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

[2014] FWC 4259

[2014] FWC 4259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Lend Lease Building Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/5072)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 26 JUNE 2014

Alleged industrial action at Lend Lease Building Pty Ltd at the K1 RNA Showgrounds site - application dismissed.

[1] The following decision now edited was handed down in transcript.

[2] This is an application by Lend Lease Pty Ltd (Lend Lease) for the making of an order to prevent stop and/or prevent unprotected industrial action pursuant to s.418 of the Fair Work Act 2009 (the Act). The order sought is directed to the Construction, Forestry, Mining and Energy Union (CFMEU), its officers etc and the employees of Lend Lease and named contractors engaged on work on the K1 Project in Brisbane (K1 Project).

[3] The matter was first heard on 24 June 2014, on which day an Interim order PR552368 was made, by consent, subject to the hearing and determination of the substantive application today.

[4] Lend Lease brought evidence from two site Managers, Mr S Orazio and Mr A Ware and tendered two documents upon which it relied, together with an extract from the Macquarie Dictionary defining “tomorrow”.

[5] The jurisdiction to make an order under s.418 of the Act arises if it appears to the Fair Work Commission (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;

[6] It is conceded by Lend Lease that industrial action is not currently happening. 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, a finding relevant to consideration of whether industrial action is threatened, impending or probable; or is being organised, there is no evidence that it is currently happening. I am not satisfied that it appears that industrial action is happening.

[7] I am not satisfied that it appears that industrial action is threatened, impending or is being organised. There is no evidence to support such a finding. To the extent that Lend Lease relies on the proposition that comments made by Mr M Myles of the CFMEU to Mr Ware on 24 June 2014 constitute a relevant threat, in saying he would not be stood over or pushed out of the gates and would be back tomorrow, I am not satisfied that such a proposition is supported by the evidence. That evidence does not establish there to be a threat of industrial action, saying nothing about the purpose of a return. Mr Myles did in fact return the next day and, following the brief meeting between him and the workers that proceeded briefly into working time, no industrial action occurred. In that respect, I prefer the commonly understood meaning of tomorrow

[8] The Lend Lease case was directed primarily to a finding that unprotected industrial action is probable. Neither the stoppage of work on 24 June 2014 and the brief incursion of the meeting into working time on 25 June 2014, nor the evidence of Mr Orazio and Mr Ware provide a proper basis for finding that further industrial action is probable. Additionally, the resolution of workers tendered in Exhibit LL4 does not provide evidence supporting the proposition of probable industrial action to which the order sought is directed. There is no evidence that the employees against whom the order sought were party to the resolution or that the CFMEU, its officers etc were party to. Further, on its face, it is unclear whether the action contemplated by the workers party to the resolution would constitute industrial action, given the action is said to be conditioned by circumstances which might fall within the exception to industrial action in s.19(2)(c) of the Act.

[9] Whether or not action arising out of the resolution by a group of workers in the circumstances contemplated in the resolution was industrial action would require a consideration of the particular circumstances of any such action.

[10] I am not satisfied that it appears that unprotected industrial action is happening; or is threatened, impending or probable; or is being organised.

[11] There is no jurisdiction to make the order sought. The application is dismissed. In accordance with clause 7 within it, the Interim Order in PR552368 will be set aside.

SENIOR DEPUTY PRESIDENT

Appearances:

D Cameron for Lend Lease Building Pty Ltd

T O’Brien for Construction, Forestry, Mining and Energy Union

Hearing details:

2014.

Melbourne via video to Brisbane:

June 26.

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