Grocon Constructors (Queensland) v CFMEU
[2012] FMCA 1272
•19 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GROCON CONSTRUCTORS (QUEENSLAND) v CFMEU & ORS | [2012] FMCA 1272 |
| INDUSTRIAL LAW – Quia timet injunctive relief – burden of proof – potential prejudice to parties – potential prolongation claim – relief granted. INDUSTRIAL LAW – Building and construction industry – industrial action – workplace safety – legitimacy of safety concerns – presence of trade union officials – ostensible authority – picketing – authorised acts. |
| Fair Work Act 2009 (Cth), ss.12, 19, 417, 545, 550, 551, 793 Fair Work (Registered Organisations) Act 2009 (Cth), ss.26, 27, 154A Evidence Act 1995 (Cth), s.140 Trade Practices Act 1974 (Cth), s.84 |
| Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 Amcor Packaging Australia Pty Ltd (2006) 157 IR 32 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Ltd (1968) 118 CLR 618 Briginshaw v Briginshaw (1938) 60 CLR 336 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 CPSU v Commonwealth of Australia [2006] FCAFC 176 GTS Freight Management Pty Ltd v Transport Workers Union of Australia (1990) 95 ALR 195 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union[2006] WASC 317 Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 Walpan Pty Ltd v Wallace (1985) 63 ALR 453 Williams v Hursey (1959) 103 CLR 30 |
| Applicant: | GROCON CONSTRUCTORS (QUEENSLAND) 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: | 6 September 2012 |
| Date of Last Submission: | 6 September 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 19 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Horneman-Wren SC |
| Solicitors for the Applicant: | Freehills |
| Counsel for the First and Second Respondents: | Mr J.W. Merrell |
| Solicitors for the First and Second Respondents: | Hall Payne Lawyers |
| Counsel for the Third Respondent: | Mr R. Reed |
| Solicitors for the Third Respondent: | Maurice Blackburn |
ORDERS
That the orders of 28 August 2012 be extended until trial.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 754 of 2012
| GROCON CONSTRUCTORS (QUEENSLAND) 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
(Revised from Transcript)
This matter came on urgently for interim orders for injunctive relief on 24 August 2012. Orders of that nature were made that day against the first and second respondents with the application being adjourned for interlocutory hearing on 6 September 2012.
On 28 August 2012 the orders of 24 August 2012 were varied and enlarged. They provide for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia (CEPU) to be joined as third respondent. The application against the third respondent was also then adjourned to 6 September 2012.
A number of procedural hearings followed between the interim orders and the hearing of the interlocutory orders on 6 September 2012 to address an error of limited moment relevant only to the issue of the third respondent’s involvement in the proceeding, an issue which I will address below concerning members of the third respondent inter se.
As ordered, the matter returned for interlocutory hearing before me on 6 September 2012 and the case was argued on that day. The application was one arising against the background of protracted industrial action aimed at the applicant (Grocon Constructors (Queensland) Pty Ltd) by the first and second respondents, they being the Construction, Forestry, Mining and Energy Union (CFMEU) and the Australian Building Construction Employees & Builders Labourers Federation (Queensland Branch) Union of Employees.
This appears to have been part of a national campaign, although whether it has been an orchestrated and coordinated campaign or merely action taken in sympathy with events elsewhere in Australia is not a matter which is the subject of direct evidence, nor a matter I need to rule upon.
It suffices to observe that there is a general difficulty in the current industrial environment, and this has been evident elsewhere. This application is not the first brought by the applicant against the CFMEU and/or the second respondent with respect to this particular site or other sites operated by the applicant in Brisbane. Nor is it the first between the applicant and the respondent generally. As already noted, at this time there are applications in other jurisdictions, including an application before the Supreme Court of Victoria, which has also issued injunctions against parties related to the respondents to this proceeding.
The site which forms the subject of this dispute is Grocon’s project at Elizabeth Street, Brisbane. It is a multistorey high-rise project of 15 levels. The building is being constructed for the Australian Tax Office and practical completion is due in May 2013.
The project is currently at the structural stage. The central lift is being constructed, together with the 15 floors which surround it. The applicant presently has 13 employees on the site. Those persons are employed in various roles including: traffic control, hoist driving, general labourer and/or nipper duties, workers’ representative roles and first aid.
There are also approximately 70 subcontracted workers engaged to perform subcontract works by various subcontractors, including: Fairfield Services, LCR Group, Stowe Australia, Kone Elevators, Yuanda, Priese & Co, Siganto & Stacey (mechanical Services), Wide Form, Premier Fire and NWCI.
On 22 August 2012, the first of the relevant events occurred. In an affidavit by Kirsten Helen Smith, the Project General Manager for the applicant, she deposed to having been informed by Mark Gaskin, who was the Project Manager of the site, that at about 6:15 pm that day he saw Chad Brogdan, an organiser for the second respondent, and Dean Kupsch, who he knows to be a delegate and member of the BLF, on site.
Mr Gaskin also informed Ms Smith that he saw on site Andrew Sutherland, who is an organiser of the third respondent, and Trevor Zeltner, who he knows to be a site delegate and member of the CFMEU. Mr Gaskin says he also saw a fifth individual on site who he did not recognise, but who was wearing a CFMEU jacket and a high-visibility shirt.
Ms Smith says that she was informed by Mr Gaskin and verily believes that Mr Shaun Hooper, who was then a manager on the site, had a conversation with him along these lines.
Mr Hooper said: “The CFMEU are on the site.”
Mr Gaskin asked: “Why?”
Mr Hooper said that: “They are here to hold a full site meeting.”
She says that she was informed by Mr Gaskin and believes that he was then approached by Mr Brogdan, and that 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 in 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 to the meeting now.”
It appears that the conversation concluded at that point.
Ms Smith says she was then informed by Mr Gaskin that he had observed the CFMEU and BLF delegation head towards the lunch room in the basement of the site office. She says that to the best of Mr Gaskin’s knowledge all the workers on the site then attended that meeting. She says that at the end of the meeting Mr Gaskin said that he was approached by Mr Brogdan, Mr Kupsch, Mr Sutherland, Mr Zeltner and the man wearing 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.”
