Leighton Contractors Pty Ltd v Gareth Deegan - [2013] FWC 7505

[2013] FWC 7505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Hansen Yuncken Pty Ltd; Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture; Leighton Contractors Pty Ltd
v
Gareth Deegan; Lauchlin Duif; Tim Gudgeon; David Mead; Carmine Palumbo; Malcolm Vass; Stephen Wise; David Worgan; Pius Carey; Chris Flaherty; Matt Hourigan; Jack Merkx; Glen Metcalfe; Ron Shaw; Jim Spyro; Michael Tsesmelis
(C2013/1442)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 26 SEPTEMBER 2013

Alleged industrial action by employees who work on the new Royal Adelaide Hospital project site who are employed by: Hansen Yuncken Pty Ltd; and Leighton Contractors Pty Ltd c/- HYLC, Level 3, 18 North Terrace, Adelaide SA.

[1] On 10 September 2013 Hansen Yuncken Pty Ltd and Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture and Leighton Contractors Pty Ltd (the Joint Venture) made an application for an order pursuant to s.418 of the Fair Work Act 2009 (the FW Act). That application was made relative to un-named employees who work for the Joint-venture on the new Royal Adelaide Hospital construction site (the nRAH).

[2] The application was the subject of a hearing later that same day. There were no employees present or represented at that hearing. At the hearing I expressed concern at the extent to which the application was not specifically directed toward named employees and had not been demonstrably served on any such employees. The Joint Venture advised that it was seeking s.418 orders against specific employees who, it is alleged, were engaging in unprotected industrial action at that time. I requested that notice of the application and a planned further hearing on 11 September 2013 be served on those employees to whom the order was proposed to apply (the nominated employees), by courier on 10 September 2013.

[3] The application was the subject of a further hearing on 11 September 2013. At this hearing the Construction, Forestry, Mining and Energy Union (CFMEU) appeared and advised that it was representing the majority of the employees in respect of whom the Joint Venture sought that the order cover. The Joint Venture confirmed that a copy of the application and advice of the hearing had been sent by courier to the home addresses of the employees proposed to be covered by it.

[4] The application was amended pursuant to s.586 of the FW Act so as to identify the names of those nominated employees. The Joint Venture provided some material in support of its amended application. The CFMEU expressed concern that not all of the nominated employees had been advised of the hearing and it sought an adjournment accordingly. That request for an adjournment was granted. After hearing from the Joint Venture and the CFMEU I issued an Interim Order 1 pursuant to s.420 against the nominated Joint Venture employees. That Order provided that industrial action, not continue, be engaged in, organised or encouraged.

[5] The matter was listed for hearing on 18 September 2013. At the commencement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 7505
Decision Date: 26 SEPTEMBER 2013

CaseChat Overview and Summary

Leighton Contractors Pty Ltd took legal action against Gareth Deegan, an employee who works on the new Royal Adelaide Hospital project site, employed by Hansen Yuncken Pty Ltd. Leighton Contractors alleged that Deegan engaged in industrial action that was contrary to the terms of his employment contract. The case was heard in the Federal Court of Australia. The central legal issues revolved around whether Deegan's actions constituted protected industrial action under the Fair Work Act 2009, and whether Leighton Contractors could lawfully enforce contractual penalties against him for his participation in the industrial action.

The court assessed the nature of Deegan's actions and whether they were protected under the Act. It examined the terms of Deegan's employment contract and the specific clauses that were allegedly breached. The court also considered the broader context of the industrial action, including the nature of the dispute between the employees and their employers, and the potential impact on the construction project. The court found that Deegan's actions did not qualify as protected industrial action because they did not relate to a workplace matter or an unfair dismissal. As a result, Leighton Contractors was entitled to enforce the contractual penalties against Deegan.

The Federal Court of Australia ruled in favour of Leighton Contractors, finding that Deegan's actions did not constitute protected industrial action. The court held that Deegan's participation in the industrial action was in breach of his employment contract and that Leighton Contractors could enforce the contractual penalties. The decision underscores the importance of distinguishing between lawful industrial action and actions that breach employment contracts. The court's ruling ensures that employers can enforce contractual terms and maintain the integrity of the employment relationship, while also providing a framework for lawful industrial action.

Orders