Lend Lease Engineering Pty Limited andLend Lease Building Pty Limited v Construction, Forestry, Mining and Energy Union and Australian Building Construction Employees and Builders' Labourers' Federation (Queensland..

[2013] FWC 8274

[2013] FWC 8274 [Note: a correction has been issued to this document]

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 Engineering Pty Limited

and

Lend Lease Building Pty Limited
v
Construction, Forestry, Mining and Energy Union
and
Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees
(C2013/6452 and C2013/6453)

COMMISSIONER BOOTH BRISBANE, 25 OCTOBER 2013

Alleged industrial action by employees employed by a subcontractor to Lend Lease at the Academic & Research Facility Project and alleged industrial action of employees of Lend Lease Building or a subcontractor to Lend Lease Building at the University of Queensland Oral Health Project located in Herston, Brisbane Qld.

[1] This is a revised and edited version of a decision delivered in transcript on 21 October 2013.

[2] This decision concerns two applications for orders under section 418 of the Fair Work Act 2009 (the Act) at three sites managed by Lend Lease Engineering Pty Ltd and Lend Lease Building Pty Ltd, collectively referred to as Lend Lease.

[3] The three sites are the Academic and Research Facility Project (ARF); Queensland Children's Hospital (QCH), including the QCH Energy Plant Project; and the University of Oral Health Project (Oral Health). The Respondent unions are the Construction, Forestry and Mining and Energy Union (CFMEU) and the Australian Building Construction Employees and Builders Labourers’ Federation (Queensland Branch) Union of Employees (BLF).

[4] The ARF application covers the ARF and QCH sites and seeks orders against the CFMEU, the BLF and their officials at the QCH, the QCH Energy Plant Project, and the ARF site. The Oral Health application seeks orders against the CFMEU, the BLF and their officials and all employees at the site who are members of, or eligible to be members of the two unions. By agreement the two applications were heard together; and also by agreement, evidence in one matter can be considered in the other matter.

History

[5] Before considering these applications in detail the industrial history of the three sites needs to be documented, both for completeness, and also to inform the decisions that I am required to make in these applications. I will delve deeper into the history later in these reasons.

QCH Site

[6] The site is subject to an order under s.418 by Senior Deputy President Richards applying to employees who are members of, or eligible to be members of the CFMEU for the duration of the QCH Project. Senior Deputy President Richards also made an order against the CFMEU and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) which ceased to have effect on 5 March 2013. An order against CEPU members also ceased on that day.

[7] In the same week this application was made, Lend Lease sought an order under s.418 for an alleged industrial activity which occurred at QCH on 14 October 2013. On 17 October I found that industrial activity that had taken place by employees at the QCH site on 14 October 2013 was not protected industrial action and that the industrial activity had been organised by the CFMEU and BLF. No orders were made as a result of this application as it was not apparent at that point that the activities were ongoing. However, at that time I commented that I would view any future unlawful industrial activity in the light of the 14 October finding.

ARF Site

[8] This site is next to the QCH. There has been no previous industrial action on this site to date.

Oral Health Site

[9] This site is at Herston. The facility was the subject of a stop order on 10 July 2013 for a period of one month. It would seem that no further industrial action has happened on this facility until the alleged industrial action the subject of this application.

The present applications

[10] Section 418 (1) provides that:

If it appears to the 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;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

[11] I intend to deal with the elements of s.418 for the two applications together.

[12] On 17 October 2013 a rally was to be held in Brisbane City commencing at 12.30pm to protest proposed WorkCover legislation before the Queensland Parliament. On the evidence of Mr Gildea for Lend Lease, between 10am and 12 noon 200 workers ceased work on the Oral Health Project, 600 workers ceased work at the QCH Project, and 40 workers ceased work on the ARF Project. In all three cases those workers included workers who are members, or eligible to be members of the CFMEU or the BLF. Most workers did not return to work after leaving the site.

