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

[2013] FWC 8554

[2013] FWC 8554

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
(C2013/6569)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 30 OCTOBER 2013

Alleged industrial action at the Queensland University of Technology Creative Industries Precinct Project site - purpose for being on site concealed - identity of organiser concealed - deliberate obfuscation - finding that union was organising industrial action - order for six months - correction order.

[1] On the evening of Thursday 28 October 2013, an application was made by John Holland Queensland Pty Ltd (“the Company”) under s.418(2)(b)(i) of the Fair Work Act 2009 (“the Act”) seeking a stop order against the employees of the various sub contractors who were members of or eligible to be members of the CFMEU (“the employees”) and who had allegedly taken industrial action that would not be protected industrial action commencing on the morning of Monday 28 October 2013, and was continuing to happen at the time of the hearing of this application on the morning of Tuesday 29 October 2013.

[2] The site in question was the Queensland University of Technology Creative Industries Precinct, located at the campus in Kelvin Grove (“the site”).

[3] The Company engages subcontractors to perform work at the site.

[4] The employees were employed by the following sub contractors:

• Morrow Equipment L.L.C;



• Global HR Pty Ltd;



• One Form Pty Ltd;



• Marveldale Pty Ltd T/A East Coast Concrete Contractors;



• Demolition Environmental Civil Contractors Pty Ltd;



• Precision Interior Walls and Ceilings Pty Ltd; and



• Delta Pty Ltd.

[5] The matter was initially listed on the night of 28 October 2013 but the hearing was not convened until approximately 7:30PM, owing to the application being lodged outside of business hours.

[6] At that time it was argued by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) that I should adjourn the matter to provide it with an opportunity to obtain instructions. A short adjournment was granted. Following that adjournment the CFMEU argued further that it had not been able to obtain instructions despite its efforts to do so. I reluctantly adjourned the hearing until the following morning, conscious that registered organisations have obligations in respect of compliance hearings that extend beyond office hours; that an adverse inference might be drawn when organisers involved in alleged industrial action do not make themselves available for giving instructions or otherwise; and that I was exposing the Company to commercial risk by not dealing with the matter immediately.

[7] But the circumstances of the matter caused me to adjourn the matter nonetheless. The matter had arisen early in the morning that day but the application had not been made until after office hours.

[8] The decision may not have been entirely well founded in retrospect, particularly given that industrial action continued to happen the following morning (when the hearing took place) and the Company suffered commercial loss as a consequence.

[9] The evidence in this matter was provided by Mr Peter Kazaglis, who is the Project Manager at the site.

[10] Mr Kazaglis arrived at the site a little after 7AM, at which time he saw three BLF and CFMEU organisers standing in a car park.

[11] The organisers were Mr Mick Miles (BLF), and Mr Mark O’Brien and Mr Dennis Mitchell of the CFMEU.

[12] Mr Kazaglis approached the organisers and introduced himself to Mr O’Brien, and greeted Mr Miles who he says he already knew. He sought to introduce himself to the third organiser and asked as to his name. The organisers said that he did not have a name. One of the other two organisers said the third organiser’s name was “Nigel”. For these proceedings the organiser was identified as Mr Dennis Mitchell of the CFMEU.

[13] The Applicant asked why the workers had left site and why the organisers were on site. Employees ordinarily commenced work at 6:30AM on this site.

[14] Mr O’Brien said that they were there for breakfast and asked whether Mr Kazaglis “knew anywhere good that they could go.”

[15] Pressed again as to why the organisers were on site, Mr O’Brien was said to have replied that “we don’t know. It’s between our bosses and your boss.”

[16] Mr Kazaglis enquired when the workers would be back and the three organisers said they did not know.

[17] Mr Kazaglis gave evidence that during his discussion with the three organisers none of them mentioned any safety issues nor did they present right of entry documentation.

[18] Mr Kazaglis believed Mr O’Brien’s reference to why the employees had left site was a reference to enterprise agreement negotiations between the CFMEU and the BLF and the Company. He believed this agreement would cover any employees who may be directly employed by the Company on building construction work in the future and had not as yet been entered into or agreed by the Company.

[19] At around 7:20AM Mr Kazaglis asked Mr Aaron Morely, a site Foreman, what had occurred that morning. Mr Morely informed Mr Kazaglis that the three organisers had waited in the car park for the workers to arrive and conducted a meeting at approximately 6:20AM. When the meeting finished at 6:30AM, the employees left the site.

[20] This is not direct evidence in so far as the events of the morning were not observed personally by Mr Kazaglis. I should be cautious as a result in giving it any significant weight.

[21] Mr Kazaglis gave evidence that upon arriving at work on Tuesday 29 October 2013, Mr Miles, the BLF organiser was at the entry gate to the site, and Mr Mitchell, the CFMEU organiser was in the car park.

