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

[2014] FWC 7800

[2014] FWC 7800

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
(C2014/7524)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 31 OCTOBER 2014

Alleged industrial action at Lend Lease Building Pty Ltd, Sunshine Coast University Hospital Site, Birtinya.

[1] This decision concerns an application under s. 418 of the Fair Work Act 2009 (the Act) in which Lend Lease Building Pty Ltd (the employer) sought an order that industrial action stop and not be organised (by the CFMEU) in relation to work on the Sunshine Coast University Hospital site, at Birtinya in Queensland.

[2] This decision, I note, is expedited following the conclusion of the hearing of the application this afternoon. There were a number of procedural issues that needed to be dealt with before the commencement of the substantive matter. The decisions in this regard were made along the way and remain on transcript. At least in general terms, the procedural decisions concerned whether or not the matter ought to be adjourned in order to afford the CFMEU an opportunity to obtain further instructions, whether what was characterised as a “consent interim order under s. 420 of the Act” should issue in relation to the circumstances of this matter (and in particular because of the need for the CFMEU to obtain further instructions); and whether the application and substituted order forms utilised by the employer were current forms and signed in an appropriate manner.

[3] The CFMEU also agitated that the employer had not complied with the terms of the substituted service order and the application should not be considered for that reason. The CFMEU also opposed the manner in which I dealt with that issue upon it being raised, and I will make some comments on this issue further below. But before doing so, I will set out my responses in summary to the various issues mentioned above.

[4] The application was lodged by the employer at 3:56 PM on Thursday, 30 October 2014. The application included a number of short statements by various managers. Leading up to 6:55 PM, five or so additional short statements were provided along with copies of various e-mails dispatched to subcontractors and a site inspection report completed by Workplace Health and Safety Queensland.

[5] The application was heard shortly after 10 AM the following day.

[6] The CFMEU sought an adjournment to seek further instructions in relation to the application. I acceded to a further adjournment which eventually led to the matter recommencing shortly after midday. It is of course difficult to balance the requirements for procedural fairness with the necessity to deal with an application which is likely to have and likely to cause damage to an employer, and requires expedition for that reason. But in my view, the amount of time permitted to the CFMEU to prepare its case was sufficient in the context of the narrow compass of the statements and materials before me.

[7] The CFMEU argued otherwise, and claimed that it had not had time to fully investigate the issues around the apparent stoppage of work including any safety ramifications. I was not informed as to what impediments arose in relation to instructions being obtained from the relevant CFMEU organiser, Mr Tony Kong, who was involved in the site level interactions on 30 October 2014 and appears (at least from the employer's witness statements) to have had knowledge of employee concerns and intentions. Again, in the particular circumstances of this matter, sufficient time had been afforded to the CFMEU to make inquiries and respond to the employer’s materials.

[8] The CFMEU also sought, in the alternative, that I grant a consent interim order under s.420 of the Act, and bring the matter and the hearing next week. The first four days of next week, I note, are industry RDOs.

[9] The employer did not consent to this approach, and sought that the application be heard and determined.

[10] As I indicated in the proceedings, I am unsure as to what the status of a so-called “consent s. 420 interim” order might be. It appears to me that s. 420 of the Act is only enlivened by the Commission reaching a requisite state of belief that it “is unable to determine” the application within 2 days after the application is made.

[11] Whether or not the parties might consent to an order is not of course enough to satisfy this jurisdictional foundation as to the s.420 interim order.

[12] Parties, of course, may consent to the terms of an interim order made under s. 420 of the Act, but that does not go to the jurisdictional foundation of that species of order.

[13] It appears to me that consent orders for which there is agitation are in actuality orders made under s. 589 of the Act. Under section 589 of the Act provides for a discretion for the Commission to make interim decisions in relation to a matter before it, and historically in the Commission’s jurisdiction, interim decisions and orders in various circumstances can be synonymous terms. Consent orders in relation to applications made under s.418 of the Act, therefore, may reasonably arise under s.589 of the Act, but not s.420 of the Act.

