocutory application seeking urgent relief against the respondent union, the Construction, Forestry, Maritime Employees Union (CFMEU). The relief sought was as follows:
1. In this Order:
CRR Project means the Cross River Rail Project.
CRR Construction Site means the construction sites established for the CRR Project at the date of this order, being those at the following addresses in Brisbane:
(a)the project site known as the Albert Street Precinct (Lot 1, Lot 2, Lot 3), bound by Mary, Edward, Elizabeth and George Street, Brisbane City;
(b)the project site known as the Roma Street Precinct, bound by Roma Street, Countess Street and Parkland Boulevard and the Queensland Rail Corridor, Brisbane City;
(c) the project site known as the Woolloongabba Precinct, bound by Stanley, Main, Leopard and Vulture Streets, Woolloongabba;
(d) the project site known as the Boggo Road Precinct, bound by Boggo Road, Peter Doherty Street and Boggo Road Busway/ Queensland Rail Corridor in Dutton Park;
(e) the project site known as the Southern Area work area, bound by Cornwall Street, Kent Street and Queensland Rail Corridor;
(f) the project site known as the Northern Portal, bound by the Queensland Rail Corridor, Bowen Bridge Road, Gregory Terrace and Kalinga Avenue;
(g) Hamilton Yard at 222 MacArthur Avenue, Hamilton;
(h) BlueWater Yard at 2-6 Bishop Drive, Port of Brisbane;
(i) 271 Gilchrist Avenue, Herston;
(j) 33 Lanham Street, Bowen Hills;
(k) 48 O'Connell Terrace, Bowen Hills;
(l) 58 Chale Street, Yeerongpilly;
(m) Corner of Nobel Street and Annerley Road, Dutton Park;
(n) Corner of Brooke Street and Pegg Road, Rocklea;
(o) Corner of Wilkie Street and Green Street, Yeerongpilly; and
(p)19 Orient Avenue, Pinkenba
Point of Entry means any point of entry to (or exit from) a CRR Construction Site, and includes without limitation any gate, turnstile, entrance way, driveway or door.
2.Until further order, the First Respondent (whether by its officers, members, delegates or employees, or howsoever otherwise) be restrained from:
(a) photographing, recording by any means, or creating or maintaining a record of the identity of, any person or vehicle entering or leaving a CRR Construction Site or coming within 20 metres of a Point of Entry; and
(b) going or remaining within 20 metres of a Point of Entry, other than a person seeking to enter the site for the purpose of performing work in accordance with their contract of employment, or a person with a valid right of entry exercising that right of entry in accordance with applicable legislation.
3.The First Respondent take all reasonable steps by no later than midnight on 17 July 2024 to:
(a)bring the existence and content of this order to its officers, delegates and employees; and
(b) direct its officers, members, delegates and employees not to:
(i)photograph, record by any means, or create or maintain a record of the identity of, any person or vehicle entering or leaving a CRR Construction Site or coming within 20 metres of a Point of Entry; and
(ii) go or remain within 20 metres of a Point of Entry, other than a person seeking to enter the site for the purpose of performing work in accordance with their contract of employment, or a person with a valid right of entry exercising that right of entry in accordance with applicable legislation.
(c) Direct its officers, members, delegates and employees to comply with the Order of the Court made on 1 May 2024.
4.The matter be listed for case management on _______ and the hearing of any application for the discharge of these orders.
5. The First Respondents is to notify the court by 12:00PM on 24 July 2024 as to whether it intends to seek the discharge of these orders.
Despite the late filing, the applicant sought the interlocutory application to be heard and determined by midnight on 17 July. However the email accompanying the interlocutory application indicated that the lawyers for the first respondent had received notice of the interlocutory application only at the same time as the Court, and it was questionable whether they would be in a position to answer the interlocutory application if it were listed as requested by the applicant.
Accordingly, my Associate informed the parties that the matter would be listed for 9.00am the following morning.
I note that this is not the first time that this matter has been before the Court. On 12 April 2024 the applicant filed an originating application in which it sought the following relief against the CFMEU and other respondents (including CFMEU officials):
Details of claim
On the grounds stated in the accompanying affidavit, or any statement of claim or other document prescribed by the Rules to be filed, the Applicant claims:
1.Orders pursuant to Fair Work Act 2009 s.539 imposing penalties on the First, Third, Fourth, Fifth and Sixth Respondents for breaches of s.462 of that Act.
2. Orders pursuant to Fair Work Act 2009 s.562 and Federal Court of Australia Act 1976 s.23 permanently staying or setting aside the protected action ballot orders PR772775 and PR772781 made respectively by the Fair Work Commission in matters B2024/260 and B2024/261 (PABO Orders) for the conduct of protected action ballots.
3. Further or in the alternative to item 2 above, orders pursuant to Federal Court of Australia Act 1976 s.23 or Judiciary Act 1903 s.39B, issuing writs in the nature of certiorari quashing the PABO Orders.
4. Orders pursuant to Federal Court of Australia Act 1976 s.23 permanently restraining the Respondents from taking further steps in or completing the protected action ballots ordered in the PABO Orders or organising any industrial action in reliance upon those ballots.
