Crown Construction Services Pty Ltd v Construction, Forestry, Mining and Energy Union-Western Australian Branch

[2012] FWA 9354

[2012] FWA 9354

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.418—Industrial action

John Holland Pty Ltd; Crown Construction Services Pty Ltd
v
Construction, Forestry, Mining and Energy Union-Western Australian Branch
(C2012/5368)

DEPUTY PRESIDENT MCCARTHY PERTH, 31 OCTOBER 2012

Background

[1] On 19 September 2012, John Holland Pty Ltd and Crown Construction Services Pty Ltd (the Applicants) lodged an application pursuant to s.418 (the Application) of the Fair Work Act 2009 (the FW Act) for an order against the Construction, Forestry, Mining and Energy Union - Western Australian Branch (CFMEU) and employees engaged on the Perth Childrens’ Hospital Project (the Project).

[2] The Project involves the building of about 120,000 metres of floor space over two eight to nine story buildings, a five story building and a four story building with a nine story atrium in the middle. The Project currently is still on the ground working on substructure, superstructure and piling. It is planned that a roof would be going on in 18 months to two years. The Project is adjacent to the Queen Elizabeth II Hospital (the QE2).

[3] The order sought was regarding unprotected industrial action asserted to be happening.

[4] I completed hearing the Application on 21 September 2012 and issued an Interim Order (the Interim Order) after finding that industrial action was happening, threatened, probable and was being organised. I had not decided on the term of operation for the Order.

[5] On 26 September 2012, I listed for the following day a Conference to programme for the determination of the outstanding issue namely the term of operation of the Order. Prior to that conference the parties contacted my office and provided an agreed programme. I adopted that agreement. This resulted in a hearing for the outstanding issue of the term of the order being heard on 27 October 2012.

Reasons for the Order

[6] The Project involves the construction of a new childrens’ hospital for the Western Australian Government. The cost of the project is $1,200,000,000. John Holland Pty Ltd (John Holland) is the Managing Contractor for this project. John Holland has engaged a number of subcontractors, including Crown Construction to perform work on the project.

[7] If there are delays in the project John Holland may be subject to liquidated damages of $180,000 per day of delay.

[8] A stoppage of work occurred at the project involving 70 employees on 18 September 2012. The stoppage followed an incident with one of the two tower cranes on the Project. (crane 3) The other crane (crane 1) was commissioned on 28 August 2012.

[9] On 18 September 2012, at about 7.45am the crane 3 crane hook released its load. The crane was in the process of being tested by an employee of Titan Cranes. Titan Cranes was inspecting the crane for the purpose of commissioning it. The employee of Titan Cranes was a rigger. The crane was immediately decommissioned until the cause of the accident was understood.

[10] Comcare have the authority for safety at the project, apparently as a consequence of John Holland being self insured for workers’ compensation purposes at a national level. Three Comcare investigators carried out an investigation at about 9am that morning. They completed the investigation at about 10am.

[11] A discussion then took place between the Construction Director of John Holland, Mr Stephen Chaseling and The Comcare Lead Inspector. It was agreed that it appeared the crane 3 incident had been caused by human error concerning the pin on the hambone retaining pin. Comcare declared that the cranes and area was safe. The area around crane 3 was released by Comcare at about 10:45am.

[12] A crane rigging crew also had carried out an inspection of the crane and found that it was operational and could be used safely. The crane was inspected, repaired and commissioned by Titan Cranes. An inspection was also carried out by a crane inspection company, Plant and Operate Safety Systems (POSS). The inspections were documented and lodged for registration with Worksafe WA.

[13] During and after the Comcare inspection employees attended a meeting with union officials at one of the QE2 hospital car parks. All employees left the site at about 12 noon and refused or ignored directions to return to work.

[14] On Wednesday, 19 September 2012, prior to the start of work, a number of union official met with Mr Chaseling at the main entrance to the project. Mr Steve McCann, the CFMEU Safety Officer insisted that third party certification was reissued for both cranes, implying that employees would not return to work until that was obtained. Mr Chaseling responded that had already been obtained through POSS but the union officials did not accept that, most likely because they asserted that POSS was not sufficiently independent.

[15] Through Mr Roger Ambosino, a director of Crown Constructions Pty Ltd, the union officials were requested to agree that employees should be involved in a pre-start meeting and a process of involvement of the safety committee and Health and Safety Representatives could be undertaken. That was not agreed to. During this discussion some employees had entered the site by other means of access. Two union officials entered the site and told those employees that had entered the site to leave and attend a meeting in the car park.

[16] Mr Ambosino and Mr Chaseling tried to encourage employees to enter the site and attend a pre-start meeting in order that the issues could be discussed. They were unsuccessful with those efforts.

[17] A meeting of union officials and employees occurred in the car park at about 7.00am and ended about 7.30am. Union officials informed Mr Chaseling and Mr Ambosino after the meeting in the car park that employees would not be returning to work. The officials insisted that a third party verification of the safety of the cranes was needed before employees would return to work. That evening subcontractors were requested to contact their workforces and instruct them to attend early on Thursday in order that a pre-start meeting would be held where the issues could be discussed.

