Grocon Constructors (QLD) Pty Ltd v CFMEU
[2012] FMCA 1062
•24 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GROCON CONSTRUCTORS (QLD) PTY LTD v CFMEU & ORS | [2012] FMCA 1062 |
| INDUSTRIAL LAW – Building and construction industry – industrial action – counselling or procurement of employees not to work – application for interlocutory injunction – injunction only to restrain unlawful action – dispute ongoing – effect of industrial action on third parties – interim relief granted. |
| Fair Work Act 2009 (Cth), ss.19, 417, 545 |
| Toll Transport Pty Ltd (t/as Toll Customised Solutions) v National Union of Workers [2012] VSC 316 Spry, I. C. F., The Principles of Equitable Remedies (Lawbook Co., 8th ed, 2010) |
| Applicant: | GROCON CONSTRUCTORS (QLD) PTY LTD |
| First Respondent: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
| Second Respondent: | AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES & BUILDERS LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
| Third Respondent: | COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA |
| File Number: | BRG 754 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 24 August 2012 |
| Date of Last Submission: | 24 August 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.M. Goot |
| Solicitors for the Applicant: | Freehills |
| Counsel for the First Respondent: | Mr J.W. Merrell |
| Solicitors for the First Respondent: | Hall Payne Lawyers |
ORDERS
That the First Respondent be restrained until further orders of the Court, whether by itself, its servants or agents or officials howsoever otherwise from:
(a)Organising industrial action at the Applicant’s Elizabeth Street project, at 55 Elizabeth Street, Brisbane (Site); and/or
(b)Counselling or procuring any employee or agent of the Applicant, or an employee or agent of a contractor of the Applicant, not to work upon the Site.
That each party to have liberty to apply on 2 hours’ notice to each other party.
That costs be reserved.
That this Order shall be served on the Respondents by emailing an electronic copy of the Order to the First Respondent’s lawyers – Hall Payne Lawyers.
That the further hearing of the Applicant’s claim for interim relief be adjourned until 10am on 6 September 2012.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 754 of 2012
| GROCON CONSTRUCTORS (QLD) PTY LTD |
Applicant
And
| CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION |
First Respondent
| AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES & BUILDERS LABOURERS FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
Second Respondent
| COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING & ALLIED SERVICES UNION OF AUSTRALIA |
Third Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
This application has come on urgently today, following industrial action on the applicant’s building site at 55 Elizabeth Street, Brisbane. The industrial action has involved both the first and second respondents, however today the applicant only seeks interim orders against the first respondent. Because of the short notice necessarily involved in the making, service and hearing of this application, only interim orders are sought. The first respondent appears by counsel but it is agreed that despite his appearance, the circumstances are such that the first and second respondents have not had adequate time to do more than appear or, in the case of the first respondent, appear and make submissions.
Consistent then with Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[1] and the remarks made by Jessup J, I propose to proceed to hear the application on an interim basis only.
[1] (2009) 178 IR 458.
The applicant seeks interim orders in terms of its submitted draft. The orders sought are only against the first respondent and they are substantially in the same terms as the final orders detailed in its application. In summary, the relief which the applicant seeks is for the granting of an interim injunction to restrain the first respondent from organising industrial action on the site and/or counselling or procuring any employee or agent of the applicant or their contractors not to work upon the site. It is accepted by the applicant that the relief sought is in the nature of interim relief and it is upon that premise that I proceed to determine the application.
I will deal first with the background to the matter. On 16 May 2012, the applicant and the first respondent entered into the Grocon Contractors (Queensland) Pty Ltd (General Building and Construction) Enterprise Agreement 2011-2015.[2] In particular, the following clauses are relevant:
[2] Exhibit 1.
a)Clause 1.2 provides that the parties and persons bound by the agreement are:
i)Grocon Constructors QLD Pty Limited (ABN 32 120 476 495) (the applicant);
ii)employees of Grocon Constructors QLD Pty Limited;
iii)the Construction, Forestry, Mining and Energy Union, Queensland Construction Workers Divisional Branch (CFMEU) (the first respondent); and
iv)Queensland Builders Labourers Divisional Branch (BLF) (the second respondent).
b)The scope of the agreement is provided for in clause 1.3. It is to “apply exclusively to all Employees of Grocon engaged on general building and construction projects within Queensland who are eligible to be members of the Unions which are party to the agreement.” It follows that the scope includes employees on this worksite, which is located at 55 Elizabeth Street, Brisbane.
c)Clause 1.6 provides that the duration of the agreement is as follows:
“This Agreement will commence 7 days after it is approved by Fair Work Australia and remain in force until 30 June 2015. This agreement shall continue to apply beyond its nominal expiry date until replaced or terminated, in accordance with the [Fair Work Act 2009 (Cth) (FW Act)].”
