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

[2014] FWC 4846

[2014] FWC 4846

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; The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
(C2014/5356)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 22 JULY 2014

Summary: whether organising industrial action is limited to industrial action that is happening or industrial action being organised but has not happened - industrial action may be organised but not occur.

[1] On 11 July 2014, Lend Lease Building Pty Ltd (“Lend Lease”) made application under s.418 of the Fair Work Act 2009 (“the Act”) seeking a stop order in relation to the alleged industrial action occurring at the K1 RNA Showgrounds site in Bowen Hills, Qld (“the Lend Lease site”). The stop order was sought in relation to an alleged stoppage of work which occurred at the Lend Lease site on the day of the application following a meeting of employees with an official of the Construction, Forestry, Mining and Energy Union (“the CFMEU”). The relevant details are set out further below.

[2] An interim order was applied to the same site on 24 June 2014 (PR552368) by Senior Deputy President Watson. The interim order was set aside following a substantive hearing on 26 June 2014. The decision in the substantive matter (“the prior decision”) was to the effect that at the time of the hearing no (further) unprotected industrial action was occurring and no such industrial action was probable threatened or otherwise impending. No order was made against the CFMEU that it was organising industrial action. The Senior Deputy President did record, however, that:

Whilst on the evidence, I would have been satisfied that it appears that unprotected industrial action did occur on 24 June 2014 and occurred for a duration of around 10 minutes when a CFMEU organiser met with employees from the K1 project on 25 June 2014 [...]

[3] I will return to discuss the prior decision further below as it has implications for the order sought in the application the subject of this decision.

[4] Returning, therefore, to the application in this matter, I indicate that because the application as lodged on 11 July 2014 could not be determined within 48 hours, an interim order (PR553051) was made under s.420 of the Act. The interim order applied to:

• Construction Forestry Mining Energy Union and the Construction, Forestry, Mining and Energy Union, Industrial Union of Employees, Queensland (the CFMEU);



• The officials, delegates, officers, employees and agents of the CFMEU;



• Employees of Lend Lease Project Management & Construction (Australia) Pty Ltd who are members or eligible to be members of any one of the unions identified above in clauses 2.1.1 to 2.1.2 covered by the Lend Lease Project Management & Construction (Australia) Pty Ltd/CFMEU Joint Development Agreement Mark 8 2012-16 ( AG 2012/10905); and



• Employees of the following subcontractors engaged by Lend Lease Project Management & Construction (Australia) Pty Ltd at the site, who are members or eligible to be members of the CFMEU:




Bosform Pty Ltd, ACN 069989635;

Mack Steel Pty Ltd ACN 147501513;

VTS Rigging Pty Ltd ABN 85160936612;

Place Corp (Australia) Pty Ltd ABN 65 165 729 751

[5] The substantive matter was set down for hearing on 17 July 2014.

[6] The evidence led in this matter was to the effect that at 0615hrs on Friday 11 July 2014, Mr Kevin Griffin, a CFMEU organiser, advised Lend Lease management that:

I want to have a meeting with the boys [and that at 0630hrs] the boys are coming out to the car park.

[7] The evidence was that when questioned as to the purpose of the meeting, Mr Griffin stated that he wished to talk to the employees “about general industry stuff and if there are any issues on the K1 site”.

[8] Employees of Lend Lease Project Management & Construction (Australia) Pty Ltd and the various sub contractors referred to above attended the meeting conducted by Mr Griffin. Following that meeting, which appears to have ceased at approximately 0650-0655hrs, the employees as defined above withdrew their labour from the Lend Lease site.

[9] The evidence of Mr Kim Park, the construction manager for the Lend Lease site, was that following the employee meeting he approached Mr Griffin of the CFMEU and after shaking hands asked; “What’s going on?”

[10] Mr Park gave evidence that Mr Griffin replied;

“we don't have an open relationship”.

[11] Mr Park responded with the question; “Is there a safety issue?”

[12] Mr Griffin was said to have responded to this question by stating;

“Lend Lease policies are the safety issue, we cannot represent the boys, there is no access to the site”.

