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

[2014] FWC 1891

[2014] FWC 1891

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 Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/3436)

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 28 MARCH 2014

Alleged industrial action at Lend Lease at the Sunshine Coast University Hospital Kawana Way - s.19 Meaning of Industrial Action - reasonable concern of the employee about an imminent risk to his or her health or safety - no imminent risk - Order issued.

[1] This decision, now edited, was given on transcript on Sunday, 16 March 2014. The transcript of the decision was provided earlier to the parties. I reserved the right to review and edit the transcript of the decision.

[2] This decision relates to an urgent application made pursuant to s.418 of the Fair Work Act 2009 (Cth) (the Act) that the Fair Work Commission (FWC/the Commission) issue an order that unprotected industrial action by employees at the Sunshine Coast University Hospital, at Kawana Way (the Site), stop (the Order). The application was made by Lend Lease Building Pty Ltd (Lend Lease/the Applicant). The application sought to apply to employees of subcontractors engaged at the Site.

[3] The application was filed at approximately 12.30pm on Friday, 14 March 2014. A preliminary conference was convened at 2.30pm on that day to consider proceeding with a hearing that night.

[4] Whilst further considerations are recorded in the transcript of that conference (provided on an urgent basis that afternoon to the parties), in summary, a range of matters were considered, the representative of the Applicant provided some witness statements at the conference, to the Respondent. All of these witnesses were to give their evidence by telephone. At that stage the Applicant’s representative could not specify whether the industrial action was still occurring, as he was uncertain of the ordinary finish times of employees on shift that afternoon, but could advise that 3pm was considered end of shift and that whilst overtime was to be worked on Saturday, normal duties would recommence on Monday. He stated the industrial action commenced at approximately 7.30am that morning. The representative for the Respondent had left separate s.418 proceedings in the Commission, to attend to this conference. He had not, at that stage, had the opportunity to gain instructions and whilst he indicated he may be able to proceed with the matter, he may need to re-enter the other hearing at some stage to give evidence. He also noted that the Union organiser would be brought in to give evidence on what he generally understood to be a safety matter, linked to the events at site that day. The Applicant advised that given their lack of information on these matters, he would then seek an adjournment after hearing this evidence to take instructions from the Applicant’s witnesses on Friday night. As I stated on transcript, I considered that, in accordance with recent case authorities 1 in relation to these matters it was appropriate to adjourn the proceedings to allow the for appropriate procedural fairness to be afforded to the parties.

[5] Directions were issued on transcript for the exchange of evidence and a Hearing was convened at 10am on Sunday, 16 March 2014.

[6] Lend Lease sought that the Commission issue the Order against employees of Lend Lease, and subcontractors on the Site, who are members, of the Construction, Forestry, Mining and Energy Union (CFMEU/the Union) and against the Union.

[7] The following decision, now edited, was issued on transcript:

“This decision is provided on an ex tempore basis and has been provided as expeditiously as possible. Accordingly, I reserve the right to edit the transcript of the decision. This decision relates to an urgent application made pursuant to section 418 of the Fair Work Act that the Fair Work Commission issue an order that unprotected industrial action by employees at the Sunshine Coast University Hospital stop unprotected industrial action. The application was made by Lend Lease, and it was filed at approximately 12.30 on Friday, 14 March.

An urgent conference was convened and I recorded on transcript at that time that I considered there were potential issues of procedural fairness in accordance with the decisions of CEPU v Abigroup Contractors Pty Ltd and E.Allen & Ors v Fluor Construction Services Pty Ltd 2 in proceeding at that time. I do not intend to recount those particular details at this time. Lend Lease sought that the commission issue the order against employees of Lend Lease and the contractors, as set out in their order, who are members of the CFMEU and against the union. Directions were set for the exchange of evidence across the Saturday and a hearing was convened for today.

I understand, as a result of information provided, that more than 150 employees on Friday, 14 March left work (at approximately 7:30am), however other employees, members of other unions on the particular significant project remained on site after the dewatering occurred in their areas of work on site. They undertook normal duties throughout Friday. The evidence is that Mr Kong (CFMEU Organiser) undertook a mass meeting with CFMEU members, and employees after that left site. A workplace health and safety inspection was organised for the site - the department was contacted by the employer, and a report undertaken a short time later after this meeting.

The evidence that I rely on (I do not place any weight on the particular photos tendered erroneously with the Inspector’s report by the Applicant), provided by the Inspector is that any potential risk associated with a slip, trip or fall would have been minimal. The Inspector describes small puddles being three metres to two metres in width and three to four millimetres in depth.

The background to this matter is that rain fell on the site in the early hours of Friday, 14 March, and in accordance with the “inclement weather procedure”, a text message was sent by the relevant employer's officer to the safety committee, to attend site to undertake the safety walk prior to the “dewatering procedure”.

Mr Kong entered site shortly after this. He entered pursuant to section 117 of the Workplace Health and Safety Act, providing a notification to enter the site for the purposes of inquiring into a suspected contravention of a workplace health and safety term; that is being an alleged breach of the inclement weather policy (adherence). Early in these proceedings today I had a copy of this procedure provided to the Union and Mr Kong, prior to his evidence, in order that he may identify such suspected contravention. The evidence is clear that Mr Kong made no relevant inquiries at that time to resolve any alleged suspected safety issue, in relation to that policy.

