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

[2015] FWC 1088

[2015] FWC 1088 [Note: a correction has been issued to this document]

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
(C2015/1687)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 FEBRUARY 2015

Unprotected industrial action alleged - s.418 - Lend Lease K1 and The Green sites, Bowen Hills - inferences as to “organising” unprotected industrial action.

[1] This expedited decision concerns an application made under s. 418 of the Fair Work Act 2009 (the Act) by Lend Lease Building Pty Ltd (“Lend Lease”), in which it seeks a stop order in relation to alleged unprotected industrial action alleged to be occurring at the K1 RNA Showgrounds site and “The Green” RNA site in Bowen Hills, Queensland (“the sites”).

[2] The industrial action is claimed to have been organised by the CFMEU and to have resulted in the withdrawal of labour by employees of Lend Lease who are members or eligible to be members of the CFMEU and who are covered by the Lend Lease Building Pty Ltd\CFMEU Joint Development Agreement Mark 8 2012 – 16 (“the agreement”), as well as the employees (who are members of or eligible to be members of the CFMEU ) of the following contractors:

(a) Employees of the following subcontractors engaged by Lend Lease Building Pty Ltd at K1 RNA Showgrounds, Corner of Symes Street & St Pauls Terrace, Bowen Hills QLD 4066:

A. Bosform Pty Ltd (ACN: 069989635)
B. Unispan Australia Pty Ltd (ACN: 099 939 287)
C. VT Services Contracting Pty Ltd (A CN 160632422)
D. Mack Steel Fixing Pty Ltd, (AC N 147 501 513)
E. Pump Corp Australia Pty Ltd
F. Placecorp
G. AAction Traffic Management (AC N 164 896 182)
H. TAF Group Construction (TWO) Pty Ltd
I. Tension Concrete Pty Ltd
J. Fugen Masonry Contractors (QLD) Pty Ltd
K. G James Glass & Aluminium Pty Ltd

(b) Employees of the following subcontractors engaged by Lend Lease Building Pty Ltd at The Green RNA, 191 Constance Street, Bowen Hills QLD 4066

A Admiral Concreting (Qld) Pty Ltd (ACN: 067 942 447)
B. Julview Pty Ltd t/a Priest & Co Bricklayers (ACN: 010842752)
C Bosform Pty Ltd (ACN: 069989635)
D Johnston Contracting Pty Ltd (ACN: 088 092 004)
E Unispan Australia Pty Ltd (ACN: 099 939 287)
F. VT Services Contracting Pty Ltd (A CN 160632422)
G. Morrow Equipment Company LLC (ABN 39062879074)
H. Pump Corp (Australia) Pty Ltd Trustee of Pump Corp Trust (ACN: 153408943)
I. Tensioned Concrete Pty Ltd (ABN  25 090 729 678)
J. Wadsworth Contracting Pty Limited (ABN 27 165 674 948)
K. Queensland Facade Systems Pty Ltd (ABN: 83160812662),
L. Titan Doors and Frames Pty Limited ABN 25 082 689 629
M. Stegbar Pty Limited ABN 52 007 090 280
N. Polyseal Waterproofing QLD Pty Limited ABN 97 149 962 872
O. Classic Stone QLD Pty Limited ABN 44 090 503 245
P.Ashmore Joinery (Gold Coast) Pty Limited ABN 73 136 762 108

[3] The alleged industrial action is said to have commenced on 13 February 2015 following an off-site meeting of the employees referred to above with Mr Michael Ravbar, CFMEU State Secretary. Mr Bradley Coombs, the Senior Construction Manager for Lend Lease at The Green, says that he became aware on Thursday 12 February 2015 that the CFMEU was to organise an off-site meeting regarding subcontractor enterprise agreement negotiations on Friday 13 February 2015.

[4] Mr Coombs claimed that at approximately 6:22 AM this morning he was advised by another site manager that a meeting was taking place near to The Green site. Mr Coombs observed the meeting from a distance.

[5] Mr Alan Ware, site manager for Lend Lease at the K1 site, claimed that the CFMEU members began leaving the site around 6:00 AM this morning and assembled at the same point at which the employees from The Green site had assembled.

[6] Mr Ware had been told by a CFMEU delegate that there was a meeting being held which was being addressed by Mr Michael Ravbar. Mr Ware was so informed, he said, by Mr Tony Stott, a CFMEU delegate, who explained to him that:

“ [...] he’s letting the boys know as they enter the site at that meeting will be held in Alexandria Street, Michael Ravbar will be in Alexandria Street to address the boys.”

