John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union

[2009] FCA 1063

FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd v Construction, Forestry, Mining & Energy Union [2009] FCA 1063

JOHN HOLLAND PTY LTD (ACN 004 282 268) v CONSTRUCTION, FORESTRY, MINING & ENERGY UNION, GREG MCLAREN, ANDREW CLARK, RUSSELL SARGENT and SHANE TREADAWAY

QUD 178 of 2009

DOWSETT J
21 JULY 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 178 of 2009

BETWEEN:

JOHN HOLLAND PTY LTD (ACN 004 282 268)
Applicant

AND:

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
First Respondent

GREG MCLAREN
Second Respondent

ANDREW CLARK
Third Respondent

RUSSELL SARGENT
Fourth Respondent

SHANE TREADAWAY
Fifth Respondent

JUDGE:	DOWSETT J
DATE:	21 JULY 2009
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In these proceedings, the applicant asserts breaches of the Workplace Relations Act 1996 (Cth) and the Fair Work Act 2009 (Cth) by each of the first, second, third, fourth and fifth respondents. Yesterday and today, I have been hearing an application for interlocutory relief, as identified in the application. In effect, the applicant seeks injunctive relief restraining the first, second, third, fourth and fifth respondents from entering a building site other than upon certain conditions. The site is a major development to the west of Brisbane, involving major rail and road work.

2. The applicant asserts that the second, third, fourth and fifth respondents have, on occasions, entered the site in circumstances in which they were not entitled to do so.  It is further alleged that when on site, they have conducted themselves in ways which were inconsistent with any possible statutory right of entrance and have otherwise caused concern, to use a neutral term, to the applicant.  This very terse recitation of the facts should not be taken as an indication on my part that I accept them as being true.  They are simply allegations with which I must deal for the purposes of considering the grant of interlocutory relief pending the trial of this matter. 

3. The matter is potentially serious, both for the parties and for the public.  The development is, as I have said, a substantial one, comprising the construction of significant infrastructure in South-East Queensland, an area of rapid population expansion.  I do not understand it to be my function, on an application of this kind, to analyse in detail the facts, or to form a preliminary view as to the likelihood of success in the litigation.  I understand that I must identify a serious question to be tried or a prima facie case.  The distinction is not important for present purposes.

4. The applicant’s case is complex.  It depends upon the provisions of Commonwealth legislation and its interrelationship with the Workplace Health and Safety Act 1995 (Qld). The applicant frankly concedes that the argument depends upon demonstrated inconsistency between Commonwealth and State legislation. The respondents do not concede the strength of the case. Indeed, they submit that the case is fairly thin. However, given the complexity of the arguments, I am satisfied to accept, for present purposes, that there is a serious question to be tried.

5. That leaves for consideration the balance of convenience.  As I have said, the matter is of substantial public importance, as well as of considerable importance to the parties.  At least part of it addresses the circumstances in which union representatives may enter the site for purposes associated with site safety.  That is not a matter in which I would readily intervene.  The right of entry for other industrial purposes also arises. 

6. The applicant alleges prior unlawful conduct by the respondents.  The respondents submit that such evidence is inconclusive.  I am satisfied that such evidence demonstrates a real risk of disruption of the relations between the applicant and the respondents.  This would be undesirable from the points of view of the parties and the public.  In those circumstances, I indicated to the parties that I considered that limited interlocutory relief should be granted, tailored so as not unduly to hamper the safety role of the respondents.

7. The applicant has proposed a form of order, and the respondents have commented upon it.  As a result, a draft has been prepared which I am willing to adopt, subject to its form being settled by the parties.  It is in no sense a consent order.  The parties are satisfied that they understand my intentions, and that they can prepare a document which will reflect those intentions.  I will make an order in terms of the draft which is to be presented to me. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        18 September 2009

Counsel for the Applicant:	Mr GJ Hatcher SC and Mr A Herbert
Solicitor for the Applicant:	Herbert Geer Lawyers
Counsel for the First, Second, Third, Fourth and Fifth Respondents:	Mr WL Friend
Solicitor for the First, Second, Third, Fourth and Fifth Respondents:	Hall Payne Lawyers
Counsel for the Intervener – Attorney General for the State of Queensland:	Mr J Murdoch SC
Solicitor for the Intervener – Attorney General for the State of Queensland:	Crown Law

Dates of Hearing:	20 & 21 July 2009
Date of Judgment:	21 July 2009