[13] Mr Park posed a question in response; “Lend Lease policies?”

[14] Mr Griffin replied:

“Lend Lease policies, write up your reports, you have your job to do at this level and there is management at this level”.

[15] Mr Park’s evidence was that Mr Griffin raised his arm to accentuate the issue of management levels.

[16] Mr Allen Ware, Lend Lease site manager, gave evidence that corroborated the substance of the above exchange between Mr Park and Mr Griffin. Mr Ware was in attendance at the time of the exchange.

[17] It appears as though the reference to site access is a reference to the commencement in April 2014 of the Work Health and Safety and Other Legislation Amendment Act 2014 (Qld) (“the WHS Act”). The WHS Act has had the effect of requiring a permit holder to provide 24 hours notice in writing before they can enter a site to perform functions under the WHS Act (such as investigating a suspected contravention of that legislation; inspecting employee records relevant to a suspected breach; consulting or advising employees on WHS matters etc).

[18] It was in this respect that Lend Lease provided a deal of material over the course of the hearing in relation to this application that referred to right of entry issues arising on the site particularly since April 2014. Lend Lease sought to contend that there had been the intensification of CFMEU site visitation since the commencement of the WHS Act and of there having been repeated incidents of site entries without the required notice.

Is what would be (prospective) unprotected industrial action being organised?

The jurisdictional question

[19] Lend Lease sought to argue that the propensity of the CFMEU to make such site visits gave evidence of that union organising industrial action for the purposes persuading it to alter its site access policies so that they do not reflect the legislative intent of the WHS Act.

[20] In essence, therefore, Lend Lease is seeking orders under s.418(1) of the Act that the CFMEU be stopped from organising industrial action that has yet to occur but which is threatened, impending or probable (on the available evidence).

[21] I think that from a jurisdictional perspective the order that Lend Lease seeks is within power. Ordinarily, it is more often the case that an assessment of whether an organisation of employees is organising industrial action (under s.418(1)(c) of the Act) is evaluated in the context of industrial action that is happening for the purposes of s.418(1)(a) of the Act.

[22] But the concept of “organising” is not limited to unprotected industrial action that is happening at a given time. It is the case, by way of definition, that an event or activity is “being organised” in advance of the event or activity taking place, perhaps as much as it may be being organised as it occurs. The Macquarie Dictionary, for example, provides a definition of the verb in the context of a person organising for a caterer to provide cutlery for a public function.

[23] Some attention was given to the scope of meaning of the verb “to organise” in the judgment of the Queensland Supreme Court in R v Alif; R v Amin; R v Zolmin [2012] QCA 355 (18 December 2012). In its judgement in that case, the Court held, in the context of the Migration Act:

[21] For the following reasons, I consider the construction of s 232A(1) taken by the Northern Territory Court of Criminal Appeal is correct. Section 232A(1) anticipates various ways in which an offence against it can be committed and charged. It requires that the defendant: (a) either organises or facilitates (b) the bringing to Australia, or the coming to Australia, or the entry into Australia, or the proposed entry into Australia, (c) of a group of five or more people to whom sub-s 42(1) applies. I accept Amin's contention that "Australia" when twice used in s 232A(1) has the meaning he attributes to it. Section 42(1) and the definition of "enter Australia" in s 5(1) has the effect that "Australia" in s 232A(1) means entry or proposed entry onto Australian land or into its territorial sea, that is, within 12 nautical miles of that land. But this does not mean Amin's contended construction of s 232A(1) is correct.