5. Such other orders as the Court deems suitable in the circumstances.
Claim for interlocutory or interim relief
The Applicant also claims the following relief.
6. Orders pursuant to Federal Court of Australia Act 1976 s.23 restraining the Respondents until further order from taking further steps in or completing the protected action ballots ordered in the PABO Orders or organising any industrial action in reliance upon those ballots.
7. Orders pursuant to Fair Work Act 2009 s.562 and Federal Court of Australia Act 1976 s.23 staying until further order the PABO Orders.
8. Orders pursuant to Federal Court Rules 2011 r.1.39 shortening the time for service of the Application.
9. Orders pursuant to Federal Court Rules 2011 r.10.24 allowing:
a. substituted service of the application on the First and Second Respondents by email; and
b. substituted service of the application on the Third to Sixth Respondents by service upon the First Defendant;
10. Directions towards the final hearing of the claim.
On 1 May 2024 Rangiah J granted interlocutory orders. On that date, in respect of the same construction sites established for the Cross River Rail Project as identified in the interlocutory application currently before me, Rangiah J relevantly ordered:
2.The First Respondent (whether by its delegates, office holders, employees, or other representatives) and the Third and Fourth Respondents are prohibited from:
(a) physically obstructing or physically impeding the free movement of goods or people to and from a Point of Entry;
(b) abusing, threatening, harassing or intimidating any person entering or leaving a CRR Construction Site;
(c) aiding, abetting, counselling, procuring or inducing any person to engage in the conduct referred to in orders 2(a) or 2(b) above.
3. Orders 1 and 2 do not apply to the organising or taking by any person of protected industrial action in accordance with section 408 of the Fair Work Act 2009 (Cth) or activity which is not industrial action because of the operation of s 19(2) of the Fair Work Act 2009 (Cth).
4. The matter be listed for case management on Friday 10 May 2024 and the hearing of any application for the discharge of these orders.
5. The First, Third and Fourth Respondents are to notify the Court by 12.00 pm on 8 May 2024 as to whether they intend to seek the discharge of these orders.
On 18 July the parties appeared before me for a hearing which concluded that afternoon. During that time, Ms Moody for the applicant offered the usual undertaking as to damages in support of the applicant’s application, and further sought that any interlocutory orders made by the Court be accompanied by a penal notice.
Mr Massy for the CFMEU informed the Court that his client would not oppose an order restraining photography or filming of persons entering the applicant’s sites. However, (inter alia), Mr Massy opposed orders relating to any direction by the CFMEU of activities of its members, and in particular opposed orders restraining activities by the CFMEU proximate to all points of entry to the applicant’s sites.
Following oral submissions by both parties, late in the afternoon (but before Court adjourned) the applicant filed an amended interlocutory application in the following terms:
1. In this Order:
CRR Project means the Cross River Rail Project.
CRR Construction Site means the construction sites established for the CRR Project at the date of this order, being those at the following addresses in Brisbane:
(a)the project site known as the Albert Street Precinct (Lot 1, Lot 2, Lot 3), bound by Mary, Edward, Elizabeth and George Street, Brisbane City;
(b)the project site known as the Roma Street Precinct, bound by Roma Street, Countess Street and Parkland Boulevard and the Queensland Rail Corridor, Brisbane City;
(c) the project site known as the Woolloongabba Precinct, bound by Stanley, Main, Leopard and Vulture Streets, Woolloongabba;
(d) the project site known as the Boggo Road Precinct, bound by Boggo Road, Peter Doherty Street and Boggo Road Busway/ Queensland Rail Corridor in Dutton Park;
(e) the project site known as the Southern Area work area, bound by Cornwall Street, Kent Street and Queensland Rail Corridor;
(f) the project site known as the Northern Portal, bound by the Queensland Rail Corridor, Bowen Bridge Road, Gregory Terrace and Kalinga Avenue;
(g) Hamilton Yard at 222 MacArthur Avenue, Hamilton;
(h) BlueWater Yard at 2-6 Bishop Drive, Port of Brisbane;
(i) 271 Gilchrist Avenue, Herston;
(j) 33 Lanham Street, Bowen Hills;
(k) 48 O'Connell Terrace, Bowen Hills;
(l) 58 Chale Street, Yeerongpilly;
(m) Corner of Nobel Street and Annerley Road, Dutton Park;
(n) Corner of Brooke Street and Pegg Road, Rocklea;
(o) Corner of Wilkie Street and Green Street, Yeerongpilly; and
(p)19 Orient Avenue, Pinkenba
Point of Entry means any point of entry to (or exit from) a CRR Construction Site, and includes without limitation any gate, turnstile, entrance way, driveway or door.
2.Until further order, the First Respondent (whether by its officers, delegates, employees, or other representatives) be restrained from:
(a) photographing, recording by any means, or creating or maintaining a record of the identity of, any person or vehicle entering or leaving a CRR Construction Site;
(b)coming within 15 meters of a Point of Entry, or going or remaining within 15 meters of a Point of Entry, excluding:
(i)transit to and from a school; or
(ii)to catch public transport; or
(iii)travel in a moving vehicle on a public roadway; or
(iv)persons seeking to enter the site for the purpose of performing work in accordance with their contract of employment, or a person with a valid right of entry exercising that right of entry in accordance with applicable legislation or as otherwise permitted by law; or
(v)legal and other professional third-party representatives.
