Lend Lease Building Pty Ltd v Construction, Forestry, Mining and Energy Union Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[2014] FWC 5091

[2014] FWC 5091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Lend Lease Building Pty Ltd
v
Construction, Forestry, Mining and Energy Union
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2014/5543)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 29 JULY 2014

Application for an order that industrial action by employees stop - order issued.

[1] This is an application by Lend Lease Building Pty Ltd (Lend Lease) for an order that industrial action being taken at the Barangaroo South site in Millers Point, Sydney, must stop, not occur and not be organised. The application was heard on 24 July 2014 and a decision was given at the conclusion of the hearing. This is an edited version of that decision.

[2] The application relates to a stoppage of work by some 1200 site employees which commenced on the morning of 24 July 2014 and which it is said is going to continue for three days. The stoppage was the subject of evidence presented to the Commission in the proceedings. The evidence was given by four employees of Lend Lease:

● Ms Antoinette Milis, Group Executive;
● Mr Damien Hertslet, Executive Director Construction, Barangaroo South;
● Mr Jason Baker, Services Foreman in Tower 2, Barangaroo South; and
● Mr Nathan Smith, Senior Project Engineer, Tower 1, Barangaroo South.

[3] Two of these witnesses attended a communication meeting of the workforce which was held at approximately 6:40am on 24 July 2014 and which was attended by Mr Brian Parker, the State Secretary of the Construction, Forestry, Mining and Energy UnionConstruction and General Division (CFMEU) and other officials from the CFMEU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The meeting was addressed by Mr Parker and other officials and delegates of the CFMEU.

[4] The outcome of the meeting was that a resolution was put to the effect that there should be a stoppage of work at the site until at least Monday of the following week (28 July 2014). The Lend Lease witnesses were cross-examined in the proceedings by the advocate for the CFMEU. The CFMEU did not present any evidence in the proceedings. The CEPU did not appear in the proceedings.

[5] Section 418 of the Fair Work Act 2009 requires that the Commission make an order that industrial action stop, not occur or not be organised for a specified time if it appears to the Commission that industrial action that is not protected industrial action is happening, threatened, impending or probable, or is being organised.

[6] In the course of the proceedings today I have been referred to a number of Full Bench authorities in the Commission that are relevant to the interpretation and application of s.418, including the decisions in the Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736 and United Voice v Foster’s Australia Limited[2014] FWCFB 4104. I have taken those decisions into account in reaching my conclusions in this matter.

[7] On the basis of the evidence and material which is before the Commission I am satisfied that there is industrial action that is happening, threatened and impending and is being organised which is not protected industrial action at the Barangaroo South site. On that basis it is appropriate that an order be made as sought by Lend Lease.

[8] The order will be made subject to two exceptions. One relates to the period of the order sought. The order will apply for three months from 24 July 2014. It would seem to me that given the issues which have been identified in relation to the taking of the industrial action, that period should allow for whatever processes are in train to be completed so that that matter might be resolved. It will also be subject to the amendment discussed in the proceedings in relation to paragraph 5.3(a) of the draft order, that is, a limitation on the obligation of the unions to advise site employees about the order made by the Commission so as to apply only to site employees who are members of the respective unions.

[9] I would encourage the parties to meet to discuss the matters which have given rise to the particular problems at the site and would remind the parties that if there are matters or issues in dispute, then they can be resolved through dispute settling procedures, and failing that, by reference and request to the Commission for assistance by way of mediation.

[10] An order [PR553550] giving effect to this decision was made on 24 July 2014.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Jolly, solicitor, on behalf of the applicant.

Ms L. Charlson, for the CFMEU.

Hearing details:

2014:

Sydney.

July 24.

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<Price code A, PR553634>