Geofabrics Australasia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union and others named in Schedule A

[2018] FWC 1799

[2018] FWC 1799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Geofabrics Australasia Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union and others named in Schedule A
(RE2018/172)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 27 MARCH 2018

Alleged dispute concerning failure to comply with statutory requirements for lawful entry; application to stay or adjourn proceedings; application dismissed.

[1] Geofabrics Australasia Pty Ltd (Geofabrics) has applied under s.505 of the Fair Work Act 2009 for the Fair Work Commission to deal with a right of entry dispute (Commission proceedings). The Construction, Forestry, Mining and Energy Union, now known as the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) together with five named permit holders are said to be respondents to the application.

[2] An application by Geofabrics has also been made under s.142(4)(b) of the Work Health and Safety Act 2011 (Qld) for the Queensland Industrial Relations Commission (QIRC) to deal with a dispute (QIRC proceeding). It is apparent that both proceedings were issued on the same day. There is some, and perhaps not insubstantial, overlap between the two proceedings. In addition to the parties identified as respondents to the Commission proceedings, the QIRC proceeding also identifies the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CFMEUQ) as a party to the dispute. That organisation is registered as an employee organisation under the Industrial Relations Act 2016 (Qld). The Textile Clothing and Footwear Union of Australia (TCFUA) and the CFMEUQ were given permission to intervene in the Commission proceeding.

[3] The CFMEUQ and the individuals named as respondents to the Commission proceedings applied for a stay of the Commission proceedings or alternatively an adjournment pending the hearing and determination of the QIRC proceedings. The application for a stay or adjournment of the Commission proceedings is advanced principally on the basis that commencement and maintenance of the Commission proceedings by Geofabrics is an abuse of process and one that concerns precisely the same subject matter as that which is the subject of the QIRC proceedings. The stay or adjournment is opposed by Geofabrics, the CFMMEU and the TCFUA, which today becomes a deregistered organisation.

[4] I am not persuaded that commencement and maintenance of the Commission proceedings by Geofabrics is an abuse of process. Largely for the reasons advanced by the TCFUA in its submissions, which were also adopted by the CFMMEU, I am not persuaded to stay or otherwise adjourn the Commission proceedings pending the hearing and determination of the QIRC proceedings. The application for a stay or adjournment of the Commission proceedings is therefore dismissed. I will in due course publish full reasons for my decision.

[5] The parties to the Commission proceedings are directed to confer with a view to reaching agreement on appropriate directions for the efficient conduct of the Commission proceedings. The parties are to file in my chambers by 5.00pm on Wednesday, 4 April 2018:

a) consent directions or;

b) if consent on proposed directions is not able to be achieved, each party is to file and serve a draft of its proposed directions together with a short written submission setting out the reasons its proposed directions should be made.

[1] The CFMMEU and the CFMEUQ are to advise my chambers by midday tomorrow 28 March 2018 whether the undertaking recorded in the transcript of proceedings on 7 March 2018 is to be extended until the hearing and determination of the Commission proceedings.

[2] There is liberty given to any party to apply at short notice.

DEPUTY PRESIDENT

Appearances for the purpose of the stay application hearing:

Ms A Coulthard, Counsel for Geofabrics.

Mr H Borenstein, QCfor the CFMEU.

Mr W Friend, QC for the CFMEUQ and second to sixth named respondents.

Mr S Moore, QC for the TCFUA.

Hearing details:

2018.

Brisbane VC to Melbourne.

23 March.

Printed by authority of the Commonwealth Government Printer

<PR601525>

SCHEDULE A

Mr Arturo Menon

Mr John Tucker

Mr Luke Gibson

Mr Matthew Parfitt

Mr Paul Taylor