[7] Whereas the normal start time for the sites were 6:30 AM, the meeting continued well beyond that period. It appears that around 7:55 AM the employees returned to site, collected their belongings presumably, and left their place of work without explanation (bar as mentioned to Mr Ware below).

[8] Mr Ware claimed that he was informed by CFMEU members as they left site that Mr Ravbar had discussed the CFMEU enterprise bargaining log of claims and that by separate meeting of CFMEU members alone the vote had been taken to not return to work “because of the Tilers and Riggers is not being union EBA”.

[9] Mr Ware said that “several guys” mentioned to him they would return on Tuesday, possibly for a report back (for some unspecified purpose and to an unspecified person).

[10] Mr Coombs gave evidence that The Green site remained open for work and that the non-CFMEU trades (such as electrical, mechanical, fire services, lifts and plumbing trades) continued to perform work.

[11] Mr Coombs claimed that he had been given no indication as to when there might be an anticipated return to work. He also indicated that Saturday was a normal programmable day (albeit is paid at overtime rates) and is necessary for the majority of employees to work on that day (that is, Saturday, 14 February 2015).

[12] Mr Kim Park, Construction manager for Lend Lease at the K1 site, gave evidence that he had been informed that the workers, upon completion of the meeting around 8:00 AM, “were leaving the site for the day and could not return till Tuesday.”

[13] I note at this juncture that Monday, 16 January 2015 is a rostered RDO.

[14] I also have before me a number of statutory declarations by the subcontractors. The declarations depose that the subcontractor in each instance has not authorised its employees to withdraw labour or cease work on any of the sites in question.

Legislative context

[15] 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.

Comment on jurisdiction

[16] I have brought this matter on for hearing on the same day as the application was filed.

[17] Lend Lease has been exposed to losses owing to the withdrawal of labour today and it faces continuing losses tomorrow (given my findings below).

[18] Expedition in bringing the matter on must be balanced with affording the CFMEU procedural fairness.

[19] The circumstances of this case are narrow and confined. The evidentiary elements through the three witnesses is far from expansive and does not require fine investigation enquiry. The listing of the hearing was given some two hours prior to the hearing commencing. The substituted service order was issued around the same time, and served on the CFMEU.

[20] Presumably, further, the CFMEU would be able to contact its own State Secretary in order to establish some basic facts in its defence. But evidence was forthcoming in this regard, even though a reasonable time period elapsed from the lodgment the notification of the application and the hearing time.

[21] Whether the CFMEU is 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 would be able to respond to the claims within the time period provided. More complex evidence-related claims and materials may require a different approach to that which has been adopted here. (see (CEPU v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at 135-136)

[22] Equally, the evidence of the State Secretary in this particular case could have placed the CFMEU in a strong position to speak on behalf of its members and to represent their interests in the hearing. In the circumstances of this matter, procedural fairness does not require that an opportunity be given to the CFMEU to make enquiries of each of its members in relation to the application. This is because in this instance the CFMEU has intimate knowledge of the conduct of the employees, and the orders are sought to apply to members of the CFMEU and the CFMEU itself as a legal entity. I do not consider that the reference to such obligations in the decision of the Full Bench in E. Allen and Ors v Fluor Construction Services Pty Ltd [2014] FWCFB 174 (see PN 37) to be applicable in this particular case. The circumstances before that Full Bench were very different than those before me.

Substantive matter

[23] It appears to me that industrial action that is not or would not be protected industrial action is occurring at the site. The evidence led in this matter is such that it appears to me that the circumstances required for an order to be made (under s. 418(1)(a) of the Act) are met. The employees left site following a meeting with the CFMEU State Secretary this morning, and work has not recommenced since that time.

[24] There is some hearsay evidence that there may be a resumption of work on Tuesday 17 February 2015, or a report back at least (as referred to above) but other than that there is no indication of the intention of the employees. Nor is there any indication that work will resume upon the commencement of work tomorrow morning which - given the work patterns in civil construction projects and most general building sites in Queensland, is described as an ordinary, programmable day of work on the sites. Certainly at the two sites in question Saturday work was a commonly shared expectation and had been so for some lengthy period (and only interrupted by external events such as inclement weather and industrial stoppages).

[25] The evidence taken as a whole suggests the requisite degree of satisfaction that the employees, as defined above, left the sites this morning without articulating their concerns or issues and have not in any formal sense given any indication of the timing of their return.

[26] In the circumstances of this case I consider that it is also made out to the requisite degree of satisfaction that industrial action that would not be protected industrial action, should it be taken not to be currently happening, is also probable and impending for the purposes of s.418(1)(b) of the Act.

