Watpac Construction Pty Ltd v Construction, Forestry, Mining and Energy Union

[2014] FWC 7897

[2014] FWC 7897

FAIR WORK COMMISSION

DECISION

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

Watpac Construction Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(C2014/7532)

DEPUTY PRESIDENT ASBURY BRISBANE, 7 NOVEMBER 2014

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

Background

[1] On Monday 3 November 2014, I made an Order under s.418(2)(b) of the Fair Work Act 2009 (the Act) to stop unprotected industrial action in relation to four construction Projects managed by Watpac Construction Pty Ltd: Gold Coast Private Hospital, Mater Private Hospital Springfield; 180 Brisbane; and Southpoint, 271 Grey Street Brisbane. 1 The Order was sought against the Construction, Forestry, Mining and Energy Union (CFMEU) and its officers, delegates employees or agents and employees (members or eligible to be members) of Watpac Construction Pty Ltd and subcontractors to Watpac Construction Pty Ltd at each of those projects. I indicated to the parties that I would provide written reasons for making the Order. Those reasons are set out below.

[2] The grounds set out in the application stated that on Friday 31 October 2014, employees of Watpac Construction Pty Ltd and subcontractors on the sites, withdrew their labour and in doing so engaged in unprotected industrial action.

[3] Consistent with the requirements in s.420(1) that as far as practicable such an application is to be determined within 2 days after the application is made, it was listed for hearing at 11.45am on Friday 31 October 2014 and an interim Order was issued by Commissioner Spencer. That Order was issued on the basis that the parties agreed that, because of their involvement in other proceedings before the Commission, that the application could not be heard within the time required in s.420(1). Written advice was also received from the CFMEU that it did not object to an interim Order being made pending hearing and determination of the application on Monday 2 November 2014, by the Commission as presently constituted.

[4] The hearing commenced at 8.30 am on Monday 3 November 2014. Watpac was represented by Mr Belfield of the Queensland Master Builders Association and the CFMEU by its Legal Officer, Mr Cousner. The hearing was adjourned until 4.30 pm to facilitate the issuing of an Order for substituted service in relation to the application. When the hearing reconvened, evidence in support of the application was given by:

• Bryan Hayes, Site Manager Southpoint; 2
• Stewart Roberts, Project Manager, Gold Coast Private Hospital;  3

• Daniel Joseph Smith, Site Manager Mater Private Hospital Springfield; 4 and

• Brad Ross, whose role was not specified, but gave evidence in respect of the 180 Brisbane Project. 5

[5] All witnesses gave oral evidence and were cross-examined by the CFMEU’s representative.

Evidence

[6] Mr Hayes said that on the morning of Friday 31 October 2014, at or around 5.52 am, he was informed that an official of the CFMEU, Mr Mark O’Brien was at the gate of the project and that he approached Mr O’Brien and asked him why he was at the site. Mr O’Brien stated that he was there to have a meeting with CFMEU members. That meeting took place in a car park adjacent to the site and Mr Hayes’ understanding, based on reports of contractors who attended, or whose employees attended the meeting, was that the discussion was about Watpac not having one of the CFMEU Delegates on site. Employees voted to cease work until Thursday 6 November 2014 and left the site. Mr Hayes said that he was also informed by one of the contractors that the CFMEU would have another meeting on the morning of Thursday 6 November 2014 to see if there were further developments. According to Mr Hayes, there are 50 employees on the site and 40 are involved in the present dispute. The remaining employees are employed in electrical and plumbing trades.

[7] Under cross-examination Mr Hayes said that he assumed that the 40 employees who took industrial action commencing on 31 October 2014 are CFMEU members because they commenced industrial action following a CFMEU meeting. Mr Hayes agreed he had no direct knowledge of what the issue that was discussed at the meeting involved, but maintained that he was told by a number of contractor employees and Watpac employees who are crane crew, that it related to CFMEU Delegates.

[8] Mr Roberts said that on the morning of 31 October 2014 at approximately 6.00 am he arrived at the Gold Coast Private Hospital Site and found a CFMEU Organiser, Mr Scott Vink, on site talking to a Delegate of the Union in the site car park. Mr Roberts said that he asked Mr Vink what he was doing at site and Mr Vink told him that he was going to speak to CFMEU members. On the basis that Mr Vink had not notified of his entry to the site, Mr Roberts asked him to leave. Mr Vink declined to do so and said that he was going to talk to CFMEU members about issues on other sites regarding Watpac policies in relation to Delegates.

