Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union - Construction and General Division - Queensland Construction Workers Divisional Branch

[2011] FWA 2091

[2011] FWA 2091

FAIR WORK AUSTRALIA

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
Construction, Forestry, Mining and Energy Union - Construction and General Division - Queensland Construction Workers Divisional Branch; Construction, Forestry, Mining and Energy Union, Queensland Builders' Labourers' Divisional Branch
(C2011/3875)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 5 APRIL 2011

Summary - application for stop order - Gold Coast University Hospital - State Government Project - sham contracting

[1] On 4 April 2011, Lend Lease Project Management & Construction (Australia) Pty Ltd (“the Company”) made application under s.418 of the Fair Work Act 2009 (“the Act”) for a stop order to be made against the Construction, Forestry, Mining and Energy Union - Construction and General Division - Queensland Construction Workers Divisional Branch; Construction, Forestry, Mining and Energy Union, Queensland Builders' Labourers' Divisional Branch, the officials, delegates, employees and agents of these organisations, employees of the Company who are members or eligible to be members of these organisations, and employees who are members or eligible to be members of the organisations who are subcontracted to the Company.

[2] The application concerned the withdrawal of labour by some 500 employees at the Gold Coast University Hospital Project commencing yesterday morning (4 April 2011).

[3] At the hearing of the application that afternoon (4 April 2011) four witness statements were tended by the Company which explained the circumstances of the withdrawal of labour. These witness statements were taken into evidence and went unchallenged.

[4] It appears the withdrawal of labour was because of sham contracting allegations, though some other matters were also referred to in submissions as having been additional possible reasons for agitation at the project.

[5] On the basis of the evidentiary material before me it appeared to me that industrial action that was not protected industrial action was happening on the project and that a stop order must be made as a consequence, for the purposes of s.418(1) of the Act. These are matters that were dealt with on transcript at the time of the hearing.

[6] The stop order applied to the organisations and employees cited above. The evidence before me demonstrated to my satisfaction that there was involvement of the above cited employee organisations in the process leading to the withdrawal of labour and subsequent interactions with the Company. In any event, I was also of the view that to ensure the stop order had its intended effect it should be bolstered by extending (in its application) to the two above cited employee organisations.

[7] This much was said at the time of the hearing. I left for deliberation in chambers the matter of the duration of the order. This was because I sought to peruse previous transcript of proceedings in relation to the same site, and which were in relation to the same sham contracting issue. I had at that earlier time issued a stop order, along with a Recommendation (PR507182) issued on 28 February 2011. The recommendation concerned processes by which the parties might deal with sham contracting concerns at the site.

[8] In my view, given the history of industrial action at the site, my prior stop order issued in February and the Recommendation issued along with the stop order which expired on 22 March 2011, I was of the view that an order of some reasonable duration was necessary on this occasion, and in the circumstances. Such a stop order may ensure the continuity of work on the project whilst issues of sham contracting (amongst others) were further explored and pressed (consistent with the terms of my prior Recommendation).

[9] Accordingly, I made a stop order that extended from 4.45 pm 4 April 2011 to 5.00pm 1 June 2011. That order was issued in PR508114 on 4 April 2011.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Belfield of Queensland Master Builders Association for the Applicant

Mr Tully for the Applicant

Mr Olsen for the Construction, Forestry, Mining and Energy Union, Queensland Builders' Labourers' Divisional Branch

Mr McQueen for the Construction, Forestry, Mining and Energy Union

Ms Clare for the Construction, Forestry, Mining and Energy Union, Queensland Builders' Labourers' Divisional Branch

Hearing details:

2011.

Brisbane.

April 4.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR508158>