Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

facts 6 Darren Michael Wolf was called by the Commissioner to give evidence in support of the notice of motion for interlocutory relief. In examination in chief, Mr Wolf gave evidence to the following effect: · Probuild is in the business of project management and construction management of commercial constructions, ranging from apartments through to office buildings in various retail projects. It is currently involved in the project management of a construction called One40 William Street, at 140 William Street, Perth Western Australia. · He answers to the State Manager, Eric Meyerowitz. · At approximately 9am on Thursday 20 August 2009, while on the construction site, he was advised by Marcus Gordon, the site manager for Probuild, that there was a problem with the toilets on the Wellington building, which is part of the project site, but that it was currently being rectified by plumbers engaged by Probuild. · Soon after being advised of this problem by Marcus Gordon, Mr Gordon received a telephone call concerning the current situation in relation to the toilets as a result of which he left the meeting he was engaged in with Mr Wolf in order to meet the plumbing supervisor. · At approximately 10am, Marcus Gordon advised Mr Wolf that the second respondent, Joe McDonald, was currently on site and had been on site from approximately 9.30am, and that the situation in relation to the toilets was rectified and the toilets had been cleaned and disinfected by approximately 9.45am. · Mr Wolf was advised by Marcus Gordon that Mr McDonald had conducted a meeting with workers at smoko, at approximately 10am, and had a discussion in relation to the issue of the amenities (that is to say, the toilets). The smoko at 10am was a normal smoko break, that lasted approximately 20 minutes, held on site at facilities within the Wellington building called a crib hut. · After 10am, he (Mr Wolf) personally met with Joe McDonald. The meeting came about because he was advised by Marcus Gordon that Mr McDonald had indicated that the site had chosen to withdraw their labour from site and Mr McDonald wished to have a conversation and discussion with him, Marcus Gordon and the site representative, Jim Reid. The meeting took place at about 10.15am. · At that stage, Mr Wolf had limited specific knowledge about the exact events. At the meeting, the participants went through the situation. Mr Wolf asked Joe McDonald and Marcus Gordon to explain what the actual situation was regarding the toilets and why the actual workforce had left the site when there were additional alternative amenities in place that the site crew had been made aware of. He understood that the workforce had left by the time that meeting commenced. · At the meeting, Joe McDonald put the position that he felt there was an immediate risk to health and safety in relation to the amenities that had become blocked. The Probuild representatives at the meeting went through a discussion process where Mr Wolf was informed by Marcus Gordon that the amenities were actually operational and had been cleaned. Joe McDonald acknowledged in the meeting and discussion that he was aware of that, that the amenities had been re‑established. He also acknowledged that there were alternative amenities on site which Marcus Gordon had had discussions with him about prior to the meeting, advising that there were alternative amenities on site that were suitable to be utilised. He (Mr Wolf) asked Mr McDonald, at that stage, to clarify why he believed there was an immediate risk to health and safety. He said that Mr McDonald advised him that was his opinion. · There had been two earlier instances over a 24 month period of difficulties with the toilets, but each had been dealt with and the interruption would have been less than an hour and no industrial action had taken place in relation to those problems. · Probuild had established alternative amenities in the B1 basement area because they were planning to shut down the amenities in which the blockage had occurred, over the weekend of 22 and 23 August 2009, and relocate to the alternative amenities in B1 basement area, which had been completed and established and were suitable for use. Also there are a number of toilet facilities throughout the building structure that are used on a daily basis that were not affected by the blockage. There were also amenities that are used by staff personnel within the office component of the site establishment which Probuild offered for use while the blockage was being dealt with. · The amenities affected by the blockage comprised approximately 14 toilets and two urinals. Throughout the remainder of the site, there were approximately 19 toilet facilities available and one urinal. Altogether there were 19 alternative toilets for use. · In his (Mr Wolf's) opinion there were sufficient toilets for a workforce of 300 on the site, other than the 14 blocked toilets. · At the meeting he had with Mr McDonald, Mr McDonald highlighted that members raised a motion to not return to work until Monday morning (that is to say Monday 24 August 2009). · Following the meeting, Probuild instructed its lawyers to cause an application to be made to Fair Work Australia under the Fair Work Act 2009 (Cth) on behalf of Probuild for an urgent hearing in relation to the issue. · A hearing was conducted by Commissioner Williams of Fair Work Australia on this very day, 21 August 2009, and an order was made against the CFMEU which had been served on the Union by Probuild this very afternoon. He