[9] The meeting lasted 20 minutes after which 135 employees comprising all CFMEU trade groups left the site. Mr Roberts said that one outcome was that the safety committee was to assemble and ensure that all work areas were in a stable/safe condition for the forthcoming long weekend. Mr Roberts’ evidence about whether this in fact occurred was not clear. Mr Roberts said that he was informed by employees who attended the meeting that the industrial action was proposed by the CFMEU as they considered that Watpac had not honoured its obligations with regards to Delegates on site, under the enterprise agreement.

[10] Mr Roberts also said that he was advised that there would be a return to work on Thursday 6 November 2014. In his oral evidence, Mr Roberts said that he was not told what time the return to work would be or whether there would be a discussion before this occurred. Under cross-examination Mr Roberts maintained that Mr Vink said that he wanted to have a discussion with members about CFMEU Delegates on other sites. Mr Roberts agreed that he had no reason to believe that employees would not return to work on Thursday and agreed that he had no actual knowledge of what happened at the meeting.

[11] Mr Smith said that he was informed at approximately 5.40 am on 31 October 2014 that there was a visitor at site. Mr Smith went to investigate and find out who the visitor was and found a person by the name of “Dennis” who he understood to be an Official of the CFMEU, beside a line pump that was setting up for a pour. Mr Smith introduced himself and told “Dennis” that no right of entry notice had been received from the CFMEU for that day and asked what the agenda was. According to Mr Smith, “Dennis” said that he would come to see Mr Smith when he was finished meeting with employees.

[12] Mr Smith asked “Dennis” to leave the site and to sign the visitors’ book. “Dennis” declined these requests and continued to round workers up for a meeting. When the meeting concluded, Mr Smith was advised that a vote had taken place and that all CFMEU members were going home with the view of returning to work on Thursday 6 November 2014. “Dennis” left the site at 6.40am without having a discussion with Mr Smith.

[13] Under cross-examination, Mr Smith maintained that it was not certain that employees would return to work at their usual starting time on Thursday morning and said that he had been told a number of versions of events and stories and no-one was clear about what would happen on Thursday morning.

[14] Mr Ross said that he was advised at around 5.25 am on 31 October 2014 that the CFMEU site Delegate at “180 Brisbane” was telling employees that there would be a full site CFMEU meeting at 6.30 am. Mr Ross arrived at site at around 5.40 am and saw CFMEU Official Mr Chad Brangdon with the site Delegate, on the corner of Ann Street opposite the site, talking to employees of a subcontractor. Mr Ross then saw Mr Brangdon walk in the direction of King George Square which is located approximately 100 metres from the site. Concrete had been ordered for a pour and arrived at site at around 6.30 am.

[15] Mr Ross said that he did not have any discussions with Mr Brangdon, but a message was relayed to him from a Delegate of the CFMEU that if he wanted to know what was going on he should ring Michael Ravbar (the State Secretary of the CFMEU). Employees left the site and went to King George Square and Mr Ross observed them gathering at that location. The employees dispersed from the meeting at around 6.55 am and returned to site to collect their belongings, before leaving. Approximately 120 employees left the site and did not return. Mr Ross was advised by the CFMEU Delegate that employees had left the site and would return on Thursday 6 November 2014. Mr Ross was further advised by the Delegate that a site safety walk would be conducted prior to any work commencing.

[16] Under cross-examination, Mr Ross said that there are two kinds of site safety walk. A safety walk conducted by the CFMEU is conducted without the consent or participation of Watpac managers or supervisors and involves delegates, safety representatives and officials walking the site to look for safety issues, while employees sit in crib sheds. The CFMEU organised site safety walk can take from one hour to five hours and on occasions has taken an entire ordinary working day. When a safety issue is discovered, a crew is released from the crib shed to rectify it and this is checked by the CFMEU Delegates, safety representatives and Officials before normal work resumes.

[17] This can be distinguished from weekly safety walks conducted each Wednesday by Watpac representatives and employee safety representatives who are members of the site health and safety committee. While the weekly walk is in progress, employees remain at work, and if a safety issue is identified, employees are removed from the area and directed to perform other safe work. Mr Ross rejected the proposition put to him in cross-examination that it would be reasonable for a site safety walk to be conducted after a weekend and three consecutive rostered days off. Mr Ross said in response to this proposition that no work would be performed on the site during this period to give rise to a safety concern. He also said that if any safety issue arose at any time, it was the duty of employees to report such issues and they would be addressed by Watpac. Mr Ross also maintained that there was no need for safety walks in addition to those conducted by Watpac and the site workplace health and safety committee members.

[18] In submissions on behalf of Watpac, Mr Belfield said that the industrial action was being taken by the CFMEU to support a claim for Watpac to change arrangements for CFMEU Delegates. This was said to be an ongoing dispute in the construction industry and to support a conclusion that industrial action may continue as long as Watpac lawfully resists the claim with respect to Delegates.

