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

[2013] FCA 1309

FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1309

Citation:	John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1309
Parties:	JOHN HOLLAND PTY LTD ACN 004 282 268 & ANOR v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS
File number:	QUD 729 of 2013
Judge:	RANGIAH J
Date of judgment:	8 November 2013
Catchwords:	INDUSTRIAL LAW – union alleged to have engaged in unprotected industrial action at construction sites –– application for interlocutory injunctions– whether prima facie evidence that the respondents persuaded or encouraged workers not to return to work – whether prima facie evidence of a secondary boycott – balance of convenience
Legislation:	Competition and Consumer Act 2010 (Cth) s 45D Fair Work Act2009 (Cth) ss 343, 417 and 421
Cases cited:	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 applied
Date of hearing:	8 November 2013
Place:	Brisbane
Division:	FAIR WORK DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the First and Second Applicants:	Mr J Murdoch QC with Mr C Murdoch
Solicitor for the First and Second Applicants:	Ashurst Australia
Counsel for the First, Second, Third, Fourth and Fifth Respondents:	Mr R Reitano with Ms C Hartigan
Solicitor for the First, Second, Third, Fourth and Fifth Respondents:	Hall Payne Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 729 of 2013

BETWEEN:

JOHN HOLLAND PTY LTD ACN 004 282 268
First Applicant

JOHN HOLLAND QUEENSLAND PTY LTD ACN 133 069 280
Second Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

JADE INGHAM
Second Respondent

KANE PEARSON
Third Respondent

TONY KONG
Fourth Respondent

KEVIN GRIFFIN
Fifth Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	8 NOVEMBER 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The orders of 7 November 2013 will not be discharged.

2.Costs are reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
FAIR WORK DIVISION	QUD 729 of 2013

BETWEEN:

JOHN HOLLAND PTY LTD ACN 004 282 268
First Applicant

JOHN HOLLAND QUEENSLAND PTY LTD ACN 133 069 280
Second Applicant

AND:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Respondent

JADE INGHAM
Second Respondent

KANE PEARSON
Third Respondent

TONY KONG
Fourth Respondent

KEVIN GRIFFIN
Fifth Respondent

JUDGE:	RANGIAH J
DATE:	8 NOVEMBER 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant seeks interlocutory injunctions.  Such injunctions would restrain the respondents from, amongst other things, advising subcontractors and employees of subcontractors that they should not carry out work at two construction sites operated by the applicant.  The respondents consist of what used to be called a “trade union”, and four of its officials. 

2. On Monday, 4 November 2013, I heard an application for interim injunctions and granted such injunctions. 

3. On Wednesday, 6 November 2013, I discharged those injunctions.  I was not satisfied that the applicant had established a prima facie case in the sense required by Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

4. On Thursday, 7 November 2013, the applicant made a further application for urgent interim injunctions on the basis of new events that had occurred that day, and I granted such relief.  I directed that the application for interlocutory injunctions be heard on Friday, 8 November 2013.  I heard argument upon the application for interlocutory injunctions.  Neither party sought an adjournment of the application.  The applicant applied for the discharge of the interim injunctions.

5. There has been a long-running dispute between the union and the applicant.  The dispute concerns the refusal of the applicant to enter into an enterprise agreement proposed by the union. 

6. There is evidence that the union organised unprotected industrial action in March and August 2013.  Orders were made against the union by the Fair Work Commission on 13 August 2013.  Those orders expired on 14 October 2013. 

7. On 28 and 29 October 2013, there was industrial action at two sites operated by the applicant.  The industrial action consisted of employees of a number of subcontractors withdrawing their labour.  On 29 October, the Fair Work Commission made orders restraining the union, its officers, employees and delegates from organising any industrial action by the employees of named subcontractors in respect of the two sites.  On 30 October 2013, the Fair Work Commission extended its orders by directing that the employees cease engaging in industrial action. 

8. The applicant has brought proceedings in this Court against the union and the four individual respondents alleging contraventions of ss 417, 421 and 343 of the Fair Work Act2009 (Cth) and s 45D of the Competition and Consumer Act 2010 (Cth).

9. In its application for interlocutory injunctions, the applicant asserts that there is a prima facie case of breach of each of those provisions. 

10. On 30 October 2013, the four individual respondents held a meeting with the employees of subcontractors at the applicant’s ELF 2B project site.  Other officials held a meeting with employees at the applicant’s QUT site.  After each meeting the employees did not return to work.  Most of them have not returned to work or carried out work on any day since then.  There was evidence that the employees at the ELF 2B site resolved to strike until Thursday, 7 November 2013, and those at the QUT site resolved to strike indefinitely. 