[14] The CFMEU raised other matters concerning the currency of the forms utilised for the purpose of the application and the substituted service order, noting that the forms were not current forms and were not signed in the appropriate or expectant manner.

[15] Upon consideration of the documentation in relation to the matter I considered that there was no prospect of there being scope for confusion or doubt as to the identity of the Applicant, the employer concerned, the author or the probity of the application and relevant supporting materials. If such matters had all fallen into doubt there may have been reasons to not consider that there had been a proper application before me.

[16] However, for the reasons I gave on transcript at the time of the hearing, I was satisfied that the documentation was unambiguous as to its purpose, in respect of its reference to the legislation, and the identity of its author and other relevant parties for the purposes of effecting an appropriate application. I therefore utilised my discretion under Rule 6 of the Commission's rules to set aside compliance with the rules for the current purposes, and to otherwise amend the application for purposes of s. 586 of the Act, to the extent that it was warranted.

[17] I now turn to the issue of the substituted service order.

[18] At the time of the closing submissions the CFMEU raised the issue as to there being no evidence that there had been compliance on the part of the employer with the terms of the substituted service order. The CFMEU said it was not appropriate that I reopen the matter to consider whether or not there had been compliance in relation to that matter. This was because the employer had utilised its opportunity to present its evidentiary case in the opportunity the further evidence ought to be closed.

[19] I think a strong case can be made that reopening the evidentiary case in relation to the substantive matter might be considered an unconventional development and perhaps only to be considered in some notable circumstance.

[20] But in relation to such machinery matters as substituted service orders, there is usually a presumption of compliance or regularity. Such matters are not ordinarily the case for detailed investigation or investigation at all, let alone direct challenge.

[21] Of course, if compliance with the substituted service order had not been given effect then the matter would not have proceeded, in my view, because the rights of the employees potentially affected by any order would have been compromised.

[22] In the current circumstances, I considered that it would be helpful for me to form a view based on the evidence as to whether or not there had been compliance with the substituted service order, rather than to deal with competing claims at the bar table. I therefore took evidence from those who were participants in the execution of the compliance requirements of the substituted service order.

[23] The execution of the service requirements of the order was not decisively made out, I should point out. There are always steps that an employer can take to strengthen the means by which it delivers the substituted service order. In this case, the employer sent a text message with an image of the substituted service order to Mr Tony Kong’s phone. But was this sufficient for the purposes of satisfying the requirements for service?

[24] The substituted service order allowed for service by the following means:

(a) a copy of this order is delivered by facsimile or e-mail or otherwise to an officer or official of the CFMEU who had dealings with the Applicant in relation to Sunshine Coast University Hospital [...]

[25] It appears to me that the employer complied with the method of service required of it. The only obligation upon the employer was to deliver a copy of the order. No obligation fell upon the employer to ensure that the relevant person to whom the order is delivered needs to address or in some other way recognise or respond to the order.

[26] It was argued that there was no guarantee that Mr Kong had a mobile telephone that was a smart phone or had a capability of opening the image as delivered to him as a text message.

[27] But there was evidence that Mr Kong had exchanged images by way of a mobile telephone with another supervisor. Mr Kong was not present at these proceedings to otherwise challenge this proposition.

[28] I therefore conclude that the employer complied with the terms of the substituted service order. But in saying so I note that issues may reasonably arise as to the means by which an officer or official might reasonably recognise a communication as being one of importance or not. This may give cause for future review of the requirements for delivering a copy of a substituted service order by SMS text.

Merits of the case

[29] The evidence before me was that at around 7:15pm or so on Thursday 30th of October 2014, employees of the employer and various of its subcontractors left the site without authorisation following a meeting which was attended by Mr Tony Kong of the CFMEU.

[30] The evidence was that Mr Kong had communicated to the employer that the meeting of employees had upheld a motion that they would not attend work that day or tomorrow (that being Friday 31st of October 2014, the day the application was heard) and would not return to work until Thursday, 6 November 2014, which was after the completion of their rostered days off.

[31] It was further stated that the employees “felt pushed too hard in a car park No.1”, and that there were issues about hours of work and fatigue management.

[32] Mr Kong was also said to have raised issues about “formwork issues”.

