Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union - [2006] WASC 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEIGHTON CONTRACTORS PTY LTD & ANOR -v- CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2006] WASC 39

CORAM: LE MIERE J

HEARD: 24 FEBRUARY 2006

DELIVERED : 24 FEBRUARY 2006

FILE NO/S: CIV 1132 of 2006

BETWEEN: LEIGHTON CONTRACTORS PTY LTD (ABN 98 000 893 667)
First Plaintiff
KUMAGAI GUMI CO LTD (ABN 74 002 810 317)
Second Plaintiff
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Defendant
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Defendant
JOSEPH MCDONALD
Third Defendant

Catchwords:

Building and Construction Industry Improvement Act 2005 (Cth) - Unlawful industrial action - Application for interim injunction - Serious question to be tried - Whether defendants "involved in" contravention of civil penalty provision - Balance of convenience

Legislation:

Building and Construction Industry Improvement Act 2005 (Cth), s 38, s 48,
s 49, s 71

Result:

Injunctions granted

Category: B

Representation:

Counsel:

First Plaintiff               :        Mr K J Mony de Kerloy
Second Plaintiff               :        Mr K J Mony de Kerloy
First Defendant               :        Mr P G Laskaris
Second Defendant               :        Mr P G Laskaris
Third Defendant               :        Mr P G Laskaris
Intervener:Australian Building
and Construction Commissioner     :        Mr R L Hooker

Solicitors:

First Plaintiff               :        Freehills
Second Plaintiff               :        Freehills
First Defendant               :        Slater & Gordon
Second Defendant               :        Slater & Gordon
Third Defendant               :        Slater & Gordon
Intervener:Australian Building
and Construction Commissioner     :        Phillips Fox

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

LE MIERE J: I have before me an application by the plaintiffs in which they seek orders in terms of a minute described as minute of order for injunction dated 24 February 2006. The purpose of the orders sought is to restrain the defendants from carrying out actions which interfere with the performance of contracts between the plaintiffs and the Public Transport Authority of Western Australia and the joint venture referred to which are concerned with the new Metro City Rail Project.

Building and Construction Industry Improvement Act

The application is brought pursuant to s 39 and s 49(1)(c) of the Building and Construction Industry Improvement Act 2005 (Cth) which I will refer to as "the Act" and alternatively under the general law.
Section 38 of the act provides that:
"A person must not engage in unlawful industrial action."
The application is supported by an affidavit of Robert John Wallwork sworn on 24 February 2006. In that affidavit Mr Wallwork puts forward evidence that unlawful industrial action has been engaged in and is being engaged in by employees of the plaintiffs or the joint venture and of subcontractors to the joint venture since approximately 8 am this morning. It is conceded by the defendants that unlawful industrial action has been and is being engaged in.
Section 49 of the Act provides that an appropriate court may make orders in relation to a person who has contravened a civil penalty provision. Section 38 of the Act to which I earlier referred, is a civil penalty provision. Subsection 48(2) of the Act provides that:
"For the purposes of this Part, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is involved in a contravention of a civil penalty provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention."
Subsection 49(3) provides that:
"The orders that may be made under section 49(1)(c) include injunctions including interim injunctions and any other orders that the court considers necessary to stop the conduct or remedy its effects including orders for the sequestration of assets."
This Court is an appropriate court for the purposes of ch 7 Pt 1 of the Act in which s 48 and s 49 appear. In my view, subs 49(3) confers upon this Court the power to grant an interim injunction without the court being satisfied that a person has contravened a civil penalty provision, that is, reaching a final decision that a contravention has occurred.
The power to grant an interim injunction under subs 49(3) should be exercised having regard to the principles that a court of equity grants interim injunctions. The court should consider whether or not the plaintiffs have made out a serious question to be tried that they will be entitled to relief at the trial of this action. If the court is so satisfied then it should consider the balance of convenience together with any other discretionary matters in determining whether or not to grant the interim injunction.