[22] The verbs, the action words, in s 232A(1) are "organises" and "facilitates". Those words are not defined in the Migration Act and have their ordinary meanings. They are broad concepts. The Macquarie Dictionary defines the verb "organise" as including "1. to form as or into a whole consisting of interdependent or coordinated parts, especially for harmonious or united action: to organise a party. 2. to systematise: to organise facts. 3. to give organic structure or character to ... ." The Macquarie Dictionary defines the verb "facilitate" as "to make easier or less difficult; help forward (an action, a process etc)". To use the dictionary example, a person may organise a party but the party may never take place because it is cancelled on account of rain or unexpected illness. The person has still organised the party. Similarly, using the analogy of Amin's counsel in this appeal, a police officer may facilitate the bringing of an offender to justice by passing on information to others even though the offender is not ultimately brought to justice. The police officer has still facilitated the bringing of that offender to justice. My view as to the meaning of "organises and facilitates" in s 232A is not changed by the fact that a facilitation or organisation which is ultimately unsuccessful could be described as someone trying or attempting to organise or facilitate. And nor do I consider that Amin's contended construction of s 232A is assisted by the fact that the Criminal Code (Cth) contains attempt provisions. Applying the meaning I take of "facilitates" to s 232A(1), a person may make the bringing to Australia of a group of people without Australian visas less difficult and help to move forward the bringing of them to Australia without the group ever successfully entering Australia.

[23] Amin's counsel emphasises that "to" precedes "Australia". But the phrase "to Australia" is attached to the preceding phrase "the bringing or coming" which are continuing concepts capable of encompassing conduct which precedes any actual entry to Australia. Amin's counsel also emphasises the use of the phrase "proposed entry" and the absence of the word "proposed" before the words "bringing or coming to Australia". But the absence of the word "proposed" before the words "bringing or coming to Australia" does not alter the fact that the concept of "bringing or coming to Australia" is a continuing one capable of encompassing conduct which precedes entry into Australia. The word "to" preceding "Australia" and the absence of the word "proposed" before "bringing or coming" does not alter the meaning of "organises or facilitates". [My emphasis]

[24] The construction I prefer of s 232A(1) has the advantage of giving the words "organises or facilitates" their ordinary meaning. It also fits comfortably with the object of the Migration Act which is concerned with the coming into and presence in Australia of non-citizens (s 4(1)). As I have explained, the coming into Australia is a continuing process which includes actions preceding actual entry. This construction also sits comfortably with the extra-territoriality envisaged by s 6 and s 228A. Section 232A is in pt 2 which is headed "Control of arrival ... of non-citizens", not merely with their arrival. Part 2 div 2 deals with "[o]ffences in relation to entry into ... Australia" (my emphasis), not merely with offences of entry into Australia. The concept of control of arrival suggests the division aims to control conduct relating to non-citizens before their arrival. To organise or to facilitate the bringing or coming to Australia of a group of people without Australian visas is conduct in relation to their entry into Australia and is not limited to offences of entry into Australia. To make such conduct, including pre-entry conduct, an offence is to control the arrival of non-citizens. 1

[24] Organising an outcome, therefore, does not require the outcome to be realised, but for the requisite steps to have been taken to achieve the outcome (irrespective of its realisation). That is, it is not the outcome of the act of organising that is relevant, but the ascertainment (to the applicable requisite degree of satisfaction) of the activity of organising.

[25] It follows that industrial action that is not protected industrial action that is happening may be being organised by an employee organisation, but equally an employee organisation may also “be organising” prospective industrial action (regardless of whether it eventuates or not or is otherwise in evidence).

[26] Such an approach to the definition of “being organised”, I add, allows s.418(1)(c) of the Act to be read conformably with s.418(1)(a) and s.418(1)(b) of the Act. That is, industrial action that is not protected industrial action can be “being organised” in a contemporaneous and a prospective sense, just as such industrial action may be happening but also threatened, impending or probable.

[27] It is on the basis of this construction of s.418(1)(c) of the Act that I reached the view that the order sought by Lend Lease was jurisdictionally competent.

[28] I will return to answer the question as to whether it appears the CFMEU is organising what would not be protected industrial action further below. This is because such a finding will require a consideration of the particular events of 11 July and 12 July 2014, along with a closer consideration of the prior decision (in relation to the events of 24 June 2014).

Is industrial action that would not be protected industrial action happening?

[29] At the time of hearing the substantive matter, on 17 July 2014, there was no industrial action happening on the Lend Lease site.