What is clear is that Mr Kong did not endeavour to have relevant discussions with the safety committee, with Mr Grant, the safety manager, or Mr Kyte, the senior site manager, or to raise issues through the disputes procedure. He attended a mass meeting with employees. Mr Grant's evidence is that there was no evidence in relation to a suspected breach of the inclement weather procedure. In fact there is no evidence before me that there was any imminent risk to employees’ health and safety. Mr Kong's evidence today, was that, the employees had issues with “safety”, and this is how they wished to resolve it. Mr Kong's further evidence was that there was an imminent risk.

The imminent risk relied upon was non-adherence to the wet weather policy. The non-adherence, he said, was said to be the attendance of employee health and safety reps on the wet weather walk.

Industrial action may be seen to be protected if in fact there is an imminent risk to employees' health and safety. This requires, in terms of the industrial action taken on this basis, that to be based on this, a person taking industrial action having a genuine or reasonable belief about an imminent risk to their health and safety or to their person or others. The action must be - that is taken must be proportionate to the particular risk.

It also is relevant in terms of the relevant authorities that any dispute settlement procedure that is available to employees be complied with and discharged. The evidence is that none of those things relevant to protected industrial action being taken on the basis of an imminent risk to health and safety are before me today. The circumstances warrant the order being issued. The action taken on Friday cannot be seen to be protected industrial action in the form of action taken on the basis of an imminent risk to health and safety. I have heard evidence today from the senior site manager, two site managers, the safety manager and the safety officers and the workplace health and safety inspector that inspected the site a short time after the mass meeting was taken. I consider there is sufficient evidence to justify an order being made in the terms sought. I will specifically deal with the detail of that in a short time.

Mr Kong, as I have said, arrived on site with a section 117 notice of suspected contravention. The alleged contravention could not be made out with any definition. Further, there is no evidence that he took particular steps to resolve that alleged contravention, or to detail it to the employer. There is evidence that he moved to a mass meeting, and on the basis of this vague and generic section 117 the employees left the site.

Mr Grant's evidence in particular is:

“At approximately 6.50 I attended a meeting, also attended by Mr David Clark, the site manager, Mr Peter Kyte, and Mr Tony Kong, and Mr James Fissenden”

(Who was a representative of the workers on that particular safety committee. That is not in Mr Grant's statement).

Mr Grant goes on to say:

“Lend Lease representatives stated that they agreed with the meeting with the safety committee, and that the dewatering crews should proceed with the dewatering. Mr Kong disagreed. At this point the meeting deteriorated. He abruptly left the meeting stating, "Forget the safety committee meeting. We will hold a mass meeting in the carpark.”

This evidence was not challenged by the union. I am highly critical of Mr Kong's conduct in moving to the mass meeting, without the relevant discussions with the employer, or escalating any particular issue that he held through the relevant dispute settlement procedure. I am also concerned that given Mr Kong's conduct that he did not advise employees that the action may be considered to be unprotected. This is relevant to the conduct of an Organiser. A safety committee meeting was held out to meet with Mr Kong, and on the material before the commission the employer had followed the procedure, or was endeavouring to follow the relevant procedure in terms of the safety committee walk and the dewatering procedure.

As stated, all other employees on the site, relevantly members of the other unions, had their relevant site areas dewatered and work continued. This is exactly the procedure the employer was in the process of discharging to deal with water on the site. Mr Kong says he merely looked at the site and the wet weather effects on the site from 50 metres away. This is in direct contrast with the Inspector's evidence where he particularly inspected the relevant area of the site, and he could not give any evidence of an imminent risk to health and safety to workers at that particular site. Mr Kong also could not give any particular evidence to a relevant or imminent risk to his members at that particular area.

He also could not give any evidence as to how he endeavoured to properly raise this issue, or the alleged issue, through the safety committee with the employer or the disputes procedure. This provides a serious concern for the employer and this commission. The issue remains therefore, in the absence of any assurances, that it is probable tomorrow, in the same circumstances being raised in the same way by Mr Kong and the union, and causing further potential industrial action at that site.

Accordingly I consider that the tests, the statutory tests 3, have been made out that industrial action is probable based on the history of the industrial action being taken on Friday and that employees have not met their obligations for rostered overtime, as was rostered on the Saturday, I am concerned that there needs to be certainty at the site. I intend to issue the order in the terms sought, with some minor variations, but I will issue it for a period of four weeks. I do this in order that there be appropriate certainty at that site. If the issue is of concern to the union, they are at liberty, after following the relevant disputes procedure, to lodge and seek an urgent dispute conference in this particular matter.

If at the expiration of four weeks of this particular order there remains an issue for the union in the terms that they raised, although I have seen no evidence of it, they are at liberty, at the expiration of the order to seek a dispute conference in this matter before the commission as currently constituted. I will provide the order. Mr Cousner, I understand that you are the relevant representative here of the CFMEU. I am going to have my associate provide it to you in person. I am seeking that the employer also email that order to you as a means of service. I then expect the CFMEU to take all reasonable endeavours to bring this order to the notice of its members.

It is if of course open to the employer as well for certainty to provide whatever action they wish to to bring that to the attention of their employees, whether it be by normal means of an intranet or whatever other means are available to them. Without having relevant information of whatever means are available to them, I leave that to the employer's discretion in order that they effect relevant service. Are there any other questions at this time? The Order will take effect from 4 pm. It will be in place for four weeks. It will expire on 13 April, and the CFMEU are to take all reasonable endeavours to bring this order to the notice of its members.“

COMMISSIONER

 1   CEPU v Abigroup Contractors Pty Ltd [2013] FCAFC 148; E.Allen & Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174.

 2   Ibid.

 3   Fair Work Act 2009 (Cth) s.417(1) and (2).

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