She says that she was then told by Mr Gaskin that Kupsch said words to the effect of:
“They will return tomorrow and advise what is happening in Melbourne.”
She then says that Mr Gaskin told her that the workers, including the 13 Grocon employees, walked off site at approximately 7:45am. She also believes, following Mr Gaskin’s advice to her, that subcontractors’ employees on the site also ceased work. They included persons employed by Fairfield Services, LCR Group, Stowe Australia, Kone Elevators, Yuanda, Priese & Co, Siganto & Stacey (mechanical services), Wide Form, Premier Fire and NWCI.
On the next day, 23 August 2012, Ms Smith says that she was informed by Mr Gaskin that he arrived on site at about 5:00am. He said to her that at about 6:15am Mr Brogdan and the person whom he did not know again attended the site.
She says that Mr Gaskin told her that Mr Kupsch had later told him that this person was an organiser of the CFMEU. She says that she was informed by Gaskin and believed that Mr Brogdan and this unknown person held another meeting with workers from 6:30am until 6:45am, and that when the meeting was finished Gaskin approached a group of employees and said words to the effect of: “What’s going on?” He was then informed by Kupsch that during the meeting words were stated 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.”
Ms Smith says she was then informed by Gaskin that he then asked Zeltner and Kupsch: “Where is the union?” To which he says the response was given: “They have left the site as they had to go to another site.”
Initial orders were made following the evidence of threatening behaviour and based upon the facts that have been alleged to at the time. However, on 28 August 2012 matters appear to have escalated. It would appear from the evidence of Mr Paul Bickham, a Project Manager employed by Grocon, in an affidavit sworn on that date, that at approximately 9:15am on 28 August 2012 he observed about 500 people marching on Elizabeth Street towards the Grocon site.
He says that he directed a Grocon employee to take video footage of the protestors; this footage is exhibited and was shown during the course of the interlocutory hearing. I will detail the video footage shortly. He says that, in response to what he observed, he directed that a chain be put up to stop entry to the driveway on the site. That driveway was within the exclusive possession of the applicant. He says that a short time later a protestor removed the chain from the front of the driveway and a man wearing a black jacket and khaki pants led the protest down the driveway into the site.
He understood from a conversation he had with Travis Zeltner, a site delegate of the CFMEU, that the man wearing the black jacket and khaki pants leading the protestors down the driveway was a former CFMEU organiser, Mr Bob Carnegie. He said that the protestors made a large amount of noise and several of them carried hand clappers. One of the protestors carried a megaphone. He added that several of them were carrying signs, which read “Union Strong,” and he could hear over the megaphone words such as “Daniel Grollo” (a reference to the CEO of the Grocon Group) and a chant, “United, together, we will never be defeated.”
He says he saw two individuals taking a turn at yelling into the megaphone and was informed by Chris O’Reilly from Stowe, a subcontractor to Grocon, that those individuals were Chris Lynch and Peter Ong, who were “ETU/EPU Organisers,” that is, they were associated with the third respondent.
He says that there were about 200 protestors on the site in the driveway area for a period of about 25 to 30 minutes before the police attended the site and dispersed them. He observed the remaining protestors moving on to the street. He says that from his 20 years’ experience in the construction industry he recognised that the chant “United, together, we will never be defeated,” as a chant used by the CFMEU and other unions, and that this gave him the clear impression that the protest was organised by the CFMEU and was connected to the industrial issues in Victoria. Of these he was aware and has referred to those matters in earlier affidavits filed in this application.
He said it was also clear to him from what he observed that the site was targeted because it was a Grocon Group site and because of Mr Grollo’s position in relation to what was happening in Victoria. He noted that after the protestors left the site they did not return, but a number of Grocon employees remained on site and continued to refuse to work because of the protest.
As I have noted, a video record of these events was taken. In order to appreciate the importance of the video, it is probably necessary to have a basic understanding of the location of the site. The site itself is in Elizabeth Street, Brisbane. Elizabeth Street is a major arterial street servicing one of the exits from the south-east freeway, which feeds traffic from the M1 motorway into the CBD. It is a street of four lanes, permitting one-way traffic to travel in an easterly direction. The worksite itself is opposite one of the principal shopping precincts and public car parking stations in Brisbane, the Myer Centre.
The street is also a major bus viaduct. Building work is ordinarily undertaken in an organised and orderly manner but it is, nevertheless, slightly disruptive to traffic. Events which are evidenced in the video demonstrate the ordinary disruption which occurs during the course of building work, with the closure of one lane. This disruption was amplified by the industrial disorder which followed on that day. About 50 metres west from the site, towards the freeway and the Brisbane River, is Queen’s Park. It is a significant open space in the Brisbane CBD and quite proximate to the site. The video material evidenced in the affidavits showed a group in excess of 100 people making their way down Elizabeth Street from the direction of Queen’s Park towards the building site.
The group, although upon the footpath, also spilt upon the road way, disrupting traffic which was seeking to proceed in the usual manner down Elizabeth Street. It would seem from the manner in which the members of the group marched down Elizabeth Street that they had little regard for the hazard they constituted to both themselves, pedestrians and vehicular traffic.
There were some police in attendance, but they were on pushbikes. They were not traffic police or motorcycle police, which suggests to me that the Queensland Police Service had been given little or no warning of the group’s intentions. My view on that matter is reinforced by my observation that the police resources present were plainly inadequate for the events which transpired. The presence of police did seem to grow through the course of events, but initially it was quite inadequate. Traffic was plainly disrupted, and one can only assume, given that these events occurred towards the end of the peak hour, that there was a general inconvenience to traffic both exiting the freeway and traversing Elizabeth Street itself.
The group marching down the street clearly included workers; that was evident by reason of their dress. In particular, they were wearing the high-visibility shirts now common on hazardous worksites such as building sites. The group was chanting words such as “Workers united,” they were carrying placards and banners identifying association with the CFMEU and the union. Someone plainly had a loud hailer and appeared to be leading the chant; some were blowing whistles and making noise with hand clappers, as evidenced in Mr Bickham’s affidavit.