[30] That said, the employees of the subcontractor Bosform Pty Ltd did not perform duties following the meeting on Friday 11 July 2014 nor did they perform duties on Saturday 12 July 2014. The full crew appears to have resumed work on 15 July 2014 following the RDO on Monday 14 July 2014.

[31] This was similarly the case with employees of the subcontractors Mack Steel Pty Ltd; Place Corp (Australia) Pty Ltd and VTS Rigging Pty Ltd (who are cited above in the context of the interim order). Employees of other subcontractors did not perform duties during this period either but they are not subcontractors in respect of which Lend Lease seeks to apply an order (in that they were not the subject of the order sought on 11 July 2014).

[32] Had I been in a position to determine that question at the time of the application I would have found that industrial action that would not be protected industrial action was happening.

Is industrial action that would not be protected industrial action threatened, impending or probable?

[33] The employees of Bosform Pty Ltd and Mack Steel Pty Ltd did not present to work on 11 July 2014 or on 12 July 2014. They had been subject to an interim order on 24 June 2014 and then again on 11 July 2014.

[34] It appears to me that there is a probability that employees of these two subcontractors will take what would not be protected industrial action once again. They may be disposed to do so at their own initiative or because of their susceptibility to direction or to persuasion.

[35] Equally so, the employees of the relevant kind who are employed by Place Corp (Australia) Pty Ltd and VTS Rigging Pty Ltd did not attend to work on Saturday 12 July 2014 even though it was expected that work would be performed on that day. The only evidence I have before me as to whether there was a genuine expectation that work was to be performed on Saturday 12 July 2014 is that provided by the Lend Lease construction manager, Mr Park. Absent any other evidence to the contrary I accept his claims in this regard - the employees were expected to perform their ordinary duties but failed to do so.

[36] The relevant employees of Place Corp (Australia) Pty Ltd and VTS Rigging Pty Ltd therefore did not attend to work after such time as an interim order had applied to them. In such circumstances I am of the view that it would appear that it is probable these employees may again take industrial action that would not be protected industrial action.

[37] Because I have found that there is a probability that industrial action that would be unprotected industrial action may occur again in the future, an order must be made under s.418(1) of the Act. I will turn the terms of that order further below, as it applies to certain employees of Bosform Pty Ltd, Mack Steel Pty Ltd, Place Corp (Australia) Pty Ltd and VTS Rigging Pty Ltd.

Does it appear that industrial action that would not be protected industrial action and that appeared to be happening was being organised by the CFMEU?

[38] The circumstances I am left with to consider are as follows.

• Mr Griffin, an organiser of the CFMEU, attended the Lend Lease site on the morning of 11 July 2014;



• He convened a meeting of the relevant employees in an adjacent car park;



• Mr Griffin addressed the relevant employees;



• At the end of the meeting, the employees ceased work and left the Lend Lease site and did not return to work that day;



• When site management approached Mr Griffin to enquire as to “what’s going on?’, Mr Griffin gave an explanation in reply to that question that the CFMEU had issues with higher-level Lend Lease management about site access over safety issues;



• No other issues were raised in the evidence that suggest there were any other reasons for the withdrawal of labour on 11 July 2014 (such as reliance upon any meetings or communications clauses in subcontractor agreements) and no evidence was led by the CFMEU; and



• The site has been the subject of an interim order on 24 June 2014 and a finding by the Commission that it “would have been satisfied that it appears that unprotected industrial action did occur on 24 June 2014 and occurred for a duration of around 10 minutes when a CFMEU organiser met with the employees [...] on 25 June 2014 [...].”

[39] If I had determined the application at the time it had been made, on the evidence before me it would have appeared to me that what would not be protected industrial action which commenced on 11 July 2014 was organised by the CFMEU. Given the circumstances I have set out above, there is no other probable explanation for the conduct of the employees and no other issues, including safety issues, were on foot at the time that warranted the stoppage of work at the employees’ own initiative. Mr Griffin’s responses to the queries by Lend Lease management are strongly suggestive (such that it would appear to me) that the CFMEU had a particular reason for organising the stoppage of work and that related to what he believed to be impediments to CFMEU access to its members because of Lend Lease’s policies (as they may reflect the requirements of the WHS Act) (see [2013] FWCFB 7736 PN 39).

