Director, Office of the Fair Work Building Inspectorate v McDonald
[2011] FCA 1546
FEDERAL COURT OF AUSTRALIA
Director, Office of the Fair Work Building Inspectorate v McDonald
[2011] FCA 1546
Citation: Director, Office of the Fair Work Building Inspectorate v McDonald [2011] FCA 1546 Parties: DIRECTOR, OFFICE OF THE FAIR WORK BUILDING INSPECTORATE v JOSEPH MCDONALD AND CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION File number: WAD 266 of 2011 Judge: GILMOUR J Date of judgment: 5 July 2011 Legislation: Building and Construction Industry Improvement Act 2005 ss 38, 44, 49
Federal Court of Australia Act 1976 (Cth) s 23Date of hearing: 5 July 2011 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr J L Bourke SC Solicitor for the Applicant: Clayton Utz Counsel for the First and Second Respondents: Ms K Vernon Solicitor for the First and Second Respondents: Construction, Forestry, Mining and Energy Union
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 266 of 2011
BETWEEN: DIRECTOR, OFFICE OF THE FAIR WORK BUILDING INSPECTORATE
ApplicantAND: JOSEPH MCDONALD
First RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
5 JULY 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Until the hearing and determination of this proceeding or further order each of the Respondents (whether by their officers, employees, agents or howsoever otherwise) be restrained from:
(a)preventing, hindering and/or interfering with access to or egress from the construction site known as the Queens Riverside Apartments at 36 Adelaide Terrace, Perth in Western Australia (Site) of persons or vehicles seeking such access or egress;
(b)organising, maintaining, encouraging, procuring and/or participating in a picket at the entrance or exits to the Site or within 100 metres of such entrance or exits;
(c)attending, organising, encouraging, directing and/or procuring any person or persons, to attend, within 100 metres of any entrance or exit to the Site, save for such entry to the Site as may be authorised by law pursuant to the provisions of Part 3-4 of the Fair Work Act 2009, or for the purpose of using a public road for reasons unconnected with the Site;
(d)issuing any media release or making any statement to the media or conducting any media interview concerning Diploma Group Limited and/or Diploma Construction (WA) Pty Ltd's (collectively referred to as Diploma) conduct of its business at the Site;
(e)encouraging, persuading, directing and/or procuring any person (including any employee, sub-contractor or contractor) who performs work at the Site to:
(i)fail or refuse to attend for work at the Site;
(ii)refuse to perform any work after attending the Site;
(iii)leave the Site when required to perform work at the Site; and/or
(iv)perform work at the Site in a manner different from the way in which the person customarily performs work at the Site -
save and except where such conduct in (i) to (iv) above is authorised and/or agreed to in advance and in writing, by the employer or contractor of any worker, or such conduct is based on a reasonable concern held by a worker about an imminent risk to their health or safety and the worker did not unreasonably fail to comply with a direction of their employer or contractor to perform other available work, whether at the same or another workplace, that was safe to perform.
2.Until the hearing and determination of this proceeding or further order the first respondent be restrained from entering any construction site in Western Australia where Diploma is the head building contractor unless with the written consent of Diploma.
3.The application be otherwise adjourned for an interlocutory hearing on 25 and 26 July 2011 at 10.15 am.
4.Costs reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 266 of 2011
BETWEEN: DIRECTOR, OFFICE OF THE FAIR WORK BUILDING INSPECTORATE
ApplicantAND: JOSEPH MCDONALD
First RespondentCONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Second Respondent
JUDGE:
GILMOUR J
DATE:
5 JULY 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
These are the edited ex tempore reasons delivered in this matter on 5 July 2011.
Since I delivered my reasons, leave was granted to substitute “Director, Office of the Fair Work Building Industry Inspectorate” as the applicant in these proceedings in the place of the “Australian Building and Construction Commissioner”. I have edited these reasons accordingly.
An application has been filed by the Director, Office of the Fair Work Building Industry Inspectorate (the Building Regulator) against Mr Joseph McDonald, as first respondent, and the Construction, Forestry, Mining and Energy Union (CFMEU), as the second respondent. It alleges causes of action pursuant to ss 38, 44 and 49 of the Building and Construction Industry Improvement Act 2005 (the Act). It also seeks injunctive relief pursuant to ss 39 and 49 of that Act, and alternatively, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). It seeks interim injunctive relief until its application for interlocutory injunctive relief can be heard. In the ordinary course, such an application for interim interlocutory injunctive relief would be granted, but generally for no more than a day or two.
