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

[2016] FWC 1830

[2016] FWC 1830

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
(C2016/3075)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 MARCH 2016

Alleged industrial action at Sunshine Coast University Hospital – s.418 – application that industrial action stop.

[1] At 5.40 pm on 21 March 2016, Lend Lease Building Pty Ltd (“Lend Lease”), through Master Builders Association Queensland, filed an application under s.418 of the Fair Work Act 2009 (“the Act”) seeking a stop order in relation to alleged industrial action which had occurred at the Sunshine Coast University Hospital project (“the project”). On the evidence before me, the hospital is a $1.6 billion major project, with turnover (or progress payments in the order) of some $1.5 million per day, and is due for completion in late August 2016

[2] The stop order as sought was directed at the employees of Lend Lease itself who are covered by the relevant enterprise agreement (the Lend Lease Project Management and Construction/CFMEU Joint Development Agreement Mark 8 2012 – 16) and who are members or eligible to members of the CFMEU, and the employees of the various sub-contractors who had allegedly withdrawn that labour from the site on 18 March 2016. The industrial action as alleged has seen most of the 1400 strong workforce withdraw their labour from project since Friday, 18 March 2016.

[3] The stop order was also sought against the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for reason it was alleged that it was organising the industrial action.

[4] This decision is expedited as consequence of the hearing that was conducted in the evening of 22 March 2016. There may be need to correct minor errors or infelicities subsequently.

The adjournment request

[5] I note at this point that the CFMEU initially sought an adjournment of the matter from 11.00 am on 22 March 2016 to 3:30pm. Then subsequently, owing to the disruption caused in its management of other issues by my request for particulars relating to the request, the CFMEU sought an adjournment to the morning of 23 March 2016.

[6] After hearing from the parties about this matter, considering the nature of the materials (which had limited complexity and were simply structured) and the wider circumstances, I denied the CFMEU request for an adjournment until 23 March 2016, and adjourned the hearing until 3.00pm on 22 March 2016.

[7] The CFMEU came to argue subsequently that as the delayed hearing itself continued beyond 6.00pm today, there was no jurisdiction for the Commission to make the order as sought for reason that the industrial action could no longer be happening for the purposes of s.418(1)(a) of the Act, as the site was closed for the day. Industrial action could not be said to be “happening”, it was said, where there was no work to perform (as the site had closed at 6.00pm) and the application must be dismissed as a consequence.

[8] I will return to this matter below, though I add at this juncture that the evidentiary case for both sides was closed prior to 6.00pm, and therefore prior to the closure of the site.

The Application

[9] The site manager for the project was Mr David Clark. Mr Clark gave evidence in respect of the immediately relevant events as follows.

[10] Having arrived at the project at 5:30am on Friday 18 February 2016, he was informed that there had been a water leak from a riser and assistance was required in barricading the area and making it safe.

[11] Mr Clark directed all of the supervisors who were assembled for the daily pre-start to enter the site.

[12] The leak was isolated and an electrical crew was examining at the lighting and power circuitry for the affected area. Mr Clark directed additional assistance to ensure that the affected areas were isolated and made safe. Following the isolation of the riser, a text message was sent out communicating the situation.

[13] Mr Clark also directed Lend Lease supervisors to barricade the areas that the electrical isolation had affected to ensure there was no entry into that area by any workers.

[14] Mr Clark also directed resources to ensure the builders’ lifts were checked as a precautionary measure as they were in the vicinity of the leak.

[15] A further text message was sent out notifying the isolation of the builder’s lifts and a supervisor was directed to stand at each of the lifts to ensure workers did not attempt to utilise that method of access to the building.

[16] Following dewatering of the relevant areas around 9.00am, Mr Clark requested a text message to be sent out that the builders lifts would reopen.

[17] It was shortly after this, that Mr Clark was informed that an electrician had received an electrical shock from an activity around the risers. The affected employee was hospitalised as a precautionary exercise, but soon released, and seemingly returned to his duties.