3.The First Respondent take all reasonable steps forthwith, but no later than 1 hour after the date this Order is issued, to:
(a)bring the existence and content of this order to the attention of its officers, delegates, members, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch; and
(b) direct its officers, delegates, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch to comply with paragraphs 2(a) and (b) above; and
(c)direct its officers, delegates, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch to comply with the Order of the Court made on 1 May 2024.
4.The matter be listed for case management on and the hearing of any application for the discharge of these orders.
5.The First Respondents is to notify the court by 12:00PM on 24 July 2024 as to whether it intends to seek the discharge of these orders.
I made Orders late in the evening of 18 July 2024. These are the reasons for those Orders.
EVIDENCE OF THE APPLICANT
The interlocutory application before me was supported by an affidavit of Mr Terence Prior, the Industrial Relations Manager of the applicant, dated 17 July 2024. The applicant also relied on earlier affidavits of Mr Malcolm Davis filed on 12 April 2024 and 1 May 2024. Ms Moody specifically submitted that her reliance on the evidence of Mr Davis for the purposes of the interlocutory application was referable to contracts annexed to that affidavit. The CFMEU offered no dispute or objection in respect of that material.
Terence Prior affidavit
In his affidavit Mr Prior deposed, in summary, as follows.
On 10 July 2024 the applicant received two notices from the CFMEU purporting to give notice under s 414 of the Fair Work Act 2009 (Cth) of the intention of its members to take protected industrial action commencing from 16 July 2024.
The CRR Project is currently behind schedule but there are a number of critical elements to the project that are very time sensitive, which if delayed have a compound impact on the critical path for completion. One of those critical elements is the programming of the testing of the first train to travel within the newly constructed tunnels under Brisbane. The first train is scheduled to be run through the tunnel on 27 and 28 July 2024.
In the coming days it is critical that the necessary preparations to receive that first train are completed. The works that are currently underway must be completed to ensure that the first train can be received into the tunnels and be tested on those days.
The number of CPB employees who could legitimately be engaged in protected industrial action is relatively small (of the order of 170 workers) compared to the very significant contractor workforce, which the project relies on day to day, which is typically in the range of 1500 - 2000 each day.
The intimidation and threats made against the subcontractor workforce plays a fundamental role in denying the project the workforce it needs to continue its operations and meet its critical path objectives for the project.
In particular the Exhibition Station is currently being refurbished in preparation for the Royal Queensland Show (the EKKA). As a result of conduct in which the CFMEU has engaged this past week, two days and nights of critical construction activity on the station has been lost. If the critical works are not completed by the end of July all persons attending the EKKA will need to be transported by bus.
The applicant is the head contractor with control over 16 construction sites including the project site known as the Albert Street Precinct (Lot 1, Lot 2, Lot 3), bound by Mary, Edward, Elizabeth and George Streets, Brisbane City (Albert Street Precinct).
Mr Prior was informed by Ms Alicia Wood, Senior Industrial Relations Advisor of the applicant, and believed that the following events took place at Lot 1 of the Albert Street Precinct on 16 July 2024:
(a)At approximately 4.40am supplies were dropped off at the Lot 1 entrance to the Albert Street Precinct site. These supplies included BBQs, shade covers and eskys. From this time on she started receiving reports that electrical workers from the site were being turned away by CFMEU officials by site entries, with the workers being told "Site is closed' and "Do not cross the picket line."
(b) Two people from the picket counted steps from the front entry of the site to another area at a nearby Cafe, with the assumption that this was so that shade covering could be placed in this area.
(c)Dylan Howard was observed outside the site gates. Mr Howard is known to be employed by the CFMEU in the position of 'Civil Coordinator', having previously been a union organiser.
(d) At approximately 5.20am supervisory and safety workers sought to enter the site. Persons from the picket started filming these workers on their phones, and members of the picket line directed chants and comments to these workers to the following effect:
i. "We are doing this for our children"
ii. "Never cross a picket line"
(e)These same workers were called "grubs" and "scum" by members of the picket line for seeking to enter site.
(f) Some supervision staff, including and in particular an Electrical Supervisor did not enter site, as they felt intimidated. The delegates or officials of the CFMEU in the picket were not known to the supervisory staff and were not workers on the Albert Street Precinct site.
(g) That Electrical Supervisor commenced work from the St Mary's offices. That Electrical Supervisor was unwilling to provide a statement but stated words to the following effect:
i."I'm concerned for my safety."
ii. "I won't get another job - I'll be blackmailed if I crossed the picket line and entered site."
iii.“I won’t risk my safety by crossing the picket line”
(h) Site workers commenced arriving at the site entry gates from approximately 5.30am, but did not enter site.
(i) By 6.00am, 1 site worker from the Applicant had entered site for the performance of work. No other workers entered site for the prestart. No workers from subcontractors engaged on the site that day entered site or attended prestart. They remained outside the site entrances.
