RTMWF Pty Ltd T/A Rocktown v Construction, Forestry and Maritime Employees Union
[2024] FWC 634
•11 MARCH 2024
| [2024] FWC 634 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
RTMWF Pty Ltd T/A Rocktown
v
Construction, Forestry and Maritime Employees Union
(C2024/1421)
| COMMISSIONER SCHNEIDER | PERTH, 11 MARCH 2024 |
Alleged industrial action at RTMWF Pty Ltd Trading as Rocktown at the Mayne Yard or other sites on the CrossRiver Rail Project – application dismissed.
At 3:28PM (AEST) on 8 March 2024, RTMWF Pty Ltd T/A Rocktown (Rocktown or the Applicant) filed an application pursuant to section 418(2)(b) of the Fair Work Act 2009 (Cth) (the Act) seeking that the Fair Work Commission (the Commission) issue an order to stop alleged unprotected industrial action that is being threatened.
The Applicant alleged that the Construction, Forestry and Maritime Employees Union (the CFMEU, the Union, or the Respondent), Dean Mattas (Organiser with the Union) along with employees of the Applicant are threatening to engage in unprotected industrial action.
The application form filed outlined that the Applicant had been advised that the Respondent and its members, being employees of the Applicant (the Employee Members), were planning to take unprotected industrial action on the evening of Friday 8 March 2024.
The alleged unprotected industrial action would have resulted in the Applicant being unable to complete a concrete pour that was scheduled for the nightshift on Friday 8 March 2024.
The parties attended a conference before the Commission at 7:30PM (AEST) on 8 March 2024.
During the course of the conference, it was confirmed by Mr Adam Fairhead (Mr Fairhead), the Operations Manager of the Applicant, that the scheduled concrete pour commenced, as scheduled, at 8:00PM (AEST) on 8 March 2024.
The Commission issued directions for a Hearing, to be held on Sunday 10 March 2024 at 3:00PM (AEST), to allow the parties time to prepare submissions and evidence in support of their respective positions.
At 7:09PM (AEST) on Saturday 9 March 2024, Mr Paul Dunbar (Mr Dunbar), a Senior Industrial Officer of the CFMEU, sent an email (the Email) to my Chambers and the Applicant that read as follows:
“I have been instructed by QLD/NT Secretary of the CFMEU Michael Ravbar to inform the Fair Work Commission that the union is not intending to take any potential unprotected industrial action that would directly or indirectly affect the work site or its operations.
Mr Ravbar specifically made known to me that no unprotected industrial action is happening or was planned to happen on 8 March 2024 and that no unprotected industrial action was impending, probable or being organised by the union into the future.
He also made clear to me that any alleged threats by our members to the company as to unprotected industrial action at the work site would be dealt with internally by the union.
Mr Ravbar stated that there is no need for the industrial tribunal to make an order that the unprotected industrial action stop, not occur or not be organised for a specified period as no industrial action, the subject of the application before the Commission, is happening or prospectively proposed or planned by the union to happen.”
At 8:02PM (AEST) on 9 March 2024, Mr David Lyons, Representative of the Applicant, sent correspondence regarding the Email, confirming the Applicant’s intention to continue with the application, stating:
“These comments below of Mr Dunbar are similar to what was made during the course of matter C2024/391. The applicant on that occasion withdrew that application on the basis of such commitments. Yet as will be attested at tomorrows hearing has been subjected to constant unprotected industrial action since that time. As such the applicant wishes to persist to a hearing of the matter and if the CFMEU is truly sincere in its commentary then the proposed orders should be unopposed tomorrow by Mr Dunbar’s union.”
As the matter was not resolved, the hearing listed for 3:00PM (AEST) on 10 March 2024, continued as scheduled.
Legislation
“418 FWC must order that industrial action by employees or employers stop etc.
(1) 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.
Note: For interim orders, see section 420.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;
(ii) an organisation of which a person referred to in subparagraph (i) is a member.
(3) In making the order, the FWC does not have to specify the particular industrial action.
(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:
(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or
(b) which has not ended before the beginning of that stop period; or
(c) beyond that stop period;
the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”
Submissions and Evidence
Applicant
The Applicant submitted that, on 22 January 2024, the Employee Members engaged in partial work bans upon the instruction of CFMEU Officials or delegates.
The Applicant submitted that, on 23 January 2024, the Employee Members at its Albert Street Station site refused to commence work upon the instruction of CFMEU Officials or delegates.
The Applicant submitted that, at 10:00AM on 23 January 2024, the Employee Members at its Roma Street Station site also engaged in unprotected industrial action upon the instruction of CFMEU Officials or delegates.
Previously, the Applicant had filed a Form 14, for an application under section 418 of the Act, on 23 January 2024. An urgent conference was held before Deputy President Lake later that same day. The Applicant submitted that the CFMEU gave an undertaking before Deputy President Lake that it would instruct all employees to return to work on 24 January 2024 and, because of this assurance, the Applicant withdrew that application.