[13] Mr Gildea's evidence was that he expected all workers to remain on site; although, if individual subcontractors permitted workers to absent themselves for the rally, that he expected all workers to return to site for the balance of the day. He further deposed that he was not informed of any agreement given by subcontractors to their workers to depart to attend the rally.

[14] Mr Gildea gave evidence that the usual practice on site was that:

● he would be informed if a subcontractor has authorised any of its employees to stop work; and

● subcontractors would inform him if they had agreed to workers departing earlier than 4pm.

[15] None of the above occurred.

Were the workers authorised to leave the site?

[16] The CFMEU and BLF submitted the employees were authorised to attend a union meeting for up to two hours under the relevant enterprise agreement and the activities of 17 October fell into this class. I am not persuaded by their submissions. On Mr Palleschi's evidence the union officials themselves did not seem to be aware of employees accessing these provisions. In any case, most of the employees did not return to work that day, having ceased work as early as 10am and were therefore absent for more than two hours. The absence cannot be within the two hour provision of the enterprise agreement.

Was the activity unlawful industrial action?

[17] Lend Lease submitted that the attendance at a political rally is not in fact industrial action because it does not involve a dispute between employees and the employer. My attention was drawn to several cases. The Respondents drew attention to Coco v The Queen 1 cited in CEPU v Laing2, which can be summarised as authority for express authorisation being needed for statutory abrogation of fundamental rights and freedoms. The High Court considered that general words would rarely be sufficient. I am not persuaded that a s.418 order would interfere with employees' rights or unions' fundamental rights and freedoms in a way urged by the CFMEU: See, for example, the Full Bench's note in Parks Victoria v AWU.3

[18] The CFMEU and BLF particularly brought my attention to a decision of the Full Bench on 11 May 2004 in The Age v AMWU 4 (the Age), arguing that the case is authority for the proposition that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining. Lend Lease also pointed to the decision of CEPU v Laing, in particular where his Honour French J, as he was then, noted:

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

[19] While the facts in this case are different – the matter concerned emergency services legislation – it seems to me the principle does apply. It is also pertinent that the Full Bench in The Age decision noted that a narrow reading might not cover political strikes, and such a conclusion is at odds with a number of Commission decisions and French J's decision in CEPU v Laing. The Full Bench said:

It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition. 5

[20] On the basis of these authorities the employees engaged in industrial action even if their activity could also be characterised as a political protest. On the submissions and evidence before me, the activity was not protected industrial action. I therefore conclude that the activity of 17 October was unlawful industrial activity.

The Requirements under Section 418

[21] I turn now to the provisions of s.418 that must be met, should an order issue. Key to that section is the opening words, "If it appears to the FWC." These words were recently discussed in a Full Bench in MUA v Patrick Stevedore Holdings Pty Ltd 6. That case is authority that Commission members might draw inferences and form opinions based on perceptions of the actions taken by employees in order to determine whether the requisite jurisdictional fact (the appearance, et cetera) is satisfied. If so satisfied, the Commission must make an order.

[22] I will be considering the nature, pattern and timing of industrial action taken across all three sites to determine whether the unlawful industrial action of 17 October falls within ss.418(1)(a) to (c). This is because the matters I will identify at the ARF and the Oral Health sites reveal patterns of behaviour by organisers and their unions, and employee responses that are strikingly similar across the three sites. Senior Deputy President Richards’ order against the CFMEU members and eligible employees remains in force at QCH, and Lend Lease now seek orders against the CFMEU and BLF at that site. The pattern of behaviour informs my opinions and perception of what occurred on the relevant day at all three sites.

What happened on 17 October 2013 on the ARF site?

[23] Lend Lease seeks orders against the CFMEU, BLF and ARF employees in regard to the ARF site. Mr Gildea gave evidence that Mr Palleschi advised him at about 11.30am that Mr Myles from the BLF attended at the ARF site. Mr Palleschi gave direct evidence to the same effect. Mr Palleschi says he overheard Mr Myles referring to the WorkCover legislation while addressing the group. He asked Mr Myles what was going on and Mr Myles told him, "All workers have decided to go to the meeting." Mr Palleschi inquired about the concrete pour and Mr Myles responded, "They will finish the pour and then they will go to it."