(j) At 6.15am the service trade subcontractors left the site. This included Cooke & Dorsett (plumbers), and KME (electrical subcontractors).
(k) At 6.30am a silver car arrived and parked outside the site entrance. 2 people with CFMEU branded clothing exited the car, and began unloading flags and signs for the members of the picket. Those signs contained various CFMEU and union slogans, and included one that said "CPB grubs".
(l)By 7.00am the direct hire and subcontractor workers outside the site entries disbursed and left the area.
(m) By 7.15am the majority of the crowd by the picket had left, and approximately 6-8 CFMEU delegates or officials remained in the picket, where they remained for the day.
Mr Prior was informed by Mr Daniel Lewis, supervisor of the applicant, and believed that the following events took place at Lot 1 of the Albert Street Precinct on 16 July 2024:
(a)At approximately 4.55am a picket line of approximately 7-8 people associated with the CFMEU formed near one of the site entrances. The people in the picket line had set up a shade covering and BBQ.
(b) At approximately 5.15am as Mr Lewis was returning from a nearby office to the site entry, he and persons in his company (Murray Harris, Mat Anforth, and Elliot Ham) were confronted by a number persons in the CFMEU picket. He did not recognise those persons, and they were not workers on the Albert Street Precinct. One member of the CFMEU picket filmed Mr Lewis and his group using their Iphone as they entered site. Members of the picket line shouted words to the effect of “You are not going to cross the picket line", “Stand with your brothers and sisters for better conditions and better rates".
Mr Prior was informed by Mr Murray Harris, Shift Boss of the applicant, and believed that the following events took place at Lot 1 of the Albert Street Precinct on 16 July 2024:
(a)As he was entering the site in the morning (with Mr Lewis), he encountered a CFMEU picket.
(b)A number of comments were directed at him from CFMEU delegates and persons in the picket, including:
i."Don't cross the picket line."
ii. "Are you going to stand with your brothers and sisters and fight for better
(c) He observed that one of the CFMEU delegates was filming him, using an Iphone.
Mr Prior was informed by Mr James Maher, Superintendent of the applicant, and believed that the following events took place at Lot 1 of the Albert Street Precinct on 16 July 2024:
(a)At approximately 5.10am he received reports site supervisors that a CFMEU picket had formed at the entry to the Albert Street Precinct entry points, and members of that picket were filming and otherwise intimidating workers who were seeking to enter the site.
(b)Mr Maher followed the supervisors to site. He encountered a number of persons while walking to site who were wearing CFMEU-branded clothing, and in particular black hoodies emblazoned with the words 'CFMEU'.
(c) A picket had formed outside the entry gate to the precinct. Persons wearing CFMEU branded clothing and members of the picket called out to him encouraging him to join the picket and not enter site.
(d) Before entering site he paused to speak to a supervisor who was standing near the picket. That supervisor said to him words to the effect of "They have asked me not to cross the picket line ... they are filming ... I have to work in the industry [the construction industry]."
(e) Mr Maher then sought to enter the site. He unsuccessfully swiped is security access card on the entry gate 3 times, and while doing so, heard directed at him from persons in the picket lines the following comments:
i."Stand with your brothers, don't cross the picket line"
ii. "This will benefit you too"
iii. "Think of your family"
iv. "This is for your kids too”
(f)Mr Maher was able to enter the site, and as the door was closing behind him someone from the picket called him a "grub".
(g) Mr Maher observed that Phil Robinson (General Superintendent) was also seeking to enter site behind him. Similar comments were directed to Mr Robinson as he sought to enter the site.
(h) As a result of the picket and actions of the CFMEU personnel in the picket, only 1 worker (in addition to the supervisors) entered site and attended the site pre-start meeting.
Mr Prior was informed by Mr Phil Robinson and believed that the following events took place at Lot 1 of the Albert Street Precinct on 16 July 2024:
(a)He sought to enter the site at approximately 5.20am. He encountered a picket of approximately 6 people. He did not recognise the people in the picket but observed that they appeared to be associated with the CFMEU.
(b) While he was entering his security number in the entry gate, the following comments were directed towards him:
i."We don't cross picket lines mate."
ii. "This company is unsafe mate and kills people."
iii. "Think of your wife and kinds. They will appreciate you for not cross the picket line."
iv. "You're a fucking grub anyway."
Mr Prior deposed that there were also pickets on each of the other sites of the applicant.
Mr Prior deposed that he was informed of a statement by a person in the picket addressing employees re-entering the Roma Street site on 17 July 2024 to the effect that “We will put your photo on Whatsapp”.
Mr Prior deposed that he was informed that a subcontractor had been told by a CFMEU official that if concrete was pumped by the subcontractor on that date, the subcontractor would be blackballed in Queensland. Mr Prior deposed that the subcontractor’s workers ceased work at the site, which caused additional costs.
Mr Prior annexed to his affidavit CCTV video footage which he deposed had been taken outside one of the entry gates to the Albert Street precinct at approximately 5.11am on the morning of 16 July 2024 and emailed to him by Ms Wood. The video footage appeared to show persons wearing shirts marked with the letters CFMEU using mobile phones to take photographs of persons entering the site.
