Laing O'Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union

Laing O'Rourke Australia Pty Ltd and Laing O'Rourke Australia Construction Pty Ltd filed an urgent interlocutory application against the Construction, Forestry, Mining and Energy Union and others, alleging breaches of the Fair Work Act 2009 (Cth) and the Competition and Consumer Act 2010 (Cth) by unions and union organisers. The applicants claimed that the unions and union organisers had engaged in coercion and intimidation of the applicants and their subcontractors, which led to alleged breaches of workplace rights and adverse action against the applicants. The case was heard by the Australian Federal Court.

The court was required to decide whether there were serious questions to be tried, whether damages would be an inadequate remedy for the applicants, and whether the balance of convenience favoured the grant of the orders sought by the applicants. The court considered the evidence presented by both parties and found that the evidence strongly supported findings that there were serious questions to be tried, that damages would be an inadequate remedy for the applicants, and that the balance of convenience favoured the grant of orders sought by the applicants.

The court held that the applicants had made out a prima facie case for relief, as they had shown a sufficient likelihood of success, which depended on the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. The court also considered that the grant or refusal of an interlocutory injunction would not dispose of the action finally in favour of whichever party succeeded on that application.

The court granted the interlocutory orders sought by the applicants, restraining various combinations of the respondents from taking certain actions, including placing bans or restrictions on work at the construction project, advising or encouraging employees not to carry out work when required, and taking actions that would cause detriment to the commercial interests of subcontractors. The orders also restrained the respondents from engaging in conduct that would hinder or prevent subcontractors from carrying out work on the project, and from advising, encouraging, or procuring industrial action by employees.

The court held that the orders did not apply to the organising or taking of protected industrial action in accordance with the Fair Work Act 2009 (Cth) or activity which was not industrial action because of the operation of section 19(2) of the Fair Work Act 2009 (Cth). The court also ordered that the affidavit of Murray Middleton be provided only to lawyers acting for any respondent and that the affidavit or its contents not be otherwise disclosed. The matter was listed for a further hearing on a date to be fixed.