Giacci Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (Mining and Energy Division)

[2012] FCA 1525

FEDERAL COURT OF AUSTRALIA

Giacci Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (Mining & Energy Division) [2012] FCA 1525

Citation:		Giacci Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (Mining & Energy Division) [2012] FCA 1525
Parties:		GIACCI BROS PTY LTD (ACN 008 708 361) v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (MINING & ENERGY DIVISION), NORTHERN DISTRICT BRANCH and AUSTRALIAN ELECTORAL COMMISSION
File number:		WAD 286 of 2012
Judge:		BARKER J
Date of judgment:		24 October 2012
Catchwords:		PRACTICE AND PROCEDURE – Fair Work Australia ordered protected action ballot – application for injunctions to prohibit ballot until hearing of appeal – whether prima facie case – construction of union eligibility rules – where balance of convenience lies
Legislation:		Fair Work Act 2009 (Cth) s 437, 459(1)(d), s 606(1), s 606(3) Fair Work (Registered Organisations) Act 2009 (Cth) Judiciary Act 1903 (Cth) s 39B
Cases cited:		Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 1 Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 Construction, Forestry, Mining and Energy Union v Giacci Bros Pty Ltd [2012] FWA 8484 Craig v South Australia (1995) 184 CLR 163 Rescrete Industries Pty Ltd v Jones (1998) 86 IR 269
Date of hearing:	24 October 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	Mr R Lindsay
Solicitor for the Applicant:	Corser & Corser
Counsel for the First Respondent:	Mr S Crawshaw SC
Solicitor for the First Respondent:	Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 286 of 2012

BETWEEN:

GIACCI BROS PTY LTD (ACN 008 708 361)
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (MINING & ENERGY DIVISION), NORTHERN DISTRICT BRANCH
First Respondent

AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	24 OCTOBER 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application including the interlocutory application be dismissed.

2.The applicant to pay the costs of the first respondent to be taxed if not agreed.

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 286 of 2012

BETWEEN:

GIACCI BROS PTY LTD (ACN 008 708 361)
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (MINING & ENERGY DIVISION), NORTHERN DISTRICT BRANCH
First Respondent

AUSTRALIAN ELECTORAL COMMISSION
Second Respondent

JUDGE:	BARKER J
DATE:	24 OCTOBER 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

OVERVIEW

1. On 24 October 2012, I dismissed an application and an interlocutory application for injunctions seeking to prohibit the second respondent from conducting a protected action ballot ordered by Commissioner Roberts in Construction, Forestry, Mining and Energy Union v Giacci Bros Pty Ltd [2012] FWA 8484.

2. At the time, I gave ex tempore reasons for so doing.  These are my edited, extended reasons.

   BACKGROUND

3. By affidavit, Mr Graham McCorry, an industrial relations consultant engaged by the applicant (Giacci), provides a background to the current proceeding.

4. Giacci is a company involved in the business of bulk haulage by road transport.  It has a contract with the Centennial Coal group of companies (Centennial) in New South Wales to transport coal and associated by-products within and between Centennial’s leases, and to and from Eraring Power Station.  For this purpose, Giacci operates a branch office at the Newstan Colliery (Newstan).

5. The first respondent (CFMEU) is a federally registered organisation of employees and a New South Wales transitionally registered association pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth).

6. Between May 2012 and October 2012, Giacci and the CFMEU were in negotiations with the objective of making an enterprise agreement to be approved by Fair Work Australia (as it then was) that would determine the terms and conditions of employment of Giacci’s employees performing work pursuant to Giacci’s contract with Centennial.

7. However, on 17 September 2012, the CFMEU applied to Fair Work Australia, pursuant to s 437 of the Fair Work Act 2009 (Cth) (Act), for a protected industrial action ballot order in relation to Giacci employees based at Newstan who are members of the CFMEU.

8. On 18 September 2012, Giacci lodged a jurisdictional objection to Fair Work Australia making the protected action ballot order.  Essentially, this was on the ground that the CFMEU was not entitled to enrol Giacci employees based at Newstan as members of the CFMEU, as the constitutional rules of the CFMEU do not allow motor truck drivers and others engaged in the transport of goods by road to be eligible for membership of the CFMEU.

9. On 27 September 2012, Commissioner Roberts heard the application for the protected action ballot order and the jurisdictional objection to the making of the order.  On 11 October 2012, his decision was delivered.  Commissioner Roberts found that the CFMEU was entitled to enrol any Giacci employee based at Newstan as a member: Construction, Forestry, Mining and Energy Union v Giacci Bros Pty Ltd [2012] FWA 8484 at [69]. Accordingly, he dismissed the jurisdictional objection by Giacci. Commissioner Roberts ordered that the CFMEU hold a protected action ballot of Giacci employees based at Newstan, with the ballot to be conducted by the second respondent (AEC).

