John Holland Queensland Pty Limited v Construction, Forestry, Mining and Energy Union

[2014] FWC 6436

[2014] FWC 6436

The attached document replaces the document previously issued with the above code on 15 September 2014.

Typographical errors have been corrected in paragraph [24] and Endnotes 14 and 16.

A reference to Thiess has been amended to John Holland in paragraph [35].

Carolyn Jurott

Associate to Deputy President Asbury

Dated 16 September 2014

[2014] FWC 6436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

John Holland Queensland Pty Limited
v
Construction, Forestry, Mining and Energy Union
(C2014/6316)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 SEPTEMBER 2014

Fair Work Act 2009 s.418 – Application for an Order that industrial action stop etc. – Finding that industrial action that is not protected industrial action is occurring – History of resort to industrial action and current state of industrial relations considered – History relevant to deciding whether it appears that industrial action that is not protected is probable - Finding that it appears that further industrial action that is not protected is probable – Finding that industrial action is being organised and that it appears that this will continue - Lengthy Order required on the basis that industrial action on a continued and long term basis appears probable – Order from 12 September 2014 until 30 April 2015 issued.

Background

[1] At 5.03 pm on Thursday 11 September 204, John Holland Queensland Pty Ltd applied under s.418(2)(b) of the Fair Work Act 2009 (the Act) for an Order to stop unprotected industrial action in relation to the Queensland University of Technology Creative Industries Precinct Project (the QUT Project). The Order was sought against the Construction, Forestry, Mining and Energy Union (CFMEU) and its officers, delegates employees or agents and employees (members or eligible to be members) of John Holland Queensland Pty Ltd and the following companies, subcontractors to John Holland (the subcontractors):

● Morrow Equipment L.L.C.;
● Johnston Contracting Pty Ltd;
● One Form (Qld) Pty Ltd;
● Marveldale Pty Ltd T/A East Coast Concrete Contractors;
● Waco Kwikform Limited;
● Structural Systems (Northern) Pty Ltd;
● Precision Interior Walls and Ceilings Pty Ltd; and
● Casa Engineering (Brisbane) Pty Ltd.

[2] The employees of the subcontractors are engaged in work that is regulated by enterprise agreements, details of which are set out in the application. 1 Those agreements are in effect and have not reached their nominal expiry dates.

[3] Consistent with the requirements in s. 420(1) that as far as practicable such an application is to be determined within 2 days after the application is made, it was listed for hearing at 12.00 pm on Friday 12 September 2014. John Holland was represented by Mr Rogers of Ashurst Australia and the CFMEU by its Legal Officer, Mr O’Brien.

[4] Evidence in support of the application was given by:

● Peter Kazaglis, Project Manager; 2
● Victor Dan Richard Van Der Rhede, Site Manager; 3 and
● Shannon Marie Chapman, Solicitor Ashurst Australia.

[5] Mr Kazagalis and Mr Van Der Rhede were cross-examined by Mr O’Brien. Ms Chapman was not required for cross-examination.

Evidence

[6] By letter emailed to the CFMEU at 11.19 am on 11 September 2014, Ms Chapman advised the CFMEU that the application would be made and that it would rely on the correspondence to oppose any application for adjournment that might be made by the CFMEU on the basis that the Union had been advised that the application would be made and listed at short notice, and therefore had sufficient time to prepare for the hearing. Ms Chapman provided evidence that the email was read at 11.32 am on that date.

[7] The QUT Project is a $60 million project for the demolition and refurbishment of existing buildings and the construction of a new building at the QUT’s Kelvin Grove Campus. John Holland engages three persons who currently perform work at the QUT Project and also engages the subcontractors. The total number of workers engaged on the QUT Project is 140.