[40] But there is no finding that it appears that the CFMEU is organising what would be unprotected industrial action that is happening. Thus, in that confined sense, a finding that industrial action was being organised by the CFMEU at a point in the past cannot give rise to an order under s.418(1) of the Act.

Does it appear that industrial action that would not be protected industrial action that is prospective and yet to occur is being organised by the CFMEU?

[41] I now return to the wider question as to whether it appears that the CFMEU is organising what would not be protected industrial action.

[42] In order for it to appear that industrial action that is not be protected industrial action is being organised in a prospective sense, the circumstances before the Commission would need to sustain such a finding. In some cases, there might be statements and comments that might give rise to the relevant finding. Equally, there might be past conduct and behaviour that is of sufficient weight to warrant the finding that an employee organisation is organising industrial action that is yet to occur, or has not occurred.

[43] I make the point that this site was the subject to an application under s.418(1) of the Act in late June 2014 (see the “prior decision” referred to above). That application, a few weeks earlier only, did not give rise to a finding that the CFMEU had organised industrial action at the time.

[44] The Senior Deputy President considered evidence in relation to an exchange that occurred on 24 June 2014 between a CFMEU organiser, Mr Mick Myles, and a Lend Lease site manager, Mr Allen Ware. Mr Ware’s evidence was to the following effect:

• At 6:16 AM on 24 June 2014 Mr Myles approached the site gates.



• When asked what the purpose of his attendance was he informed Mr Ware that he was here “under s.81.3 and want to hold a discussion with the workers relating to some incidents that have not been reported”.



• When asked about the nature of the incidents Mr Myles replied “A kibble was leaking concrete and access onto the top of the jump”.



• Mr Ware replied that “no notice of right of entry had been issued and no access will be granted [...]”.



• Mr Myles was then said to have stated that he will pull the blokes off the site and hold a meeting out here. Mr Ware gave further evidence that Mr Myles then made a few phone calls and shortly after the employees of subcontractors left the site and had meeting with Mr Myles in a car park adjacent to the site.



• On completion of the meeting Mr Ware observed the workforce come back on site and collect their tools and crib boxes and leave site (around 7.00 AM).



• Mr Ware gave evidence that he approached Mr Myles and asked what the issues were from the meeting and Mr Myles replied, “I won't be stood over or pushed out of the gates, tell Dave V[incencio] [the Lend Lease Operations Manager] upstairs I’ll be back tomorrow.”



• Mr Ware’s further evidence was that the CFMEU delegate told him that the meeting with Mr Myles had “discussed the lack of representation on the K1 site due to being locked out of the gates.” Lend Lease, it seems, uses a security swipe card system to access the site. The meeting apparently also discussed a donation for a disabled member of the CFMEU.



• A concrete pour scheduled for the morning was cancelled as a consequence of the withdrawal of labour, according to Mr Ware’s evidence.

[45] On the evidence before him at the time of the hearing of the substantive application, which included that unprotected industrial action was no longer happening, the Senior Deputy President did not consider that the statement by Mr Myles to the effect that he’ll “be back tomorrow” constituted a threat (as it did not impute a particular intention for the following day). In any event, no further industrial action that could be unprotected industrial action (beyond a stoppage of 10 minutes duration upon Mr Myles’ site visit) was manifest that following day.

[46] Thus there was no finding made by the Senior Deputy President in relation to unprotected industrial action being organised by the CFMEU.

[47] In so far as the employer seeks me to rely on past conduct of the CFMEU, I cannot rely on any adverse finding or observation, as it may be, of the Commission in relation to what appeared to be unprotected industrial action happening at the Lend Lease site on 24 June 2014 (and the following day). The prior decision makes no such adverse finding or observation.

[48] Lend Lease did not rely on the prior decision alone, however. It gave evidence that the CFMEU had visited the Lend Lease site on 18 occasions since the commencement of the project in November 2013, with six visits taking place in April 2014.