[18] The electrical shock incident gave Mr Clark caused to convene a meeting of the safety committee as soon as possible to advise of the incident. The safety committee met at approximately10.00am.

[19] Mr Clark explained that the safety committee was shown diagrams of the areas affected by the leaking water pipe and the consequential electrical isolation zone. Mr Clark requested the committee members take the information back to the workgroups and inform them of the incidents. Mr Clark gave evidence that the safety committee appeared happy with the course of action he proposed, and the meeting concluded.

[20] It was immediately following the meeting that Mr Clark identified Mr Tony Kong, an organiser with the CFMEU. Mr Clark attempted to speak with Mr Kong but Mr Kong signalled he had to take a telephone call and stood up and walked off.

[21] At around 11:20am, Mr Clark was informed by a subcontractor supervisor that CFMEU subcontractor delegates were informing employees to stop work and attend a meeting on site.

[22] At around 11:50am, Mr Clark observed workers leaving the site and attending a mass meeting across the road. At 12:18pm he heard a very loud cheer at the company mass meeting and witnessed the workers returning to work to collect their personal belongings, before leaving the site. The evidence before me was that out of a total 1396 workers on site only 185 remained at work after the walk off.

[23] On Mr Clarke’s evidence, he observed no employees working the customary programmed overtime the following day, Saturday 19 March 2016. Of the 1103 workers anticipated to be on site, only 53 workers attended schedule overtime.

[24] On Monday, 21 March 2016, at around 6:15 AM Mr Clark) observed workers from the project walk from the site and attend a mass meeting across the road. Mr Mark Plummer, the senior construction manager for the project, gave evidence that he witnessed Mr Kong addressing the meeting. It is possible the workers were having a two hour consultation meeting as provided for under the Agreement at the time.

[25] The meeting broke up sometime after 7.00am and the workers again left the project site. According to the documentary material filed, 1400 employees were anticipated to be on site, but only 160 workers presented for work following the walk off.

[26] Mr Biaggini indicated that this juncture he issued a further message to all subcontractors confirming that the site was open for normal activities. Relevant material in this regard was tendered in evidence.

[27] At 7:41am, Mr Clark claimed that he received a phone call from Dan Bessell of the CEPU requesting a meeting with the health and safety representatives from the site and Mr Kong of the CFMEU.

[28] Following discussions, it appears that a statement was drafted in respect of future communications by Lend Lease, with some future modifications taking place over the following hours. It appears that the documentation will be put to a mass meeting of workers to be held on the morning of 23 March 2016.

Consideration

Industrial action by employees of lend lease and subcontractors

[29] I have heard the evidence of the witnesses, which in each case was given in a matter of fact manner. There were no exaggerated claims or misrepresentations. The witnesses provided evidence only to the extent of their knowledge and did not attempt to reach further. For example, where they saw Mr Kong, they made good their respective limited observations only, and made no embellishments.

[30] Subject to what I discuss further below, it appears to me on the weight of the evidence before me that industrial action commenced on the site on Friday 18 March 2016. The failure to attend to a scheduled overtime shift on Saturday was a further instance of industrial action. Industrial action was also in evidence on Monday, 21 March 2016 when the bulk of the workforce withdraw its labour following a mass meeting, and the industrial action has continued today (22 March 2016)

[31] Work as it is ordinarily performed has not resumed.

[32] For the purposes of s.418 of the Act, industrial action is therefore happening. At the time of the completion of the evidentiary cases the industrial action was still happening and the Commission is entitled to exercise jurisdiction on the state of the evidence before it at the time and to determine the application as a consequence.

[33] The conduct of the workforce also provides the basis for a reasonable inference to be drawn that industrial action is probable (and I will give my reasons for this inference further below).

[34] An order applying to the employees who are taking industrial action that would not be protected industrial action must be made.