[27] Given these findings, an order must apply to the employees who are taking industrial action that would not be brought is not protected industrial action.

[28] For the purposes of s. 418(1)(c) of the Act, I also am satisfied to the requisite degree that the CFMEU is organising the industrial action.

[29] I reach this view as a matter of reasonable inference on the basis of the contextual circumstances evident in this matter.

[30] Both sites have been exposed to work interactions previously. I will mention some of the applications in this respect. An application in relation to the K1 site was brought on for hearing last week but resolved only through amicable agreement of the parties so that work resumed the following day when a major concrete pour was due.

[31] Further in relation to the K1 site, by my decision in [2014] FWC 4846, I issued orders against certain classes of employees who were members or eligible to be members of the CFMEU and the employees of various sub contractors. An earlier application had been made on 24 June 2014 and dealt with by senior Deputy President Watson in his decision in PR552368. Those decisions set out the various conduct and issues that occurred on site at those times.

[32] In August 2014 I heard an application in relation to alleged industrial action at “The Green”. I made no order at that time (see decision [2014] FWC 5461), on the basis that while there had been a stoppage of work the previous day there was not sufficient evidence to demonstrate that what would be unprotected industrial action was otherwise threatened or probable or pending.

[33] An interim order binding on the CFMEU, its officials, delegates, officers, employees and agents of Lend Lease and various sub contractors was made in relation to the Green on 4 April 2014 in PR549369 by Deputy President Gooley.

[34] Against this backdrop, the sites have not been industrially stable at all times and there had been stoppages of work in the recent past. I note that while the CFMEU has been active on the sites at particular times where stoppages took place it has not always been subject to orders in its own right.

[35] It does not appear that the employees in the current case have agitated any issues of concern at a prior period that suggested their concerns were such that they may withdraw their labour.

[36] Labour was withdrawn from the sites this morning only following the meeting which was organised by the CFMEU.

[37] Mr Ravbar, the State Secretary of the CFMEU, addressed the meeting and following his address the employees withdrew their labour from the sites. It is mentioned in the evidence by hearsay that there may have been a vote in relation to the taking of industrial action, but this was not otherwise made out in any useful detail.

[38] In this current case, the CFMEU attended at site, organised a meeting of employees, addressed the meeting, and following the meeting the employees (who had not raised any local issues with their management prior to this or agitated any concerns of any particular kind that might give rise to a high level of agitation) withdrew their labour without communication of any issues with their employer. Other non-CFMEU trades continued at work. The sites have been the subject of industrial disruption in the past (which I have set out above).

[39] When the totality of the circumstances are considered they appear to me to provide a sufficiently sound basis on which to make a reasonable inference that the CFMEU has and is organising - in the broad meaning of that verb - industrial action that would not be protected industrial action.

[40] In particular, there does not appear to me - particularly in a context in which the employees across two sites have given no evidence of any prior, localised concerns and have elected not to disclose the rationale for their conduct following a meeting with their CFMEU representative- to be any other reasonable explanation for the withdrawal of labour other than by the actions in organising the industrial action by the CFMEU. That is, the withdrawal of the relevant employees’ labour can only be attributed on a reasonable basis to its organisation by the CFMEU - in this case by way of the act of organising a meeting of employees that ran over the time of the ordinary commencement of work and by Mr Ravbar’s address to the employees.

[41] If there be some argument that the CFMEU cannot be said to be organising industrial action that is probable or which is oriented to the future, I refer to my discussion concerning the meaning of the verb “organising in my decision in [2014] FWC 4846 (July 2014). I rely on my reasoning as set out there.

[42] The order will therefore apply to the CFMEU.

Duration of the order

[43] In the context, overall I consider that the order should apply to the relevant classes of employees and the CFMEU in relation to both sites through to 5:00 PM Saturday, 21 March 2015. In many instances it is possible to determine the duration of the order with more precision in the context of the known circumstances of the issues in dispute. But here there has been no articulated grievance communicated to Lend Lease which allows the Commission to better evaluate the time required to restore the continuity of work on the sites. Such circumstances require cautious approach: an order should not underestimate the potential for the underlying issue to have some complexity to it and to be long-running. But equally it should not rush to an order of long duration without more. An applicant may of course reapply for an order of extended duration at a future time should the circumstances require such action.

[44] The orders will be published along with this expedited decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M Bellfield, of Master Builders for the Applicant

Mr T McCann of Master Builders for the Applicant

Mr A Borg, of the CFMEU

Ms R Huskie of the CFMEU

Hearing details:

Brisbane

2015

13 April

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