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

[2013] FWC 5839

[2013] FWC 5839

The attached document replaces the document previously issued with the above code on 20 August 2013.

At paragraph [9] at the last or tenth dot point the word “only” is inserted after the word “that” and before the word “about” so that it now reads “It was estimated that only about 50”

Penelope Curtis

Associate to Deputy President McCarthy

27 August 2013

[2013] FWC 5839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Crown Construction Services Pty Ltd; John Holland Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/2848)

John Holland Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/5217)

DEPUTY PRESIDENT MCCARTHY PERTH, 20 AUGUST 2013

Industrial action. Decision.

[1] On Sunday 21 July 2013 John Holland Pty Ltd (John Holland) lodged an application for an order to stop unprotected action (the July application) against the Construction, Forestry, Mining and Energy Union (CFMEU) and employees of Structural Systems (Western) Pty Ltd (Structural Systems) and IC Energy Pty Ltd.  1 Another application was lodged at the same time 2 seeking an extension of the term of the John Holland Pty Ltd Children's Hospital industrial action - February 2013 Order (the February Order), which I issued on 19 February 2013. 3 The term of the February Order was from 19 February 2013 until 19 August 2013. John Holland seeks an extension of that order until 19 July 2014.

[2] The applications relate to work at the New Children's Hospital (the Project). The Project includes the design and construction of a New Children's Hospital to replace Princess Margaret Hospital (PMH). The hospital will provide tertiary-level health services including inpatient and outpatient care and ambulatory care services. It will have capacity for 274 beds, house the State's only paediatric trauma centre and nearly double the number of theatres that presently exist at PMH. The Project is due to be completed in June 2015. The cost of the Project is $1,200,000,000. John Holland is the Managing Contractor for this project. The Project involves the building of about 120,000 metres of floor space over two eight to nine story buildings, a five story building and a four story building with a nine story atrium in the middle. In earlier proceedings it was evidenced that if there are delays in the Project John Holland may be subject to liquidated damages of $180,000 per day of delay.

[3] I listed both applications for hearing and determination together on 23 July 2013. There was no objection to the matters being dealt with together. As I was unable to determine the applications within two days of them being made and as I considered it was not contrary to the public interest to do so I issued an interim order for the July application. It was unnecessary to issue any further order for the February Order given its expiration date.

[4] The subcontractors now working on the Project are Crown Construction Services Pty Ltd (Crown), Stuttgart Assets Pty Ltd t/as Westcoast Formwork (WCF), National Reinforcing Group Pty Ltd (NRG), GMF Contractors Pty Ltd (GMF), JGB Cranes Pty Ltd (JGB), Structural Systems (Western) Pty Ltd (Structural Systems) and IC Energy Pty Ltd (IC Energy).

[5] Evidence was given at the hearing by Ms Sarah Woolley the Project Human Resources and Industrial Relations Manager for the Project. Evidence was also given by Mr Ryan Carrington the HR Strategy and Delivery Manager for John Holland in Western Australia.

[6] On 25 July 2013 I issued Directions regarding the provision of written submissions and whether the CFMEU wished to call any witnesses or cross-examine those that had given evidence. Written submissions were provided and the CFMEU advised that they neither wished to call any evidence nor cross-examine witnesses John Holland had called. John Holland and the CFMEU also advised that a further hearing was not required and the application could be dealt with on the papers.

[7] The FW Act in s.418 provides that:

“(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.”

Here industrial action is not happening and nor is there any evidence that it is being organised. Nor is there any sufficient foundation for a view to be formed that industrial action is either threatened or impending. Rather what is claimed is that the industrial action that would not be protected industrial action is probable. Moreover, there is no precision given to the claims such as when and what form that industrial action may take, other than it is likely that it will occur.

[8] My obligation is to consider whether "it appears to me" that there "is a probability" that "unprotected industrial action" will occur. The underlying facts here are that unprotected industrial action has occurred  4 and a long term Order was issued by me in the hope that the parties would direct themselves to find means to overcome disputes without resorting to unprotected industrial action. 5 It is also apparent that unprotected industrial action has occurred despite the existence of the Order that it not occur. 6

[9] John Holland sought to establish from the evidence they produced that there was a probability of further industrial action and implied that that the previous Order I issued  7 had not had the effect of reducing that likelihood in either the immediate term nor the longer term. Elements of the evidence they produced in support of those contentions were that on 18 July 2013:

• Officials and or organiser of the CFMEU had blocked access to the site.
• Officials and or organiser of the CFMEU had stated "I'm not blocking the site, it's closed!".
• An Official or organiser of the CFMEU had shouted at employees entering the site "Scab!", "You fucking pussy!" and "Scabby cunts!".
• Another official or organiser of the CFMEU had shouted "You cunt!" and "Fucking scabby piece of shit!".
• A crowd estimated to be about 600 persons congregated outside the site and chanted "1, 2 3 and a bit - John Holland are full of shit," and "EBA equal pay".
• Concrete trucks had been prevented for accessing the site.
• An official of the CFMEU had said to the crowd "We will not go back to work today".
• That official said to the crowd "We will be back at the gate." inferring that there would be further occasions where access would be blocked or pickets established.
• That official stated further that "We will come back, and we will come back, and we will come back."
• It was estimated that only about 50 of a workforce of over 400 did not attend for work for the rest of that day.

[10] It appears to me that since 19 February 2013 the industrial climate at the Project has not improved at all, or at least to the extent that further unprotected industrial action is not probable.

[11] Furthermore, I consider that without an Order by the Fair Work Commission (FWC) for industrial action to not occur the probability is even higher than an already fairly high probability. The prognosis for the industrial health at the Project is not good. There is nothing that the CFMEU either by its actions, by the words uttered by Union officials or by the lack of explanation or undertakings that could be taken to form any other view than it appearing to me that further unprotected industrial action was probable.

[12] I regard the industrial action that has occurred already and the actions and words of union officials and others establishes a probability that obliges me to issue Orders.

[13] I have decided that the existing Order should be extended for a further twelve months and that a Further Order should be issued to cover and apply to employees of contractors that are not covered by the existing Order. These are the reasons for me deciding to issues these Orders on Friday 16 August 2013.

DEPUTY PRESIDENT

Appearances:

Mr Blackburn Counselfor the Applicant

Mr J Nicholas for the Respondent

Hearing details:

2013

Perth.

July 23.

 1   C2013/5217

 2   C2013/2848

 3   PR533573

 4   [2013] FWC 1042

 5   PR533573

 6   PR533573

 7   PR533573

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540390>