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

[2016] FWC 2331

[2016] FWC 2331

REASONS FOR 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

(C2016/3318)

COMMISSIONER HUNT BRISBANE, 12 APRIL 2016

Alleged industrial action - s.418 - Lend Lease, the Yards RNA Showground.

[1] An application for an order under s.418 of the Fair Work Act 2009 (the Act) was made

to the Fair Work Commission (the Commission) at 2.02pm on Monday, 11 April 2016 by

Lend Lease Building Pty Ltd (Lend Lease). The application was accompanied by an

application for order of substituted service, together with a supporting statement made by Mr

Rodney Green, Lend Lease Construction Manager.

[2]        Lend Lease is the principal contractor for a development known as The Yards Project

located at the RNA Showgrounds in Bowen Hills, Queensland (the Site). Development of 401

residential apartments is currently underway.

Procedural matters

[3]        An email communication to the Commission was received at 11.46am on 11 April

2016 from Mr Dean Cameron, Principal Advisor – Workplace Relations of Master Builders

Queensland, alleging workers covered by the Construction Forestry Mining Energy Union

(CFMEU) withdrew [labour] from the Site that morning. The email foreshadowed an

application under s.418 of the Act within one hour. Lend Lease included the CFMEU in the

email communication.

[4]        Having receipt of the application at 2.02pm, my chambers issued a notice of listing at

approximately 4.03pm for a telephone conference at 4.30pm between Lend Lease, represented

by Master Builders Queensland, and the CFMEU.

[5]        At approximately 4.30pm, the telephone conference commenced. I indicated a

willingness to hear evidence in respect of the application at around 7.00pm. Mr Ashley Borg,

Legal Officer of the CFMEU – Building & Construction Division objected to the hearing

occurring during the evening, stating that the CFMEU would not be in a position to obtain

instructions from relevant members prior to the morning of 12 April 2016, and would be in a

position to participate in a hearing of the application in the afternoon of 12 April 2016.
[2016] FWC 2331

[6]        Mr Cameron stated that in all likelihood, industrial action would occur from 6.30am

on 12 April 2016, when the next day’s work was to resume.

[7]        Having heard from the parties, and having regard to the decision in CEPU v Abigroup

1

Contractors Pty Ltd, I informed the parties that I would list the application for hearing at

7.00pm on 11 April 2016, and I state my reasons for this below. I informed the parties that I

would make an order for substituted service as sought by Lend Lease.

[8]        I invited the parties to approach my chambers if there was any difficulty in appearing

in person, and advised that I would consider any evidence from witnesses by telephone if that

was more convenient for the parties. I informed the parties that unless an application was

made to appear by telephone, I expected the parties to appear in person. No application to

appear and/or give evidence by telephone was made.

[9]        The hearing commenced at 7.09pm. Mr Cameron appeared for Lend Lease. Mr Borg

appeared for the CFMEU. Mr Green was the only witness.

Alleged industrial action

[10]      The industrial action claimed to have occurred on 11 April 2016 is alleged by Lend

Lease to have been arranged by the CFMEU, resulting in a stoppage of work by six

employees of Lend Lease who are members or eligible to be members of the CFMEU and

who are covered by the Lend Lease Project Management & Construction (Australia) Pty

Ltd/CFMEU Joint Development Agreement Mark 8 2012-16 (the Agreement). It is further

alleged that there was an unlawful stoppage of work by approximately 88 employees (who are

members of or eligible to members of the CFMEU) of the following contractors at the Site:

A. Aluminium Balustrades (Burleigh Heads) Pty Ltd

B. Complex Aust P/L

C. ECB Scaffolding Pty Ltd

D. F.T.F Pty Ltd

E. Freshmore (Qld) Pty Ltd t/a Advanced Precast (Aust)

F. Heinrich Constructions Pty Ltd

G. Lack Group Construction Pty Ltd

H. Placecorp (Australia) Pty Ltd

I.     Podium Glazing (Qld) Pty Ltd.

J.	Polyseal Waterproofing Qld Pty Ltd
K.	Pro Concrete Pumping Pty Ltd
L.	SRG Building (Northern) Pty Ltd (LL ALLIANCE)

M. Talbrace Steel Fixing Pty Ltd

N. Tilecorp Pty Ltd

O.	VT Services Contracting Pty Ltd
P.	Wadsworth Contracting Pty Ltd

[11]      In respect of the above subcontractors, the Australian Business Number (ABN) was

provided for each.

[2016] FWC 2331

[12]      It is not contested that employees performing work at the Site generally commence

work between 6.30am and 7.00am, Monday to Friday, excluding gazetted public holidays.

The alleged industrial action is said to have commenced at or around 6.30am on 11 April

2016, with a return to the Site at approximately 8.10am. Mr Green claimed that by

approximately 9.20am, the majority of the employees had left the Site to attend a meeting

across the road from the Site.