[8] Mr Kazaglis’ evidence is that on or around 10 September 2014, Mr Mick Myles and Mr Adam Olsen, Organisers for the CFMEU, together with Mr Whakaruru, a Delegate of the CFMEU, met with him. During the meeting, Mr Myles questioned Mr Kazaglis about whether induction records of employees working on the QUT Project had been provided to the Fair Work Building Commission and whether Mr Patton, the Safety Manager on the QUT Project site had been involved in the provision of the records. The issue had arisen because a number of employees of contractors on the QUT Project had been contacted by the FWBC on the previous weekend.

[9] An email responding to the allegation that John Holland had forwarded employee details to the FWBC was sent to Mr Van Der Rhede by John Holland’s Operations Manager. At or around 5.46 am on 11 September 2014, Mr Van Der Rhede met with Mr Whakaruru and read the response email to him. Mr Whakaruru said that Mick [Mr Myles] would be coming to site and that the email should be shown to Mr Myles.

[10] Mr Van Der Rhede went to the front entrance of the QUT Project site to wait for Mr Myles to arrive. On his way to the front entrance he overheard Mr Whakaruru and another CFMEU Delegate Mr McAlister telling employees that there would be a Union meeting at 6.30 am. Mr Van Der Rhede observed Mr Myles arriving at the Car Park at the QUT project site at or around 6.23 am. Mr Van Der Rhede approached Mr Myles and informed Mr Myles that before he addressed workers, he wanted to read an email to him in response to the allegations about the provision of employee details to the FWBC.

[11] After hearing the contents of the email, Mr Myles said he still needed to address workers. Mr Myles was seen by Mr Van Der Rhede to be addressing a group of workers who had gathered in the car park. Mr Van Der Rhede said that he saw those workers raising their hands. The meeting concluded at around 6.39 am and workers commenced to leave the site, get into their cars and drive away.

[12] Mr Kazaglis’ evidence was that a concrete pour was scheduled for 7.30 am on 11 September 2014. At around 6.30 am on that date, Mr Kazaglis noted that the cranes on site were not moving and that workers were not in the crane cabs as they would normally be. Some 80 to 100 employees were observed by Mr Kazaglis to be gathered in the QUT car park closest to the street and away from the front entrance of the QUT Project site. Mr Kazaglis observed the gathering until 6.45 am when it dispersed. He noted Mr Myles was standing at the far end of the car park.

[13] At or around 7.00 am Mr Kazaglis and Mr Van Der Rhede had a discussion with Mr Myles, Mr Whakaruru and Mr McAlister. According to Mr Kazaglis, Mr Myles said words to the effect that “the boys have decided to go home as John Holland has provided contact details of workers to the FWBC and they want a letter from John Holland confirming that they would not do this again and confirming that John Holland had not previously passed on those details”. Mr Kazaglis said that he would need to come back to Mr Myles and the Delegates to respond to the request. Mr Van Der Rhede also gave evidence that this conversation occurred.

[14] Mr Kazaglis said that after speaking to John Holland’s Operations Manager, he told Mr Myles that the letter would not be provided and confirmed that to the best of his knowledge, the information had not been provided to the FWBC by John Holland staff. Mr Myles then said words to the effect that “the guys wanted a letter at the report back meeting planned for tomorrow confirming that John Holland has not and will not voluntarily provide information to the FWBC and that if John Holland was required to do so it will advise us and the worker directly that their information has been handed over”.

[15] All employees of the subcontractors left the QUT Project site on 11 September 2014 and did not return on that day. The concrete pour scheduled for that day was not able to proceed. In his oral evidence at the hearing, Mr Kazaglis said that when he arrived at site on 12 September 2014 at or around 5.45 am, Mr Whakaruru asked to have a discussion. During that discussion Mr Kazaglis told Mr Whakaruru that John Holland would not be able to provide the letter that had been requested on 11 September. At or around 6.15 am Mr Myles arrived at Mr Kazaglis’ office and indicated that a report back meeting had been scheduled for 6.30 am. Mr Kazaglis asked whether he could address the meeting and was told that if workers wanted to hear from him then “Brian” would come over and get him.

