Kane Constructions Pty Ltd v Construction, Forestry, Mining and Energy Union
[2014] FWC 4464
•4 JULY 2014
[2014] FWC 4464 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.418—Industrial action
Kane Constructions Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/5092)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 4 JULY 2014 |
Application for an order that industrial action by employees stop - Order issued.
[1] On 24 June 2014 Kane Constructions Pty Ltd (Kane) applied for an order to stop and prevent unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (the Act). The order sought is directed to the officials, delegates, employees and agents of the Construction, Forestry, Mining and Energy Union (CFMEU) and the employees of named contractors engaged on work on the Kane Building Site at 51 Barry Alexander Drive, Springfield, Queensland (the Site). There were fifteen subcontractors active on site, including the six governed by CFMEU agreements. 1 There were 60 to 70 workers on site, approximately 25 of whom were governed by CFMEU agreements.2
[2] The named contractors are:
● Beenleigh Steel Fabrications Pty Ltd;
● Bosform Pty Ltd;
● OPI Pty Ltd;
● APS Pty Ltd;
● G James Fabricating Pty Ltd; and
● DB Scaffold Pty Ltd (collectively the contractors).
[3] The work undertaken on the site by employees of the contractors is governed by the following instruments:
● Beenleigh Steel Fabrications Pty Ltd and CFMEU Union Collective Agreement 2011-2015 [AE889513];
● Bosform Pty Ltd and CFMEU Union Collective Agreement 2011-2015 [AE890222];
● QPI Pty Ltd Collective Agreement 2010-2013 [AE879632];
● Australian Prestressing Services (Qld) Pty Ltd and CFMEU Union Collective Agreement 2011-2015 [AE897801];
● G James Australia Pty Ltd Enterprise Agreement 2010 [AE885981]; and
● DB Scaffolding and Rigging Qld Pty Ltd and CFMEU Union Collective Agreement 2011-2015 [AE886846] (collectively the Certified Agreements).
[4] Following a hearing on 26 June 2014, I issued an order 3 in the form sought by Kane, save for a shorter period of operation than that sought and the deletion of a requirement that the CFMEU place the order on its web-site.
[5] At the conclusion of the hearing, I gave brief oral reasons and indicated that those reasons would be augmented in a fuller published decision. These are those reasons.
Relevant statutory provisions
[6] Sections 418(1) and (2) of the Act provide as follows:
“(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.
. . .
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.”
[7] “Industrial action” is defined in s.19 of the Act as follows:
“(1) Industrial action means action of any of the following kinds:
(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
. . .
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.”
Matters for determination
[8] It is common ground that employees of the contractors withdrew their labour on the Site on Friday, 20 June 2014 and had not returned to work at the time of the hearing on Thursday, 26 June 2014.
[9] The CFMEU conceded that, if the withdrawal of labour is found to be industrial action:
● Kane is a person affected by the industrial action; 4 and
● The industrial action is unprotected. 5
[10] However, the CFMEU contested the order sought on the basis that the withdrawal of labour is not industrial action because it was “based on a reasonable concern of the employee[s] about an imminent risk to his or her health or safety” (s.19(c)(2)(i)). In additional, it opposed the making of the order against the officials, delegates, employees and agents of the CFMEU on the basis that, if the action was found to be industrial action, that there was no evidence that the CFMEU was organising it. Those are the issues requiring determination.
[11] It is not suggested, and I find, that the industrial action was not authorised by the employers of the employees (s.19(2)(a). There is no evidence of such authorisation.