Annexed to Mr Prior’s affidavit were two letters from the CFMEU to the applicant dated 10 July 2024, being notifications of intention to take protected industrial action, by all members of the CFMEU employed by the applicant. Both letters notified of work stoppages on 16 July 2024, 17 July 2024, 18 July 2024, 19 July 2024, 22 July 2024, in addition to overtime bans commencing 16 July 2024, bans on paperwork commencing 16 July 2024, and bans on the use of technology commencing 16 July 2024.
Mr Prior further annexed video footage of what he described as union activity including picket lines blocking access to sites at Albert Street, Kent Street, and Vulture Street.
At the hearing Mr Massy objected to various aspects of Mr Prior’s evidence. In particular, Mr Massy objected to paragraph 16 of Mr Prior’s affidavit which stated:
In relation to the matter referred to in 14(b) I am informed by a site Project Manager and verily believe that the relevant subcontractor received a phone call from a CFMEU official who said to him words to the effect of “If you pump concrete [on the CRR Project that day], you will be black balled in Queensland”. Shortly thereafter the concrete truck workers ceased work, and the concrete trucks exited the site and no further concrete was poured on that day by that subcontractor. This has caused additional cost expense and delay to the project. Delays of this kind will have an impact on the critical path objectives of the project and are likely to cause substantial damages and other losses to be incurred by CPS and its joint venturers in the performance of contracted works on the CRR Project.
Video evidence
At the hearing the applicant asked that various videos be played and admitted as evidence.
One video was Annexure TP-2 to Mr Prior’s affidavit, which was described as CCTV footage taken outside one of the entry gates to the Albert Street site at approximately 5.11 am on 16 July 2024.
The remaining videos, cumulatively found in Annexure TP-3 to Mr Prior’s affidavit, were described as “CRR TSD – Union activity”, and constituted CCTV footage of scenes at the Albert Street site, the Southern Area worksite (Kent Street), and the Wooloongabba site (Vulture Street) on 16 and 17 July 2024. The “Activity Observed” was commentary adjacent to each dropbox link which sought to summarise the contents of each video, referable to contended CFMEU activity at the relevant sites.
I shall return to these videos later in this judgment.
EVIDENCE OF THE CFMEU
The CFMEU relied on one affidavit, namely the affidavit of its instructing solicitor Ms Alexandra Jarrett affirmed 18 July 2024. Ms Jarrett deposed:
Employment
1.I am a solicitor employed by Hall Payne Lawyers, the solicitors for the respondents. I am assisting Mr Luke Tiley, a Principal of Hall Payne Lawyers, with this proceeding on behalf of the respondents. I am authorised to make this affidavit on behalf of the respondents.
Affidavit of Terence Paul Prior dated 17 July 2024
2. On 18 July 2024, I met with Mr Jackson Whipps, Construction Manager - Queensland of De Martin & Garparnini in respect of paragraph [16] of the Affidavit of Terence Paul Prior dated 17 July 2024 (the Prior Affidavit)
3.I showed Mr Whipps, and read out to him, paragraph [16] of the Prior Affidavit and Mr Whipps told me words to the effect to: "that is incorrect, no conversation like that happened. "
4. Mr Whipps then provided to me a written statement in which outlines the detail of his denial of paragraph [16] of the Prior Affidavit. Mr Whipps told me, and I believe, that his statement is true and correct. Annexed hereto and marked as "ARJ-1" is a copy of the signed statement of Mr Whipps, witnessed by me.
Annexure ARJ-1 to Ms Jarrett’s affidavit was in the following terms:
Statement of Jackson Whipps
18 July 2024
1.My name is Jackson Whipps and I am the Construction Manager, Queensland DMG.
2.At no time have I spoken to anyone from CPB Contractors in relation to the pumping and supply of concrete for the Cross River Rail Project.
3. At no time has any person approached me and warned that DMG would be “blacklisted" (or words to that effect) from the industry if it was to supply, pump or place concrete in relation to the Cross River Rail Project.
Jackson Whipps
CONSIDERATION
Principles guiding the Court in considering whether to make interlocutory injunctive orders were explained by the High Court of Australia in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 80 ALJR 1672. In that case Gleeson CJ and Crennan J relevantly said:
19.The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed…
(footnotes omitted)
(emphasis added)
Materially, Gummow and Hayne JJ in that case said:
65.The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This court… said that on such applications the court addresses itself to two main inquiries, and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief… The second inquiry is… whether the inconvenience of injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial…
(footnotes omitted)
In the present case, the applicant submitted that interlocutory relief was sought in aid of the following causes of action:
·Breach of s 340 (1)(a)(i),(ii),(iii) of the Fair Work Act, being a prohibition on a person taking adverse action against another person because the other person had a workplace right; or had, or had not, exercised a workplace right; or proposed or proposed not to, or had at any time proposed or proposed not to, exercise a workplace right.
