Laing O'Rourke Australia Construction Pty Limited v Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Builders' Labourers' Divisional Branch

[2011] FWA 2373

[2011] FWA 2373

FAIR WORK AUSTRALIA

DECISION

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

Laing O'Rourke Australia Construction Pty Limited
v
Construction, Forestry, Mining and Energy Union-Construction and General Division, Queensland Builders' Labourers' Divisional Branch; Construction, Forestry, Mining and Energy Union (Queensland Construction Workers’ Divisional Branch)
(C2011/4052)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 APRIL 2011

Alleged industrial action for employees located at Multi Level Car Park Brisbane Airport.

[1] On 15 April 2011 Laing O'Rourke Australia Construction Pty Limited (“the Company”) made application under s.418 of the Fair Work Act 2011 (“the Act”) seeking a stop order against the Construction, Forestry, Mining and Energy Union - Construction and General Division, Queensland Builders' Labourers' Divisional Branch and the Construction, Forestry, Mining and Energy Union (Queensland Construction Workers’ Divisional Branch) (“the site unions”) and others. 1

[2] Because of the circumstances of the industry and the site, I have taken service of the application on the site unions as being service of the application generally.

[3] The stop order sought was in relation to an allegation that industrial action had commenced on the site at approximately 9.15 am this morning, when some 150 or more employees withdrew their labour from the Multi-Level Car Park construction site at Brisbane Airport.

[4] This site has been subject to two prior stop orders.  One was made on 20 November 2010 and was for a 8 week duration. The other was made on 10 March 2011 and was for a one month duration. The latter stop order ceased operation on Monday of this week (10 April 2010).

[5] The evidence before me was provided by Mr John McLindon, who is the project Manager on the site.

[6] No evidence was led by the site unions.

[7] Mr McLindon’s evidence satisfied me that:

• Industrial action which was likely to be unprotected industrial action had commenced on the site this morning and was happening (and therefore a stop order must be made under s.418(1) of the Act);



• The industrial action had caused disruption to a concrete pour schedule for this morning (involving some six concrete trucks);



• The Company had incurred losses and disruption to its work schedule; and



• The withdrawal of  labour had followed the actions of the site unions in raising a suite of safety related concerns on Tuesday , which centrally concerned the adequacy of the number of toilet facilities on the site and the extent of the illumination of some areas on the site.  There were a range of other concerns raised as well, but these appear to have been of a lower order of priority and to have been able to be addressed through an action plan developed within a short period after they were raised;



• Steps were being taken to plumb new toilet amenities by early next week;



• Planning was afoot to provide for a further 100 halogen lights to the site (though the Company was of the belief it had met its risk assessment requirements in these respects).

[8] A further issue of the adequacy of the location of fire hosing was raised with the Company. But that was only raised today.

[9] These were not concerns that had been long left unaddressed or about which the Company had been un-attentive. They were issues raised in the last few days only.

[10] More-over, they were not issues that presented an  imminent threat to the health and  safety of employees as provided for in s.19(2)(c) of the Act, important though they might be.  Indeed, the submissions by one of the site unions indicated that its members were seeking to resume work this weekend, which would hardly be the case if there was an imminent threat to safety of the site union’s members posed by the above concerns.

[11] The site unions were active in the raising of the matters with the Company following a  Right of Entry (seemingly) on Tuesday,  further dealing with the Company in respect of its  responses, as well as in discussions with employees about the above concerns and the Company’s position.

[12] There was sufficient evidence, therefore, for me to infer that the order, to have the effect of stopping the likely unprotected industrial action, must be bolstered by extending it to the representative employee organisations – the two site unions  - themselves.

[13] It also appeared to me that while the it was a duty of a registered employee organisation to ensure the health and safety of its members, it was important that those organisations (and these two site unions) utilise the available disputes machinery and safety disputes procedure, including the role provided by the State Department of Workplace Health and Safety to progress any continuing concerns.

[14] In these circumstances, and given the prior stop orders I have made in respect of this site, the stop order I now make will be of a longer duration – 3 months, with effect from 6.00pm today, Friday 15 April 2010.

[15] I am aware of issues of site stability, and for this reason I will make the following recommendation in relation to this matter to assist in respect of the particular underlying concerns (albeit it removed from the immediate statutory context):

The Company hold to its commitments in relation to the lighting and toilet provisions on the site.

Extra toilet amenities are to be in place by close of business on Friday 6 May 2011.

As an interim measure, additional task lighting to be in place during the week of 18 April 2011, with further access lighting to be implemented progressively during the project.

All further site disputes concerning safety must be made through the safety disputes machinery provided in the enterprise agreement.

SENIOR DEPUTY PRESIDENT

Hearing details:

15 April 2011
Brisbane

 1   Employees of Laing O'Rourke Australia Construction Pty Limited (Company) who are:

i) a member of the BLFQ; or

ii) a member of the CFMEU- Qld CWDB;

iii) employed at the Company's Multi-Level Carpark Airport Brisbane site (Airport Site); and

iv) engaged in work which is regulated by the Laing O'Rourke Australia Construction Pty Limited and CFMEU Building Group North Enterprise Agreement 2009 – 2011 (Building North Agreement); or

v) engaged in work which is regulated by the Laing O'Rourke Australia Construction –Pty Ltd Expanded Operations – Queensland and CFMEU Enterprise Agreement 2009 (Expanded Agreement).

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