Others in the group were plainly associated with the respondents, wearing clothes which were emblazoned with the CFMEU and BLF logos and other identifying marks. At this point, it is also worth noting that, as has already been attested to by Mr Bickham, Mr Lynch and Mr Ong of the ETU and CEPU were also on the driveway of the site, a matter which I will come back to shortly.
The next events occurred on 28 August 2012. Prior to starting work on that day, there were a number of subcontractors’ employees on site, including employees from Chubb, East Coast Concrete, Fairfield Services, Kone, Metro, NWCI, Premier Fire, Siganto & Stacey, Stowe, and Wide Form. But after the protest had finished, a significant number of those subcontractors’ employees left the site, leaving only a handful behind. Mr Bickham, the project manager, approached a number of Grocon employees and asked: “Could you carry on working?” He says that two or three employees replied and made statements to the effect of: “If we return to work we will be intimidated and harassed by other workers when they return to site.”
That observation, in part, seems to be reinforced by a statement of Mr O’Reilly from Stowe Australia, who stated that he was directed not to provide an affidavit in relation to the matter. Mr Bickham also says that during the conversation, Trevor Zeltner decided to leave the site and did not return for the remainder of the day. He said as a result that he had to organise for those employees who remained on site to attend training until about 2:00pm, when they were permitted to go home.
The next events occurred then on 30 August 2012. On this occasion a protest was conducted outside the front and across the road from the site. It was conducted, essentially, on part of the footpath outside the front of the Myer Centre although, as the video demonstrates, most of the protesters stood upon the footpath. A number spilt upon the road and consequently constituted a hazard to traffic along Elizabeth Street. I also noted from the video a number of people passing from the building site onto Elizabeth Street. These persons further contributed to the hazard.
In any event, from the evidence before the Court, it appears that at about 9:00am that day solicitors for the applicant were informed of the prospect of a protest. They attended the site and stood outside until about 9:45am, when they noticed a number of workers wearing high-visibility gear enter and exit the site. They initially thought that they were going on ‘smoko’ because they saw them go into the Myer Centre and return to the site with food. However, at about that time, they heard chanting coming from the vicinity of Queen’s Park, and a large body of people marched down the street chanting: “United, together, we’ll never be defeated.”
They say that they watched as the group walked down Elizabeth Street and took up a position outside the Myer Centre, in front of where they were standing. The solicitors estimated that there were about 200 or so protesters, most of them wearing yellow or high-visibility vests. They were led by a short man with a megaphone who was wearing a white t-shirt, jeans, brown steel-capped boots and a black backpack and cap, who they did not know the identity of and described as “Leader 1.” He had ear plugs in his ears.
They noted that once the protesters had arrived at the site, they began yelling at the workers in the building “Come on down!” and “Support your fellow comrades,” and so on. A number of the protesters were holding Australian flags. Others were carrying signs which read “Union Strong.” They were making quite a considerable amount of noise as they were carrying megaphones and some were shaking hand clappers. Also evident throughout the protest were the sounds of sirens and whistles. That description is affirmed by the video material.
The evidence demonstrates that for at least half an hour there appear to have been people shouting into megaphones calling others down from the building site, yelling “Come out!” and “Come down!” There were chants calling out “Down! Down! Down!” Others called out: “We are here today to support our fellow comrades in Melbourne and Sydney who have been treated with utter contempt!” The name “Daniel Grollo” was also called out.
Leader 1 was heard to call out: “We will not tolerate any bullying! Stand up for the workers.” A second man with a megaphone, who was wearing jeans, a cap and a blue shirt emblazoned with the term “Builder’s Labourer’s Federation,” and described as “Leader 2,” was also there. Throughout the protest, the group was heard to chant “United, together, we’ll never be defeated.” Police arrived at the site not long afterwards. Apparently 30 or 40 police officers attended, but the protest continued.
It was observed and could be seen from the video that some workers did exit the site in small groups and they were greeted by the protesters on the other side of the street as they left. The man on the megaphone was heard to yell: “One at a time we will get these boys down” It is noted that as the workers came off the site they dodged oncoming traffic along Elizabeth Street while moving from one side of the street to the other. Leader 1 yelled into the megaphone words to the effect of “Do not be afraid – united we stand! Do not let that wog Daniel Grollo intimidate you … Actually, I have nothing against wogs.” Leader 2 led the group in chants of “Grollo’s a grub!” Leader 1 yelled at the workers on the site “You’re all cowards! Does your missus fight all your fights for ya? No doubt she does!” and “You won’t be forgotten, you dogs!” The protest, as I’ve noted, proceeded for about 25 to 30 minutes before leader 2 called out to the protestors words to the effect of “Let’s take the brotherhood for a feed at Southbank!”
At that time the remaining protesters dispersed, moving back up Elizabeth Street towards South Bank, chanting “United, together, we’ll never be defeated.” It was noted that as they walked back up Elizabeth Street, a man wearing a checked shirt carrying an Australian flag started calling to workers who were on site and pointed to his eyes and toward them as if to say, “I’ve got my eye on you” or “I’ve seen you.” Leader 2 continued to yell on the megaphone words such as “Scabs!” and “Cowards!” as he walked up the street.
Mr Bickham says that after the protest he conducted a review of the site records regarding attendees on the site. He noted that prior to the protest occurring, the following subcontractors’ employees were on site: Chubb, East Coast Concrete, Fairfield Services, Krone, Metro, NWCI, Premier Fire, Siganto & Stacey, Stowe and BAT. However, after the protest, he noted that a significant number of those workers had departed. He further noted that Mr Zeltner, an employee of Grocon, did not return to the site.
In particular, concerning the attire of some of the protestors on the site, one of the solicitors, Ms Zabloski, deposed to having seen men wearing clothing with CFMEU insignia on it. She took a number of photographs which replicate what she deposed to seeing. She noted that she took a picture of a man which shows him wearing a high-visibility shirt which has “CFMEU” on the collar. There is also a picture of a man wearing a navy blue shirt which reads “CFMEU” on the cap of the sleeve. She said there was a man wearing an orange shirt with “BLF Union BBQ” on the back. Ms Zabloski also took a photograph of that man.