[33] In this latter respect there had been what appears to me to be a partial formwork collapse on site the afternoon of the previous day (29 October 2014). Fortunately, there were no injuries and the area appears to have been cordoned off. The Safety Committee had been notified (and were addressed at around 6:30 AM on 30 October 2014) and Workplace Health and Safety Queensland was also notified, because the incident appears to have been a notifiable event for the purposes of the state legislation.

[34] The Workplace Health and Safety Queensland site inspection report indicated at the time of the investigation (which appears to have been around 7.10 AM on 30 October 2014) there was no imminent risk to health and safety.

[35] Mr Tony Kong appears to have visited the site on the morning of 30 October 2014. It appears on the evidence before me that Mr Kong was satisfied that the formwork incident was being dealt with in an appropriate manner, but a meeting of employees was held nonetheless.

[36] That meeting appears to have been conducted between approximately 6:30 AM and 7:12 AM. It was around 8 AM that Mr Kong and others advised the employer about the motion and the course of intended action that I have referred to above.

[37] Though the evidence in this matter was entered without challenge (for reasons that the CFMEU contended that it had had no reasonable opportunity to obtain instructions) the employer did not directly give evidence that the stoppage of work that commenced on Thursday morning, 30 October 2014 was happening.

[38] Reasonably, the CFMEU disputed whether I could reach the requisite degree of satisfaction that the industrial action was happening for the purposes of making an order under s.418 of the Act.

[39] But when the totality of the evidence is considered along with the evidence of Mr Kong as to the intention of the employees it appears to me to be reasonably inferred that the industrial action is continuing to happen. In any event, if I was to be mistaken in this regard, given the stoppage of work and the stated intention of the employees enunciated by Mr Kong, the industrial action would be probable and/or threatened.

[40] Because it appears to me that industrial action is happening and otherwise is probable and/or threatened, I must make an order under s. 418 of the Act that the industrial action that appears to me that is not or would not be protected industrial action stop.

[41] An order to that effect will apply to the employees of the employer and to the employees of those subcontractors who are taking that species of industrial action.

[42] I have also been invited by the employer to make a finding that the CFMEU is organising the industrial action, as I have found to be above.

[43] But there is not sufficient evidence that the CFMEU is organising the industrial action. Mr Kong appeared at site and participated in a meeting and conveyed a resolution which was the outcome of the meeting. But without more, I could not reach the requisite degree of satisfaction that Mr Kong had organised the subsequent stoppage.

[44] The employer may be suspicious that Mr Kong was the organiser of the industrial action, but the Act requires a higher degree of satisfaction than suspicion alone.

[45] Whilst the direct evidence may rarely be available in the circumstances in which meetings such as this are coordinated, an inferential case would need to be founded on surrounding circumstances. But in my view, the surrounding circumstances are not sufficiently adequate to allow me to draw such an inference on this occasion.

[46] Therefore, no order will be made against the CFMEU for want of sufficient evidence.

Duration of order

[47] It does not appear to me that the circumstances of this particular stoppage are reflective of a systemic challenge to the employer or reflective of a prospective enduring period of instability.

[48] An order was issued by me in March of this year in relation to a stoppage of work at the site, but since that time there appears to have been a period of some marked continuity in the performance of work.

[49] I am inclined to the view that an order of relatively short duration is warranted in the particular circumstances. Given the range of issues cited that were the source of the concerns I consider that an order of four weeks duration is warranted. This will ensure that there is time for full dissemination of information in relation to the response to the safety incident and the improvement notice issued by workplace health and safety Queensland, as well as about the retraining necessary to ensure that site safety is enhanced in relation to formwork construction. It will also allow time for the various other issues raised by Mr Kong (such as the pace of work and fatigue management issues) to be considered and dealt with at the site level.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M Belfield, Queensland Master Builders Association for Lend Lease Building Pty Ltd

Mr T O’Brien, Industrial Officer, CFMEU

Mr A Cousner, Industrial Officer, CFMEU

Hearing details:

2014.

31 October 2014.

Brisbane.

Final written submissions:

30 October 2014.

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