Pradstruct Pty Ltd T/A Pradella v Construction, Forestry, Mining and Energy Union

[2013] FWC 7868

[2013] FWC 7868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Pradstruct Pty Ltd T/A Pradella
v
Construction, Forestry, Mining and Energy Union
(C2013/6308)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 8 OCTOBER 2013

Summary: s.418 order - demand to employee union delegate - CFMEU rules - divisional branches.

[1] On Tuesday, 8 October 2013, Queensland Master Builders Association (“QMBA”) made an application on behalf of its member, Pradstruct Pty Ltd T/A Pradella (“the Company”) seeking a stop order (under s.418 of the Fair Work Act 2009 (“the Act”)) in relation to the alleged unprotected industrial action occurring at its Skyview apartment block building site in Kelvin Grove, Brisbane. The application sought orders to apply to employees of the Company along with employees of the following sub contractors: VT Services Pty Ltd; Formwell; Johnston Contracting Pty Ltd; and Rovera Scaffolding. The order as sought was to apply to the employees of these employers in so far as they are members, or employees who are eligible to be members, of the CFMEU.

[2] The application also sought that the order apply to the CFMEU in so far as it was allegedly organising the what was claimed to be unprotected industrial action.

[3] The evidentiary case in this matter was led by the Project Manager, Mr Arturo Masci, and the Construction Manager, Mr Jim Russ.

[4] Mr Masci’s evidence was that since late September 2013 a BLF organiser, by the name of Mr Kevin Griffin, had informed him that the BLF sought a particular BLF union delegate, Mr Troy Coe, to be dedicated to the site. That person was not an employee of the Company.

[5] Mr Masci was told by Mr Griffin to ring Kane Pearson, who is an Assistant Secretary of the BLF, to discuss the matter.

[6] An employee meeting held to discuss this matter, which lasted for some two hours, was only concluded when a commitment was given by the Company to interview the person (Mr Coe) as nominated by the BLF.

[7] The Company interviewed this individual but subsequently decided that it preferred to nominate its own on-site employee.

[8] Mr Griffin was said to have contacted Mr Masci on 1 October 2013 to enquire “how did you go with Troy?” This was Mr Masci’s evidence.

[9] The Company sought time to consider the circumstances.

[10] On Thursday 3 October 2013 Mr Griffin again contacted Mr Masci. Mr Griffin was advised by Mr Masci that the Company wanted “to run with another worker on site.”

[11] Mr Griffin was said to have replied, “Let's cut to the chase when does Troy start?” (sic)

[12] Mr Griffin later visited the site and enquired of Mr Masci as to when Mr Russ was going to telephone Mr Pearson, the BLF Assistant Secretary.

[13] Mr Griffin also advised Mr Masci that, “I will see you in the morning and every day if needed.”

[14] On 4 October 2013, Mr Griffin was said to be on site, around 7.00 AM, when site staff were having a safety tool box meeting. At around that time Ms Masci was informed by one of the crane crew that all workers had left the site.

[15] Mr Masci stated that Mr Griffin then attended in his office, whereupon he (Mr Masci) enquired, “Why did all the workers leave site?”

[16] Mr Griffin was said to have advised that “it was because of Jim Russ’ disrespect for the union and their Assistant State Secretary Kane Pearson for not calling him.”

[17] Mr Masci said that Mr Griffin been advised him that, “Troy needed to be employed by Wednesday, 9 October 2013.” Mr Masci gave evidence that Mr Griffin stated he would come back on site on that day.

[18] Mr Russ gave evidence that he in fact spoke to Mr Kane Pearson on Friday 4 October 2013 and that Mr Pearson informed him that, “Troy’s the guy for you and Kevin will be at that site until he is”. Mr Pearson’s words are supportive of Mr Griffin’s conduct.

[19] Mr Russ sought to establish contact with the State Secretary of the BLF, Mr David Hanna in an effort to defuse the situation, but Mr Hanna was said to be in China at the time.

[20] None of this evidence was challenged in any serious manner, if at all.

Consideration

[21] Section 418(1) of the Act requires me to make an order that industrial action stop if it appears that industrial action that is not or would not be protected industrial action is happening, or is threatened, impending or probable, or is being organised.

[22] In evidentiary material before me it appears (to me) that industrial action that is not or would not be protected industrial action is threatened, impending and probable in relation to the building site.

[23] I reach this conclusion for reason that the evidence suggests strongly that further industrial action will occur upon the resumption of work on 9 October 2013 (following the long weekend and the industry RDO today). This is because there has been no resolution of the underlying demand, and the BLF has indicated that Mr Griffin will continue to be on site in respect of that demand. The tenor of the exchanges between the parties is also suggestive that the issue may not evaporate or resolve readily.

[24] It also appears to me that industrial action is also being organised by the BLF. This is evident from the involvement and activities evident in Mr Griffin’s conduct, and in Mr Pearson's comments to Mr Russ.

Conclusion

[25] An order will be made against the employees of the Company and the employees of its named (see above) sub contractors and will apply to and bind those employees.

[26] The order will also have the effect of requiring that that industrial action not be organised.

[27] The order will bind and apply to the legal entity, the CFMEU (of which the BLF is one of the two CFMEU divisional branches in Queensland under its (the CFMEU’s) rules).

[28] The duration of the order will be for a period of 30 calendar days. This is a period of time that in my view is required to ensure that site stability is restored and for any underlying issues to be resolved satisfactorily. I am conscious too, although it has not informed my judgement about the duration of the order, that the Company, it is said from the bar table, faces liquidated damages of some $11,500 per day in the event of failing to meet the required completion date for the project.

[29] In order to this effect will issue at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr D. Cameron, QMBA, for the Applicant

Mr T. O’Brien, CFMEU Industrial Advocate, for the CFMEU

Hearing details:

Brisbane

2013

8 October

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