She took a photograph of a man wearing a blue shirt with the “Australian Builders Labourers Federation” on the back. She noted that there were men wearing articles of clothing which had ETU insignia on them and she took photographs of those persons, in particular a man wearing a high-visibility shirt which reads “ETU Electrical Trade Union” on the back. She also took a photograph of a man wearing a light colour t-shirt which reads “BLFQ CFMEU and Master Builders” across the back. She noted also during the course of the protest that there were individuals wearing shirts from the various sub-contractors that I have earlier identified. These matters were also identified in video material.
On the hearing of the interlocutory application, the CFMEU and the BLF were jointly represented. The CEPU was independently represented. They advanced differing arguments; each sought that the orders previously made be vacated. Many of the facts which I have related are common to the dispute in question. However, given the context of their differing arguments; it is appropriate that the responses be addressed separately. I should note at this point that although there was little contest on the facts, I don’t take the failure to contest the facts as any admission of them. The application has proceeded on the premise of the facts as alleged by the applicant, but, for reasons which will become evident, there are many issues in dispute. At this time, it is impossible to do anything but acknowledge that these issues remain evident on the facts.
Likewise, there is not much dispute between the parties concerning the approach which ought to be taken by the Court. The basis for the application is to be found in the Fair Work Act 2009 (Cth) (FW Act). Section 417(1) of the FW Act 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.”
Specifically, so far as the employee or employee organisation is concerned, it is important to note that s.12 of the FW Act defines:
““organisation” means an organisation registered under the Registered Organisations Act.”
That section of the Fair Work (Registered Organisations) Act2009 (Cth) (RO Act) defines an organisation in the same terms. Section 26(3) of the RO Act provides that:
“On registration, an association becomes an organisation.”
Section 27(e) of the RO Act provides:
“An organisation:
(a) is a body corporate; and
…
(e) may sue or be sued in its registered name.”
Section 154A of the RO Act provides that:
“Branch autonomy
The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.”
So far as the term “industrial action” in s.417(1) FW Act is concerned, s.19(1) of the FW Act applies. It defines “industrial action” to include:
“Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
…
(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;
…”
Section 551 of the FW Act provides that:
“Civil evidence and procedure rules for proceedings relating to civil remedy provisions
A court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.”
And s.550 provides that:
“Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.”
By s.793(1) of the FW Act:
“Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
…”
In this case, the complaint contended for by the applicant, and in respect of which it seeks the respondent to be restrained until further hearing, is in respect of alleged contraventions of s.417 of the FW Act and of the supporting provision of s.545 of the FW Act. It also seeks to engage the accrued common law jurisdiction of the Court.
It is not in dispute that the proper purpose of an interlocutory injunction is to maintain the status quo so that the rights of the parties can be determined at final hearing. In an application such as this, the plaintiff must demonstrate that there is a serious question to be tried in relation to an entitlement to relief and that it is likely to suffer injury for which damages will not be an adequate remedy if the relief is not granted. It is also necessary to demonstrate that the balance of convenience favours the granting of the application.
The applicant must make out a prima facie case in the sense that it is able to demonstrate a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. As to what the probability of success at the trial needs to be, that depends upon the nature of the rights which the plaintiff asserts and the practical effects likely to flow from the orders sought. See generally Beecham Group Ltd v Bristol Laboratories Ltd (1968) 118 CLR 618 as explained and approved in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.
It is also appropriate to note, in the context of the application, that even thought this is an application for interlocutory relief, the proceedings are still subject to the rules of evidence. In particular, the respondents point to s.140 of the Evidence Act 1995 (Cth) which, in respect of civil proceedings, provides for a standard of proof. Section 140 provides that:
“Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.”
It was contended for by the respondents that s.140 of the Evidence Act reflects the common law position about the standard of evidence that may be required in cases where the civil standard of proof applies, as was referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. In particular, so far as was relevant to the application, it was contended that the Court ought be mindful of the observations in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466, in particular at [31]-[32]:
“[31] Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s.140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that:
“No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”(Briginshaw 60 CLR at 361-362)
[32] Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).”
Without seeking to diminish the strength of the authority and the force of such a statement, or indeed the argument in respect of the matter at final hearing, it needs to be borne in mind that the Full Court there was considering the approach to be taken at a final hearing. Here, the application is for an interlocutory injunction. The matter of reasonable satisfaction and the degree to which a matter itself must be established, also falls within the ambit of matters generally to be considered in the context of such an application, as was observed by the Court in CPSU v Commonwealth of Australia [2006] FCAFC 176 at [17], where the Full Court, in referring to the observations of Gummow and Hayne JJ in Australian Broadcasting Corporation v O’Neill (supra) at paragraph [65], noted their Honours’ statement that:
“The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court … said that on such applications the court addresses itself to two main inquiries, and continued::
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”
Their Honours continue then at [18] to refer to Gummow and Hayne JJ’s decision at [70], where it was stated that they:
“… make clear that they (like Gleeson CJ and Crennan J) have no objection to the use of the phrase ‘serious question’ if it is understood as conveying the notion that the seriousness of the question depends on the considerations emphasised in Beecham Group Ltd v Bristol Laboratories Pty Ltd.”
But their Honours emphasised that the governing consideration is that the requisite strength of probability test depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory orders sought.
In that regard, there must be a context for the graduation of proof. The High Court stated that, in the context of applications for interlocutory relief, the evidentiary onus to be satisfied is somewhat different to that which would be applied in the contest for determination of matters on an application for final relief. It follows, that graduations of proof have less significance in the context of an application for interlocutory relief where the principal matter for consideration is whether or not there is a serious issue to be tried.
The first and second respondents’ most significant arguments revolved around whether their officers, officials, employees, servants or agents have organised industrial action and conducted themselves in a manner whereby they impeded, induced or encouraged employees or subcontractors of the applicant to stop work or not attend the site by means of statements made with that object or intent. Similarly, the issue of whether they have otherwise caused those people to unlawfully enter the site, as was alleged to have occurred on 23 March, was also raised.
In that regard, a particular argument was advanced in the respondents’ submissions, commencing at paragraph 15. It was submitted that there was a requirement of clear proof before the Court could come to a conclusion that any conduct on the part of an individual or individuals was conduct of an organisation registered under the RO Act.
