Lend Lease Building Pty Ltd v Employees of Lend Lease and various subcontractors

[2014] FWC 5461

[2014] FWC 5461

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
Employees of Lend Lease and various subcontractors
(C2014/5736)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 AUGUST 2014

Summary: stoppage of work during Royal Commission - substituted service order - whether further stoppages threatened or probable.

[1] This decision concerns an application under s.418 of the Fair Work Act 2009 (“the Act”) made by Lend Lease Building Pty Ltd, represented by the Master Builders Association Queensland, in relation to a stoppage of work at the site “The Green”, RNA, 191 Constance Street Bowen Hills, in Queensland.

[2] The stoppage of work, on Wednesday 6 August 2014, was said to be in relation to the circumstances that day surrounding the Royal Commission into Trade Union Governance and Corruption, which was sitting in Brisbane that day.

[3] The application was heard initially late in the afternoon on Wednesday 6 August 2014. As the application was directed largely against the employees of subcontractors (only) and no order was sought to be applied to any representative employee organisation, such as the Construction, Forestry, Mining and Energy Union (“the CFMEU”), some attention was given to the terms of the substituted service order and to the means by which the employees in respect of whom the order was intended to apply were to be informed of the notice of listing and the date and time of the hearing. In short, the substituted service order was amended to ensure that employees (as far as reasonably practicable) were handed a copy of the application made under s.418 of the Act (which set out the various grounds of the application) along with a copy of the notice of listing. This was in addition to the original term of the substituted service order which (only) required notification to the subcontractors.

[4] In order to attend to these matters, the application was stood over until the following day, Thursday 7 August 2014.

[5] At the hearing of the substantive application the CFMEU appeared. I granted the CFMEU permission to appear on the basis of the very strong probability that one or more of the employees of the subcontractors were persons who were members of or eligible to be members of the CFMEU, and their representation was warranted in the circumstances.

[6] At the conclusion of the hearing that day I issued an ex tempore decision. I now set out the decision in full, and with only some minor amendments (as indicated) to overcome the numerous infelicities in my oral presentation. The decision is as follows.

The decision

[7] First of all can I address the issue of service. There was a hearing late yesterday afternoon, in which we ventilated a number of issues about the service proposed in the original draft substituted service order. The original substituted service order really constituted service by way of subsection (a) of section 2(b), if I can read it like that; that is by the applicant forwarding a copy of the [application] by email to the subcontractors [...]. There were further amendments made which caused the introduction of subclauses (b) and (c) of that part of that section of the substituted service order.

[8] I am not satisfied that either [new] part (b) or part (c) were fulfilled in accordance with the order.

[9] The reason I say that is because there is no evidence that part (b) was fulfilled; that is, the applicant was required, as far as reasonably practical to hand a copy of the application and the notice of listing to each employee as they commenced work. The only evidence that I have, in effect, is that each of the trades was advised of those circumstances and provided a copy of the notice of listing and of the application for the toolbox purposes. But I am not satisfied there was explicit evidence of each employee obtaining a copy as far as reasonably practicable upon commencing work.

[10] The intention of that exercise was to ensure that those employees understood precisely that there was an application and that there was a hearing and that they would be able to make decisions, as a consequence, as to their own conduct and as to representation.

[11] Secondly, that is for the purposes of subsection (c) of the section in relation to the requirements to fulfil service, the applicant was directed by the order to post a copy of the application and the notice of listing on a noticeboard utilised for ordinary communications. Mr De Lutiis had some confusion in his mind as to which documents he actually attached [to the notice board]. It would appear from my examination of the photographs [of the documents attached to the notice board] and from hearing Mr De Lutiis’s evidence and from looking at the materials, that what Mr De Lutiis possibly put up on the noticeboard was the notice of hearing and the substituted service order [comprising four pages].

[12] The reason I say that is because the substituted service order is of two pages and Mr De Lutiis had in his mind the notion of an order. It would reasonably derive from the notion of him handling a document being a substituted service order and the substituted service order, as I said, is of two pages.

[13] That is the application itself, which is a much lengthier document that set out the grounds, which are important for the purposes of assessing how it is you wish to conduct yourself in the light of the application. They were not set out and not attached, in my view, to the noticeboard. That is how I construe the evidence before me, so therefore in my view the purpose of the substituted service order was not fulfilled. On those grounds an order would not be made.

[14] In any event, let me turn to the facts of the substantive case and make some comments in relation to those matters.

