Grocon Constructors (Queensland) Pty Ltd v Mason
[2013] FCCA 2350
•19 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GROCON CONSTRUCTORS (QUEENSLAND) PTY LTD v MASON & ORS | [2013] FCCA 2350 |
| Catchwords: INDUSTRIAL LAW – Industrial relations – cessation of work – interim orders – preservation of the status quo pending hearing of an interlocutory application – relief granted. |
| Legislation: Fair Work Act 2009 (Cth), s.417 |
| AustralianBroadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Briginshaw v Briginshaw (1938) 60 CLR 336 Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (2009) 178 IR 458 |
| Applicant: First Respondents: Second Respondent: Third Respondent: | GROCON CONSTRUCTORS (QUEENSLAND) PTY LTD CHRIS MASON & OTHERS AS LISTED IN SCHEDULE A CONSTRUCTION FORESTRY MINING AND ENERGY UNION AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES’ AND BUILDERS LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES |
| File Number: | BRG 594 of 2013 |
| Judgment of: | Judge Burnett |
| Hearing date: | 19 July 2013 |
| Date of Last Submission: | 19 July 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 19 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Herbert & Mr G. Sheahan |
| Solicitors for the Applicant: | Herbert Smith Freehills |
| No appearance was made for the First Respondents |
| Counsel for the Second and Third Respondents: Solicitors for the Second and Third Respondents: | Mr M. Plunkett Hall Payne Lawyers |
ORDERS
Until 4:30pm on 24 July 2013, or earlier order, pursuant to sections 417(3) and 545(2) of the Fair Work Act 2009 (Cth) (Act), each of the Respondents (whether by themselves or by their officers, delegates, employees, servants or agents or howsoever otherwise) be restrained from:
(a)threatening, organising or engaging in industrial action:
(i)prior to the nominal expiry date of the Churinga Trust t/a L & D Contracting and CFMEU Union Collective agreement 2011-2015 (L & D Agreement); and
(ii)Prior to the nominal expiry date of the Queensland Pre-Stressing Pty Ltd Enterprise Agreement 2011 (QPS Agreement);
(b)aiding, abetting, counselling procuring or inducing any of the conduct referred to in 1.a. above; and
(c)being in any way, by act or omission, directly or indirectly knowingly concerned in or party to the conduct referred to in 1.a. above.
In relation to individual respondents named in Schedule A, service of this Application, the supporting affidavits, any orders made by this court and any documents subsequently filed in these proceedings be deemed to have been served on each individual respondent:
(a)by sending a text message to the employees advising of the document and informing them where they are able to access a copy of the documents; and
(b)by affixing a copy of the documents at the notice boards usually used for communicating with employees on the 480 Queen Street Project site.
In this order, the term “industrial action” means:
(a)the performance of work in a manner different from that in which it is customarily performed, and the adoption of a practice in relation to work, the result of which is a restriction or limitation on, and a delay in the performance of work;
(b)a ban, limitation or restriction on the performance of work, or on the acceptance of, or offering for work; and
(c)a failure or refusal to attend for work or a failure or refusal to perform any work at or by those who attend for work,
and does not include:
(d)action that is authorised or agreed to in advance by the Applicant; and
(e)action by a person that is based on a reasonable concern by the person about an imminent risk to his or her health or safety and the person did not unreasonably fail to comply with the direction of the Applicants to perform other available work, whether at the same or another workplace, that was safe and appropriate for the person to perform.
Orders numbered 2 and 3 herein shall come into force and effect forthwith upon being made by the Court.
The interlocutory application be adjourned to 11:00am Wednesday 24 July 2013.
The Applicant file and serve any further affidavit material to be relied upon for the hearing of the interlocutory application by 4:00pm on 22 July 2013.
The Respondents file and serve any affidavit material to be relied upon for the hearing of the interlocutory application by 8:00am on 24 July 2013.
Liberty to apply be reserved to all parties on short notice to seek any variation or discharge of these orders.
Endorsement pursuant to R. 29.07 of the Federal Circuit Court Rules 2001 (Cth):
To the Respondents: Take note that the persons to be served with this order will be liable to imprisonment, sequestration of property or punishment for contempt if any such person disobeys the order.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 594 of 2013
GROCON CONSTRUCTORS (QUEENSLAND) PTY LTD
Applicant
And
CHRIS MASON & OTHERS AS LISTED IN SCHEDULE A
First Respondents
CONSTRUCTION FORESTRY MINING AND ENERGY UNION
Second Respondent
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES’ AND BUILDERS LABOURERS’ FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES
Third Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This application has come on for urgent orders. It is brought at the behest of the applicant, Grocon Constructors (Queensland) Pty Ltd, which is presently engaged in the construction of a project at 480 Queen Street, Brisbane. The project is in its very early stages of construction but, in any event, works are progressing. Engaged on the project are several of the first respondents who were employed by L & D Contracting or Queensland Pre-Stressing Pty Ltd as employees to undertake skilled or semi-skilled civil works.
