Lend Lease Building Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 8659

[2013] FWC 8659

FAIR WORK COMMISSION

DECISION

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

Lend Lease Building Contractors Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2013/6599)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 1 NOVEMBER 2013

Alleged threats of unprotected industrial action by the union and employees engaged at the Lend Lease Building Contractors Pty Ltd sites.

[1] On 30 October 2013 Lend Lease Building Contractors Pty Ltd (Lend Lease) lodged an application pursuant to s.418 of the Fair Work Act 2009 (the FW Act), through which it sought orders binding on the Construction, Forestry, Mining and Energy Union (CFMEU) and various of its own and subcontractor employees engaged on four nominated sites.

[2] The application was the subject of a hearing on 31 October 2013. This hearing was adjourned to enable discussions between the parties to occur. Subsequent to advice provided to me that the parties had not reached an agreed position, a further hearing was convened today. Mr Earls of the Master Builders Association of South Australia represented Lend Lease and Ms Dooley appeared for the CFMEU.

[3] No issue was taken with respect to the service of the application.

[4] Lend Lease is the principal contractor on four Adelaide construction projects. These are:

• the Adelaide Convention Centre



• the Adelaide Oval Redevelopment



• the Tonsley Park TAFE building



• the Tonsley Park Flinders University building

[5] Evidence was given by the Lend Lease Site Managers on each of these projects. This evidence was to the effect that, on 30 October 2013 around 13 CFMEU officials, from within and outside of South Australia visited various of these sites and proceeded to exercise right of entry rights without notice so as to engage in discussions with management and various employees.

[6] At the Adelaide Convention Centre site, the evidence of the Site Manager, Mr Hay was that the three officials who visited did not disclose the reason for the visit other than to advise that they sought to talk with employees as part of a national drive directed at Lend Lease. 1

[7] At the Adelaide Oval site, the evidence of the Site Manager, Mr Isling was that six CFMEU officials entered the site without notice. Mr Isling’s evidence was that he asked one official, Mr Roberts about the purpose of the visit and that Mr Roberts replied: "This is the way of the world until your managers talk with our managers." 2

[8] Mr Isling’s evidence was that the union officials met with various employees on two occasions. The officials raised various issues following these meetings and one official, Mr McDermott said words to the effect "these issues would not be an issue if there was a working steward". 3 This reference was then reiterated by Mr McDermott who asserted that there should be a similar "working steward" at the Adelaide Convention Centre and the Tonsley Park sites.

[9] At the Tonsley Park TAFE site, the evidence of the Site Manager, Mr Gooding was that CFMEU official, Mr Gava telephoned him and sought permission to visit the site with some interstate colleagues, without right of entry compliance. This request was refused but Mr Gava and four other CFMEU officials nevertheless entered the site and met with the employees of a subcontractor.

[10] Mr Gooding was advised that the visit was to "talk with the boys and show the guys the project". 4 Further, that attendance without appropriate notice would occur from then on.5

[11] Mr Gooding’s evidence was that the CFMEU officials returned to the site later that day and indicated that they sought that Lend Lease employ a full-time CFMEU delegate on the site and that right of entry notices would not be provided in the future.

[12] At the Tonsley Park Flinders University building, the evidence of Site Manager, Mr Crabb was that four CFMEU officials entered the site despite his instructions that they not do so without the appropriate right of entry permits. Further, that Mr Gava advised that "We are not leaving. This is the way it’s done now. We're going for a walk." 6

[13] Mr Crabb’s evidence is that the officials met with various employees of Lend Lease and its subcontractors and subsequently proposed that Lend Lease employee a permanent CFMEU delegate.

[14] Mr Crabb’s evidence was that:

“After this, the conversation turned to the CFMEU flag on the crane. This was predominantly raised by the two Melbourne officials. We had a conversation to the following effect

The official asked	Why isn’t the CFMEU flag on the crane hook?
I replied	It’s fixed to the machine deck on the crane where it is secure and that is where it will stay.
They responded	Every crane in Melbourne’s got it, every crane in the country has it except for you. We want it flying here.

....

At or about 2.15pm, the five officials returned to the site. Mark Gava called me out of the office and I had a conversation in words to the following effect:

Mark Gava	Why isn’t the flag on the hook. We want the flag on the hook.
I replied	It’s on the machine deck. That’s where it is staying. We are not putting it on the hook.
Mark Gava replied	If you don’t do it we will stop the job.