[22] Mr Kazaglis queried Mr Mitchell as to his reason for being on site and Mr Mitchell replied in effect that he was there to ensure the workers were back on site and “encouraging them to fulfil their obligations.” Mr Kazaglis enquired of Mr Miles as to the whereabouts of the workforce and Mr Miles replied that “either everyone had gone fishing or they’ve got the summer flu.”

[23] None of the employees who are cited above and who are employees of the contractors there set out attended for work on the morning of 29 October 2013 (though one employee was observed entering the site by Mr Kazaglis).

[24] It is conceded in this matter that industrial action is happening and that as a consequence an order should be made that the industrial action not be engaged in by the employees.

[25] There are a number of relevant matters which I will take into account in consideration of the terms of the “evaluative assessment” required of s.418(1) of the Act (see [2013] FWCFB 7736 1 at PN [11]). These matters include:

• The three union organisers were on site on the morning of 28 October 2013;



• They gave as their reason for being on site that “they were here for breakfast and whether [Mr Kazaglis] knew anywhere good they could go”;



• No right of entry notices under the Act had been lodged or were proffered or referred to;



• One union organiser failed to identify himself and his identity was masked by the other organisers;



• One union organiser said that the issue as to why the employees had left site concerned a matter “between our bosses and your boss”;



• On 29 October 2013 Mr Miles of the BLF and Mr Mitchell of the CFMEU were at the site (in the car park and by the entry gate);



• Mr Mitchell claimed he was in attendance to ensure the workers were back on site, or met their legal obligations, and an employee was seen by Mr Kazaglis to enter the site;



• There are negotiations on foot between the BLF and the CFMEU and the Company for the making of an enterprise agreement to cover direct employees of John Holland which may have implications for sub contractors;



• The Company has not reached agreement in respect of the negotiations for an enterprise agreement;



• On 13 August 2013 I made an order 2 under s.418 of the Act for a duration of some two months. The order was directed at the CFMEU to stop organising any industrial action; and



• That order lapsed or ceased to have effect at 5PM on 14 October 2013.

[26] The conduct of the CFMEU and BLF organisers suggest to me a desire to mask their actual intentions and objectives of being on site. They sought to mislead Mr Kazaglis as to their reason for being on site. Reasonably, the organisers were not on site to identify a place for breakfast, and to contend so is facile.

[27] Further, one organiser failed to identify himself when asked to do so by Mr Kazaglis when they were on site. The other two organisers thereafter assisted in concealing the identity of that organiser.

[28] It appears to me that the conduct of the organisers was to a calculated effect.

[29] It was communicated by one organiser to Mr Kazaglis that the cause of the industrial disputation which resulted in the withdrawal of labour concerned a matter between their “bosses” in the CFMEU and Mr Kazaglis’ “boss” in the Company.

[30] No other reason was proffered for the organisers to be on site and they had no right of entry notices.

[31] Reasonably, the organiser’s comments referred to above are to be taken to be a reference to current enterprise agreement negotiations, which are being conducted at a higher level.

[32] This is matter in which the CFMEU has an obvious interest. The union organiser’s comments demonstrate this to be so. The organisers were far indeed from disinterested persons who had wandered on the site.

[33] The organisers’ conduct on 29 October 2013 should be evaluated in this context. Regardless, that conduct does not displace the conduct of the officials of 28 October 2013.

[34] It appears to me from the relevant circumstances that the CFMEU has organised industrial action. Given the conduct of the organisers on 28 October 2013, reasonably it was this actual intention and purpose for being on site that they have sought to mask and conceal. There is no other reasonable explanation for their deliberate obfuscation in the circumstances that arose.

[35] As a consequence of this finding an order must be made and directed at the CFMEU that it not organise industrial action. An order to this effect has issued. 3

[36] I issued an order on 29 October 2013 to give effect to the above. The order is tailored to have the necessary effect in the context of the matter.

[37] The duration of the order is for the period 29 October 2013 - 1 May 2014, which is the period of time warranted in the circumstances to restore stability on the site.

[38] I note, however, a reference in the order to the order having application to the employees (as otherwise defined in order) was inadvertently omitted on publication of the order. That order has been subject to a correction order issued today (30 October 2013). 4

SENIOR DEPUTY PRESIDENT

Appearances:

Mr V. Rogers, Ashurst Australia, for the Applicant.

Mr T. O’Brien, Industrial Officer, for the Respondent

Hearing details:

Brisbane

2013

28 and 29 October

 1   The Maritime Union of Australia v Patrick Stevedores Holdings P/L, 11 October 2013.

 2   PR540156, dated 13 August 2013.

 3   PR543936, dated 29 October 2013.

 4   PR544003, dated 30 October 2013.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543984>