The first page of the agreement shows that it was approved by Fair Work Australia on 16 May 2012. There is no argument that the agreement was not operative at the time of these events, its nominal expiry date being 30 June 2015.
By reason of those facts, s.417 of the FW Act relevantly provides:
“Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a) an enterprise agreement is approved by FWA until its nominal expiry date has passed; or
(b) a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The persons are:
(a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Injunctions and other orders
(3) If a person contravenes subsection (1), the Federal Court or Federal Magistrates Court may do either or both of the following:
(a) grant an injunction under this subsection;
(b) make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
…”
It is worth noting that the sort of relief sought today, although an injunction, can also include relief under s.545, which invokes civil remedy provisions.
The applicant is a person who may apply, in terms of s.417(4). So far as the term “industrial action” is concerned, s.19 defines it to mean:
“Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
…”
In this instance, Helen Smith was the project general manager of the Grocon Group. She is currently the Project General Manager of the Elizabeth Street project. Her duties as Project General Manager are to ensure that:
a)the project is delivered;
b)profitably; and
c)to manage stakeholder relations.
She reports to John Wilson, who is the “General Manager – Delivery – Australia.” She gives evidence of the nature of the project, employees and subcontractors employed on the site. Further, she notes that the date for practical completion of the work is May 2013 and that the project is in the structural stage. The structure has been constructed up to level 15 of 15 floors and the central lift core has been cast up to that level.
In her affidavit she refers to the date of 22 August 2012. She says that she was informed by Mark Gaskin, who was the “Project Manager of the Site,” that at about 6:15am on that day, Gaskin saw Chad Brogdan (an organiser of the BLF) and Mr Dean Kupsch (who he knew to be a site delegate and member of the BLF) on the site. She also says that Mr Brogdan said that he saw Andrew Sutherland on the site (who is an organiser of the CFMEU) and Trevor Zeltner (who he knew to be a site delegate and member of the CFMEU). She says that Gaskin also reported to her that he saw a fifth gentleman on the site who was wearing a CFMEU jacket and a high visibility shirt, but he did not know the identity of that person.
She was told by Gaskin that Shaun Hooper, who is the manager of the site, had a conversation with him and informed him that the CFMEU were on the site. Upon inquiring as to why, he was told that they were there “to hold a full site meeting.”
She says Gaskin then told her that he had approached Brogdan and the following conversation occurred:
“Gaskin: “Why are you here? What is going on?”
Brogdan: “We’re having a meeting with workers because of what’s going on between Grocon and the unions on [sic] Melbourne.”
Gaskin: “What’s going on in Melbourne?”
Brogdan: “There are industrial issues relating to union delegates on site and union clothing and right of entry. I have to go have the meeting now.””
She says that she was informed by Gaskin that he then observed the CFMEU and BLF delegation head towards the lunchroom in the basement of the site office. She was further informed by Gaskin that, to the best of his knowledge, all the workers on the site attended the meeting. Gaskin also said that, at the end of the meeting, he was approached by Brogdan, Kupsch, Sutherland, Zeltner and the unidentified man in the CFMEU jacket and high visibility shirt. Brogdan said words to the effect of, “the men have voted to go out in support of union movement and workers in Melbourne.”
The Melbourne incident spoken of is a dispute between the first respondent and another element of the Grocon group of companies relating to a building site in the central business district of that city.
Smith was further informed that Kupsch then said words to the effect of, “they will return tomorrow and advise what is happening in Melbourne.” She says that she was then informed that the workers walked off the site at approximately 7:45am, and that those workers included 13 Grocon employees. She says she was also informed by Gaskin that the subcontractors’ employees who were on the job also ceased working. They included employees of:
a)Fairfield Services Pty Ltd;
b)LCR Lindores Group Pty Ltd;
c)Stowe Australia Pty Ltd;
d)Kone Elevators Pty Ltd;
e)Yuandanda Australia Pty Ltd;
f)Julview Pty Ltd trading as Priest & Co Bricklayers;
g)Siganto & Stacey Pty Ltd;
h)Wideform Pty Ltd;
i)Premier Fire Pty Ltd; and
j)NWCI Pty Ltd.