10. On 21 October 2012, Giacci lodged an appeal against the decision of Commissioner Roberts with Fair Work Australia.

11. On 24 October 2012, the current proceeding was commenced. Pursuant to s 39B of the Judiciary Act 1903 (Cth), Giacci seeks to prohibit the AEC from conducting the protected action ballot ordered by Commissioner Roberts until the hearing and determination of the appeal from Commissioner Roberts’ decision to the Full Bench of Fair Work Australia. In terms of interlocutory relief, Giacci seeks to prohibit the AEC from conducting the protected action ballot until further order.

12. On 24 October 2012, I heard the application for the interlocutory relief.

    GIACCI’S SUBMISSIONS

13. First, Giacci submits that it has a prima facie case on the ground that Commissioner Roberts committed a jurisdictional error by misconstruing the constitutional rules of the CFMEU: Craig v South Australia (1995) 184 CLR 163 at 179.

14. Giacci notes that the majority of Giacci employees based at Newstan were employed as motor truck drivers.  Rule 3(A) of the Rules of the Construction, Forestry, Mining and Energy Union, Mining and Energy Division states that “The Division shall consist of an unlimited number of employees, otherwise eligible for membership of the Union who are engaged in or in connection with the Coal and Shale Industry”.  However, there is a proviso in Rule 2(E)(a) of the Rules of the Construction, Forestry, Mining and Energy Union which states that “motor truck drivers wherever employed, shall not be eligible for membership”.  Giacci submits that the phrase “otherwise eligible for membership” in Rule 3(A) qualifies the sub-rule, and that when Rule 3(A) is read with Rule 2(E)(a) it is apparent that Giacci employees based at Newstan are not eligible for membership of the CFMEU.

15. Secondly, Giacci submits that the balance of convenience favours the granting of an injunction.  Giacci contends that, based on Mr McCorry’s experience in dealings with the CFMEU over the past 20 years, he expects that a protected action ballot conducted of CFMEU members would result in an affirmative vote and that industrial action would take place.  Mr McCorry deposes that should such industrial action be unprotected as a result of the ballot being invalid, and Centennial suffer loss and damage by reason of Giacci not being able to deliver coal to Centennial’s clients, he would expect legal action to be taken by Centennial against the Giacci employees responsible, to the detriment of the employees, the CFMEU and Giacci.

    CFMEU’S SUBMISSIONS

16. The CFMEU submits that Giacci does not have a prima facie case.  It submits that a decision of the Full Court of the Federal Court, Rescrete Industries Pty Ltd v Jones (1998) 86 IR 269 (Rescrete), is authority for the proposition that an exception in one sub-rule of the CFMEU’s eligibility rules is not an exception to the other sub-rule.  That is, that Commissioner Roberts did not commit an error in construing the constitutional rules of the CFMEU in the manner that he did.

17. The CFMEU also contends that the balance of convenience does not favour the granting of an injunction.

18. In this regard, first, the CFMEU submits that pursuant to the Act employees are given the right to take protected industrial action and the orders sought would infringe that right.

19. Secondly, the CFMEU submits that s 606(3) of the Act displays a legislative intent that there should not be a stay of a protected action ballot order. Section 606 of the Act relevantly provided that:

    (1)If, under section 604 or 605, [Fair Work Australia] hears an appeal from, or conducts a review of, a decision, [Fair Work Australia] may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that [Fair Work Australia] considers appropriate, until a decision in relation to the appeal or review is made or [Fair Work Australia] makes a further order.

    …

    (3)This section does not apply in relation to a decision to make a protected action ballot order.

20. Thirdly, the CFMEU submits that the lateness of Giacci’s application to the Federal Court (being 13 days after Commissioner Roberts’ decision was delivered) is a factor which weighs against the granting of an injunction.

21. Finally, the CFMEU notes that the interlocutory relief sought by Giacci is not sought to protect any other relief.  This, in the CFMEU’s submission, is reason by itself for the interlocutory injunction not to be granted: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [8] (Gleeson CJ), [60] (Gaudron J), [91] (Gummow and Hayne JJ).

    CONSIDERATION

22. The principles relevant to the grant of an interlocutory injunction are well settled.  An applicant must show that it has a prima facie case and that the balance of convenience favours the granting of the relief sought: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]-[72] (Gummow and Hayne JJ).

23. It appears that Commissioner Roberts found on the facts before him that employees of Giacci based at Newstan are entitled to membership of the CFMEU pursuant to Rule 2(D) of the Rules of the Construction, Forestry, Mining and Energy Union: Construction, Forestry, Mining and Energy Union v Giacci Bros Pty Ltd [2012] FWA 8484 at [56]-[70]. Rule 2(D) provides:

    Without limiting the generality of the foregoing and without being limited thereby an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members are eligible to be members of the Union.

24. I accept that it may be arguable that the wrong construction has been arrived at by Commissioner Roberts.  In construing any provision, including the rules of an organisation like the CFMEU here, it is necessary to have regard to the text, but it is also important to have regard to context and purpose.