[13]      Mr Green’s evidence is to the effect that three CFMEU flags have been hung from

three cranes on the Site for some weeks. A direction was going to be given to a contractor on

the Site on 11 April 2016 to remove the three flags. A Lend Lease manager had met with Mr

McKewin and Mr Hamilton (both of whom are Lend Lease employees and CFMEU

members) to inform them of the direction that was to be given to the contractor. The Lend

Lease manager explained that the reason for the direction to the subcontractor for the removal

of the flags was that [Lend Lease considered] it could be a potential breach of freedom of

association laws to display CFMEU flags on the Site.

[14]      Mr Green states that he was informed that Mr McKewin responded with words to the

effect, “We’ll be having a meeting”. It is not contested that Mr McKewin and Mr Hamilton,

along with other employees thereafter left the Site.

[15]      Mr Green states that at approximately 8.30am he had a conversation with Mr

McKewin and Mr Hamilton with respect to the direction made by Lend Lease for the removal

of the flags. Mr Green’s evidence is:

“They informed us they were not happy about removing the flags. They explained that

the workforce had decided that for every flag Lendlease [sic] directed to be removed,

they would erect a further two in return.”

[16]      With the flag removal underway by approximately 9.20am, and the majority of the

workforce not performing work on the Site due to their attendance at a meeting across the

road, a meeting was held with Lend Lease managers. Mr Green’s evidence is that at

approximately 10.17am, Mr McKewin and Mr Hamilton attended the Lend Lease manager’s

meeting. His evidence is:

“They explained that the workforce were not impressed with the additional flags being

removed and would be “out until the flags are reinstated”.

[17]      Mr Green does not in his written statement attribute the above words to Mr McKewin

or to Mr Hamilton. In cross examination he stated that Mr McKewin had made the statement.

[18]      Mr Green’s evidence is that following this statement, a Lend Lease manager informed

Mr McKewin and Mr Hamilton that the Site remains open and the workforce is expected to

remain at work. Mr Green claims Mr McKewin said, “The Lendlease [sic] CW’s are

CFMEU members as well and [will] be leaving site with the rest of the workforce after

making safe [their] work areas.”

[2016] FWC 2331

Legislative context

[19] The application has been made pursuant to s.418 of the Act. Section 418 provides:

“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.

(2) 

The FWC may make the order:

(a)	on its own initiative; or
(b)	on application by either of the following:

(i)          a person who is affected (whether directly or indirectly), or who

is likely to be affected (whether directly or indirectly), by the industrial

action;

(ii)         an organisation of which a person referred to in subparagraph

(i) is a member.

(3)	In making the order, the FWC does not have to specify the particular industrial
action.
(4)	If the FWC is required to make an order under subsection (1) in relation to

industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the

stop period specified in the order; or

(b)	which has not ended before the beginning of that stop period; or
(c)	beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in

after the end of that stop period without another protected action ballot.”

[2016] FWC 2331

Comment on procedural fairness

[20]      Having proposed to list the matter for hearing on the same day that the application was

filed, I heard from the parties.

[21]      Lend Lease had been exposed to losses owing to the withdrawal of labour for almost

all of the working hours on 11 April 2016. On the material filed with the application, there

was a stated likelihood that it would face continuing losses the following day.

[22]      Expedition in bringing the matter on must be balanced with affording the CFMEU and

employees upon whom the order for substituted service had been served, procedural fairness.

[23]      The contested matters of this case are narrow and confined. The evidentiary enquiry

through the one witness is far from expansive.

[24]      The CFMEU was on notice prior to midday that an application was going to be made

to the Commission within the next hour. The application to the Commission was not made

until 2.02pm, and while an applicant should file an application as soon as possible, I do not

consider that the time between notification of an impending application and the application

being filed caused any inconvenience or prejudice to the CFMEU or the employees subject to

the application.

[25]      The order of substituted service was made at 5.23pm, and evidence of compliance

with the order was tendered and accepted during the hearing of the application, with no

objection from the CFMEU.

[26]      Whether the CFMEU, together with the employees the subject of the application are

afforded the appropriate degree of procedural fairness is very much a matter that is contingent

on the circumstances of the case. Again, I emphasise that this case is of narrow compass and it

would reasonably be expected that the CFMEU and interested, affected employees would be

able to respond to the application at the commencement of the hearing. More complex

evidence-related claims and materials may require a different approach or a longer period of

time between filing and serving of the application to hearing than what has been adopted in

this application.

[27]      Of importance is the offer to accept submissions and evidence by telephone if

interested, affected employees experienced difficulty attending in person by 7.00pm.

Substantive matter

[28]      It appears to me that industrial action that is not or would not be protected industrial

action occurred at the site during operational hours on 11 April 2016. The employees left site

as early as 6.30am, or did not attend for work at all. Work had not recommenced since that

time.

[29] At the time of hearing the application at 7.09pm, the industrial action was not

‘happening’ as required to be considered at s.418(1)(a).
[2016] FWC 2331

[30]      I am satisfied, however, on the evidence before me that industrial action that would

not be protected industrial action was ‘threatened, impending or probable’.