I shrugged my shoulders.

Then Moe said	If you don’t put it up there we’ll bring back ten brothers tomorrow and stop the job.
I replied	You do what you’ve got to do but the flag isn’t going up.

The officials then proceeded into site and approached a dogman directly. I was not in earshot but after a discussion the flag was put on the crane. Subsequently, I was advised that the officials had insisted that the flag was to go and that work would not continue until this happened and the officials would not leave until it was done.” 7 (sic)

[15] The CFMEU called no evidence in this matter. When I sought particular clarification of the position of Mr Gava, Ms Dooley advised that he had given her instructions but that he was attending to his normal duties rather than attending the Commission.

[16] At the commencement of the proceedings on 31 October 2013 I advised the CFMEU that I was concerned that the material before me indicated various breaches of Part 3-4 of the FW Act and that I would consider whether I should inquire into this pursuant to s.508. I reiterated this concern at the close of the proceedings on 1 November 2013 and invited the CFMEU to provide to me, separate to this application, advice of its position relative to future right of entry behaviour which might be relevant to my consideration of s.508.

[17] The Lend Lease position is that the CFMEU actions on 30 October 2013 represented breaches of right of entry requirements. More particularly relative to this application, that these actions were a coordinated approach directed at requiring Lend Lease to engage full-time CFMEU non-working shop stewards on each site. Lend Lease asserted that the CFMEU actions represented a threat clearly directed at the Tonsley Park Flinders University site, but with implicit effect at the other sites, to institute industrial action relative to work covered by the Baulderstone Pty Ltd and CFMEU South Australian Enterprise Agreement 2013-2017. Lend Lease asserted that it could reasonably be inferred that the CFMEU's actions would embroil its employees and those of subcontractors such that employees should be included in the Order which must follow in the event that the requirements of s.418(1) were met.

[18] The CFMEU position was that the evidence before the Commission did not establish that the prerequisite requirements in s.418(1) were made so as to enable an Order to be made. The CFMEU position with respect to the overall visits was that it conceded that right of entry requirements were not met but that visits from interstate officials where normal. In relation to the exchange between CFMEU officials and Mr Crabb relative to the CFMEU, Ms Dooley put to me that these comments were made on an "off the cuff basis" and should not be regarded as threats.

Findings

[19] Section 418(1) states:

“418 FWC must order that industrial action by employees or employers stop etc.

(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.

Note: For interim orders, see section 420.”

[20] On the evidence before me, I am not satisfied, and nor is it contended, that unprotected industrial action is happening. The evidence does not indicate that it is impending or necessarily probable. Whilst it is clear that various employees met with the CFMEU officials at the sites on 30 and 31 October 2013, there is no evidence that establishes that this was unprotected industrial action and Lend Lease concedes that it may have been authorised or may have occurred outside of working hours.

[21] I have concluded that the CFMEU official’s advice to Mr Crabb, to the effect that a failure to fly the CFMEU flag in a nominated manner would result in a stoppage of work, must be regarded as a threat by that union to either stop, or organise a stoppage of work.

[22] On the evidence before me, it appears that the visits to the Lend Lease sites on 30 October 2013 constituted a planned and resource intensive series of visits involving intimidatory tactics in breach of right of entry requirements. Whilst I think it likely that the CFMEU objective was to achieve Lend Lease agreement to its request for full time non-working CFMEU shop stewards, this is not certain such that I can discern a clear common purpose for the visits.

[23] Notwithstanding this, the repeated assertions that the Tonsley Park Flinders University building work would be stopped unless the CFMEU flag was flown in a nominated manner represent a clear threat. Because the threat was reiterated at different times on 30 October 2013, and because the CFMEU officials then arranged for the flag to be put up by site employees according to their instructions, it cannot be regarded as an "off the cuff" or jocular position.

[24] There is absolutely no evidence that the flag positioning represents a safety requirement and, in any event, a work stoppage over an issue of that nature would appear clearly inconsistent with general workplace health and safety protocols.

[25] I have adopted the position that the Full Bench decision in MUA v Patrick Stevedores Holdings Pty Ltd 8(MUA) confirms the capacity for inferences to be drawn on the basis of evidence and the balance of probabilities and that a member of the Commission is able to draw on established knowledge of a given industry sector in considering an application of this nature.