On 18 July 2013, at approximately 6:46 am, a representative from the second respondent, Mr Chad Bragdon, and two representatives from the second respondent, Mr Andrew Sutherland and a man named Jude, attended the site. They sought and were permitted entry subject to a notice they produced pursuant to s.117 of the Work Health & Safety Act 2011 (Qld). It is to be noted that at that time light rain had just finished falling and as a result the workers were in demountable sheds in the amenity facilities of the project. The sheds are evident in photographs which have been exhibited to various affidavits. It is not in contest that the project policy is for workers to stop work if there is rain.
A meeting was held in the shed between the first respondents and representatives of the second and third respondents. After the meeting, the representatives of the second and third respondents informed the project’s General Foreman, Mr Matthew Sams, that the first respondents would be leaving for the day because of a lack of “covered access/walkways to the amenities.” It is also alleged that those representatives advised Mr Sams that the applicant ought to install covered walkways. Further, the representatives informed Mr Sams that they would return to the project on 19 July 2013 and report back to the workers to inform them whether they could work that day.
There was some further conversation which ensued between the representatives and Mr Sams, which I do not think is overly material. On 19 July 2013 at about 7:00am, Mr Scott Thompson, a Project Manager for the applicant, attended the site. Initially, he spoke with the owner of L & D Contracting, Keith Jones. Mr Jones had been informed that if there was further rain the workers would go home. Mr Thompson noted that it started to rain lightly at that time and that at about 7:55am, as he was walking out the gate, he saw an Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees (“BLF”) representative arrive. He said that shortly after the BLF representative arrived, excavators, which until that time had been working notwithstanding the rain, ceased work and the operators of those machines made their way to the lunch room.
Mr Thompson says that he asked the BLF representative why he had returned and what the problem was with the project. He says that the BLF representative said to him that he had a problem with the uncovered walkways. By that time, approximately 7:55am, the weather had improved and it was no longer raining. Mr Thompson says that the BLF representative then spoke to workers in the lunch room, although this was not in his presence and that about 15 minutes later the BLF representative and the workers left the lunch room, collected their belongings and left the site.
He says that he spoke to the BLF representative as the workers left the site and the representative informed him that it was the “… workers’ decision to leave as they do not believe the Project walkways are safe as they may slip and fall.” He noted that the BLF representative then commenced talking about WorkCover cases. He also noted that the BLF representative spoke to some of the workers out of the front gates on the sidewalk before they left the vicinity of the work site.
There is material evidence in the form of an affidavit by Mr Trevor Love, an experienced occupational health and safety professional, that, notwithstanding the concerns of the workers, the presence of water on the concrete in the vicinity of the work site does not present a hazard. His risk assessment was that the uncovered walkways presented a negligible impact on the risk of slipping in wet conditions. He further noted that the likelihood of slipping on the rough concrete of the walkways was low, irrespective of whether the walkways were wet or dry.
The current difficulty arises, in part, because the first respondents are subject to either one of two decisions of Fair Work Australia. The first is a decision described as the Queensland Pre-Stressing Pty Ltd Enterprise Agreement 2011 that concerns workers of Queensland Pre-Stressing Pty Ltd. The second is the Churinga Trust t/a L & D Contracting and CFMEU Union Collective agreement 2011-2015, which applies in respect of the other workers. Both agreements are in force at the moment, and will be in force at least until the later phases of the construction of the project.
Relevantly, s.417 of the Fair Work Act 2009 (Cth) provides that:
“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 the FWC 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.
…”
The complaint by the applicant is that, in this case:
a)the first respondents have committed unlawful industrial action in that they have ceased to work, their conduct not being protected action; and/or
b)the second and third respondents have engaged in conduct which is intended to threaten, organise or engage in industrial action in respect of those matters; and/or
c)the second and third respondents have engaged in conduct which is intended to aid, abet, counsel, procure or induce the conduct referred to in respect of breaches of the various agreements, or they being, in any way by act or omission, directly or indirectly knowingly, concerned in or party to a breach of the various agreements.