·Breach of s 343 of the Fair Work Act, being a prohibition on a person organising or taking, or threatening to organise or take, any action against another person with intent to coerce the other person, or a third person, to exercise or not exercise, or propose to exercise or not exercise, a workplace right; or exercise, or propose to exercise, a workplace right in a particular way.
·Breach of s 346(b) of the Fair Work Act, being a prohibition on a person taking adverse action against another person because the other person engaged, or had at any time engaged or proposed to engage, in industrial activity as defined by paras 347 (a) or (b).
·Breach of s 348 of the Fair Work Act, being a prohibition on a person organising or taking, or threatening to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
·Section 363 of the Fair Work Act, which defines “actions of industrial associations”.
·A claim for tortious interference with contractual relations.
Is there a serious question to be tried?
In respect of s 343 of the Fair Work Act, the Full Court in such cases as State of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160, 218 FCR 172 at [7] and Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191 at [155] found that the conception of coercion requires the pressure applied to be unlawful, unconscionable or illegitimate. A similar requirement exists in respect of allegations of coercion under s 348 : Newton v Australian Postal Corporation (No 2) [2019] FCA 2192 at [27]‑[29].
For the purposes of s 340 and s 346(b) of the Fair Work Act, the applicant contended that the CFMEU took “adverse action” against it, namely the CFMEU as an industrial association (or officers or members) organised or took industrial action against the person. The workplace right on which the applicant relied was its ability to make an enterprise agreement with its employees.
In respect of the applicant’s contention that there had been tortious interference with contractual relations, the applicant submitted that, if the conduct of the CFMEU meant that the applicant was unable to give access to any of its sites to subcontractors, the applicant would be in breach of its contracts with those subcontractors.
The applicant contended that the evidence supported a finding that there was a serious question to be tried in respect of each cause of action, because of relevant conduct (to which Mr Prior deposed and which the applicant submitted was substantiated by video evidence before the Court) involving:
·workers being turned away from the site;
·verbal abuse of workers including “scum” and “grubs” both orally and by signs;
·filming of workers who entered the site;
·staff choosing not to attend work due to intimidation, including being filmed;
·both employees and subcontractors arriving at site gates but not entering (raising the inference that they have not done so due to the abuse and intimidation).
·At the Roma Street site, CPB employees were threatened to have their photograph put on “Whatsapp”;
·In relation to the Southern Area Worksite, the Queensland General Manager from the CPB’s subcontractor, DMG Concrete Pumping, received a phone call from a CFMEU official who said to him words to the effect of “If you pump concrete [on the CRR Project that day], you will be black balled in Queensland”. Shortly thereafter, the concrete truck workers ceased work, the cement mixer trucks exited the site, and no further concrete was poured on that day by that subcontractor.
·A picket line including seated persons who wore clothing bearing the letters “CFMEU” and who blocked vehicle access at the Woolloongabba site.
(the Action)
The applicant further submitted that the Action was not authorised by a protected action ballot order, and that the Court could infer that the Action was organised by the CFMEU because:
·The Action was taken on the same days as the protected industrial action.
·There was no dispute that the CFMEU had organised the protected industrial action, being the protected work stoppages.
·The Action was being undertaken by, inter alia, CFMEU delegates and officials including Mr Dylan Howard, a CFMEU Civil Coordinator (and previously a CFMEU organiser).
·The effect of the Action was to cause not only CPB employees, but also subcontractors, not to perform work on the applicant’s sites.
·The number of CPB employees who could legitimately be engaged in protected industrial action was relatively small (of the order of 170 workers) compared to the very significant contractor workforce, which the project relied on day to day, and which was typically in the range of 1500 - 2000 each day.
·Assuming the work stoppages promoted or were intended by the CFMEU to promote its aims in enterprise bargaining, the Action significantly advanced those aims.
·The Action was inherently highly unlikely to have been organised by anyone other than the CFMEU.
The respondent resisted the inferences the applicant asked the Court to make, for reasons including that:
·The presence of persons wearing what appeared to be CFMEU branded clothing, and the existence of CFMEU flags, at the relevant sites, did not mean that the Action was attributable to, authorised by, or organised by the CFMEU. It is not in dispute that the CFMEU sells branded merchandise, including clothing, to members of the public. It followed, for example, that the presence of persons at the respective sites engaging in various conduct was not necessarily at the instigation of the CFMEU, or that such persons were CFMEU delegates or officials for whose conduct the CFMEU was liable.
·The video evidence on which the applicant relied was inconclusive. For example, videos in Exhibits 2(A), 3(A), 4(A) and 5(A) relating to arrival and departure of cement mixer trucks from the Southern Area worksite simply showed that the trucks entered the site despite what appeared to be a marquee and CFMEU flags. The video showed no conduct which could be described as coercive to the truck drivers, and indeed the departure of the three cement mixers with their cement apparently unpoured could be attributed to an inability to pump the concrete because of a staff shortage at the site caused by strike action.
·Although Exhibit 1(A) showed apparent filming or photography of workers arriving at the Albert Street site, and although one of the persons involved in the filming or photography appeared to be wearing CFMEU branded clothing, there was no evidence to suggest that the CFMEU itself had organised or authorised that conduct. Rather, it was open to the Court to find that the conduct was that of a person on the picket line, becoming “carried away” and acting of their own accord.