[26] In this context, the evidence is that five CFMEU officials entered the Tonsley Park Flinders University site without approval and then improperly exercised entry rights. They made various demands and clearly indicated they would stop the project unless their flag display requirements were met. The union’s actions cannot be regarded as trivial and were inconsistent with Ms Dooley's assertion that the CFMEU's general approach was to obtain instructions from its members before initiating action.

[27] On balance, I am not able to conclude that the threat of a work stoppage at the Tonsley Park Flinders University site because of flag display practices translates to the remaining three sites. Had the flag issue been raised at the other sites, or had other threats been made I may well have arrived at a different conclusion.

[28] There is no evidence that the threat made at the Tonsley Park Flinders University site extended beyond actions contemplated by the CFMEU officials. Had evidence of employee involvement in the threats made against Lend Lease been provided to me a different conclusion may have been available. It is clear from the evidence that the CFMEU has organised industrial action in the past at other Lend Lease sites. 9 Further, I have concluded, from my knowledge of the building and construction industry, that, if the CFMEU wishes to commence industrial action it has the capacity to organise that action notwithstanding that its members have the ultimate ability to elect whether or not to participate.

[29] For these reasons I am satisfied that the CFMEU has threatened and may organise industrial action by one or more employees that would not be protected industrial action.

[30] However, in MUA the Full Bench stated:

“[43] We consider that the MUA’s challenge to this part of the Order is substantially correct. As we have earlier concluded, his Honour found that the MUA, through its officials and its delegates at Patricks, had organised industrial action. That meant that a “not organise” order directed at the MUA was required. However his Honour did not find that the MUA itself and its officials had engaged in industrial action, and it is unlikely that any such finding could have been made in any event. As was pointed out by the majority in TWU v Australian Industrial Relations Commission 41:

“Manifestly, the kind of industrial action to which s 496(1) is directed is not industrial action that a union can engage in by itself. The subsection is directed to ‘industrial action by an employee or employees, or by an employer’.”

[44] The above passage refers of course to s.496(1) of the former Workplace Relations Act 1996, but s.418(1) of the Act likewise refers to “industrial action by an employee or employees, or by an employer”, so that the industrial action which may be the subject of a “stop, not occur or not be organised” order is necessarily industrial action engaged in by employees or employers, as the case may be. Thus, while a union can plainly be ordered not to organise industrial action, it is difficult to see how under s.418(1) it can itself be ordered to stop and not engage in industrial action which is engaged in by employees. That is not to say however that, under a s.418(1) order, a union may not be ordered to take a specifically-identified action if that is considered to be essential or necessary to make effective an order that industrial action by employees stop or not be engaged in.

[45] We note that in TWU v Australian Industrial Relations Commission the Full Court majority contemplated the possibility, without determining the issue, that a “stop and not engage in” order could be made against a union involved in industrial action by employees on the basis of s.4(5) of the Workplace Relations Act, which provided that in that Act “a reference to engaging in conduct includes a reference to being, whether directly or indirectly, a party to or concerned in the conduct”. 42 As the MUA pointed out and Patrick conceded, there is no equivalent to s.4(5) in the current Act which is capable of application to s.418.

[46] The extension of the obligations under the Order on the MUA and MUA representatives not to “aid, abet, direct, procure, induce, advise, authorise or encourage” the taking of unprotected industrial action, as well as not to organise it, may be jurisdictionally problematic. Insofar as these types of conduct may be synonymous with or a subset of the concept of the organisation of industrial action, they constitute unnecessary verbiage. However, to the extent that they may go beyond the organisation of industrial action, they are beyond power unless justifiable as essential or necessary to make effective the “not organise” order or incidental to or consequential upon the making of the order.”

[31] Accordingly, notwithstanding my findings relative the CFMEU conduct, I am obliged to follow the approach of the Full Bench in MUA such that no order can be made in these circumstances.

[32] Accordingly, the application must be dismissed.

Appearances:

T Earls appearing for Lend Lease Building Contractors Pty Ltd.

L Dooley appearing for the Construction, Forestry, Mining and Energy Union.

Hearing details:

2013.

Adelaide:

October 31

November 1.

 1   Exhibit L1, para 10

 2   Exhibit L3, para 8

 3   Ibid, para 15

 4   Exhibit L2, para 5

 5   Ibid, para 6

 6   Exhibit L4, para 7

 7   Ibid, paras 13, 15, 16, 17

 8   [2013] FWCFB 7736, para [24]

 9   Exhibit L3, para 3

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