Evidence
[12] Evidence was given by Mr D Jeffery, the Kane Project Manager for the Site. 6
In brief, his evidence was that:
● At 7.00 a.m. on Friday, 20 June 2014 Mr T Stott, a CFMEU organiser, attended at the Site and met with employees of the contractors on the Site; 7
● Mr Jeffery approached Mr Stott and advised him that he had no right to be on Site without 24 hours notice and asked him to leave and if he did not leave Mr Jeffery would call the police. Mr Stott remained on site. Mr Jeffery rang the police, who arrived on Site half an hour later. During that half hour Mr Stott met with the contractors’ employees again. After the meeting, employees of the contractors stopped work and walked off the Site. 8 Mr Stott then left the Site;
● Whilst Mr Jeffrey had not heard Mr Stott directly telling workers to leave site, has heard him “directly addressing the workers and saying that unless he’s allowed to go out onto site, that he doesn’t believe the site is safe”; 9
● On the basis of advice by an employee that Mr Stott has raised a concern about the effect of a rain event the previous evening on site safety, 10 Mr Jeffery arranged for a safety walk by the Safety Committee, which commenced at 9.00 a.m. on 20 June 2014. Health and safety representatives who had left the Site were contacted to attend the meeting;11
● Following the safety walk, the Safety Committee met on 20 June 2014 and reviewed and recorded the issues identified during the safety walk and reached agreed positions as to necessary actions; 12
● At the conclusion of the review of the safety walk, some additional issues were raised and addressed, including clearance between the tower crane and operating concrete pumps. 13 Mr Jeffery agreed to take steps to address that issue;14
● In the course of the Safety Committee meeting, Mr Jeffery asked if any issue or issues raised constituted an imminent risk to health or safety. No member of the Safety Committee expressed a view that there was such an imminent risk; 15
● Mr Jeffery did not undertake the safety walk himself but traversed the Site on a daily basis and was familiar with the issues raised during the Safety Committee meeting; 16
● Mr Stott returned to the Site on 23, 24, 25 and 26 June 2014 and requested that he be able to conduct a safety walk. On each occasion, Mr Jeffery denied entry on the basis that Mr Stott had not provided 24 hours notice and suggested that he do so and if he did he could access the Site following the notice period. Mr Stott did not provide such notice; 17
● On Monday 23 June, Mr Jeffery reconvened the Safety Committee to review the 20 June 2014 meeting minutes and confirmed arrangements to address issues raised within them. 18 Mr Stott and another CFMEU official came on Site and joined the meeting;19
● On Wednesday, 25 June 2014, Mr Jeffery arranged for a Workplace Health and Safety Inspector to attend the Site and to provide an inspection report. 20 An inspector attended and provided such a report.21 The report did not identify any hazards that posed imminent risk to workers or others;
● At the time of the hearing, none of the employees had returned to work; 22 and
● Throughout the period from 20 June 2014 to the time of working the employees of other contractors (non-CFMEU contractors) continued to work. 23
[13] The CFMEU brought no evidence, other than a series of photographs of the Site, 24 which it contended, demonstrated an imminent risk to health or safety, particularly in relation to clearance between the tower crane and concrete pumps. The CFMEU brought no evidence as to the provenance of the photographs, so that there was no evidence as to when the photographs were taken or any other information about their creation, although Mr Jeffrey did not dispute that they were photographs of the Site.
[14] The jurisdiction to make an order under s.418 of the Act arises if it appears to the Fair Work Commission 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;
Consideration
[15] There is no doubt that the employees of the contractors withdrew their labour on 20 June 2014 and, at the time of hearing, have not returned to work. It follows that industrial action was happening, at the time of hearing, unless the failure to work at that time was based on a reasonable concern of the employees about an imminent risk to health or safety.
[16] I am not satisfied that there was reasonable concern of the employees about an imminent risk to his or her health or safety at that time for the following reasons:
● The employees of other contractors continued to work on the Site over the period from 20 June 2014 to the time of the hearing; 25
● A safety walk was undertaken by the Safety Committee on 20 June 2014, at which a number of health and safety issues were identified. In the subsequent meeting to review the issues identified during the safety walk and additional issues, including clearance between cranes and concrete pumps, no member of the Safety Committee, including employee representatives, asserted that there was an imminent risk to health or safety; 26
● Steps were taken by Kane to address the issues raised on 20 June 2014; 27
● An inspection of the Site was undertaken by a Workplace Health and Safety Inspector on 25 June 2014. His report identified no hazards that posed imminent risk to workers or others. 28 The report addressed each of the issues in the 20 June 2014 Safety Committee minutes and noted, with a limited number of exceptions, that all matters had been addressed (or the issue raised was not evident). None of the issues, including the limited number which had not been addressed or was in the process of being addressed was found by the Inspector to create an imminent risk to workers.
[17] In light of this evidence, I doubt that there was a reasonably based concern about an imminent risk to health and safety on 20 June 2014. However, it is unnecessary to make a finding in respect of 20 June 2014 because the issue for determination is whether the action which was happening (at the time of the hearing) was not industrial action because it was, at that time, action based on a reasonable concern of the employee about an imminent risk to health or safety. Whatever the position on 20 June 2014, I am satisfied that by 25 June 2014 when an independent person with expertise in health and safety - the Workplace Health and Safety Inspector - inspected the Site and found no such imminent risk at that time, there was no reasonable concern of the employees about an imminent risk to their health or safety. The evidence does not suggest that such a risk has emerged since that time.