[16] Mr Kazaglis was permitted to address the meeting and reported that the letter would not be provided. Mr Kazaglis also told the meeting that the information had not been provided by John Holland and read out the response to the allegations. Participants at the meeting asked a number of questions of Mr Kazaglis including whether the company would go through phone records to see who had telephoned the FWBC. Mr Kazaglis told the meeting that this would not be done. Mr Kazaglis then left the meeting to await the outcome.

[17] Mr Kazaglis was subsequently advised by Mr Myles (who was accompanied by Mr Olsen) that the employees believed him and understood that John Holland could not provide the requested letter. Mr Myles also informed Mr Kazaglis that Mr Patton had been spying on them while they met that day, and that the employees wanted Mr Patton stood down, because they did not trust him. Mr Myles further informed Mr Kazaglis that the employees had safety concerns and Mr Kazaglis asked that these be put in writing. Mr Kazaglis told Mr Myles that Mr Patton would not be stood down.

[18] Mr Myles and Mr Olsen then went to the Delegates office located in a site shed. Mr Kazagalis went to speak to them and told them that there was no imminent safety risk; they had no right of entry and they should remove themselves from the site.

[19] At or around 8.53 am on 12 September 2014, Mr Myles came to reception with Mr Olsen and handed a document to Mr Van Der Rhede entitled: “CFMEU Construction & General Qld/NT conducted for John Holland Audit Title Ian Paton Issue”. That document indicates that an “audit” was conducted on 12 September 2014 at 7.32 am, prepared by the Site Safety Committee and completed at 8.14 am. The document also states: “Entry to inquire suspected contraventions under s. 117 WHS Act 2011.” 4

[20] The document raises a number of issues including:

● The running of the Site Safety Committee by Mr Patton;
● Safety items not being closed out;
● Fire warden information not available;
● Evacuation plan not tested following apparent fix of failure found previously when conditions have changed drastically;
● Hostility and aggression by Mr Patton in dealings with workers;
● The workforce has had a vote of no confidence in Mr Patton;
● Workers no longer feel safe working with Mr Patton or working in his presence; and
● The continued “intransience” (sic) of John Holland management in fixing this issue has caused ill will.

[21] Mr Kazaglis said under cross-examination that concerns had been previously raised by employees about Mr Patton but these were accusations and he had no cause for concern with respect to Mr Patton. Mr Kazaglis said that these concerns would be investigated if they were raised in an appropriate manner. In relation to ongoing safety issues Mr Kazaglis said that training and identification of Health and Safety Representatives was in the process of being resolved. A practice evacuation of the site had shown that alarms were not audible in a particular location and a new alarm had been installed. That alarm has been tested and is audible. There are more employees on site than was previously the case but Mr Kazaglis did not see the need for a further practice evacuation in light of the one that had recently been carried out. Mr Van Der Rhede said that the issue of evacuation had not been raised at the last Site Safety Committee meeting but agreed that this matter was an area of responsibility of John Holland.

[22] Mr Kazaglis said that after the meeting on 12 September 2014, employees did not return to work and remained in the car park or in sheds. At the point Mr Kazaglis gave his evidence to the Commission on 12 September 2014, all employees of the contractors had left the site. The concrete pour scheduled for 11 September 2014 had been rescheduled to 12 September 2014 and was required to again be cancelled. Mr Kazaglis said that the concrete pour is a critical path item and will impact on the scheduled completion of the QUT Project. Each day over the scheduled completion date results in liquidated damages of $11,000 being payable to QUT and an additional $20,000 in labour costs. Mr Kazaglis also said that work is scheduled for Saturday 13 September 2014 and it is not clear whether employees will return to perform that work.