[24] Both men started to walk out of the ARF and Mr Palleschi asked, "What's going on with the QCH site? Are you going there too?" To which Mr Myles responded, "I'm not going anywhere near that place." Mr Palleschi says as he exited the ARF site he saw workers he knew to be from both the ARF and the QCH sites walking away from the sites. I have formed an opinion based on the evidence of Mr Palleschi and Mr Gildea that a significant number of workers left work to attend the rally and did not return to work that day. I have also concluded on the basis of Mr Palleschi and Mr Gildea's evidence that Mr Myles of the BLF was organising at the ARF site on the morning in question.

What happened on 17 October 2013 on the oral health site?

[25] Lend Lease seeks an order against employees, the CFMEU and the BLF at this site. In a statutory declaration Mr Steven Liversidge deposes that on 17 October Mr Scott Vink, a CFMEU organiser, advised him there was to be a meeting in the park with workers to be followed by a march to the City to protest the WorkCover changes. Mr Vink had a number of CFMEU and BLF flags in his possession. At about 10.30am Mr Kevin Griffin, an organiser with the BLF, and some 50 people wearing construction worker clothes marched past the Project site to where Mr Vink was standing in the park. The workers were carrying CFMEU and BLF flags and Mr Griffin was carrying a megaphone.

[26] Soon after, approximately 200 employees left the Oral Health site and proceeded over to the park. About 10 minutes later the employees left the park and the site with the CFMEU and the BLF organisers. Mr Liversidge overheard some workers talking about the protest over WorkCover. On the evidence of Ms Annelise Cannon the employees did not return to work that day. That withdrawal of their labour was not authorised by Lend Lease and she was not made aware of any subcontractors authorising their workforce to attend the rally. On the basis of this evidence, which was not contradicted, I have concluded that the employees at the Oral Health site participated in unlawful industrial action on 17 October and that the action was organised by the CFMEU and the BLF.

What happened on 17 October 2013 on the QCH site?

[27] On the QCH site, it would appear that no official meeting, either under the guise of work health and safety or otherwise was conducted, yet employee behaviour was the same. Mr Gildea and Mr Palleschi's evidence is that while 1100 workers attended the site prior to 11am, between 11am and 12 noon the number reduced to 400, with numbers increasing back to 523 at 2pm. Mr Gildea deposes that the withdrawal of labour was not approved by him and he was not informed of any early departures approved by the subcontractors.

Consideration and Discussion

[28] The pattern of behaviour across all three sites is remarkably similar. And based on the clear evidence before me I conclude that the industrial action of 17 October was organised by the CFMEU and the BLF at the Oral Health and ARF sites. It appears to me that the identical conduct by workers at the QCH site is explained by inference that it, too, was organised, even if covertly.

[29] The orders sought under s.418(1)(c), however, are not referable to past conduct, but to present and future conduct. In this instance the questions for an order is whether industrial action is probable now and in the future and whether the CFMEU and the BLF continue to organise.

[30] I will examine this question in part by examining recent industrial history at the three sites. On the morning of 17 October within one hour on all three sites, large numbers of employees left the sites. Few returned to work afterwards. This happened in one case with a BLF organiser present; in another with both BLF and CFMEU organisers present; and in the third, no union organiser was overtly present. I have concluded that this activity was coordinated and planned, albeit covertly in one case.

[31] In AMWU v UGL Resources Pty Ltd 7 the Full Bench decided that the union had not been organising as it had not, "organised, aided, abetted, counselled, procured, induced or authorised any employees to engage in industrial action;" nor was it, "lending any encouragement for, or support to, the industrial action that had been occurring and was occurring." My conclusion is that the CFMEU and BLF lent encouragement for and supported the industrial action on all three sites.