In that regard, a particular reference was made to the authority of GTS Freight Management Pty Ltd v Transport Workers Union of Australia (1990) 95 ALR 195 and the observations of Keeley J, a matter which I will come back to shortly. It was said that the Act provides for when the action of natural persons is taken to be action of the body corporate. Reference was made to s.793 of the Act, which is in these terms:
“Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
…”
Under s.12 of the Act, an “officer” means an “official,” that is, someone holding an office in the industrial association or a delegate or other representative of the association. It was contended, therefore, that for the applicant to be successful it will be necessary to establish that:
a)the conduct referred to in paragraphs 3 and 3(a) of the amended application, that is, of impeding or inducing or encouraging employees of the applicant and subcontractors from performing work on the site or unlawfully entering the site or inducing, or encouraging others to unlawfully enter the site, was engaged in on behalf of the respondents, and either:
i)the impugned conduct was within the scope of the actual or apparent authority of an officer, employee or agent of the respondents; or
ii)the impugned conduct was at the direction or with the consent or agreement, whether expressed or implied, of an officer, employee or agent of the respondents, if the giving of direction, consent or agreement was within the scope of the actual or apparent authority of the officer, employee or agent.
The issue arose in relation to whether or not there was evidence of involvement of officers of the first and second respondents. There is evidence, plainly, in respect of all three respondents identified on the site, as I have detailed earlier. The question, however, is not so much their presence but relates to the scope of their authority. For the respondents, it was contended that, on the strength of the authority in GTS Freight Management (supra), I should conclude, in particular by reason of the dicta observations made from the decision of Murphy J in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, that the evidence does not demonstrate that matter.
In that decision, Murphy J made this statement at [7]:
“… In the light of experience of Australian industrial relations, it cannot rationally even be presumed that the conduct in concert of two or more members of an organization of employees is the conduct of the organization. The conduct is often unsupported by or occasionally opposed by the organization. Also such members are often members of other organizations and of industrial and non-industrial bodies which may sponsor the conduct. The fact is that hundreds of thousands of members of federal organizations (of employees) belong to trade or industrial unions registered under State Acts …”
In addressing the principal grounds advanced by the respondents, it was submitted that, when one looks closely at the events, the phrase “on behalf of” requires proof of involvement by persons concerned with the activities of the respondents in the course of the respondents’ affairs or activities. Reference was made to observations in the decision of Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2000] FCA 1188. There at [78] it was noted with approval that the scope of or the words on behalf of, had been considered by Lockhart J in Walpan Pty Ltd v Wallace (1985) 63 ALR 453 at [37] when he addressed the same phrase where it appears in s.84(2) of the Trade Practices Act 1974 (Cth). There his Honour stated:
“... [the phrase] is not one with a strict legal meaning and it is used in a wide range of relationships ... [It] casts a much wider net than conduct by servants in the course of their employment, although it includes it.”
In this case, there is, in my view, sufficient material to support an argument in relation to whether or not the conduct was on behalf of the respondents, particularly given the notional leadership and the way in which these events transpired, matters which I will address shortly. Next is the question of actual authority. It was submitted that to show the impugned conduct was not within the scope of actual authority of an officer, employee or agent of the respondents, it is necessary for the applicant to prove that those individuals had actual authority to engage in the conduct.
It was submitted that authority cannot be proved by inference from what delegates usually do, or from judicial notice or knowledge, again relying upon observations in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (supra) at [75]. However, I think a full reading of [75] requires consideration in this instance. There, the Court stated:
“There is force in Pincus JA's view in Evenco that in proceedings of a "quasi-criminal" nature, such as proceedings for civil contempt, vicarious liability should not be determined by the strict application of the "course of employment" test. A less stringent approach would expose a body corporate to liability by virtue of the conduct of an employee, however aberrant it might be, as long as it could be characterised as "in the course of employment". The same considerations apply, in our opinion, to proceedings for a penalty in respect of proscribed conduct and intent under s170NC. Consequently, to establish vicarious liability under s170NC it is necessary to adduce evidence which establishes, on the balance of probabilities, that the act complained of was authorised …”
To use the language of Pincus JA, neither inferences from what the relevant employees generally do nor judicial knowledge are sufficient. It must be borne in mind that in the context of the application in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (supra), those issues were very much alive. However, the respondents correctly note that the rules of a registered employee organisation must be construed as authorising the organisation to act legally, and not to act illegally. So much, I think, is self-evident. However, one can not ignore the factual background, a matter which was touched upon by the Court in GTS Freight Management (supra), where in the context of that application, which was an application concerning contempt, the Court there addressed more complex circumstances, which in some respects are akin to those before this Court.
In that case at page 309, the Court referred to the observations of Fullagar J in the decision of Williams v Hursey (1959) 103 CLR 30. The background to that case was a waterside dispute which involved the withdrawal of labour. There were questions about the manner in which the dispute was organised and how events unfolded. There Dixon CJ concurred with Fullagar J, who made these remarks:
“It is when we come to consider the liability of the federation for the torts committed by many of its members in Hobart that the nature of the “Hobart Branch” and its relation to the federation seem to me to become matters of great practical importance. If it had been possible to regard the branch as a body having a legal existence separate from that of the federation, it would have been clear, I think, that it rendered itself liable for the wrongful acts committed by those who from time to time formed the “picket lines.” There was abundant evidence to support his Honour's finding that the continued formation of those lines and the obstruction of the Hurseys' path to work was not a matter of mere spontaneous action on the part of individual members of the branch, but was organized and directed as a branch activity and a matter of branch policy by the branch itself acting through those ultimately responsible for its government.”
His Honour continued later at page 81:
“But, if the branch had been a separate body having an independent existence distinct from that of the federation, and capable of being made liable for the "picketing" episodes, I should have doubted whether the federation also could have been held liable. It may be taken to have given sympathy and encouragement to the branch, but I should have felt doubt as to whether it could have been held to have made the acts of the branch its own acts in a sense which would have made it equally liable in damages with the branch.