[23] Mr Kazaglis stated that when disputes arise between John Holland and the CFMEU and employees regarding the management of the QUT Project site, the default position is that employees resort to taking unlawful industrial action on a recurring basis and that industrial action is organised by the CFMEU. Details of this were set out in paragraphs 55 to 69 of Mr Kazaglis’ witness statement. 5

[24] In summary the evidence is that industrial action took place in August 2013, October 2013 and May 2014. Orders under s.418 of the Act were made in respect of this action. Those Orders operated for the following periods:

● 13 August 2013 to 14 October 2013; 6
● 29 October 2013 to 1 May 2014; 7 and
● 28 May 2014 to 28 February 2015 8 (reduced to 5 September 2014 by a Full Bench of the Commission following an appeal by the CFMEU).9

[25] In a Decision in relation to the most recent Order, 10 Senior Deputy President Richards records that the industrial action on 27 May 2014 arose in response to the conduct of John Holland’s site manager Mr Weigel in relation to a number of safety issues which had occurred on 9 and 16 May. On that occasion Mr Myles told Mr Weigel that a meeting of employees on 27 May had decided that he needed to be stood aside and undergo re-induction to the site. On 28 May 2014 while at least some employees were on site but not working, Mr Myles again made this request. Senior Deputy President Richards noted that in making this request Mr Myles used terms such as “we want Brian [Weigel) to be stood aside” and “we have decided we want you to stand aside and for you to be re-inducted.” The Senior Deputy President also found that this indicated that Mr Myles was much more than a conduit of the employees’ opinions and positions.

[26] Mr Kazaglis also gave evidence about other stoppages in April 2014 which were said to relate to Mr Myles seeking to enter the QUT Project site without having provided 24 hours notice, as follows:

● 10 April Workers stopped work to attend meeting held by Mr Myles in the car park after Mr Myles advised the project manager that he was going to have a two hour consultation meeting;
● 14 April 2014 Mr Myles advised that he was there to meet with employees and held two meetings in the car park;
● 15 April 2014 Mr Myles held meetings in the car park with a total duration of four hours involving concrete pump crew, form workers, crane crew, scaffolders, concreters and steel fixers;
● 16 April 2014 Scaffolders, pump crew and crane crew stopped work to attend a meeting held by Mr Myles who then advised that concreters would only do eight hours work, resulting in the cancellation of two scheduled concrete pours; and
● 19 May 2014 Mr Myles held a meeting in the car park and workers refused to return to work until issues in the first aid shed are fixed, a manager did not return to site and Mr Weigel undergo re-induction. 11

Submissions

[27] John Holland submits that the evidence establishes that industrial action occurred on 11 September 2014 and continued on 12 September 2014 when this application was heard. It is further submitted that the evidence establishes that the industrial action is being organised by the CFMEU through its Organisers Mr Myles and Mr Olsen. These persons organised meetings and all representations and demands came through them.

[28] There is a pattern of behaviour whereby industrial action is taken and then safety issues are raised in an attempt to cloak the industrial action as a safety dispute. This is evidenced by the fact that the issue raised on 11 September 2014 was the allegation that John Holland had provided information to the FWBC and the insistence that a letter providing undertakings in relation to this matter be provided by John Holland. After this request was refused, safety issues and concerns about Mr Patton were raised. It was only after employees had left the site that a written document setting out those concerns was produced and handed to management of John Holland by Mr Myles.

[29] This is said to be similar behaviour to that which occurred on 27 and 28 May 2014. The CFMEU has raised no issues that could constitute a reasonable concern of employees about an imminent risk to their health and safety. Proper channels for raising concerns have not been used by the CFMEU and employees have not adhered to dispute settling procedures in relevant enterprise agreements. In these circumstances it is contended that an Order should be made to operate until 30 April 2015.

[30] In support of this submission, reference was made to the Decision of a Full Bench of the Commission in United Voice v Foster’s Australia Limited t/a Carlton and United Breweries Limited 12(the Foster’s Case) where it was held that a lengthy order may be justified where the Commission finds that industrial action is threatened, impending and probable on a continuing and long term basis. Reference was also made to the decision of a Full Bench of the Australian Industrial Relations Commission in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union13where it was held that in establishing jurisdiction for an Order under s.127 of the Workplace Relations Act 1996, the history of past industrial action and evidence about the current state of industrial relations, is relevant.