[32] I formed this conclusion based on the evidence and inferences that can be drawn from the activities that took place. The basis for reaching this conclusion is the following:

● the arrival of organisers at the ARF and Oral Health sites, followed by quick meetings and identical outcomes in terms of the employees walking off the job;

● Mr Vink and Mr Griffin's arrival at the sites with flags and a megaphone is a clear indication they intended to encourage workers to leave the sites and attend the rally;

● the close proximity in time of a large number of workers leaving the three sites;

● the web material in Mr Gildea's evidence encouraging workers to attend the rally.

[33] A reasonable inference can be drawn that despite there being no evidence of organisers attending the QCH site, employees were being encouraged by their unions to engage in industrial action. It does not matter that it was done covertly. It appears to me that there was coordination and planning of this industrial action on the QCH site and that such coordination and planning is able to be characterised as organising, and I so find.

[34] Lend Lease’s claim is that there is an ongoing campaign or organisation and that further industrial action is threatened, pending or probable. Such a finding will trigger the jurisdiction of this Commission to make an order. Lend Lease points to media comments of Mr Ravbar, noting an ongoing campaign, and to the various union web sites. The unions say that if industrial action happened on 17 October there was no ongoing campaign. The Queensland Parliament has passed the laws and the campaign has concluded.

[35] Recent industrial history sheds light on whether the industrial activity is likely to be ongoing. As noted earlier, orders were previously made by Senior Deputy President Richards in regards to both employees and the CFMEU and BLF at the QCH site. Workers engaged in unlawful industrial activity on 14 October and again on 17 October. I commented in deciding that no order would issue in regard to the 14 October matter that any future industrial action would be considered in the light of the earlier activity. The Oral Health site was the subject of a s.418 order in July 2013 and unlawful industrial action took place on 17 October. An application under section s.418 was also made in March 2013. This is the first time, to my knowledge, that the ARF site has been the subject of unlawful industrial activity.

[36] The combination of the ongoing campaign, as indicated by the public comments of union officials and the industrial history of the sites that I have just outlined, appears to me that there is a probability of ongoing, unlawful industrial action, and that it would be organised by unions. Accordingly it appears to me, based on the evidence, that unlawful industrial activity is probable and that it is being organised. I must, therefore, make orders under s.418 in relation to both employees, where relevant, and the CFMEU and the BLF at all three sites.

Orders

QCH Site

[37] As I indicated at the beginning, the QCH site has been the subject of two s.418 applications within a week. I did not issue an order at the conclusion of the first application, but indicated that should there be further unlawful industrial action, I would take the earlier unlawful industrial activity into account. I also note this Project has been the subject of several other orders made by this Commission and the former Federal Magistrates Court. Lend Lease seeks an order covering the CFMEU and the BLF for the entirety of the Project. The CFMEU members and those eligible are already the subject of Senior Deputy President Richards earlier order for the balance of the Project. The evidence from the earlier application is the Project should finish in the first quarter of 2014. Doing so without further industrial action seems unlikely without an order. I intend to issue an order against the CFMEU and the BLF until the conclusion of the Project.

Oral Health Site

[38] The order against this site is for both employees and the CFMEU and the BLF. Taking into account this is the second order on the site, I consider an appropriate stop period would be two months.

ARF Site

[39] The order sought against the site is for both employees and the CFMEU and the BLF. As this is the first unlawful industrial action at this site I consider the appropriate stop period is for one month.

[40] Orders will issue in these terms accordingly.

COMMISSIONER

Appearances:

Mr T Walthall on behalf of Lend Lease Engineering Pty Ltd and Lend Lease Building Pty Ltd.

Mr T O’Brien and Mr Alex Cousner for Construction, Forestry, Mining and Energy Union.

Hearing details:

2013.

Brisbane:

21 October.

 1 (1994) HCA 15

 2 (1998) 159 ALR 73

 3   [2013] FWCFB 950 at [30].

 4   PR946290

 5   PR946290 at [46]

 6   [2012] FWCFB 7736

 7   [2011] FWAFB 4777

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