[18] On Thursday, 20 September 2012, at about 5:45am, CFMEU officials attended the entrances to the project. Mr Chaseling approached two of those officials and showed them the crane certifications. At about 7.00am a crowd of employees gathered outside the front gate. Mr Chaseling addressed them and informed them of the crane certifications. He requested that they enter the site and attend a pre-start meeting.

[19] A meeting of employees and union officials was held in the car park, after which the employees and officials left.

[20] On Friday, 21 September 2012, from about 6.00am employees and others started to assemble in the car park. A CFMEU vehicle with a trailer and barbecue arrived and other vehicles. About 400 to 500 people assembled in the car park and were addressed by a number of union officials. Importantly in my view there is no evidence of any disruption to the normal access to and egress from the QE2 or to its normal operation.

[21] A union official was heard to state that the CFMEU wants representation on every John Holland site. A statement was also heard to be made by a union official that they would never put a roof on this project. Whilst there is some uncertainty as to which union official made the statements, there is little doubt that it was made by a union official of the CFMEU. Another official was also heard to state that John Holland was a refusing to communicate with him (the union official), that it was an unsafe company and they kill people, and that the only way they would be stopped is if they had constant union representation on every John Holland site.

[22] The officials were likely to be able to be heard fairly clearly as they were using loudspeakers, although there was interference from passing traffic, including buses.

[23] The weather on Friday, 21 September 2012, was inclement. Four of the employees attended the site after the meeting to assist in ensuring that there were proper tie downs and the site was safe. They left after a short period and other employees did not attend work at all on the day.

[24] It was these facts that caused it to appear to me that industrial action was happening, being organised and probable. I issued an order on an interim basis for the reason I outlined above on 21 September 2012.

[25] On Sunday, 26 September 2012, a meeting was held with representatives of John Holland, Comcare, Worksafe WA and Mr McCann. I attended that meeting. The meeting was for the purpose of the Worksafe WA inspectors of having another set of eyes examine the process that was undertaken and make any observations about the assessments undertaken. I have no doubt that had there been some oversight or error that the Worksafe WA inspectors would have drawn that to the Comcare officer’s attention. I also have no doubt that the Comcare officer would have accepted that advice, not as a criticism but rather as a helpful contribution to assist him. I gained the impression that Comcare and Worksafe WA work cooperatively but maintain their professional independence.

Consideration regarding term of the Order

[26] On 26 October 2012, I heard further evidence from Mr Chaseling. He stated that employees had not returned to work on Saturday, 22 September 2012. On Monday, 24 September 2012, employees started arriving at about 6:30am. A meeting was held with union officials for about 15 minutes. Following the meeting employees and entered the site.

[27] A pre-start meeting was conducted and the issues associated with the incident were canvassed. Following the meeting normal work recommenced.

[28] On 27 September 2012, 3 union officials entered the site. Two of those officials had the proper right of entry permits and met the requirements. The official who did not was requested to and did leave the site. I make no adverse inference about that.

[29] On Friday 28 September 2012, a union official lawfully entered the site, and returned later with two other officials, with all three entering the site lawfully, having obtained the required permits. During that visit one of the officials used a megaphone to state that John Holland was hiding the truth. Other than that conduct the visit appears to have been unremarkable.

[30] The Applicant companies seek an order for an extended period as they have a belief that they will be subjected to further unprotected industrial action. They rely on their contentions that the nature of the differences with the CFMEU is not related solely to the crane incident but to other substantive and serious issues relating to representation on site. They also rely on the nature of comments of union officials especially during the meetings in the car park during the industrial action. The Applicants also argue that there appears to be no contrition from the CFMEU and there have been no signals such as undertakings that would change their view.

[31] The CFMEU argue that the dispute was only about the crane incident and concerns held about the safety of employees. They imply that if there had been some greater cooperation by John Holland to get another opinion about the crane then the concerns could have been overcome. They also point out that the Interim Order has been in operation for a fairly extended period already and that no further term is warranted.

[32] The purpose of the orders of the nature involved here are not to provide comfort. It appears to me that is what John Holland is really seeking. Certainly some of the comments by union officials may have been excessive and might create discomfort and suspicions but I do not consider them to have been much more than that. I do not consider they are indicative of a threat that there may be incidents of unprotected industrial action. Of course if there is, then FWA will deal with those incidents should applications be made.

[33] There is one further element of the evidence that causes me some concern. It was stated by Mr Chaseling that a union official stated to him that they (being the CFMEU) do not take any notice of Orders of FWA. I would hope that it not a true reflection of the views of any union official and if it were, I would expect others within the CFMEU to correct that view if it was actually held by the official concerned. It would be especially concerning if it were a view held as this would have the potential for employees subject to Orders to not have an appreciation of the implications of such Orders.

[34] I therefore do not intend to extend the order beyond the terms of operation of the interim order. It is convenient to determine the matter by issuing a final Order with an expiration time of 12 Midnight tonight to determine the matter.

DEPUTY PRESIDENT

Appearances:

Mr S Wood SC with Mr S Billing for the Applicant.

Mr J Nicholas for the Respondent

Hearing details:

2012.

Perth:

October, 22.

Final written submissions:

Applicant: 11 October 2012

Respondent: 18 October 2012

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