Lend Lease Project Management and Construction (Australia) Pty Ltd v Ian McKewin

[2013] FWC 1527

Note: An appeal pursuant to s.604 (C2013/470) was lodged against this decision.

[2013] FWC 1527

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 Project Management & Construction (Australia) Pty Ltd
v
Ian McKewin; Terry Hamilton; Steve McDonald; Matt Trisick; Rod Brown; Peter Hallam; Brian Stewart; Ben Williams; Robert Janjevic; David O’Brian; Peter Hurley; Baldev Laroiya; David McArthur; David Sharrock; Kevin GoSam; Michael Best; Ryan Coles; Daniel Hill; John Norton; Darren Hughes
(C2013/3516)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 11 MARCH 2013

Alleged industrial action at Lend Lease Project Management & Construction (Australia) Pty Ltd at multiple sites.

[1] On 11 March 2013, Lend Lease Project Management (Australia) Pty Ltd (“the Applicant”) made an application under s.418 of the Fair Work Act 2009 (“the Act”) seeking a stop order in relation to the stoppage of work by some 20 direct employees of the principal contractor. It was alleged that the employees, whose names are set out at Attachment A (“the relevant employees”) to this interim decision had left various sites (some six sites in total) to engage in other industrial-related activities, and did so without the authorisation of their employer. The purpose of their absence from site, though, is immaterial to the substantive allegation (which concerns the relevant employees’ unauthorised absence from work).

[2] The Applicant sought an order for substituted service for reason that the relevant employees had dispersed (according to the application for the order) and were difficult to contact in a personal or direct manner.

[3] The method of substituted service in relation to the relevant employees was through SMS text messages, and/or by way of publishing the application on the notice boards ordinarily used to convey information to the direct workforce.

[4] I have elected in the circumstances not to convene a hearing at short notice as would customarily be the case.

[5] The reason for this is that the relevant employees may require time to consider the application which is now on foot, its legal consequences, and to seek out representation for the purposes of the determination of the application proper.

[6] I do not consider that in the circumstances the employees individually will be likely to effect such a course of action within 48 hours of the application having been made. At least, I am not satisfied that the 20 or so individual, direct employees of the principal contractor will all be able to give full attention to the application and its consequences within such a limited timeframe.

[7] Further, it is of course not practicable for the Commission itself to contact each of the 20 relevant employees to determine their particular circumstances in relation to the application. This gives me further reason to consider that the application cannot be determined within 48 hours.

[8] In such circumstances, s.420 of the Act is relevant. Section 420 of the Act provides as follows:

420 Interim orders etc.

Application must be determined within 2 days

(1) As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made.

Interim orders

(2) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.

[9] As I have said above, it is not practicable for me to determine this application with the usual expedition. This is because I am concerned as to the procedural fairness that would be afforded the relevant employees who have been served with the application as individuals (such that the application can be heard at one time).

[10] Notwithstanding this, any of the named relevant employees may contact my chambers (by email or facsimile) to put to me any circumstances they wish me to consider relevant to the interim order (such as whether they have been mis-named or mis-identified etc) or to seek any procedural advice, as the case may be. The contact details for chambers are set out below.

[11] That aside, because I cannot on a reasonable view determine the application (as it relates to some 20 separate individuals) within 48 hours, pursuant to s.420(2) of the Act I am obligated to “make an interim order that the industrial action to which the application relates stop or not occur [...]”.

[12] It appears to me that it would not be contrary to the public interest to make such an interim order.

[13] An interim order will therefore be issued at the same time as this decision is published.

[14] The interim order will operate until such time as the application is determined. Further advice will follow as to when the application will be heard. It is not anticipated, however, that the application will be heard in the immediately near future.

[15] I have made service of the interim order fall upon the Applicant and have required it to communicate the content of this interim order to the relevant employees through sending by express mail a copy of the interim order and this attendant decision to each of the home addresses of the relevant employees, to send each of the relevant employees a SMS text message alerting the relevant employees to the existence of the order and this attendant decision (and that copies thereof have been directed to them by mail), and to ensure that a copy of the interim order and this decision are published on the workplace notice boards as quickly as practicable.

[16] The SMS text message must also indicate to the relevant employees that should they not receive a copy of the interim order and decision by ordinary mail within 48 hours they should contact the Applicant to ensure a copy is provided to them promptly. The SMS text message must also indicate that should any of the relevant employees have any concerns about the authenticity of the decision and order, they make contact the Fair Work Commission on 07 3000 0359.

[17] Of course, should be Applicant withdraw the application in the interim period and before such time as the application is determined, the order will lapse as a matter of automaticity.

[18] As mentioned above at paragraph10, the contact details for chambers are as follows:

Email - [email protected]

Phone - 07 3000 0359

Fax - 07 3000 0388

SENIOR DEPUTY PRESIDENT

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Attachment A

MR Ian McKewin; and

MR Terry Hamilton; and

MR Steve McDonald; and

MR Matt Trisick; and

MR Rod Brown; and

MR Peter Hallam; and

MR Brian Stewart; and

MR Ben Williams; and

MR Robert Janjevic; and

MR David O’Brian; and

MR Peter Hurley; and

MR Baldev Laroiya; and

MR David McArthur; and

MR David Sharrock; and

MR Kevin GoSam; and

MR Michael Best; and

MR Ryan Coles; and

MR Daniel Hill; and

MR John Norton; and

MR Darren Hughes