[18] The CFMEU contended that the issue of clearance between the tower crane and concrete pumps constituted an imminent threat to safety, which was evident in the photographs it tendered. 29 It submitted that because such work was not being undertaken due to the action of the contractors’ employees at the time of the Safety Inspector’s assessment of the Site, his report does not address that issue and provides no basis for finding that the clearance issue does not constitute a basis for a reasonable concern of imminent risk.
[19] The CFMEU’s photographs by themselves are inconclusive as to an imminent risk at the time they were taken in relation to the clearance issue. However, even if they did show imminent risk at the time they were taken, there is no evidence as to when they were taken. There is evidence this concern was raised during the 20 June 2014 Safety Committee meeting. 30 No member of the Safety Committee identified the issues as an imminent risk31 and the concerns which were raised were addressed.32 I am not satisfied that the photographs provide evidence of a reasonable concern of imminent risk to health or safety capable of removing the stoppage of work which was continuing at the time of the hearing from the definition of industrial action in s.19 of the Act.
[20] For these reasons, I find that the current failure of the employees of the contractors to work is industrial action, within the meaning of s.19 of the Act and that the industrial action is happening and is unprotected industrial action.
[21] I am also satisfied that the CFMEU is organising that industrial action. The evidence in this respect is that CFMEU organiser, Mr Stott, attended the site on 20 June 2014 and met with the contractors’ employees and, after the meeting, the employees ceased work and left the site. Mr Jeffrey gave evidence that he heard Mr Stott address the workers, saying that “unless he is allowed to go out onto site, he doesn’t believe the site is safe”. 33 The evidence supports a finding that Mr Stott organised the stoppage of work. The evidence is that, thereafter Mr Stott returned to the Site each day and reiterated his request to undertake an immediate safety walk, met with employees of the contractors and the industrial action continued. Given the evidence that Mr Stott organised the initial stoppage of work and his attendance at the Site and meeting with the relevant employees,I am satisfied that he is organising the continuing industrial action. I find that the industrial action is being organised by the CFMEU, through Mr Stott.
Conclusion
[22] I am satisfied that the stoppage of work by the contractors’ employees is not removed from the definition of industrial action in s.19 of the Act by a reasonable concern of the employees about an imminent risk their health or safety (s.19(2)(i)). I am satisfied that the stoppage of work by the contractors’ employees was industrial action which was happening at the time of the hearing. I am satisfied that industrial action was happening and that it was being organised by the CFMEU.
[23] The jurisdictional requirements for the making of an order under s.418 of the Act are satisfied. In those circumstances, I must make an order that the industrial action stop, not occur or not be organised for a specified period.
[24] An order giving effect to my decision was published on 26 June 2014, 34 to operate from 6.00 a.m. on Friday, 27 June 2014 and to remain in force for a period of two months.
SENIOR DEPUTY PRESIDENT
Appearances:
A Salmon for Kane Construction Pty Ltd.
T O’Brien for the Construction, Forestry, Mining and Energy Union.
Hearing details:
2014.
Melbourne/Brisbane (via video):
June 26.
1 Transcript, at paras 62 and 63.
2 Transcript, at para 84.
3 PR552501.
4 Transcript, at para 31.
5 Transcript, at para 33.
6 Exhibit K1 and Transcript, at paras 47-530.
7 Exhibit K1, at para 2.
8 Exhibit K1, at para 4.
9 Transcript, at para 492.
10 Transcript, at para 79.
11 Transcript, at paras 85 and 123.
12 Transcript, at para 114 and Exhibit K2.
13 Transcript, at paras 174 and 333.
14 Transcript, at paras 175-176, 333 and 338.
15 Transcript, at paras 114, 116 and 123.
16 Transcript, at paras 360 and 362.
17 Transcript, at paras 123 and 134.
18 Transcript, at para 123.
19 Transcript, at para 123.
20 Transcript, at paras 137-139.
21 Exhibit K3.
22 Transcript, at para 53.
23 Transcript, at paras 122 and 124.
24 Exhibit CFMEU 1.
25 Transcript, at paras 122 and 123.
26 Transcript, at paras 114, 116 and 123.
27 Transcript, at para 117.
28 Exhibit K3.
29 Exhibit CFMEU 1.
30 Transcript, at para 174.
31 Transcript, at para 123.
32 Transcript, at paras 175-176, 333 and 338.
33 Transcript, at para 492.
34 PR552501.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR552758>
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