[49] It claimed that on no occasion had the CFMEU provided a 24-hour right of entry notice and that incidents of unlawful industrial action had increased from May 2014.

[50] That is, between 7 November 2013 and June 2014 there had been two incidents of unlawful industrial action which totalled 2 hours and 45 min of lost time. However between 24 June 2014 and up to 15 July 2014, there had been 3 lost days of work during 17 workdays (including 3 Saturdays). This represented a 17.6% loss of productivity for that short period of time.

[51] The CFMEU was said to have visited the site on average 2.25 times per month or every second week in the past eight months, and that this had correlated with an increase in unprotected industrial action.

[52] It was therefore argued that it was “highly likely the CFMEU will continue to visit the project on a bi-weekly basis and the delay to the program, loss of productivity and finance costs will continue for the foreseeable future and potentially to the practical completion scheduled for May 2015”.

[53] It is true that there has been an increase in CFMEU activity at the site since April 2014. Equally, the site activities have become more complex as the construction project has moved beyond its earthworks stages. Not all the visits by the CFMEU, I add, have resulted in any recorded lost time. But I concede that a fair reading of the Lend Lease evidence suggests that the visits have at times been disruptive, and in so far as they concerned statutorily regulated rights of entry, not supported by the required notice.

[54] I am not at this juncture satisfied, however, that I can on the evidence of the history of CFMEU site visitation to this point reach a finding by inference that the CFMEU is organising industrial action in a prospective sense for the purposes of s.418(1)(c) of the Act, as Lend Lease presses.

[55] Lend Lease, in support of its case that industrial action that would be unprotected industrial action was being organised (or was otherwise probable etc) made reference to a flyer that had come into its possession that indicated that there is a coordinated campaign by the CFMEU, the AMWU and the CEPU to engage their members in challenging the notice requirements of the WHS Act, as referred to earlier.

[56] But there was no express or demonstrated linkage of this flyer with any future intention on the part of any organisation or employees. And the content of the flyer itself is uncertain as to the conditionality of any prospective conduct in any event. This was the view, I think, that Senior Deputy President Watson also reflected in his decision, as referred to above, when the same document was put before him.

[57] The evidentiary case, at this time, of a pattern of conduct on the part of the CFMEU is not so strongly made out in relation to a constant demand that it would support such an inference being made about future circumstances. Indeed, the express reasons for the CFMEU visits recorded by Lend Lease (to the extent they have been discernible) have been quite varied over time (at least); and Senior Deputy President Watson made no finding that the CFMEU was organising industrial action in June 2014 for the purported purpose of effecting a change to the Lend Lease right of entry protocols.

[58] On the evidence before me at this juncture, and despite my observation above that the CFMEU appears to have organised what would not be protected industrial action from 11 July 2014, it does not appear to me that the CFMEU is organising what would not be protected industrial action in a prospective sense. Whether further conduct arises which is supportive of a finding to the contrary is another matter.

Order that what would not be protected industrial action that is probable not occur etc

[59] Given the instability at the site, and given my findings that there is a probability that industrial action that would not be protected industrial action may again take place, an order under s.418 of the Act must be made. The order will cover or apply to the relevant employees of Bosform Pty Ltd, Mack Steel Pty Ltd, VTS Rigging Pty Ltd and Place Corp (Australia) Pty Ltd.

[60] The order (PR553331) that I make in this regard, and which will issue along with this decision, will operate for the period 5.00pm 22 July 2014 to 5.00pm 22 August 2014.

[61] As a result of this decision the interim order (PR553051) is set aside from the time and date of commencement of the final order made.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D. Cameron, of Queensland Master Builders Association, for the Applicant

Mr T. O’Brien, of the CFMEU

Hearing details:

Brisbane

2014

17 July

 1   R v Alif; R v Amin; R v Zolmin [2012] QCA 355 (18 December 2012). See also P J v The Queen [2012] VSCA 146 (29 June 2012) at PN48.

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