As the application has come on quickly, the first respondents are not present. Although efforts have been made to contact them by mobile telephone text message, none have appeared. Given the circumstances that is not surprising. The second and third respondents, however, despite also having had short notice of these proceedings, have appeared and are represented by counsel. I will deal with the application so far as it concerns the second and third respondents.
The second and third respondents quite forcibly argue that there is insufficient evidence to warrant the granting of the relief, even on an interim basis. As it stands, the evidence largely relies upon the drawing of inferences. As I have noted earlier, the conduct that led to the workers walking off site this morning seems to be related in a temporal manner to the presence of representatives of the second and third respondents on the site. The second and third respondents, by their counsel, submit that the evidence is not sufficient to give rise to an inference, or at least a prima facie inference, that there has indeed been any conduct on their part which could be associated with or related to the breaches of agreement alleged against the first respondents.
The second and third respondents rely upon statements made in the affidavits which have been prepared for the application this afternoon, particularly the statement alleged to have been made by the BLF representative to Mr Thompson. It is said that the BLF representative told Mr Thompson that the workers did not feel safe and that it was their choice to walk off site. That is, that the workers were not induced by anything that was stated to them by representatives of the second and third respondents, but it was a matter of their own choice and there was no involvement by them in any material way at all.
The case advanced by the applicant in respect of that matter is entirely circumstantial. The applicant contends that the statements ought not be viewed in isolation, but rather in a broader context, having regard to the history of the matter. That is, regard must be had not only the events of today, but also the events of yesterday and the previous presence of representatives of the second and third respondents on the site. The statements made yesterday, the representatives’ presence today and the action which seemed to follow a meeting that ran for 10 to 15 minutes, are all set against the background of the agreements, which provide a mechanism for resolution of disputes that arise in the workplace.
Cases of this nature can often be difficult to resolve, and this matter is no exception. The principles governing the relief sought today (an interim injunction) were touched upon by Jessup J in Williams v Automotive, Food, Metals, Engineering, Printing Kindred Industries Union (2009) 178 IR 458.
At [25], his Honour, referring to AustralianBroadcasting Corporation v O’Neill (2006) 227 CLR 57 and Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, picked up the observations of Gummow and Hayne JJ and applied their Honours’ remarks to this effect:
“By using the phrase “prima facie case,” their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument.”
Jessup J continued in the context of another entirely different application (and one not involving a circumstantial sense) to simply make the observation that he thought that the correct approach was to first consider whether the applicant has established a prima facie case, and, as was explained in Australian Broadcasting Corporation v O’Neill, to then consider the balance of convenience. That is the approach I propose to take here.
I think on balance, having regard to the arguments which are presented, there is enough evidence for the plaintiff to show a sufficient likelihood of success to justify the preservation of the status quo, at least pending the hearing of an interlocutory application. There is a serious issue to be tried in respect of whether or not there has been unlawful industrial action and whether or not the second and third respondents have been party to the alleged unlawful industrial action taken by the first respondents.
I am cognisant of the submissions made by Mr Plunkett for the second and third respondents, including those statements made in Briginshaw v Briginshaw (1938) 60 CLR 336, but I emphasise that this is an instance involving an application for an injunction where I am not making any findings of fact. I am simply looking to see whether there is sufficient evidence before me to demonstrate that the applicant has a sufficient likelihood of success to justify the preservation of the status quo pending the hearing of an interlocutory application, as was said by two members of the court in Beecham Group Ltd v Bristol Laboratories Pty Ltd.
I think it is open, having regard to all of the facts, to conclude that the second and third respondents have been involved in a material way in the alleged unlawful action of the first respondents, and to that end a prima facie case is established. Regarding the question of whether or not the balance of convenience favours the granting of the relief, it must be noted that the project in this case is a significant high-rise project. It is subject to the usual contractual terms; however, of particular moment in this case is a contractual provision that relates to the project itself. The units under construction are themselves the subject of on-sale contracts. The contracts each contain a provision which provides for certain construction benchmarks to be achieved by specified dates.
The penalty for failure to achieve benchmarks by certain dates is that the putative purchasers may terminate the contracts. The project depends upon the contracts being in place for finance and, accordingly, if the project is unnecessarily delayed there is a serious risk to its overall viability. I am sure that this is a matter which would be of major concern to those who, at least in the short term, would serve to gain the most from the project – those who are employed in its construction. It seems to me that the risk occasioned with unnecessary delay far outweighs the prospect of damage to the respective respondents. It follows that I consider the balance of convenience to favour the granting of the relief.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 29 January 2014
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