[19] The industrial action was said to have commenced on the morning of Friday 31 October 2014 and to have continued on Saturday 1 November 2014 on the basis that it is usual for employees to perform approximately five hours of work each Saturday. The industrial action was also said to have been conducted in conjunction with industry RDOs from Monday 3 November to Wednesday 5 November inclusive. Reports that employees would return to work on 6 November were said to be of no comfort to Watpac on the basis that there is no certainty about when normal work will resume.

[20] The co-ordinated arrival of officials of the CFMEU on four Watpac sites at the same time on the same day, is evidence that the industrial action is being organised by the CFMEU. In this regard, the entrance of the CFMEU Officials to the four sites was without invitation or notice. There is also no evidence that there are any other separate or distinct issues on each of the sites to explain the action taken by the CFMEU and its members.

[21] It was further submitted that the action is being organised because senior officials of the CFMEU have decided to cause loss to Watpac for not conceding what are said to be unreasonable and unsustainable claims. This is said to be apparent from the evidence of Mr Ross that he was told by a CFMEU Delegate that if he wanted to know what was going on he should “ring Michael Ravbar”.

[22] Watpac is not aware of any possible safety risk at any of the sites or that any of the action is protected industrial action during a bargaining period. The industrial action has caused work to cease at the four projects, and has disrupted critical operations, including a concrete pour scheduled for 31 October 2014. No work is scheduled for 6 November 2014 because of the likelihood of further delays and disruptions. It was submitted that an Order of at least one month duration is warranted on the basis that in early December there will be another block of industry Rostered Days Off, and it is likely that employees will take further industrial action on the Friday preceding those Rostered Days Off in order to maximise time off.

[23] Mr Cousner for the CFMEU contended that the evidence before the Commission does not support a finding that industrial action is happening, threatened or being organised. The evidence establishes that on the morning of 31 October 2014, officials of the CFMEU attended meetings at “180 Brisbane”, Gold Coast Private Hospital and Southpoint B. It is not conceded that a person identified as “Dennis” who was in attendance at the Springfield site is an official of the CFMEU. There is no evidence of what any official said or did at the meetings so that it could be said that the CFMEU is organising the industrial action. In the alternative, Mr Cousner submitted that if the Commission was minded to make an Order, it should be for a period of no more than one week, on the basis that the evidence shows a return to work on all sites will occur on Thursday 6 November 2014, following three industry Rostered Days Off.

Consideration

[24] Section 418(1) of the Act requires that if it appears to the Commission that industrial action that is not protected is happening, threatened, impending, probable or is being organised, then the Commission must make an order that the industrial action stop, not occur or not be organised. These matters are jurisdictional facts, the existence of which the Commission must be satisfied of, before it has power to make an Order. 6

[25] If the Commission is satisfied that unprotected industrial action is happening it has a duty to make an order that the action stop. If the Commission finds that unprotected industrial action is threatened, pending or probable, it has a duty to make an Order that it not occur. If the Commission finds that unprotected industrial action is being organised, then it has a duty to make an Order that it not be organised. Absent the finding in relation to the specified matters, the Commission has no power to make an Order. 7

[26] It is also the case that the provisions of a particular s.418 Order - other than machinery or facilitative provisions - must be directed to the purpose of ensuring that the relevant industrial action stop, not occur or not be organised. The period of operation of the Order must also be directed to that purpose.

[27] In United Voice v Foster’s Australia Limited t/a Carlton and United Breweries Limited 8 a Full Bench of the Commission held that a lengthy order may be justified where the Commission finds that industrial action is threatened, impending and probable on a continuing and long term basis. However, in that case the Full Bench also held that is not correct to approach the establishment of a period of operation for an Order under s.418 as if it involves the exercise of a general discretion as to what is appropriate. The Full Bench went on to hold that an Order cannot be given a lengthy term simply for precautionary purposes because matters other than those which lead to the industrial action at which the Order is directed, might arise.9

[28] In Thiess Pty Ltd v Construction, Forestry, Mining and Energy Union 10a Full Bench of the Australian Industrial Relations Commission held that in establishing jurisdiction for an Order under s.127 of the Workplace Relations Act 1996, the history of past industrial action and evidence about the current state of industrial relations, is relevant. In my view it is appropriate to take the history and context of industrial action into account in determining whether industrial action is pending or probable and the appropriate term of an Order directed to stopping or preventing industrial action.

Conclusions

[29] The evidence of witnesses for Watpac and the manner in which it was presented leaves much to be desired. There was no evidence to support some of the assertions made from the bar table, in particular those directed to the duration of the Order sought. On the other hand, in circumstances where there is uncontested evidence that its officials have entered sites without providing notice of entry in accordance with the requirements of the Act, and have failed to provide any reason for their attendance, the CFMEU cannot complain that there is no evidence of any issue in dispute to justify the making of an Order.