But in truth, as has been said, the branch has in law no existence separate from that of the federation. It is merely an aggregate of members which is an integral part or section of the whole federation, having that degree of autonomy which is permitted to it by or under the constitution of the federation. It represents the federation in the port of Hobart. In and for the port of Hobart it is, so to speak, the federation. It is forbidden by rr 2 and 4 of Pt II of the federal rules to strike or to take any step to "enforce any wages, hours, or conditions of labour" without prior approval of the governing body of the federation. But, subject to those limitations, and perhaps one or two others, it is set up and organized in the port of Hobart to do in that port whatever the federation may do in any Australian port. Because it has that character and those functions, it seems to me that acts of the branch within its local limits are prima facie acts of the federation itself. The branch is in all respects subject to the control of the governing body of the federation, and that body could no doubt interfere and prohibit the branch from proceeding, or from proceeding further, with any particular course of action, and the federation would not be liable for anything done in breach of such a prohibition: cf Waterside Workers' Federation v Burgess & Sons, Ltd (1916) 21 CLR 129. But in the present case there was no such prohibition and no such interference. Apart from the fact that Mr Wallington, the federal organizer of the union, took an active part in the formation of the "picket line" on 12 February 1958 — conduct of which Healy expressed disapproval — I do not think that any federal officer actually participated in the picketing. But the members of the governing body of the federation were well aware from the beginning of what was going on, and the federation made it known to the branch, and took steps to make it known to the public, that the branch had their full support and sympathy in "the struggle". Speaking of the "picketing", Healy said: "We gave our support by not directing any alteration to it". That is, I think, the truth and, so far as appears, the whole truth, but I think that it is enough to make the federation liable. It makes it clear that acts which were prima facie acts of the federation were never repudiated or forbidden by it.”
Respectfully, the submission by the respondents that the failure to discipline any members involved in the impugned conduct, of itself would not constitute authorisation of the conduct, does in the context, at least upon the observations of Fullagar J in Williams v Hursey, constitute an unduly simplistic analysis of the events. For those reasons, a serious issue in relation to the whether or not the activity undertaken on these occasions took place with the actual authority of the union is alive in my view. Of course, it is not unbeknown for any organisation, or any person for that matter, to necessarily willingly and unlawfully, with that intent, undertake or perform unlawful acts. However, the determination of that matter has to be resolved by trial.
Next was the question of apparent authority. It was contended that to prove apparent authority is not sufficient to show that a person was relevantly an officer, employee or agent of any of the respondents. It was submitted that for apparent authority to be demonstrated there must be at least circumstances which would justify a belief on the part of a person dealing with an officer, employee or agent, that the officer, employee or agent is acting with authority.
In Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 the Court made this observation at [79]:
“There remains the question of whether he was so doing "within the scope of his or her actual or apparent authority". To establish apparent authority, it is not sufficient to show merely that an "officer, director, employee or agent" held himself or herself out as having authority: see J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers - Western Australian Branch (1992) 111 ALR 502 at 533-534 per French J. Rather, there must at least be circumstances which would justify a belief on the part of a person dealing with the "officer, director, employee or agent" that that "officer, director, employee or agent" is acting with authority.”
That of course becomes an issue in itself. Having regard to the facts of this case, particularly the evidence of delegates and organisers of the relevant unions on site and their participation in these events, a question arises as to whether or not they were indeed acting within their authority. There does, in my view, seem to be an appropriate argument giving rise to a serious issue to be tried on that point.
I should say, having regard to those matters, that I have not ignored the evidence and submissions made by the respondents in respect of the evidence adduced. The evidence does demonstrate that there were delegates and organisers of the respondents on site. The circumstances of the events of 22, 23, 28 and 30 of August clearly indicate some form of organisation. It is hard to imagine that the groups of workers spontaneously and serendipitously appeared on each of those occasions in the precinct of Queen’s Park without any assistance at all, and decided to march upon the Grocon site at a time when Grocon was embroiled in a serious dispute with affiliates of the respondents on their sites in other jurisdictions, particularly in Victoria.
This leads me to the third respondent. Mr Gaskin confirmed that the observations of 22 August 2012 attributed to him by Ms Smith. He continued to state that at about 9:30am on 23 August Jamie McQueen and a man named Jarrod, whose full name he does not know, attended the site. He knows those persons to be organisers of the CEPU. He said he had a conversation with these gentlemen:
McQueen: “What’s going on?”
Gaskin: “You tell me? What’s happening with your fellas?”
McQueen: “We need to speak to our guys.”
He says that Mr McQueen and Jarrod then spoke with their members and that when they returned, McQueen said words to the effect of: “The workers agreed that getting emergency services in if injured or unwell is not the way to do it so they won’t be working today.” He said that the workers who met with the CEPU organisers then left the site between 9:30am and 9:45am and did not return on that day
He noted that on 23 August 2012 organisers attended the site and that they left the site and workers did not return to work that day. On 28 August 2012, there is evidence that Mr Bickham, Mr Lynch and Mr Ong, who are known to be organisers of the ETU and the CEPU, were present at the demonstration involving the march from Queen’s Park to the site and were involved in the occupation at the driveway of the site. They were seen to be taking turns yelling into the microphone, suggesting some involvement in and leading of the demonstration. Likewise, on 30 August an unidentified person wearing articles of clothing marked with ETU and associated insignia on them was seen at the demonstration.
There is an issue about whether Mr McQueen was actually on the site in the manner which is alleged by Mr Gaskin. Mr McQueen says that he was not on the site on 23 August 2012, but that he was on the site on 22 August 2012. He says that on 23 August 2012 he was in Chinchilla. That is an issue which needs to be resolved and can only be resolved at trial.
Mr Gerard Robinson is an organiser with the Plumbing Division of the CEPU, a matter which will be discussed in a moment. Further, he was present when a conversation was had between Mr Gaskin and Mr McQueen, which went along these lines:
McQueen: “What’s happening with the blokes on site?”
Gaskin: “What do you mean?”
McQueen: “In relation to the hoist driver, the tower crane crews and the other workers on site.”
Gaskin: “There is some industrial activity obviously going on on the project in relation to an issue in Melbourne and it is out of my control.”
McQueen: “How are you going to provide services on the job?”[1]
McQueen: “Have you contacted the relevant subcontractors to advise them of what is happening on site?”
Gaskin: “No I haven’t called them.”