25. However, it seems to me that the approach of the Full Court in Rescrete is relevant here.

26. The application in Rescrete arose from a proceeding in the Australian Industrial Relations Commission (Commission) which concerned an alleged industrial dispute flowing from the service of a letter of demand and a log of claims on Rescrete Industries Pty Ltd (Rescrete Industries) and other employers by the CFMEU.  Commissioner Jones initially determined two issues raised by Rescrete Industries.  The first was whether the log had been served in accordance with procedures in the rules of the CFMEU.  The second was whether the eligibility rules of the CFMEU comprehended employees of the type employed by Rescrete Industries.  Commissioner Jones held that the log had been authorised and that the CFMEU did have coverage of the employees.  The Full Bench of the Commission dismissed an appeal by Rescrete Industries.  That decision then led to the proceeding before the Full Court of the Federal Court, in which Rescrete put in issue the jurisdiction of the Commission on the basis that no dispute existed between it and the CFMEU because the eligibility rules of the CFMEU did not comprehend its employees.  The rules in question were Rule 2(A)(A)(3)(i) and Rule 2(A)(A)(3)(ii) of the Rules of the Construction, Forestry, Mining and Energy Union.

27. The Full Court dismissed the application.  In the course of their reasoning, O’Connor and Moore JJ (with whom Beaumont J agreed) noted, at 275, that the “CFMEU is an amalgamation of a number of organisations and, generally, its eligibility rules are a pastiche of the eligibility rules of the organisations that have amalgamated to form it”.  Later on, at 281, their Honours considered a submission made by counsel for Rescrete Industries that the meaning of Rule 2(A)(A)(3)(i) should be construed having regard to Rule 2(A)(A)(3)(ii).  O’Connor and Moore JJ said:

    As a matter of general principle, documents should be construed having regard to the documents as a whole as should the eligibility rules of a registered organisation see eg R v Gough; Ex parte The Municipal Officers’ Association of Australia (1975) 133 CLR 59 at 69. However the eligibility rules of the CFMEU came about, as earlier noted, by the amalgamation of a number of organisations. Its eligibility rules are therefore an aggregation of the eligibility rules of its constituent parts. Subparagraph (ii) represents the eligibility rules of what used to be the Operative Plasterers Federation of Australia which contained the exception and the limited reference to terrazzo work. Subparagraph (i), on the other hand, represents the eligibility rules of what used to be the Building Workers’ Industrial Union of Australia. It is unlikely that the amalgamating organisations intended that the hitherto unqualified provision in the Building Workers’ Industrial Union of Australia’s eligibility rules concerning employees engaged in the preparation and/or erection of terrazzo or similar compositions was to be qualified by the exception in, and the more limited scope of, the eligibility rules of the Operative Plasterers Federation of Australia. Accordingly the words in subpar (i) are to be given their ordinary meaning and their scope is not limited by the language of subpar (ii).

28. It is apparent that similar reasoning would appear to be applicable in the present case.  That is, it seems to me that the words in Rule 2(D) of the Rules of the Construction, Forestry, Mining and Energy Union should be given their ordinary meaning, and their scope not limited by the language of Rule 2(E)(a).

29. Therefore, while I accept that there is something to argue about on the appeal to the Full Bench of Fair Work Australia, and I do not make any final findings about that, I am not minded to describe the argument put by Giacci as a particularly strong one.

30. Turning to balance of convenience factors, I note that the only evidence put on behalf of Giacci is that, based on Mr McCorry’s experience in dealings with the CFMEU over the past 20 years, he expects that a protected action ballot conducted of CFMEU members would result in an affirmative vote and that industrial action would take place, with adverse consequences for a number of parties.

31. There is, it must be said, not unreasonably, a fair amount of predictive assessment in what has been said by Mr McCorry. It is clear that while an order has been made in respect of a protected action ballot it is not yet clear that it would be supported. One can perhaps assume that for present purposes it will be, but it is also not entirely clear if protected action would then be taken. Again, it might be that Mr McCorry is right and there is some reason to think that it would be and that it would be taken within the period specified pursuant to s 459(1)(d) of the Act.

32. However, all this leads me to consider that, while there is some prospect of action that might have some adverse effects, when one combines the level of information available to the Court about whether the vote will be affirmative and whether there will be protected action necessarily taken, with the apparent strength of the argument put by Giacci, this is not a case where the Court should exercise its discretion to grant the interlocutory injunction.

33. Finally, I also note that it seems to me that s 606(3) of the Act indicates a broad intention by the Parliament that, as far as possible, industrial matters ought to be resolved according to the rules exhaustively laid down in the Act.

    CONCLUSION AND ORDERS

34. At the hearing, Giacci conceded that if the application for interlocutory relief were dismissed then the originating application should also be dismissed, as there was no other substantive relief being sought.

35. Therefore, the appropriate orders are that the application and the interlocutory application be dismissed. Further, as this was not an application under the Act it is also appropriate that Giacci pay the CFMEU’s costs, to be taxed if not agreed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated:        7 June 2013