11. The four individual respondents each swore affidavits to the effect that at the meeting on 30 October 2013 they had read out the orders made by the Fair Work Commission on 29 October and the workers became angry and left the worksite.  The individual respondents depose that they did not direct, advise, encourage or authorise the workers to withdraw their labour.  Those affidavits were uncontradicted by any evidence adduced by the applicant.  On the basis of those affidavits, I found, on Wednesday, 6 November 2013, that there was no prima facie case and discharged the interim injunctions.  However, the applicant has now produced further evidence.  

12. On Thursday, 7 November 2013 the four individual respondents met a large group of employees outside the ELF 2B site.  These respondents and workers left the site and went to a group of shops about 300 metres away.  The workers returned to the site about an hour later, but then got into their cars and left without performing any work. 

13. The applicant produced evidence consisting of a transcript of a tape-recorded discussion between a manager of the applicant and two named employees who had attended the meeting at the group of shops on Thursday, 7 November 2013.  The transcript shows that the two employees said that the union officials were careful with what they were saying at the meeting and did not mention a strike. 

14. However, according to the transcript, one of the workers at the meeting suggested a strike.  It is clear that the suggestion did not emanate from a union official. 

15. The transcript shows that the two employees said that a vote was taken and about two-thirds of the workers voted in favour of returning to work. 

16. The transcript shows that one of the two employees said:

    And then the CFMEU delegate shot him down and said, “Look, I’m running this meeting, keep quiet”, and then he had this big spiel about the EBA and all this sort of thing about John Holland not signing and blah, blah blah, about QUT being out and all that sort of thing, and then the bloke said “Well, we’ll go on strike then,” and they kept talking and talking and virtually wound the blokes up to the point where they got more hands than the blokes that wanted to go back to work.
    (Punctuation added.)

17. The second employee said later in the transcript:

    But when he first said, “Oh you know, who’s for going out on strike?”, sort of shit and then a few blokes put their hands up, and I said, “Well who’s for going back to work?” and a heap of blokes put their hands up and that’s when he said “Hang on, hang on.  I’m running this meeting”, and then, um, went on another big spiel and a big spruik and it all went to shit then.
    (Punctuation added.)

18. Counsel for the respondents argued that none of the four individual respondents was identified as the person encouraging the workers not to return to work in the passages just identified.  Counsel argued that “CFMEU delegate” referred to an employee, not a CFMEU official. 

19. I do not accept this submission.  Later in the transcript there are references to the same person as “the official, whoever, the CFMEU bloke” and “the officials, or whoever, the CFMEU bloke”.  Earlier in the transcript, it is indicated that the CFMEU official was running the meeting, and this is consistent with that person being the “CFMEU delegate” referred to in the passages I have set out earlier. 

20. I accept that there is evidence that at the meeting one of the four individual respondents persuaded or encouraged the employees not to return to work. 

21. There is evidence to the contrary by one of the four officials present, Kane Pearson.  He deposes that he did not direct, advise, authorise or encourage any workers to leave the project site or withdraw their labour.  He also says he did not see or hear any other official of the CFMEU advise, authorise, direct or encourage the workers to leave the project or withdraw their labour that day.  He says that the other three officials did not do any of those things while they were in his presence.

22. The factual dispute as to what happened at the meeting on Thursday, 7 November, will have to be resolved at trial.  For present purposes, however, I accept that there is prima facie evidence that a union official directly persuaded or encouraged employees not to return to work.  In doing so, he utilised his authority as an official of the union at a meeting organised by the union.  The other three officials did not dissociate themselves from the comments made by the first one, and I accept that there is prima facie evidence of passive or tacit support for the first.  In summary, I accept that there is a prima facie case of a breach of ss 417, 421 and 343 of the Fair Work Act by each of the respondents. 

23. There is also evidence that one of the subcontractors received phone calls from “the union” telling him that if he did not let the strike run its course, the subcontractor would be blacklisted.  This is prima facie evidence of a breach of s 45D of the Competition and Consumer Act. 

24. The evidence is clear that there is substantial economic harm to the applicant and subcontractors while work is not being performed at either of the two project sites.  It was not submitted by the respondents that the balance of convenience fell against the granting of interlocutory injunctions. 

25. It is appropriate that the orders I made on Thursday, 7 November 2013 should continue.  I therefore decline to discharge those orders. 

26. I decline to make the further order sought by the applicant restraining the respondents from engaging in particular conduct within a certain geographical distance of the two sites.  I do not think that the evidence goes so far as to justify such an order.

27. I will reserve costs. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

Associate:

Dated:       6 December 2013