She goes on to refer to 23 August 2012. She says that she had a further conversation with Gaskin, who told her that he arrived at the site at 5:00am. He said that at about 6:15am he saw Brogdan and the same person who had attended the site the on 22 August. He was later identified to Gaskin as an organiser of the CFMEU by Kupsch. She was informed that Brogdan and the organiser held a meeting with workers from 6:30am until 6:45am on the site.
She says that Gaskin told her that when the meeting was finished, he approached a group of employees and said words to the effect of, “what’s going on?” He was told by Kupsch words to the effect of “the situation has not changed. But if we (the unions) aren’t on site first thing tomorrow morning the issue has been resolved and work is to resume as normal.” She then says that Gaskin then told her that he had asked Zeltner and Kupsch, “where is the union?” to which they replied, “they have left the Site as they had to go to another site.”
She was then informed by Gaskin that he had approached a number of Grocon employees and said them words to the effect of, “are you guys aware that this is an illegal stoppage and because you are involved in this, you’ll have issues to deal with?” She says Gaskin told her that the same workers that had walked off the site on 22 August 2012 walked off again on 23 August 2012.
Although there is no direct evidence on the matter, it appears from the submissions made that the dispute between Grocon and the CFMEU in Melbourne concerns an enterprise agreement. It has been the subject of proceedings in the Supreme Court in Victoria and injunctions issued initially on 17 August 2012. They were enlarged on 21 August 2012 and again on 22 August 2012. Copies of those injunctions are annexed to the affidavit of Rebecca Ruth Taumalolo.[3] The injunctions are of a kind similar to that being sought today, and they relate to specific sites in Collins Street, Melbourne and McNab Avenue, Footscray.
[3] Filed 24 August 2012.
It appears that at about the same time as the action was being taken in Queensland there had been orders granted in the Supreme Court of Victoria. Again, by reference to submissions made from the bar table, it appears that those proceedings are not only live but ongoing in the sense that I was informed that there is proceeding today in the Supreme Court of Victoria relating to contempt of those orders. This suggests to me that not only is the dispute, which gave rise to the original relief, a matter which is contested, but that there is an ongoing dispute even in respect of the relief which was granted.
Perhaps what is most significant, however, is that this industrial action came as some surprise to the applicant. The applicant’s position is that there was no notice or other basis upon which it could reasonably anticipate that the action was to be launched. However, it is to be noted that the action ceased today, although as Mr Goot (for the applicant) says, it would seem that the respondent’s conciliatory conduct is really something of a tactical retreat. The applicant contends that the respondent only ceased the action because it filed its application seeking these orders.
Accordingly, the applicant says that despite the respondent having ceased to undertake the industrial action, which it contends is unlawful, it ought be granted the relief on a quia timet basis, and that its basis for such relief is justified:
a)An injunction would occasion no practical inconvenience to the first respondent;
b)An injunction would not serve to deny to the respondent a right to do something it could otherwise lawfully do;
c)The injunction it granted would only serve to restrain the first respondent from undertaking something which is otherwise unlawful for it to do; and
d)In relation to the impact of the conduct upon third parties and on the applicant itself, the general balance of convenience favours the applicant, particularly in the absence of any evidence of prejudice to the first respondent.
It is plain that the respondent has had little time to prepare a response to the application. However, notwithstanding that, it contends that the relief ought not be granted because the industrial action has now ceased and there is no actual need for an order. It further contends that there is no clear evidence to demonstrate any likelihood of further industrial action. Consequently it submits that there is no real basis for quia timet relief because there is nothing to show that there is any risk of future infringement.
In that regard, it submits that, in many respects, the application is similar to the application which came on before the Supreme Court of Victoria in Toll Transport Pty Ltd (t/as Toll Customised Solutions) v National Union of Workers.[4] That matter was decided on 25 July 2012. Ultimately however, this application is one which has to be decided with regard to its own particular facts.
[4] [2012] VSC 316.