McQueen: “We have to talk to our guys in relation to what is going on.”
[1] A reference to the emergency evacuation services available in the event of an accident or injury, which included the use of a hoist and tower crane personnel to evacuate workers.
Mr McQueen made the observation at the time that members of the Plumbing Division were standing at the bottom of the driveway. He said that Robinson went over and talked to some of his members who advised him that there was no hoist operating on the site, nor any tower crane crew or stretcher carriers. The members said that they did not know the identity of the first aid officers so could not tell if they were present. McQueen contends that he told the members he had called the Construction Manager of Fairfield Services and otherwise did other useful but unrelated things which were directed principally to the provision of the members’ health and safety on the site. In essence, he contended that the purpose of his attendance on site was not in order to involve himself or his union with the difficulties on site, but rather to advance the safety and welfare of his members only.
Of course that matter has some significance in the context of an application by those who seek to be excluded from the orders. But, in any event, it is evident that Mr Ong, an organiser of the third respondent, arguably did participate in the protest on 28 August, or at least was seen to be involved with the protest on 28 August which began at the head office of Abigroup Contractors Pty Ltd located at South Brisbane and then marched to the Brisbane CBD. It was his evidence that at about 9:45am the march arrived at Elizabeth Street, although Mr Ong says that he was not the leader of the march and took no role in organising the march.
He says that the protest resumed on the side of the footpath on Elizabeth Street opposite the site for a short time and then shortly after the protestors began to enter the site through a driveway. He says that he did not know exactly why they did this, but he did not discuss that matter with them as a group. He added, however, because of his experience in the electrical and construction industries since 1986, including as a union official since 2000, that he knew construction sites were potentially dangerous places and for that reason he entered the site with the protestors to ensure that the protest was conducted in a safe and orderly manner and, I assume, conducted with as much expedition as possible.
He noted that he was joined by Mr Lynch, another organiser of the third respondent. He says that despite entering the site, he did not have any choice as to whether the protest continued or not, because the protestors were not under his control, nor that of any particular individual.
Against that background, the point is made by the applicant that it was odd then that when a police officer sought to evict people from the site, Mr Ong approached and volunteered himself to the officer in question. He made an offer to undertake some action to help remove protestors, saying words to the effect of: “No worries officer I will make that happen.”
Mr Ong says it was with that in mind that he then obtained a megaphone from one of the protestors so that he could inform the assembled protestors of the advice he had received from police and that he then addressed the protesters with words to the effect of: “Guys, listen up. I’ve just been told by the Police and Grocon that the site isn’t safe and you can’t be here. All of you, get out of here.” Following that, the protestors left the site, although he says he did not direct them to stand on the road, and that was a matter beyond his control.
Plainly, it seems that there were safety issues raised. However, it also seems to me that there is a real contest as to whether Mr Ong’s presence on site was one which was legitimate in the sense that his presence was for purely safety reasons as he says, and whether they were his sole and predominant purpose for being there, or whether the safety reasons are merely contrived and simply a convenient excuse for his presence. It is odd that Mr Ong was previously engaged in a protest before arriving at this site, and that, with the same protest group he had earlier joined, happened to find himself in the laneway in the manner he says.
It would seem from the video material that most of the protesters in this group were building workers, as is evident from their dress and equipment. It did not appear to be a protest that otherwise generally involved members of the public. One can infer from the protesters involved that they would have been more than conscious of safety issues in relation to building sites and certainly conscious of the risk that the building site may have presented to them.
In any event, the presence of Mr Ong and other members of the CEPU for the predominant purpose of safety of itself gives rise to issues, particularly once members of the workforce were aware, as they would have been, that the Grocon employees employed in the operation of hoists and traffic control were no longer on the site. There would then have been an issue in relation to general safety, which ordinarily would be self-evident and addressed by the safety mechanisms on site, including the site safety committee.
One wonders, against that background, about the chance that members of the CEPU would serendipitously arrive on site at the time of other action, especially given the sophisticated worksites and work safety regimes in place. There is, in my view, a serious issue in relation to the bona fides of the presence of organisers of the CEPU and whether it was indeed in their capacity to undertake safety activities or whether they were ostensibly engaged, on behalf of the union, in the performance of industrial activities.
Finally, the third respondent submitted that, because it is a body corporate, by reason of the directive issued by the Divisional Executive of the Construction and General Division of the CFMEU on 10 and 11 March, the organisation was only permitted to undertake industrial action authorised by the first respondent. This includes that it should not be part of the duties of any delegate, steward, officer or employee including organisers, to threaten, intimidate, initiate, counsel, procure, induce, or be involved in, or engaged in, or be party to any industrial action other than protected industrial action as defined under the Act. That is, that it ought not, and its officers ought not, engage in activity such as the activity the subject of this application.
Further, that Mr Michael Ravbar, Division Branch Secretary of the Queensland Construction Workers’ Divisional Branch of the CFMEU, following the making of the orders on 24 August, caused those orders to be brought to the attention of organisers employed by the CFMEU and that he issued those organisers with a direction that they were to comply with the terms of the orders.
Additionally, there was no basis to be aware of any order by any organiser attending the site since the making of that order. No doubt, that evidence was addressed to whether or not quia timet injunctive relief ought be permitted in the circumstances. However, notwithstanding those matters, there is evidence, as I earlier noted, of people wearing CFMEU attire. They are distinguishable from the other workers on the site. These matters are matters which tend to suggest that they are people with ostensible authority and those issues ought be examined at trial. In my view, a serious issue arises in relation to those matters.
In that regard, I am particularly cognisant of the observations of Moore J in Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503, in particular his comments at [324], where it was observed:
“[324] For the purposes of s.728 of the WR Act, a person must have engaged in some act or conduct which “implicates or involves him or her to the contravention” and that person has had a “practical connection” to the contravention. In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228, Le Miere J at [29] said:
A person is not involved in a contravention unless he assents to or concurs in the conduct which constitutes the contravention. To be involved in a contravention requires that the person have a practical connection with the contravention. However, it is not necessary that the person physically do anything to further the contravention. It is sufficient if the person, by what he said and agreed to do, in fact became associated with and thus involved, in the relevant sense, in the conduct constituting the contravention: see R v Tannous (1987) 10 NSWLR 303 at 308.