[15] [The evidence of Mr De Lutiis, the site manager,] was that industrial action commenced yesterday morning at around 8 am when a large number of the trades departed from site. The numbers were set out in his original affidavit. They remained off site for a period of three hours, upon which a number returned – some 19 per cent, which I presume results in a whole number – and industrial action that would be unprotected industrial action continued over the course of the day by employees who did not attend work at that time.

[16] That said, the industrial action is not occurring today. The industrial action is not happening. The site is suffering from the consequences of the withdrawal of labour that occurred yesterday, but that is not an indicator of industrial action happening today. It is consequential of the events of yesterday. No doubt the events of yesterday caused damage to the employer, but that fact does not enliven the jurisdiction under subsection (1) of section 418 of the Act [today].

[17] The applicant’s case in this matter therefore relied on whether or not industrial action was threatened or probable or [...] pending. I think “threatened” and “probable” received the most emphasis.

[18] The case that was put to me was that the employer anticipated further action, to use the terms the employer’s representative used. It anticipated further action occurring and the employer considered itself to be vulnerable to further action, given the events of the coming week. That may be the view of the employer and it may have some basis for assuming that to be the case or to having that state of mind but, for my purposes, I need an evidentiary case of some level or some type or character that allows me to directly find that industrial action is threatened or probable.

[19] There might be something said, some conduct that was indicative of some prospective industrial action being probable or threatened, or there might be some document that clearly implies that that is the case. That is, there must be at some evidentiary level some evidence that allows either a direct conclusion to be made or else for a reasonable inference to be drawn from the set of relevant circumstances that industrial action that would be unprotected industrial action is threatened or probable, but I have no evidence of any kind before me in that regard, and the only evidence I have is that there was industrial action that may have been unprotected industrial action that was taken yesterday where the interests of the CFMEU were believed to have been at stake or in contest or challenged in the Royal Commission.

[20] Be that as it may, industrial action occurred on that particular day in the circumstances of that particular event. It did not occur on the first two days of the [Royal Commission] proceedings, it did not occur today, and therefore the fact of the Royal Commission itself does not give me a cause to think that industrial action for those reasons will occur in the immediately forthcoming period, at least on the circumstances known to me.

[21] It is the case that there is a midweek holiday next week and there are constraints and movement around the site as a result of the Ekka, and the activities and the capacity of the employer to program its work is going to be quite possibly restrained, and therefore the consequences of the stoppage of work and the withdrawal of labour that occurred yesterday will be exacerbated. That is, the stoppage yesterday caused a concrete pour for today to be withheld and therefore that has subsequent knock-on effects for the overall programming of the site [...] As it heads into a period of [further] constraints it will find it extremely difficult to recover lost time and to bring itself back, no doubt, into an alignment with its required program of works.

[22] They are all legitimate matters of concern to an employer. There has been damage. There are difficulties in recovering the program and so forth. But be that as it may, none of those circumstances on their own generate a sufficient basis for me to reach a conclusion that industrial action is threatened or probable in the foreseeable future. That is not to say that that is a statement that industrial action will not happen. All it is is a statement that there is before me at this moment an insufficient evidentiary basis to enliven the jurisdiction, and that is all.

[23] It is, I think, enough to say that this is a site that, particularly yesterday, experienced a degree of instability. If it is argued or held that the events of yesterday did not constitute unprotected industrial action, it is nonetheless a withdrawal of labour.

[24] Work was not performed in the ordinary manner, labour was withdrawn, and that in its own right is indicative of the potential for the site to be exposed to some degree of instability if labour can be withdrawn at short notice without authorisation and without communication with the employer or without any advance notice to the employer for the purpose of managing its program.

[25] If that is the manner in which the site operates or has been shown to operate, then that might be a matter that will be taken into consideration in relation to any future orders that are sought in relation to the site. This is particularly [so] in relation to any future order that is made in relation to the site on either providing additional evidence as to whether industrial action is happening or else whether it is prospective or threatened or probable, and it may also go to issues about the duration of any order as well. So, however the conduct from yesterday is characterised, it may have quite possibly implications for any other further proceedings that may arise consequent of an application under section 418 of the Act.

[26] But in any event, be it either on the basis that there was not service of the substituted service order as directed and/or that there is not the jurisdiction to make the order because industrial action is not happening and there is an insufficient evidentiary basis for me to conclude that industrial action is threatened or probable as I understand the case to be. Therefore, no order will be issued in relation to this matter.

[27] The application as made under s.418 of the Act is therefore dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

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

Mr A. Cousner, of the CFMEU

Hearing details:

Brisbane

2014

7 August

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