Serious question to be tried

I turn to consider whether or not the plaintiffs have made out a serious question to be tried. As I have said, it is conceded by the defendants that unlawful industrial action has and is being engaged in. The issue is whether or not a serious question to be tried has been made out that the defendants are persons involved in a contravention of a civil penalty provision; that is are the defendants persons involved in the unlawful industrial action?
In my view, there is a serious question to be tried that the defendants have been by act or omission, directly or indirectly knowingly concerned in or party to the unlawful industrial action. The evidence is to be found in the affidavit of Robert John Wallwork sworn on 24 February 2006, and in exhibit 1, a copy letter from the secretary of the first and second defendants to Mr Wallwork of 24 February 2006.
The evidence is to the effect that the third defendant, in his capacity as an officer of the first and second defendants, organised and attended a meeting of the employees at the site this morning. Prior to the meeting commencing, Mr McDonald was party to a conversation with Mr Wallwork and a Mr Ballard was present. In the course of the discussion Mr Wallwork said that Mr Ballard's employment had been terminated. The meeting then commenced. Mr McDonald addressed the meeting.
Some time later Mr McDonald and others returned to speak to Mr Wallwork. Mr McDonald asked Mr Wallwork if Mr Ballard's employment would be reinstated if certain conditions were met. A discussion about that ensued. Mr Wallwork informed Mr McDonald eventually that Mr Ballard's employment would be reinstated if Mr Ballard signed an undertaking which he had previously been asked to sign. Mr McDonald returned to the meeting of employees. Mr McDonald informed the employees of the plaintiffs' position as put by Mr Wallwork.
A motion was put from the floor, in effect, not to accept the position put by the company and to take industrial action. Mr McDonald recommended against that course of action. A vote was taken and the meeting voted overwhelmingly to take the action which was subsequently taken and is the unlawful industrial action which is the subject of this application.
Mr McDonald informed Mr Wallwork that he had put the proposed terms to the employees and personally recommended that the men return to work. Mr McDonald said that the employees would not agree to the conditions offered by the joint venture and that they wanted Mr Ballard reinstated without conditions and that they would be out until Tuesday. Mr McDonald also informed Mr Wallwork that the unions would agree to the rostered day off and tunnelling issues being referred to the Australian Industrial Relations Commission to discuss further. The meeting had been convened to discuss those matters.
In my view, those matters give rise to a serious question to be tried that Mr McDonald, and through him the first and second defendants, were directly or indirectly knowingly concerned in or party to the unlawful industrial action. It is not, of course, for me to decide at this stage of the proceedings whether or not Mr McDonald and the other defendants, in fact, were directly or indirectly knowingly concerned in or a party to the contravention. However, in my opinion, the matters to which I have referred give rise to a serious question to be tried to that effect.
It is not, as was put to me by counsel for the defendants, simply that Mr McDonald was present at a lawfully convened meeting. It is the whole of the circumstances which must be taken into account, and the part which Mr McDonald played in the organising of the meeting, the facilitating of the meeting, dealing with the motion to take industrial action, facilitating of that resolution, and indeed reporting to, or informing the plaintiffs of, that decision.
These matters must be seen in the context that the action of the employees in taking the unlawful industrial action is in the nature of a demand upon the plaintiffs and that demand was conveyed to the plaintiffs by Mr McDonald. So the role which Mr McDonald played was not simply to be present at the meeting and vote against the motion, it is the whole of the matters to which I have referred which give rise to the serious question to be tried.

Balance of convenience

I turn then to the question of the balance of convenience. In my view, the balance of convenience favours the grant of interim relief. The principal factors that I take into account are these. First, the conduct which is sought to be enjoined is admittedly unlawful industrial action. Secondly, the continuation of that conduct will cause substantial financial loss to the plaintiffs. Thirdly, the unlawful industrial action is causing, and will continue to cause, disruption to a major public project.
On the other hand, counsel for the defendants asks me to take into account a number of factors. One of those matters is that there is an alternative jurisdiction to which the plaintiffs could turn. They could go to the Australian Industrial Relations Commission to pursue these matters.
At one time there was a view held that it was generally desirable for industrial disputes to be dealt with by specialist tribunals rather than by the courts. However, the availability of industrial tribunals to deal with disputes between the parties, or the fact that an industrial tribunal is seized of a dispute between the parties, is not a reason to refuse relief to a party that has made out a case that it is otherwise entitled to relief.
A further point that is made by counsel for the defendants is that, in effect, the defendants have not sought to have the employees leave the site and stop work and indeed, Mr McDonald informed the relevant meeting that he recommended they not take industrial action. In my view, there are two relevant answers to that proposition. The first is that I have already found there is a serious question to be tried that Mr McDonald, whatever else his intentions might have been, was nonetheless directly or indirectly knowingly concerned in or a party to the contravention. The second point is that the relief which is sought is, in any event, relief for the purpose of restraining further unlawful industrial action.
I find that the balance of convenience favours the grant of an injunction, and there are no discretionary reasons not to grant relief.