Application for orders against the CFMEU

[35] Lend Lease also sought orders against the CFMEU for reason that it alleged it was organising the industrial action.

[36] Mr Kong may have been to the site and to have been seen to address the mass meeting on 21 March 2016. But as is ordinarily the case in these situations, it is unknown what Mr Kong in fact stated as the meeting was held off site. Further, the subsequent meeting with the CFMEU and CEPU was limited to a discussion about the particular concerns held by the workforce. Those interactions did not illuminate the role of either union in organising the industrial action.

[37] The circumstances as set out in the evidence are not sufficient for me to draw an inference that the CFMEU was organising the industrial action. I was asked to consider past conduct of the CFMEU in relation to drawing such an inference. But the prior hearings that resulted in orders occurred in 2014, and the three applications in 2015 and (February) 2016 were each discontinued. I could not reasonably draw an inference from events separated by such a period of time, or otherwise where no order was made against the CFMEU.

[38] No order can be made that the CFMEU was organising the industrial action which I have set out above.

Further consideration and Duration of Order

[39] Though I was informed through submission by the CFMEU that the workers in withdrawing their labour were exercising their entitlement to do so under s.19(2) of the Act and Workplace Health and Safety Act 2011, no evidence to this effect was put before me. That is, there was no evidence led that any of the very large number of employees (totalling some 1400 in number) who had withdrawn their labour over four days had done so because of a reasonable concern about an imminent risk to their health and safety. No evidence was led by any CFMEU organiser in this regard either.

[40] I note in this regard that on the evidence before me the riser caused a closure of 5% of the project, but the other 95% of the project, which, stretches over an extremely large site, remained safe and accessible for further and continuing work. In short, there was no readily discernible reason for the workers to leave site at any time, let alone over the period of time they have to date, for reasons of an imminent threat to their health and safety.

[41] The workforce has acted to step outside of the dispute resolution machinery provided for in their agreement and to seek to redress it’s concerns through the withdrawal of labour. It has done so in a collective act of disregard for the duties and obligations under the enterprise agreement, and for an orderly procedure for resolving disputes and difficulties. The matters in contest were always amendable to discussion and cooperative resolution.

[42] It appears to me that the workforce, because it has elected to take this course, has little underlying commitment to orderly dispute resolution processes. Its actions were taken not spontaneously, but after some collective consideration of the appropriate course of action.

[43] I have little objective surety or confidence that the return to work on Wednesday, 23 March 2016 (following a further mass meeting). No evidence was led by the CFMEU in relation to the degree of certainty of a resumption of work, or that the steps taken to date to resolve at least some issues are sufficient to induce a resumption of work on any continuing basis. The mass meeting conducted on 21 March 2016 did not result in a return to work, I observe.

[44] There have been seven applications filed in relation to the project since 2014. The seventh application is now before me. Three of those have resulted in orders (in 2014). As mentioned above, the three applications that have resulted in orders are now some reasonable time in the past, and I do not rely on this to any important measure as a result.

[45] There is adequate, uncontested evidence before me, however, that there was a stoppage of work on 25 February 2016 (the sixth application) which left some 38 employees on site out of a total project total of 1363 at the time. The reasons for the stoppage were never communicated to Lend Lease at the time by the CFMEU when they were in communications about the incident.

[46] It is enough for me to infer that the site’s workforce has shown a recent willingness to withdraw labour for unspecified reasons, and without invoking the disputes clause in the applicable enterprise agreements.

[47] In my view, given the circumstances, an order of six week’s duration is required to ensure that the current project instability is arrested.

Conclusion

[48] An order giving effect to my conclusions above and specifying the employees to whom it is to apply and the duration will be issued along with this decision this evening.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Cameron of the Queensland Master Builders Association for the Applicant

Mr Borg, Legal Officerof the CFMEU for the Respondent

Hearing details:

11am and 3pm

Tuesday 22 March 2016

Printed by authority of the Commonwealth Government Printer

<Price code A}, PR578275>