[325] It was also said in Leighton Contractors v Construction, Forestry, Mining and Energy Union that a person could become involved in industrial action by omission. Le Miere J observed at [36]:
… McDonald did more than merely attend a meeting and recommend to the Employees that they return to work. It is open to the tribunal of fact to infer that McDonald convened the meeting and presided over it. McDonald acted as the spokesman for the striking Employees in presenting its response to the Joint Venture representative and in speaking about the matter on the radio. It is open to infer that McDonald associated himself with the unlawful industrial action.
[326] Another example of liability by omission was a decision of Middleton J in Amcor Packaging (Aust) Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Australia (2006) 157 IR 32, which concerned ss.494 and 496 of the WR Act. His Honour said at [15]:
I am not in a position to conclude one way or the other whether the actions of the delegates are to be attributed to the respondent, both as a matter of law or fact. I have been referred to a number of authorities dealing with the issue of agency and authority, including Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 ; 102 IR 359 and Yallourn Energy Pty Ltd v Construction, Forestry, Mining and Energy Union [2000] VSC 479. In addition I have been taken to the Rules of the union, which indicate some limited authority within which the delegates operate in the union. It seems to me, however, that there are a number of matters that need to be investigated as to the position of the delegates, their authority and their actual role in the industrial action, which in my view raise a serious question to be tried. There is sufficient evidence to find that the officers of the respondent, by the observing and the failing to stop the delegates, have implicitly, if not expressly, involved themselves in the conduct of the delegates, which can be attributed to the union.”
I also note the observations of Middleton J in Amcor Packaging Australia Pty Ltd (2006) 157 IR 32 which I consider apply with equal force to the facts in this case.
Finally, there is a matter concerning whether or not certain parts of the third respondent, namely the Plumbing Division, should be excluded from the operation of the injunction. At the outset, this matter requires a consideration of the rules. Plainly, the Plumbing Division falls within the control of the CEPU; that is the registered industrial organisation. The Plumbing Division seeks to be excluded from orders against the CEPU, because they say that they were only there to address safety issues and were not part of the industrial action.
Counsel for the Plumbing Division took great care to demonstrate through a review of the rules that notwithstanding there being one registered organisation, the fact remains that the Plumbers are a particular and discrete part of that organisation and tend to operate independently of other divisions within the organisation. In particular, it was contended that the activity on this occasion implicated only the electrical division of the CEPU and, accordingly, the injunction ought only issue in respect of that.
In my view, there is an issue concerning whether or not the evidence shows, for instance, that Messrs McQueen and Robinson were on site in relation to the industrial action which is complained of, or whether they were genuinely there in respect of the safety issues which they raise. The issue which was identified by the third respondent is really a matter which concerns an internecine dispute between those parties, with the one division seeking to be distanced from the conduct of the other.
Perhaps it was serendipitous and unfortunate that Mr Robinson and Mr McQueen found themselves on the site at the same time. But, for reasons I have earlier noted, having regard to the history of the matter and what was otherwise occurring, it seems that there was more than sufficient evidence to give rise to serious issue as to whether or not the whole of the CEPU or only one part was involved in the dispute. It therefore seems appropriate that I not exclude the Plumbing Division from the orders which I propose.
I turn now to the balance of convenience. The orders are generally directed to prevent the respondent from undertaking what would otherwise be unlawful industrial activity. I would expect that an injunction to restrain non-compliance with law would not cause undue convenience or prejudice to any party. It was contended that I ought to consider, however, the effect that this might have upon the respondents’ collective right to undertake otherwise lawful activity. I have considered that submission but do not see how any order made to prohibit them from undertaking unlawful activity, at least until the trial of this matter, could in anyway inhibit their performance of lawful duties, such as attending site in respect of proper safety issues which may arise.
So far as prejudice is concerned, there can really be no serious prejudice contended for by the respondents. For the applicants, however, there is, in my view, a significant prospect of prejudice. First, there is the daily damages occasioned by the $16,000.00 costs which flows from the delay of the project in the immediate future. Then, there is the risk of the unliquidated damages that may be incurred if the project is not completed by the due date for practical completion.
Whilst it is possible to argue that damages can be assessed, damages, in my view, would not necessarily constitute an adequate remedy. If the orders were not granted, the industrial action continued and then the applicants succeeded at trial, the matter would resolve into a question of what damages ought be paid by the respondents. The applicant and the Court would then be subject to the very troublesome problem associated with assessing the quantum in a prolongation claim.
Prolongation claims are not simple actions. They often involve difficult and detailed analysis of the complex interaction of various activities that take place in the course of a sophisticated building project. They frequently involve highly complex assessments of which activities may or may not have affected the overall delivery of a project in accordance with its critical path and time line, ending at the date for practical completion.
Often those disputes involve contests between various parties who are alleged to be the cause of delay and the dispute between those parties involves difficult trials concerning the attribution of responsibility. Frequently these claims are accompanied by a team of expert engineers and are highly technical and expensive to run. In other words, the prospect of a simple recovery of damages against the background of a trial which would involve assessment of damages in a prolongation claim would make the prospect of damages illusory. It follows that I do not think damages represent an adequate remedy.
Further, there is the issue of the status quo. Ultimately, the status quo in this instance simply requires each party to do what it is lawfully required to do, which is not to undertake unlawful industrial action. The relevant status quo is one which I think ought reasonably be maintained until the resolution of the trial.
Finally, there is the issue of the Victorian proceedings. Although I am conscious from my reading of the press that those matters have achieved some degree of tranquillity, they have not been resolved finally and it is uncertain as to whether or not those matters will be finally resolved. The present position, as I understand it, is that Mr Grollo (on behalf of Grocon) and the CFMEU are negotiating. Needless to say, if negotiations fail the very matters that gave rise to this dispute will be alive again and it seems that there would then be the prospect of more action, if history is to be any indicator of future events.
All the circumstances my view favours the grant of the injunctions and I propose to make orders extending the orders of 28 August to trial. I will ask the parties to prepare a minute of order which will also address the necessary interlocutory steps to be undertaken between now and the trial.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate:
Date: 10 December 2013
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