The Applicant submitted that, upon becoming aware of the alleged unprotected industrial action to take place on 8 March 2024, it sent correspondence to the Respondent seeking assurance that no action would take place as had been allegedly threatened. The Applicant provided a copy of the email correspondence between the parties which reads as follows:
“Dear Mr Dalgleish
It has come to the attention of my client that your Mr Dean Mattas has threatened to disrupt or stop a concrete pour tonight at Mayne Yard on the CRR Project.
Mr Mattas and your union are put on notice that my client has instructed me to file a s418 application with the Fair Work Commission via a Form F14 – Application for an order to stop etc (unprotected) industrial action this afternoon unless we receive an immediate undertaking that the threatened industrial action will not be carried out in any shape or form.
If the threatened action goes ahead my client reserves the right to seek damages for the stoppage or disruption against the individuals responsible and your union.
We look forward to receiving the union’s undertaking by no later than 3 pm today Friday 8 March 2024.”
The Applicant submitted that the Union failed to respond to its correspondence seeking assurances. Consequently, as no undertaking from the Respondent was received, the Applicant is of the position that it was compelled to lodge this matter.
The Applicant submitted that there was no evidence of an imminent risk to health and safety that would have justified a stoppage to the concrete pour in question.
The Applicant submits that, despite the concrete pour proceeding without interruption on 8 March 2023, there remains continued risk of unprotected industrial action from the Respondent and Employee Members in this project.
The Applicant submits that, as supported by the evidence of Mr Fairhead (outlined below), there is clearly a history of on-going unprotected industrial action, organised at the behest of the Union, recently occurring on the CCR Project.
Furthermore, in its closing submissions, the Applicant noted the documented history of the CFMEU, regarding this type of conduct. The Applicant submitted that such history needs to be considered in determining whether to issue an order and, also, in reference to any reliability of Mr Ravbar’s assurances within the Email.
Witness Evidence – Mr Adam Fairhead
Mr Fairhead is the Queensland Operations Manager of the Applicant and has been employed with the Applicant for 8 years. Mr Fairhead is responsible for the day to day running of both the CPB Cross River Rail (CRR) Project and Acciona Construction Australia’s Brisbane Metro (Brisbane Metro) projects.
It was the evidence of Mr Fairhead that, over the course of 2024 to date, the Respondent and the Employee Members have engaged in the several instances of unprotected industrial action. The following chronology of events is lifted from Mr Fairhead’s statement:[1]
· Monday 22 January 2024 – Dean Mattas of the CFMEU, who at that time did not have a right of entry permit attended site and along with delegates of the CFMEU encourage employees of the Applicant to engage in unprotected industrial action by refusing to wear tool belts or use hand tools during the day and nightshift operations.
· Tuesday 23 January 2024 – Following the Applicant confirming that employees who engaged in the above action would be docked 4 hours wages as required by the Act. The Applicant submits that Dean Mattas and CFMEU delegates encouraged employees of the Applicant to walk off the job at the Albert Street Station site.
· Tuesday 23 January 2024 – Employees of the Applicant at the Roma Street Station, Woollongabba and Boggo Road sites were coerced by Mr Mattas and/or CFMEU delegates to walk off the job in support of the employees at the Albert Street Station site.
· Tuesday 23 January 2024 – The Applicant filed a section 418 application with the Commission (C2024/391). The Applicant submits that before Deputy President Lake, the CFMEU provided an undertaking that they would direct members of the CFMEU to return to work.
· Wednesday 24 January 2024 – Employees of the Applicant return to work.
· Tuesday 30 January 2024 – The Applicant sent a memo to all employees in relation to unprotected industrial action and the possible consequences of such action. In this communication, the following statement is made, “the CFMEU legal officer told the Commission that the CFMEU Officials or delegates had no authority or rights to ask, encourage or instruct employees to strike. Further that the CFMEU undertook to recommend employees return to work on Wednesday and will observe the ‘Dispute Resolution Procedure’ from now on.
· Thursday 1 February 2024 – Employees of the Applicant were encouraged by the CFMEU to breach PPE rules and policies and stop work. After the walk of employees were told to turn up to work the next day in only shorts and t-shirts.
· Friday 2 February 2024 – Some Employees of the Applicant reported to work in shorts and t-shirts, with support of the CFMEU these employees continued to work and ignore requests to wear the correct PPE.
· Monday 5 February 2024 – Employees engaged at the Albert Street Station site were encourage by the CFMEU to sit in the sheds to protest CPB’s heat policy and PPE rules. This occurred from 10am on day shift and the entire nightshift operation.
· Tuesday 6 February 2024 – A number of employees of the Applicant failed sat in the sheds for 5.5 hours out of the 10.5-hour shift.
