UGL Rail Services Pty Ltd T/A UGL v Jamie Dowling - [2024] FWC 2104

[2024] FWC 2104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

UGL Rail Services Pty Ltd T/A UGL
v

Jamie Dowling & Others

(C2024/5313)

DEPUTY PRESIDENT BOYCE

SYDNEY, 12 AUGUST 2024

Urgent application for orders that industrial action stop or not occur – industrial action being taken by relevant employees of UGL Rail Services Pty Ltd T/A UGL whilst applicable UGL enterprise agreements are within their nominal terms – sick and other forms of leave taken by UGL employees on mass (800 percent increase in sick and other leave taken from June 2024 to July 2024) – UGL employees assert they are too scared to come to work – imminent health and safety issues alleged are unsupported by evidence – stop orders made – ongoing dispute between head contractor and CFMEU over proposed new enterprise agreements – stop orders made until that third party dispute resolved or UGL enterprise agreements reach their nominal term.

At 6.56pm on Monday, 5 August 2024, UGL Rail Services Pty Ltd trading as UGL (UGL) filed a Form F14, being an application under s.418 of the Fair Work Act 2009 (Act) for urgent orders that industrial action stop or not occur (418 Application) in respect of over 180 UGL employee respondents (UGL Employees) working on the Cross River Rail Project (CRR Project) in and around Brisbane and the Gold Coast in Queensland.

CPB Contractors Pty Ltd (CPB) is the principal contractor for what are termed “TSD works” (Tunnel and Station Development) and “RIS works” (Rail Integration System) on the CRR project. CPB has been subjected to repeated instances of protected industrial action by the CFMEU on the CRR Project, and further notices of protected industrial action moving forward have been issued by the CFMEU to CPB.

The Federal Court has already made orders for, amongst other things, stopping picketing by CFMEU officials and its members that illegally blocks site entrances to the CRR Project, and for any sitting around in groups (or alike) not to occur within 15 metres of site entrances to the CRR Project. There are also other proceedings on foot before the Federal Court to determine whether certain workers should be paid for their non-attendance (for work) on CRR Project sites in late April and early May 2024. [1]

The 418 Application filed in these proceedings was accompanied by a Form F49, being an application for substituted service orders upon named UGL Employees.

The matter was allocated to my Chambers on Tuesday, 6 August 2024.

The Commission received an email at 9.31am on 6 August 2024 from the Electrical Trades Union (Queensland and Northern Territory Branch) of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), stating that the orders sought by UGL would cover its members, and that the CEPU opposed any s.418 orders being made.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading UGL Rail Services Pty Ltd T/A UGL v Jamie Dowling

Details

AGLC: UGL Rail Services Pty Ltd T/A UGL v Jamie Dowling [2024] FWC 2104
Case: [2024] FWC 2104
Decision Date: 12 AUGUST 2024

CaseChat Overview and Summary

UGL Rail Services Pty Ltd T/A UGL filed an urgent application under s.418 of the Fair Work Act 2009 (Act) to the Fair Work Commission (FWC) seeking orders that industrial action by employees working on the Cross River Rail Project (CRR Project) in Brisbane and the Gold Coast stop. UGL alleged that its employees were engaging in industrial action, which included not entering work sites, not attending work, and taking leave due to alleged health and safety concerns. The Fair Work Commission was required to decide whether the conduct of UGL employees amounted to industrial action, and if so, whether the industrial action was unprotected and whether orders should be made to stop or prevent it. The Commission found that the employees' conduct constituted industrial action as defined in s.19 of the Act, and that it was not protected under s.19(2) of the Act as it was not based on a reasonable concern about an imminent risk to health or safety. The Commission also found that the industrial action was occurring and was not protected by any enterprise agreement. Therefore, the Commission made orders that the industrial action stop, not occur, or not be organised, effective from 12.00pm on 8 August 2024, and remain in force until either enterprise agreements between CPB Contractors Pty Ltd (CPB) and relevant employees working on the CRR Project in Queensland on both the Rail Integration and Systems alliance (RIS Works) and the Tunnel, Stations and Development public-private partnership (TSD Works) are approved by the FWC, or until midnight on 31 January 2025, or until further order of the FWC. The Commission considered that the duration of the orders was appropriate given the ongoing dispute between CPB and the CFMEU and the uncertainty of its resolution.

Orders