[31] The CFMEU submits that there is insufficient evidence upon which the Commission could be satisfied that the CFMEU has organised industrial action. The fact that Mr Myles was on site on 11 September 2014 is not unusual and there can be no inference drawn on the evidence that Mr Myles organised the industrial action. In relation to the evidence about the stoppages in April and May 2014, it is contended that it is hearsay, and that the Commission should have regard to the fact that the relevant agreements provide an entitlement to employees to have paid time off to attend union meetings. In this regard, reference was made to the terms of the Oneform Pty Ltd and CFMEU Union Collective Agreement 14 which provides as follows at clause 33:

33 UNION RIGHTS PROMOTING REPRESENTATION OF MEMBERS

33.1 The company shall establish policies and procedures so that all reasonable steps are taken to encourage employees, to become financial members of the relevant branch of the Union, subject to relevant legislation.

33.2 Any company representative who discourages an employee from becoming a financial member of the aforementioned unions breaches both the intent of this agreement and the Act.

33.3 The company must invite the union to attend every company induction for new employees and to address employees for at least half an hour per attendance.

33.4 A standing invitation exists for any representative of the Union covered by this agreement to enter any place where company employees or representatives are for purposes including, but not limited to, dispute resolution or consultation meetings but not for purposes for which a Right of Entry exists under Part 3-4 of the Fair Work Act.

33.5 The company will allow the Union to promote membership of the Union.

33.6 The company will provide a Union noticeboard at every workplace. The display of material upon the Union noticeboard will be under the control of the Union.

33.7 The company will provide any information to the Union about employees that the Union requires.

33.8 The company will provide information about the Union to an employee that the Union requires.

33.9 Employees are entitled to have paid time off to attend union meetings of up to 2 hours (or more by agreement) or participate in union activities.

33.10 Upon request, the company will deduct Union dues from an employee’s weekly wages and remit such amount to the Union within 2 days of the deduction.

[32] It is contended that the Commission could not be satisfied that the meetings in April and May 2014 were not authorised by the subcontractors in accordance with the terms of their respective agreements. It is also submitted that the Commission does not have power to determine that industrial action is unprotected as evidenced by the terms of s.418(1) which provide that an order must be made if it appears that industrial action that is not protected is happening.

[33] The CFMEU further contends that there is no basis for an Order under s.418 of the Act to be made which remains in effect until 30 April 2015 or any extended period and that to make such an Order would be contrary to the principles set out by the Full Bench in the Fosters Case. It was further submitted that the earlier Full Bench Decision in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union was no longer relevant and should not be followed.

Conclusions

[34] In the present case, it appears that industrial action by one or more employees that is not protected industrial action, is happening. There is uncontested evidence that all employees of subcontractors and one employee of John Holland, stopped work on 11 September 2014 and 12 September 2014. There is no evidence upon which I could be satisfied that employees have a reasonable concern about an imminent risk to their health and safety.

[35] In this regard, the evidence establishes that the issue that employees took industrial action over on 11 September 2014 was not related in any way to their health and safety. The industrial action was to compel John Holland to provide a letter in relation to the FWBC. The evidence further establishes that health and safety issues were only raised on 12 September 2014 after a stop work meeting had been held and in circumstances where employees had not returned to work. It is also the case that the articulation of the alleged health and safety issues in the document handed to John Holland’s management on 12 September 2014 is primarily focused on issues with Mr Patton’s interaction with employees and the Site Safety Committee and that none of the issues that refer to safety matters constitute an imminent risk to the health and safety of employees.

[36] In this regard, the evidence of Mr Kazaglis and Mr Van Der Rhede establishes that the issue of the evacuation procedure had not been raised at the last meeting of the Site Safety Committee and the new alarm had been tested without the need for a full site evacuation. I am also of the view that if this was a genuine concern, the request for a full site evacuation to occur for the purposes of testing the plan, could have been made without the need for all employees to stop work and leave the site.