· Thursday 8 February – the Applicant send a memo to employees regarding the non-payment for the periods of unprotected industrial action on 1, 2, and 6 February 2024.
· Wednesday 21 February 2024 – employees of the Applicant engaged at the Boggo Road site, encouraged by the CFMEU delegates continued to breach the PPE policy wilfully and deliberately. These employees were issued a verbal warning and follow up email confirmation.
· Thursday 22 February 2024 – four employees were directed by the Applicant to leave site for failing to comply with the PPE policy and were issued with a final warning.
· Friday 23 February 2024 – a further three employees were directed to leave site for failing to comply with the PPE policy.
· Friday 23 February 2024 – Dean Reilly (CFMEU Official) contacted Mr Fairhead and indicated that he had told the employees to wear the correct PPE. Mr Fairhead advised Mr Reilly that the employees could return to work on Monday 26 February 2024.
· Friday 8 February 2024 – Mr Fairhead received a phone call from Mr Brian Marshall, during this phone call Mr Marshall advised Mr Fairhead of that further unprotected industrial action had been threatened by the CFMEU. Specifically, that Mr Marshall had been advised by Mr Dean Mattas (CFMEU Official) that the CFMEU were planning to disrupt the planned concrete pour at the Mayne Yard site on Friday 8 March 2024.
It was the evidence of Mr Fairhead that unprotected industrial action initiated by the CFMEU on the relevant project has cost the Applicant over $250,000 to date.
Cross-examination of Mr Fairhead by the Respondent primarily focused on the events of Thursday 1 February 2024 and Friday 23 February 2024. The Respondent is of the position that instances of conduct (alleged industrial action) that impacted productivity on site on those dates arose out of to health and safety issues, specifically concerning PPE, raised by HSRs and, accordingly, such conduct is not unprotected industrial action.
Witness Evidence – Mr Brian Marshall
Mr Brian Marshall (Mr Mashall) is employed by Acciona Construction Australia Pty Ltd (Acciona) as General Superintendent for the Brisbane Metro Project. Mr Marshall has held this position for the last three years.
Mr Marshall confirmed that he knows Mr John Hughes, the owner of the Applicant, and Mr Fairhead from previous construction projects.
Mr Marshall has worked in the construction industry for over 35 years and has had previous dealings with the CFMEU.
Mr Marshall confirmed that Mr Dean Mattas (Mr Mattas) of the CFMEU is well known to Mr Marshall, having previously attended the Brisbane Metro Project for site visits and right of entries.
It was the evidence of Mr Marshall that, at 10:25AM on 8 March 2024, he was contacted by Mr Mattas on mobile. Mr Mattas advised Mr Marshall that he was close by and wanted to meet.
Mr Marshall’s evidence was that, at 10:35AM on 8 March 2024, he met with Mr Mattas and, during their conversation, Mr Mattas stated words to the following effect:
“I need you to contact John Hughes and tell him that the CFMEU are going to disrupt the concrete pour at Mayne Yard tonight”.[2]
Mr Marshall confirmed his understanding of the above to be that Mr Mattas was referring to a scheduled concrete pour the Applicant had planned to complete at the CRR Project – Mayne Yard site.
Mr Marshall advised that Mr Mattas requested he confirm with him once he was able to reach either Mr Hughes or Mr Fairhead to relay the message.
Mr Marshall advised that he was unable to contact Mr Hughes but that, at 11:19AM that day, he spoke to Mr Fairhead and relayed Mr Mattas’ message.
It was the evidence of Mr Marshall that, at 1:16PM on 8 March 2024, he advised Mr Mattas of his contact with Mr Fairhead and confirmed he passed the message along.
Cross-examination of Mr Marshall by the Respondent primarily focused on on events which had occurred in the days leading up to the interaction between Mr Marshall and Mr Mattas.
The Respondent did not challenge the events outlined in Mr Marshall’s evidence.
Having considered the evidence of Mr Marshall, I am satisfied that he is a credible witness and has provided reliable evidence in this matter. I also note that Mr Marshall, who is not an employee of the Applicant, generously took time out of his weekend to assist the Applicant with this application.
Respondent
The Respondent denies that the conduct of the Employee Members, as described by the Applicant, constitutes unprotected industrial action.
Further, the Respondent submits that the application cannot succeed as there is no action that is happening; or is threatened, impending or probable; or is being organised – as required by the Act.
The Respondent, prior to the Hearing, sent the Email to the Commission. The Email, in summary, noting it is quoted in full earlier in this decision, sought to provide assurance that the Union was not intending to take any unprotected industrial action.
The Email also stated that no unprotected industrial action was planned or had occurred on 8 March 2024. The Email asserted that any alleged threats of such action by Employee Members would be dealt with internally. Accordingly, the Email instructed that there was no need for an order to be made in this matter.
