Crown Construction Services Pty Ltd & Stuttgart Assets Pty Ltd Ta Westcoast Formwork v Construction, Forestry, Mining and Energy Union

[2013] FWC 1042

[2013] FWC 1042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

John Holland Pty Ltd; Crown Construction Services Pty Ltd & Stuttgart Assets Pty Ltd TA Westcoast Formwork
v
Construction, Forestry, Mining and Energy Union
(C2013/2848)

DEPUTY PRESIDENT MCCARTHY PERTH, 19 FEBRUARY 2013

Application for an order regarding unprotected industrial action. Order for term of six months issued.

[1] On 25 January John Holland Pty Ltd, Crown Construction Services Pty Ltd and Stuttgart Assets Pty Ltd TA Westcoast Formwork (the Applicants) lodged an application for an Order to stop industrial action.

[2] I heard the application on that day. It appeared to me then that industrial action was happening and that further industrial action was threatened, impending or probable and was being organised.

[3] The Applicants sought an Order for a term of six months. It was not practicable for me to determine the term of the Order within the time prescribed by the Fair Work Act 2009 (the FW Act). I therefore was obliged to and did issue an Interim Order (the January Interim Order). I relisted the matter for further consideration of the term of the Order and dealt with that issue on 4 February.

[4] The Construction Director of John Holland, Mr Stephen Chaseling gave evidence on 25 January 2013 and again on 4 February 2013. He was not cross examined. Evidence was not produced from any other witnesses.

[5] On a previous occasion (21 September 2012) I issued an Interim Order, (the September Interim Order) for industrial action to stop and not occur.  1 It was requested at that time to issue an Order for a term of six months but I declined to do so for reasons outlined in my Decision. 2

[6] The January Interim Order was issued on 25 January 2013.  3 After that Order issued some employees were expected to attend for work on 26 and 27 January but did not do so. All employees were expected to attend for work on 29 January but not all employees did attend. On 30 January employees did not present for work at the expected time and some did not present or were obstructed from attending at a later time.

[7] Conduct involving CFMEU officials are matters I have taken into account in determining the term of the Order. Here various officials appear to me to have been involved in conduct that was clearly intended to intimidate employees. This included officials of the CFMEU physically preventing employees from entering the site. That conduct occurred not only before but also after the January Interim Order was issued.

[8] It also appears to me that the CFMEU has on multiple occasions not complied with obligations under the FW Act. This occurred on 29 October 2012, 20 November 2012, 11 December 2012, 21 January 2013 and 22 January 2013.

[9] On 21 January 2013 the entering of the site without authority were orchestrated and deliberate actions by CFMEU officials. On that occasion about ten officials or representatives of the CFMEU entered the site without permission or authority at about the same time at multiple points by either scaling or pushing through barriers and fencing.

[10] There has been no evidence sought to be given by the CFMEU, nor any real contest of the evidence that the Applicants have provided.

[11] Taking all of these matters and the evidence of Mr Chaseling as a whole into account it now appears to me that there is a probability of further unprotected industrial action occurring. I have little confidence that there will now be a period without the site being exposed to further unprotected industrial action

[12] A longer than usual term of an Order might help establish a period of stability and an environment where differences can be dealt with in a more orderly and less disruptive fashion. It also appears to me that an Order for a substantial period of time should help establish an environment for greater stability and more appropriate means of dealing with disputes or grievances.

[13] I therefore determine that an Order for a term of six months should issue.

DEPUTY PRESIDENT

Appearances:

Mr R Hooker (25 January), Mr S Wood SC and Mr Felman (4 February) for the Applicant

Mr J Nicholas for the Respondent

Hearing details:

2013

Perth.

January 25, February 4

Final written submissions:

Applicant 12 February 2013

Respondent 8 February 2013

 1   PR529528

 2   John Holland Pty Ltd & Crown Construction Services v CFMEU [2012] FWA 9354

 3   PR533574

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