·The video evidence on which the applicant relied concerned only 3 sites of the 16 sites controlled by the applicant on which there had been industrial action on the relevant dates. Further, the types of conduct occurring at each of the 3 sites was different. If the CFMEU had authorised or organised the relevant conduct, it would have occurred more consistently across all of the 16 sites.
·The Action alleged by the applicant was not unlawful, illegitimate or unconscionable for the purposes of the Fair Work Act provisions relating to coercion. Taking a photograph of a person in a public place or calling someone names is not, per se, unlawful. Picketing is also not of itself unlawful, even if not a protected action. No legal standard of illegitimacy had been identified by the applicant. Further, unconscionability involves taking advantage of a person who suffered a special disadvantage, which was not the case here.
·Organising activities, which was the applicant’s primary complaint against the CFMEU, was not a feature of the tort of interference with contractual relations.
·In respect of the applicant’s contentions concerning s 340 of the Fair Work Act, namely that the CFMEU had engaged in adverse action against the applicant by organising “industrial action” by the stoppage of other employees who work for subcontractors – such a claim was not competent because industrial action can only be taken by employees against their employer : Auimatagi. Further, in the present case the stoppage of work by employees of the applicant was protected action under s 408 of the Fair Work Act.
·The claim by the applicant that a subcontractor had been contacted by the CFMEU and threatened with “blackballing” if it pumped concrete at the applicant’s sites was implausible when considered against the evidence of Mr Jackson Whipps of De Martin & Garparnini, who stated that the alleged threat by the CFMEU to his firm never occurred.
Considering the applicant’s claim of breach of the tort of interference in contractual relations, I am not satisfied that applicant at this stage has made out a serious question to be tried. In particular, I am not satisfied that the applicant has adequately answered the respondent’s submission that the tort does not contemplate organisational conduct of the kind alleged against the CFMEU.
Turning now to the applicant’s claim of a prima facie case of adverse action by the CFMEU against the applicant within the meaning of s 340 and s 342(1) Item 7(a) of the Fair Work Act, the parties characterise the alleged adverse action differently. The applicant submitted that the “adverse action” interfered with the applicant’s workplace right to make an enterprise agreement with its employees, or alternatively interfered with the workplace right of employees of the applicant to work. The CFMEU relied on the decision of the Full Court in Auimatagi as negating the prospect of a claim by the applicant against the respondent for adverse action referable to Item 7(a) of s 342 (1) of the Fair Work Act because it characterised the workplace right by reference to the alleged inability of subcontractors or their employees to work on the applicant’s sites.
“Industrial action” is defined by s 19(1) of the Fair Work Act as including:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
…
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 the Full Court considered issues including whether a union had engaged in industrial action at a construction site in circumstances where pickets had been established and there was evidence that workers were fearful of crossing those pickets in light of alleged communications from the union. The Full Court found in that case, inter alia, that the union had been denied procedural fairness in respect of the conduct of the case and whether the union had actually either engaged in or organised the relevant industrial action.
I do not consider it controversial, however, that organisation of a picket by a union, which either prevents access to the workplace by employees or which constitutes a threat to employees who choose to cross the picket such as to dissuade them from doing so, constitutes “industrial action” within the meaning of s 19(1)(a), (b) or (c) of the Fair Work Act.
I consider that it is likely that the picket lines, which are not disputed, at various sites, at random hours of the day and night, on days which were notified by the CFMEU as work stoppage days, were organised by the CFMEU. I further consider it likely that persons participating in those picket lines, and in conduct including filming, photography, blocking of entry to work sites and name calling, were either delegates or officials of the CFMEU, or were organised in that conduct by the CFMEU. The evidence of Mr Prior that he was informed by Ms Wood of the presence of Mr Dylan Howard at the Albert Street site on 16 July 2024, and the delivery at early hours of the day of supplies including barbeques, shade covers, and eskys, is suggestive of co-ordination and logistical support by an organisation with the resources of the CFMEU, rather than ad hoc activities by individuals sympathetic to the CFMEU’s cause.
Accordingly, I am satisfied at this interlocutory stage that there is a serious question to be tried that the CFMEU has engaged in adverse action against the applicant.
Further, I am satisfied that there is a serious question to be tried in respect of claimed breaches of s 343 and s 348 of the Fair Work Act, referable to the coercive nature of the Action.
First, as I earlier explained, I am satisfied that the CFMEU organised the relevant pickets, in conjunction with claims of name calling and filming/photography. I reject the submission of the CFMEU that filming or photography of workers in an environment where a picket has been established is not of itself unconscionable conduct. As Murphy J observed in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 at 388:
I infer, also, that the first-named defendant has deliberately organized the picket and the activities of those who participate in it, and that it has done so deliberately to interfere with the plaintiff's contractual business activities. Members of the picket and some of the defendants have been seen photographing various drivers from time to time, and their trucks, when they are making delivery to the plaintiff's premises. I infer that this activity is designed to frighten such drivers or their employers into believing that retribution of one sort or another may be wreaked on them if they deliver their goods to the plaintiff, or should they ever return to its premises in order to do so.