[37] On the basis of the evidence before me, it appears that further industrial action is probable. In this regard, the current industrial action is the fourth occasion in a period of 12 months where employees have taken industrial action that has resulted in an Order being issued under s.418 of the Act by the Commission. It is also the case that, as occurred in May 2014, the purpose of the industrial action on 12 September appears to be to compel John Holland to stand down a manager. Industrial action for such a purpose is not based on any concern on the part of employees, reasonable or otherwise, that their health and safety is at imminent risk, and is quite simply illegitimate. This type of industrial action has now been taken on two occasions in very similar circumstances. While it is true that one swallow does not make a summer, two or more is an entirely different proposition.

[38] Further, the industrial action that has been taken on the Project most recently on 27 and 28 May and 11 and 12 September evidences a pattern of resort to stoppages of work that could and should be dealt with by way of the very comprehensive dispute settlement procedures in the enterprise agreements that apply to employees on the QUT Project. The Agreement tendered by Mr O’Brien in these proceedings contains a dispute procedure which allows disputes about any work related matter to be raised. The Agreement also contains a procedure for dealing with safety issues or incidents. There is no evidence that either of these procedures was invoked by the CFMEU or its members. Mr O’Brien stated that there are similar provisions in the other agreements covering employees on the QUT Project.

[39] In relation to the stoppages on 10, 14, 15, 16 and 29 April and 19 May 2014, I do not accept that these may not be taken into account for the purposes of considering whether it appears that further industrial action that would not be protected industrial action, is probable. It is true that by virtue of s.19(2)(b) action by employees is authorised or agreed to by their employer, is not industrial action. It is also the case that the enterprise agreements contain provisions entitling employees to paid time off to attend Union meetings.

[40] In the present case, there is no evidence that Mr Myles, Mr Olsen or any Delegate of the CFMEU invoked those provisions in relation to the meetings on those dates. I do not accept that a provision such as that found in clause 33.9 of the Oneform Pty Ltd and CFMEU Union Collective Agreement provides a blanket approval to the CFMEU to enter a workplace (leaving aside the question of whether the appropriate notice was given) and conduct a meeting in working time without any advance notice to the relevant employer. The reference in the relevant provision to “paid time off” connotes that the employer should at least be informed in advance that the employees are seeking to invoke the entitlement to be absent from work for the specified period, so that time off for the purpose set out in the Agreement is authorised.

[41] I do not necessarily accept the submission of Mr O’Brien that the Commission has no power to find that industrial action is or is not protected and that such a finding is the exclusive province of a court. The Commission is required by a number of provisions of the Act to make findings of this kind in order to decide whether to exercise its powers. To make a finding that industrial action is not protected for the purpose of deciding whether to make an Order under s.418 is not necessarily beyond the jurisdiction of the Commission. However, even if that submission is correct, as the Full Bench held in Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union citing the earlier decision of a Full Bench in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 15:

“... In our view, the company is entitled to rely upon a threat or probability of industrial action as a basis for establishing jurisdiction under section 127. For that purpose, the history of resort to industrial action, and evidence about the current state of industrial relations, is relevant.

The onus on an applicant for a direction under section 127 also extends in our view to establishing on at least a prima facie basis that there are adequate grounds for the Commission directing that the relevant action stop or not occur. The direction under section 127 must be that “the industrial action stop or not occur”. Hence the order is specific to the industrial action found to be happening, or to be probable, for purposes of attracting the jurisdiction.”

[42] Section 418 of the current Act is relevantly in identical terms to the former s.127 in that both provide a source of power to make an order “if it appears that industrial action is happening or is threatened, impending or probable”. There is nothing new about the Commission taking into account the industrial relations history between parties in deciding whether to make an order to stop or prevent industrial action. As Justice Munro colourfully observed in Rheem Australia Pty Ltd v AMWU 16 in deciding whether to make an order that industrial action not occur, that if he had to make the choice of backing an odds on favourite in a horse race, or that there would be another stop work meeting within the next month, he would back the stop work meeting. His Honour also observed that the dispute procedure in the relevant agreement was an extremely potent provision that is not found in every agreement. Those observations are apposite in the present case. 