The Respondent submits that the Commission should allow the parties to resolve the matter by way of the dispute resolution clause in a valid enterprise agreement as an alternative method for resolution of any disputes that may arise between the employer and the employees.
The Respondent submits that the Commission should take note of the Email sent to the Commission and the commitment contained within.
The Respondent submits that the Commission’s powers to make orders in such applications are limited to stopping or preventing industrial action that is the subject of the application before it. Relevantly, noting that the action subject of this application was the alleged obstruction of the concrete pour, the Respondent submits that there is no action for the Commission to stop or prevent by way of an order as nothing is happening or had happened on 8 March 2024.
The Respondent submits that the Commission should note that the conduct complained of by the Applicant must have been engaged in to support a relevant demand for an order.
The Respondent submits that the draft order does not, nor could it, identify the nature and character of said industrial action in any meaningful way.[3]
The Respondent submits that the Commission has to issue an order that can actually be operative at the time in relation to an action being complained of. However, as it is of the position that no action was taken by the Employee Members, the Respondent submits that there is no utility in an order as per a point in time construction in regard to the application filed by the Applicant. The Respondent submits that the futility of such an order is evident as the matter complained of within the application has fallen away.
The Respondent submits that there is no evidence of any ongoing industrial action planned to be taken or being organised by the Union. Accordingly, the Respondent submits that there is nothing to stop (no action) and, prospectively no employer evidence to say any proposed industrial action is being planned or organised by the union.
Additionally, the Respondent submits that the Commission has no power to make the order being sought as the alleged action is not industrial action, as the conduct alleged as such action was not:
· in the course of negotiations to replace an expired enterprise agreement; or
· during the negotiations for an enterprise agreement; or
· within an area of disputation of the parties; or
· an employer response action in response to an employee action that is threatened, impending, probable, being organised or even imminent at the time.
Further, the Respondent submits that it would be contrary to the public interest to issue the order.
The Respondent makes reference to concerns the Union holds regarding heat stress at the workplace in question. Related to such concerns, the Respondent submits that it is the right of the worker to cease unsafe work and doing so is not industrial action. The Respondent submits that the Employee Members have been raising safety concerns for some time. The Respondent asserts that it is necessary to view the conduct the Employee Members in the context of such health and safety concerns.
Consideration
As was conveyed to the parties upon conclusion of the Hearing on 10 March 2024, the application will be dismissed, and no order granted for the following reasons.
Section 418 of the Act requires that the Commission issue an order to stop unprotected industrial action if it appears to the FWC that industrial action – is happening, or; is threatened, impending or probable; or is being organised.
The inclusion of the word is within section 418 of the Act imparts the expectation that any such order granted pursuant to the section must be issued in relation to industrial action in the present – that is, action of which, at the issuing of the order, the Commission can be satisfied is either occurring or is being threatened or is being organised.
I accept the evidence of Mr Marshall that, on Friday 8 March 2024, through him, Mr Mattas of the CFMEU made a threat towards the Applicant and the conduct warned of within that threat would have been unprotected industrial action.
However, as it transpired, no industrial action occurred during the nightshift on 8 March 2024 and the planned concrete pour progressed as scheduled without incident prior to the filing of materials and Hearing in this matter. It is reasonable to entertain the conclusion that the Applicant’s decision to file this application, at the point in time it did, resulted in the previously threatened industrial action being called off.
It is evident that the Applicant holds concerns over the assurances of Mr Ravbar, provided through Mr Dunbar in the Email, due to the sustained conflict between the parties following the withdrawal of the previous section 418 application.
On assessment of the evidence provided, it is reasonable to conclude that, in all likelihood, unprotected industrial action has happened, has been threatened, and has been organised previously by officials of the CFMEU against the Applicant’s scope of work for the CRR Project.
However, section 418 of the Act does not enable the Commission to make an order in relation to instances of industrial action which have now ceased, nor does it grant the Commission powers to make an order relating to industrial action using a crystal ball to predict future.
For an order to be made, the Commission must reach a state of satisfaction that unprotected industrial action is happening, or is being threatened, impending, or probable, or is being organised. Having considered the materials before me, I have not reached the required state of satisfaction to make such an order.
Conclusion
Accordingly, as the Commission has not reached the required state of satisfaction to make such an order, the application must be dismissed.
An order dismissing the matter has been issued concurrently.[4]
COMMISSIONER
Appearances:
D Lyons of Workplace Solutions for the Applicant.
E Dalgleish and P Dunbar for the Construction, Forestry, Mining and Energy Union.
Hearing details:
2024.
Perth (by video):
March 10.
[1] Exhibit A1, 5-21.
[2] Exhibit A2, 11.
[3] [2016] FCAFC 72, [54].
[4] [PR772230].
Printed by authority of the Commonwealth Government Printer
<PR772229>
0
1
0