Form of relief

I turn to the form of relief that should be granted. I do so by reference to the plaintiffs' minute of order for injunction dated 24 February 2006. Paragraph 1 is that, "The time limited for service of the summons be abridged." That order should be made.
Paragraph 2 concerns service, and that is not presently relevant. Whilst the plaintiffs initially commenced this application ex parte, the defendants and the intervener have been present at the hearing of this application.
Paragraph 3 is the substantive paragraph seeking an interim injunction. It is sought until 16 March 2006 which is the date on which the application for an interlocutory injunction in this matter is to be heard. I will seek further submissions from counsel shortly as to the date until which the interim order should extend.
The minute then proceeds to specify that an injunction be granted pursuant to s 39 and s 49(1)(c) of the Building and Construction Industry Improvement Act 2005 and/or alternatively under the general law. I propose to delete the words:
"and/or alternatively under the general law".
The minute continues:
"against the defendants and each of them restraining them whether by themselves, their officers, officials, shop stewards, delegates, employees, agents or otherwise how so ever from (a) interfering with the business of the plaintiffs."
I propose to strike out par (a) of the order. The relief which is to be granted should be the minimum relief which is reasonably required to address the matters giving rise to this application for an interim injunction and in my view par (a) goes beyond what is necessary.
Paragraph (b) then specifies:
"Interfering directly or indirectly with the due performance of any of the following contracts."
Subsubparagraphs (1) and (2) specify the relevant contracts. Counsel for the defendants submitted to me that subsubpar (1) should be deleted because the contract or the work under it has been assigned. I am not satisfied that that is so and on the evidence before me both of those contracts should be specified in the order.
Subparagraph (3) then refers to the subcontracts between the plaintiffs and each of the parties and provided in the attached schedule 1: that should stand.
Subsubparagraph (4) refers to the contracts of employment between the subcontractors and the subcontractors' employees employed to work on package F. That should stand.
The remaining terms of par 3 are:
"provide by any of the following means ‑ "
and then the means are set out in three subparagraphs which should stand.
The order sought in par 4 is that:
"The first and second defendants to provide to the plaintiffs' solicitors by facsimile within three hours of the date of this order letters on the letterhead of the first and second defendants respectively signed by the state secretary of the first and second defendants respectively and the terms set out in schedule 2 for this order."
I am satisfied that I have power to make such an order. The power is conferred by s 49(3)(b) of the Act and alternatively the power of this Court to grant mandatory injunctions in the exercise of its equitable jurisdiction. However, I am not satisfied that it is appropriate to make an order in those terms.
The letter contained in the schedule originally consisted of three paragraphs. The letter is addressed, "Dear member". The first paragraph is in terms that:
"The unions direct that you should attend for work in accordance with your contractual requirements."
It was conceded by counsel for the plaintiffs in the course of the hearing that the union has no power to direct members to attend for work in accordance with their contractual requirements. The plaintiffs then submitted that the word "directs" should be deleted and the word "urges" inserted in its place.
In my view it is not necessary to make such an order and once it has been conceded that there is no power for the union to direct its members to return to work the force of that part of the letter is removed.
The second paragraph is now sought to be in the following terms:
"The union advises that has not imposed any ban, limitation or instruction relating to the performance of work on the New MetroRail City project."
In my view it is not appropriate that the secretary of the unions should be required to provide a letter in those terms to the plaintiffs for the plaintiffs to distribute to the unions' members. The unions through their counsel and via the letter which is exhibit 1 in these proceedings have stated unequivocally that they have not imposed and are not imposing any ban, limitation or instruction relating to the performance of work on the project. The plaintiffs are at liberty to make such use of that as they see fit.
Paragraph 5 of the order sought is in terms that:
"At any report‑back meeting to the joint venture's employees and subcontractors' employees the defendants direct their members to return to work and inform their members that all bans, limitations and restrictions on the work are withdrawn."
I do not propose to make an order in those terms largely for the reasons I have given in relation to par 4.
Paragraph 6 is a machinery provision; it provides for service of the order or a copy of the order on the defendants and that seems to me an appropriate order.
Paragraph 7 provides:
"The defendants have liberty to apply on 12‑hours notice to the plaintiffs to dissolve or vary this order."
That is an appropriate order.
Paragraph 8 provides that the costs of the application be reserved. That is an appropriate order in relation to costs.
I stated earlier that I would hear from counsel as to the duration of this interim injunction.
This matter has been brought on on very short notice. The defendants have had little opportunity to respond to it; that is in the nature of applications of this sought. Ordinarily I would grant the interim injunction for a short period, not more than a few days, and give the defendants an opportunity to then answer the application in a more considered way. However, I am mindful that the hearing of the interlocutory injunction in this matter is set down for hearing on 16 March.
It might be that to have a further hearing in relation to the interim injunction prior to 16 March might cause greater inconvenience and costs to the parties. However, I primarily see this as a matter for the defendants and I will hear from Mr Laskaris as to how long the interim injunction should continue.