[43] It appears to me, when the three occasions upon which industrial action has been taken resulting in an order being made under s.418 are considered, together with the action being taken currently, that further industrial action is probable on the QUT Project. There is an apparent consistent and persistent failure of the CFMEU and its Delegates and members to follow the extremely comprehensive procedures for resolving disputes in the agreements which cover employees on the project. That further unprotected industrial action has been taken within a week of the third Order being terminated, further supports this finding.

[44] If more is needed, it also appears that at least some of the other stoppages on 10, 14, 15, 16 and 29 April and 19 May 2014, were industrial action that was not protected. Section 418 of the Act does not require that I consider any apparent failure of an employer to enforce an Order under s.418 and in my view that consideration is not relevant to determining whether it appears that further action is probable. That industrial action appears to have been taken while an Order under s.418 is in effect, supports the proposition that it is probable that further industrial action that is not protected will be taken in the future.

[45] In relation to s.418(1)(c) it appears that the industrial action that has and is currently being taken, is or has been organised by Organisers of the CFMEU. On every occasion that industrial action has been taken, Mr Myles has been present at the site. There is clear and uncontested evidence that Mr Myles addressed the meeting of employees on 11 September and employees were seen raising their hands and subsequently left the site. Mr Myles was also present at the meeting on 12 September 2014 and reported the outcome of that meeting to management of John Holland. In his dealings with John Holland, Mr Myles has articulated demands from employees and has indicated by the manner in which he has articulated those demands that he is also putting the imprimatur of the CFMEU on them. Mr Myles’ conduct has been consistent, and on the basis of past form, it appears that such conduct will continue.

[46] I am satisfied that in the circumstances of this case, that s.418(1) requires an Order that has a lengthy period of operation. For these reasons, on 12 September 2014 I issued an Order directed to the CFMEU, its officers, delegates employees and agents and to the employees of John Holland and the subcontractors on the QUT Project, that industrial action stop or not occur, and with a period of operation from 3.30 pm on 12 September 2014 to 7.00 pm on 30 April 2015.

DEPUTY PRESIDENT

Appearances:

Mr V. Rogers on behalf of John Holland Queensland Pty Limited.

Mr T. O’Brien on behalf of the Construction, Forestry, Mining and Energy Union.

Hearing details:

2014.

Brisbane:

September 12.

 1   John Holland Queensland Pty Ltd Building and Construction Enterprise Agreement (Qld and NT) 2012 - 2016.

Morrow Equipment L.L.C. and CFMEU Union Collective Agreement 2011 - 2015.

Johnston Contracting Pty Ltd CFMEU Collective Agreement 2011 - 2015.

Oneform Pty Ltd and CFMEU Union Collective Agreement 2011 - 1015.

Marveldale Pty Ltd T.A East Coast Concrete Contractors and CFMEU Union Collective Agreement 2011 - 2015.

Waco Kwikform and CFMEU Collective Agreement 2011 - 2015.

Structural Systems (Northern) Pty Ltd and CFMEU Union Collective Agreement 2011 - 2015.

Casa Engineering (Brisbane) Pty Ltd and CFMEU Union Collective Agreement 2011 - 2015.

 2   Witness Statement Exhibit 1.

 3   Witness Statement Exhibit 3.

 4   Exhibit 2.

 5   Exhibit 1.

 6   PR540516.

 7   PR543936.

 8   PR551160.

 9   C2014/1053.

 10  [2014] FWC 3583 at [39] - [45].

 11   Exhibit 1 paragraph 63.

 12   [2014] FWCFB 4104.

 13   PR938334.

 14   [2011] FWAA 7590 (AG2011/2813).

 15 (1997) 73 IR 311 at 317-318.

 16   PR917617.

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