As was noted by Dr Spry in the eighth edition of his text The Principles of Equitable Remedies,[5] at page 380:
“… the criterion by which the degree of probability of future injury must be established is not fixed or invariable but rather depends on the various other relevant circumstances of the case. Hence the greater the prejudice or inconvenience that may be caused by the apprehended injury, if it occurs, the more readily will the court intervene despite uncertainties and deficiencies of proof…it has been said by Russell LJ that “the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances.” The court will take account of all relevant matters and will make such orders as appear most just in view of the various interests of the parties and of third persons.”
[5] I. C. F. Spry, The Principles of Equitable Remedies (Lawbook Co., 8th ed, 2010).
As I have noted, the first respondent particularly relies upon the decision of Toll. However, for reasons that I will outline now, I think that the approach of the court in that case is entirely distinguishable from the facts of this case. In Toll, there was an argument between the applicant and respondent over pending enterprise agreement negotiations. It seems that, in that instance, negotiations for a new agreement had begun in May of 2012 in respect of an arrangement that was due to expire at the end of June.
The negotiations had not resulted in a fresh agreement and there was picketing outside the entrances to Toll’s distribution centre in Melbourne which prevented trucks from entering and leaving the centre. The court was persuaded at first instance that an interlocutory injunction until trial ought be granted because of the serious issue to be tried concerning whether or not the picketing was indeed lawful picketing or whether it actually constituted an interference with the rights of Toll and those who wished to access Toll’s premises. The injunctions were enlarged until 25 July 2012. However, late on 24 July, Toll’s solicitors informed the court that the picket at the centre had been lifted and was no longer in place.
The court was informed that the parties had reached an in principle agreement regarding the terms of a proposed enterprise agreement and that the union had recommended to its members that they agree to improve the proposed agreement, although there was still a number of formal steps to be undertaken concerning its final endorsement by Fair Work Australia. That was going to take some weeks before the matter could be finalised, and it was in those circumstances that Toll pressed its application for the interlocutory restraining order. The court there accepted that there was a strong prima facie case, as I do here.
It also accepted on a prima facie basis that the extension of the orders ought be favoured, except for one matter, which Ferguson J addressed at [35], where it noted:
“However, as I noted at the outset, the court was informed last evening by the solicitors for Toll that the picket at the Centre has been lifted and is no longer in place. Toll submitted that an interlocutory injunction would still have utility. Toll contended that there are a number of steps to be taken to implement the in-principle agreement that has been reached to resolve the dispute. If implementation runs smoothly, Toll contended the injunction would only be in operation for two to three weeks. However, if there are hurdles that are encountered in implementation, then Toll submitted, further industrial action might be expected and having the “discipline” of an injunction would help to keep the implementation process on course…”
The court noted that the conduct complained of had ceased and that there was no evidence that it would resume or that there was a sufficient likelihood that it would resume. That of itself would warrant the vacation of the injunction. However, in Toll it was to be reasonably expected that the underlined dispute had been resolved. That was, of course, the nature of the in principle agreement. That is not the case here. The Melbourne dispute is ongoing. The applicant has no control, input or influence regarding the Melbourne dispute and so it can bring no weight to bear on the resolution of that dispute if it is not resolved.
That causes a significant point of distinction between this case and the Toll case where, if further difficulties arose, they could have been resolved inter se between the parties, without the need to resort to the court. That is not the case here. In this matter there have been no undertakings proffered by the respondent. There appears, in this instance, to be no real complaint of prejudice beyond the general burden that an injunction incurs when imposed upon a party. It ought be noted though that any such injunction would only serve to prevent the respondent from undertaking unlawful acts.
Furthermore, for the applicant and third parties, the potential for injury is great. There is not only the ongoing cost estimated by Ms Smith in her affidavit in terms of damages for the delay in the project.[6] There are also the rights of the sub-contractors. There are numerous sub-contractors whose interests are reasonably affected and prospectively will also suffer damage in the event that the industrial occurs again and the site is shut. The interests of third parties in this sort of dispute ought not be overlooked and represent an important consideration. See generally the observations in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3).[7]
[6] $16,000 per day.
[7] (1998) 195 CLR 1.
On balance, I determine that it is appropriate that the interim relief be granted, and I will make orders in terms of the draft.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 19 November 2012
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