More recently I note the decision of the Fair Work Commission in Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd [2017] FWC 5380 where Asbury DP at [201] noted that the use of a mobile telephone to film or photograph vehicles leaving a mine was said to be designed to intimidate the occupants of the vehicles.
The prospect that images of persons entering the relevant sites could be posted on social media sites would, in my view, invariably be intimidatory to those persons. Again, I consider it likely that conduct involving filming or photography of persons entering the sites was pursuant to a strategy of the CFMEU rather than lone individuals.
Second, while I consider that the explanation advanced by the CFMEU for the departure of loaded cement mixers from the Southern Area worksite – namely, the striking of workers on that day – is plausible, that explanation must be weighed against the evidence of Mr Prior concerning alleged threats made by the CFMEU to subcontractors. While Mr Whipps has apparently indicated that his company was not threatened, the applicant presses evidence that an unidentified subcontractor was so threatened. I find it implausible that the applicant would have allowed delivery of fully loaded cement mixers at that site unless it had anticipated the ability to have poured the concrete on that day. The suggestion by the CFMEU that the cement mixers departed without pumping the concrete because of an absence of staff at the relevant site on 16 July 2024 is not persuasive.
Third, the fact that the applicant adduced video evidence of conduct at only three of its sites does not support an inference that the CFMEU was not involved. The evidence of Mr Prior was that there was intimidatory conduct occurring at multiple sites of the applicant. I accept that evidence at this interlocutory stage.
Is damages an inadequate remedy?
There is no contest that the Cross River Rail Project is an infrastructure project of significant proportions in Queensland. Mr Prior has given evidence of the criticality of events referable to the Cross River Rail project over the course of the next week. He has also given evidence concerning the need for construction activity to take place uninterrupted and imminently at the Exhibition Station in light of the upcoming Royal Queensland Show.
While there is no evidence before the Court as to the quantum of losses the applicant will face if there continues to be disruption to its activities at its 16 sites, I am satisfied that the damage suffered by the applicant would be extensive, both financially and reputationally, and that any damages the Court could realistically order against the CFMEU would be an inadequate remedy.
Balance of convenience
The form of orders sought by the applicant is a relevant factor in determining where the balance of convenience lies.
First, I note that, at the hearing, Mr Massy for the respondent submitted that his client did not oppose an order in terms of paragraph 2(a) of the amended interlocutory application, relating to the photographing, recording by any means, or creating or maintaining a record of the identity of, any person or vehicle entering or leaving a construction site of the applicant. For reasons I have already expressed, an order in such terms is plainly appropriate.
Second, paragraph 2(b) of the amended interlocutory application restrains the officers, delegates, employees, or other representatives of the CFMEU from coming within 15 metres of a point of entry of relevant sites, subject to the exceptions listed. In my view the balance of convenience favours this order. I note the submissions of the parties at the hearing that points of entry may move depending on the progress of construction, and that (depending on the site) members of the public may access the sites. Limiting a restraint to the “main” point of entry to a site is fraught with uncertainty in such circumstances, and may practically result in the order being ineffective.
Third, noting the lateness of the hour at which I made the orders on 18 July 2024, 1 hour’s notice by the CFMEU to its officers, delegates, members, employees and other representatives within its Construction and General Division Queensland and Northern Territory Branch, as sought by paragraph 3 of the amended interlocutory application, was plainly inadequate. I also note Mr Massy’s submission that the administrative staff of the CFMEU, who would be responsible for the dissemination of the terms of the order, generally work business hours. In my view the appropriate order is that the relevant order require the CFMEU to take all reasonable steps forthwith, but no later than 9.00am on 19 July 2024, to bring the existence and content of this order to relevant parties. I am satisfied that the CFMEU would be in a position to take steps prior to that time and date to notify its officers, delegates, members, employees and other representatives, particularly noting that the parties were on notice earlier on 18 July 2024 that judgment could be delivered later that evening.
I also consider that it is reasonable for the CFMEU to bring the order to the attention of not only its officers, delegates, employees and other representatives within its Construction and General Division Queensland and Northern Territory Branch, but also its members, as sought by paragraph 3(a) of the amended interlocutory application. Contrary to the concerns expressed by Counsel for the CFMEU at the hearing, the union bringing the Orders of the Court to the attention of the its members does not constitute “direction” by the CFMEU of those members.
Finally, in the circumstances of this case, I consider it reasonable for the CFMEU to direct its officers, delegates, employees and other representatives within the First Respondent’s Construction and General Division Queensland and Northern Territory Branch to comply with not only these orders, but also the orders of Justice Rangiah of 1 May 2024.
CONCLUSION
The applicant has sought an order that the CFMEU notify the Court by midday on 24 July 2024 as to whether it intends to seek the discharge of these orders. Given that Orders were made late on 18 July 2024, it is reasonable that the CFMEU have until midday on 25 July 2024 to make that decision. In the event that the CFMEU seeks to do so, the matter can then be listed forthwith for case management before a duty judge and for the hearing of any application for discharge.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate:
Dated: 19 July 2024
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