[31]      Mr Borg submitted that Mr McKewin and Mr Hamilton had not stated to Mr Green

that employees would be ‘out until the flags are reinstated’. Mr Borg contended that Mr

Green’s evidence should not be accepted, and that what Mr McKewin and/or Mr Hamilton

said to Mr Green is that there would be a report back meeting in the morning, and employees

would go back to work. Mr Borg submitted that it would ‘fly in the face of logic’ that workers

would turn up to a meeting at 6.30am, only to withdraw their labour.

[32]      I do not accept Mr Borg’s submissions. There was no evidence before the

Commission that employees the subject of the application would attend for work at their

normal start time and perform work as required or as directed. I accept Mr Green’s evidence

as to the statements attributed to Mr McKewin.

[33]      Mr Borg submitted that the probabilities of employees attending for a report back

meeting and then withdrawing their labour should be considered. Mr Borg invited me to

consider it a rare circumstance. In the situation before the Commission, Mr Borg invited me

to consider it more probable than not that the employees would return to work on 12 April

2016.

[34]      I do not accept the position put by the CFMEU. I consider the issue of Lend Lease

allowing or not allowing CFMEU flags in the workplace to be an unresolved issue.

Freedom of association

[35]      The CFMEU advanced the following argument:

(a) The existence of CFMEU flags at the Site is inherently a workplace right by virtue

of the general protections provisions within the Act;

(b) Employees are entitled to [the flags];

(c) The right to [place flags] doesn’t arise out of a specific obligation by way of

agreement with the employer, or by way of an enterprise agreement, but the right

arises more generally;

(d) Therefore the right to place flags in theworkplace formulates part of the contract

of employment;

(e) Removal of the flags by Lend Lease interferes with the contract of employment;

(f) Employees are being prevented from performing their work under their contracts

of employment;

(g) The removal of the CFMEU flags constitutes a potential lock-out by the

employer(s).

[36] I do not accept any of the argument put by the CFMEU in the above paragraph, other

than to agree that employees are entitled to CFMEU flags in the workplace in (b) above, but
[2016] FWC 2331

only by agreement with the employer. I am not referred to any authority to support any of the

broad propositions made.

Report back meeting

[37]      Lend Lease took exception to the position put by the CFMEU that a report back

meeting was approved by Lend Lease and authorised by the relevant subcontractors.

Evidence was tendered that the Agreement requires the CFMEU to provide 24 hours’ notice

of the intention to conduct a paid meeting with members. Mr Borg conceded that the relevant

notice period had not been given to Lend Lease as required by the Agreement.

[38]      Two subcontractors’ agreements were tendered (with identical clauses) requiring the

CFMEU to provide written notice of paid union meetings. There is no evidence before the

Commission that written notice of an intention to hold a meeting at the commencement of

work on 12 April 2016 had been issued.

[39]      Mr Borg submitted that a report back meeting would occur the following morning, and

it should not be concluded that a brief report back meeting should be characterised as

industrial action in and of itself. I do not accept that submission. In these particular

circumstances, and with the evidence before me with respect to the enterprise agreements

entered into by the respective parties, only if each employer authorised its employees to attend

a report back meeting during working hours would the meeting during working hours be

authorised. If authorisation is not granted by the employer, and the employer requires the

employee to perform his or her duties, the employee’s attendance at the report back meeting

would constitute unprotected industrial action.

No order against the CFMEU

[40]      I am not satisfied on the evidence before me that the CFMEU was ‘organising’

industrial action in the circumstances required for an order to be made under s.418(1)(c) to

have been met. Lend Lease initially sought an order against the CFMEU, its delegates,

officers, employees, agents and members of the CFMEU, however after I advised that I held a

preliminary view that there was no evidence before me to make such an order, Lend Lease

informed the Commission that it did not press for such orders; and only sought orders against

the Lend Lease employees and the subcontractor employees.

Decision to make order

[41]      Having satisfied myself that Lend Lease had made out to the requisite degree of

satisfaction that industrial action that would not be protected industrial action was threatened,

impending or probable for the purposes of s.418(1)(b) of the Act, I informed the parties

towards the end of the hearing that I would make an order following the hearing.

[42]      I note that having satisfied myself that the industrial action was threatened, impending

or probable, I must make the order; the decision to make the order is not discretionary.

[43]      The order [PR578979] was made and issued late in the evening of 11 April 2016.

[2016] FWC 2331

Duration of the order

[44]      Having heard from the parties as to duration of an order if the Commission decided to

make an order, I determined that the order should be in place through until 5.00pm, Friday, 29

April 2016. I am mindful that there is a public holiday in the period between the order taking

affect and the cessation of the order, and it is important that work continue on the Site during

this time, unaffected by industrial action that is not protected.

[45]      Having determined earlier that the issue of the CFMEU flags in the workplace does

not appear to me to be a resolved issue, I consider that there is likely to be a continuation of

discussion between the parties on this subject. I consider the period of nearly three weeks to

be a suitable period for the parties to advance the discussions and attempt to resolve any

dispute between the parties.

COMMISSIONER

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1

CEPU v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at 135-136