I mean no criticism of any of the parties, but simply observe that for several reasons, in order for there to be a meaningful hearing in relation to an application for interlocutory injunctive relief, such cannot occur until 25 July at the earliest. The application for injunctive relief is supported by two affidavits of John Mosegaard Norup, affirmed on 4 and 5 July 2011 respectively, and an affidavit of Samuel Robert Di Latte, affirmed on 5 July 2011. I have had the benefit of oral submissions from senior counsel for the applicant and counsel for each of the first and second respondents. The applicants have filed a minute of proposed orders, dated 5 July 2011, setting out the orders which they seek on an interim basis.
Following a reasonably lengthy adjournment which I granted to enable the respondents to take instructions, I was informed that the respondents would consent to orders being made on an interim basis in terms of Orders 1(a) and (e) as well as Orders 3 and 4 of the applicant’s minute of proposed orders. The parts of Order 1 in particular which the respondents oppose, in part concern an issue of law concerning how a picket is to be characterised under the Act and whether or not it is unlawful industrial action. It would be unsatisfactory for me to attempt to resolve that question and I should therefore be careful not to draft orders or permit orders which might see that as an argument later used as something said to be an exception to what is otherwise a “general restraint” set out in 1(e) of the proposed orders.
There is then, also the question of whether it ought be 50 metres or 100 metres. Perhaps the greatest attention has been paid by counsel for the respondents to 1(d) which concerns the issuing of media releases or the making of statements to the media or conducting media interviews by any of the respondents concerning Diploma Group Limited and/or Diploma Construction (WA) Proprietary Limited concerning its conduct of its business at the site. The way that it is put at this stage by the applicant, the Building Regulator, is, on the evidence, that there have been both instances of misinformation by Mr McDonald to members of the media as well as threats of a continued media campaign as part of an overall industrial campaign by the CFMEU to force Diploma to enter into a particular kind of industrial agreement.
The view that I take of the allegations, as I have foreshadowed earlier, is that if ultimately established, they demonstrate, at least, unlawful industrial action and possibly, more than that is of a very serious nature indeed, involving, as it does, allegations of threats and intimidation, including threats of actual physical violence. Part of the evidence describes what may transpire to be a campaign, as I have said, against Diploma in the media, advanced by serious misinformation disseminated in the media. The affidavit of Mr Norup instances what are said to be illustrations of what has actually occurred and which are said to contain serious misinformation which is highly prejudicial to Diploma.
These include, importantly, threats to which Mr Norup deposes that, amongst other things – and I am here referring to para 50 of Mr Norup’s affidavit – on oath that on 27 June, McDonald said to him that:
The CFMEU would target the Project –
referring to Diploma’s project in Adelaide Terrace –
including in the media, until such time as Frasers –
that is the developer –
[comes] to see Diploma as a marketing and construction risk and give Phase Two of the Project to a unionised builder.
I am informed that Phase Two of the construction has already been put to tender. This is not, as was submitted by counsel for the defendants, some attempt to prevent the CFMEU or Mr McDonald, either in his capacity as the secretary of that union or in a private capacity, from talking to the media concerning his or its political views. The order that is sought is to restrain the respondents from issuing media releases concerning Diploma’s conduct of its business at the site. The dissemination of information concerning that to date, has, in every respect and on every occasion, been of a highly adverse nature and it is information which the Building Regulator contends is part of the overall unlawful industrial campaign which is being conducted by the CFMEU and by Mr McDonald.
I am satisfied on the evidence to date and for present purposes that there is a proper basis to make the orders sought by the Commissioner. As I have said, these would ordinarily be orders that had a currency of only a few days. However, through no one’s fault, circumstances are such that that will be a rather more extended period.
So I will make orders in terms of Orders 1 and 2 of the applicant’s proposed minute. In relation to Order 3, I will order that the application be otherwise adjourned for an interlocutory hearing on 25 and 26 July 2011. I will also make orders in terms of Order 4.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 31 August 2012
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