[30] In the present case, it appears that industrial action by one or more employees that is not protected industrial action, is happening. I base this conclusion on the following evidence. Employees of Watpac and its subcontractors, on four projects managed by Watpac, who are members of or are eligible to be members of the CFMEU, did not commence work at each of the four projects on 31 October 2014 and did not perform scheduled overtime work on Saturday 1 November 2014.

[31] Although there is no evidence from any of the witnesses for Watpac that there was overtime work scheduled on Saturday 1 November, this assertion is made in the Form F14 Application for an Order to stop etc. (unprotected) industrial action and was made in submissions for Watpac, without objection from the CFMEU.

[32] It is also asserted without contradiction that the employees of Watpac and the contractors are covered by enterprise agreements which have not reached their nominal expiry date. Further, there is no evidence of any safety matter that could have caused employees to have a reasonable concern that their health and safety was at imminent risk when they left the site, and there is no submission to this effect from the CFMEU.

[33] There is a lack of clarity about when employees will return to work. Although there is evidence that they will be on site on Thursday 6 November 2014, there is no indication that they will commence work at the normal starting time. Witnesses for Watpac gave evidence that they were not told by the CFMEU Officials or Delegates of the reason that the employees decided to take industrial action. Very little if any explanation was offered other than that the issue related to Delegates. Although Watpac site managers were told that normal work would resume on Thursday 6 November 2014, there was also little detail given to Watpac site managers in relation to the time at which normal work would resume. There is also evidence that there will be meetings and other processes on some sites before normal work resumes, which are beyond the control of Watpac and about which it has not been informed.

[34] There is some evidence that the employees are taking industrial action in relation to a dispute between Watpac and the CFMEU about the employment of delegates by Watpac on its sites. In those circumstances it appears that industrial action that is unprotected is being taken and that it will continue into ordinary working hours on Thursday 6 November 2014. Accordingly it appears that unprotected industrial action is happening and is threatened, impending or probable.

[35] It also appears that the industrial action is being organised by the CFMEU. I base this conclusion on uncontested evidence that officials of the CFMEU attended three of the sites - at or around the same time on the morning of 31 October 2014 and had discussions with at least some employees. I am also of the view that it is more probable than not that an official of the CFMEU attended the fourth site at or around the same time. In those circumstances it appears that the CFMEU is organising the industrial action.

[36] Watpac seeks an Order for a period of two months and in oral submissions amended its application to seek an Order for a period of one month. I am not satisfied in the circumstances of this case, that s.418(1) requires an Order that has a lengthy period of operation. There is a suggestion of an ongoing dispute about CFMEU delegates. However, that evidence falls short of establishing that there is an issue that would justify a lengthy order on the basis that industrial action is threatened, impending or probable on a long term basis.

[37] Watpac is a large company with significant resources. If there is a dispute of the magnitude that makes it probable that industrial action will reoccur or will be threatened into the future, so that a lengthy order would be appropriate, it could have called clear evidence about the dispute and its likely impact. It is not sufficient to assert that unsustainable claims have been made without providing some information about the details of what is being claimed. There is also no evidence of any history of employees on the site taking industrial action in similar circumstances or in relation to the same issue, such that a lengthy order would be appropriate. I am not prepared to issue on order of one or two months duration on the basis of submissions from the bar table about the nature of the dispute and the possibility of further industrial action being taken.

[38] Accordingly an Order issued directed to the CFMEU, its officers, delegates employees and agents and to the employees of Watpac and the subcontractors on the four projects, that industrial action stop or not occur, and with a period of operation from 2.00 pm on Friday 31 October 2014 until 5.00 pm Monday 10 November 2014.

DEPUTY PRESIDENT

Appearances:

Mr M.Belfield on behalf of Watpac Construction Pty Ltd.

Mr A. Cousner on behalf of the Construction, Forestry, Mining and Energy Union.

Hearing details:

2014.

Brisbane:

November 3.

 1   PR557372

 2   Witness Statement Exhibit 1.

 3   Witness Statement Exhibit 2.

 4   Witness Statement Exhibit 3.

 5   Witness Statement Exhibit 4.

 6   Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at [24]

 7   AMWU v UGL Resources Pty Ltd [2011] FWAFB 4777 [17] - [20].

 8   [2014] FWCFB 4104.

 9   United Voice v Foster’s Australia Limited t/a Carlton and United Breweries Limited [2014] FWCFB 4014 at [40].

 10   PR938334.

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