had attended the Fair Work Australia hearing. · That morning, prior to leaving the construction site at 140 William Street in order to attend the Fair Work hearing, he (Mr Wolf) had seen Mr McDonald on the site, he requested him to leave the site, which Mr McDonald subsequently did. · While a number of workers on the site engaged by Probuild, or on behalf of its contractors, were or are members of the CFMEU, a number were members of the ETU (Electrical Trades Union) and the CEPU (Communications Electrical and Plumbing Union). · As of 21 August 2009, this very day, notwithstanding the resolution of workers of 20 August 2009, a limited few CFMEU members had chosen to return to work. About 60 in total (out of 300) had returned. Perhaps about eight were CFMEU members, the rest being ETU or CEPU members. He (Mr Wolf) was notified electronically while he was at the Fair Work Australia hearing that Mr McDonald had returned to the site and was requesting and having discussions with the personnel that were attending work and "trying to coerce them into leaving the site". He had been requested to leave by the Project Manager, Jason Ball, on a number of occasions, which he had refused to do. He believed that another 20 workers had left the site following Mr McDonald's visit, leaving approximately 40 workers still on the site. · Probuild has a collective agreement with the CFMEU that does not expire, he believes, until August 2011. Approximately 95% of Probuild's sub‑contractors have agreements with the CFMEU. He has not been made aware of any of those agreements being due to expire. · The stoppage by workers on the Probuild site will have a direct effect in relation to critical path works associated with the structure and Probuild services. In this particular situation, the stoppage has had an additional effect associated with critical works "that we had scheduled for the installation of the HV (high voltage cable) services by Western Power, which has taken a substantial effort to have coordinated and scheduled for this weekend. It is very difficult to get the actual work crews that Western Power have allocated to those works because there is only certain work crews that can do those HV terminations and those crews are actually in quite significant demand at the moment". As the result of the stoppage, the work would not go ahead this weekend and will have to be rescheduled. · Due to the interruption suffered and certain permits and criteria that need to be put in place, it was unable to be put in place and due to uncertainty at the outcome of the hearing in Fair Work Australia today, Western Power had decided to reallocate their resources to alternative works. However, Probuild's electrical subcontractor was trying to coordinate the rescheduling of the work at the moment. · So far as the critical path works are concerned, they are the structure and certain elements of the services and façade and all of those items have been affected by the last two days. The delay of the critical path means that time wasted cannot be regained. · There was also an issue about an Alimak, which is a temporary lift system, utilised for the movement of services and men and material up and down the project between floors. The Alimak is scheduled to be removed on the weekend of 22 and 23 August 2009 to facilitate a section of counter‑levered structure that needs to be put in place on level 16 of the tower. Currently at this stage, Probuild are aware that this is still going ahead based on the decision that has been handed down by Fair Work Australia today. Probuild has been able to ensure that those works are carried out this weekend. · He is aware that certain officials of the CFMEU hold permits to enter the site for occupational health and safety and other reasons. However, Joe McDonald is not a person who holds such a permit. He (Mr Wolf) understands that Mr McDonald is an official of the CFMEU. · A letter dated 17 October 2008 was sent by Probuild's lawyers to Mr McDonald requiring Mr McDonald to comply with Probuild's protocols for entry to a site. That letter was received into evidence as Exhibit B. The order made by Fair Work Australia on 21 August 2009 was received into evidence as Exhibit A. 7 In cross examination, Mr Wolf stated: · There is only one permit required to facilitate the work on the high voltage cable to be done by Western Power, namely a permit for a lane closure, that is required for Wellington Street. It was not obtained by Western Power due to the uncertainty on site in the last 24 hours. It takes about 12 to 24 hours to obtain the permit through the City of Perth. No other permits are needed. However, because they were not able to commence on the work Western Power have chosen to reallocate their work crews, that work now needs to be rescheduled. · The outcome of the proceedings in Fair Work Australia was advised at approximately 2pm today. · Following the order made by Commissioner Williams, Probuild's subcontractor notified Western Power in order to have the relevant work rescheduled. · In relation to critical path work, Probuild are currently on schedule. · As to the number of occasions between October 2008 and today Mr McDonald has visited the site on a number of occasions about which Mr Wolf could not be more specific but "it would be more than 2". · The alternative amenities or toilets in the B1 basement area do not have partitions but Mr Wolf considers "fine for urinating purposes". · In relation to the remediation of the blocked toilets "minor removal of six inches of material" was required and a shovel was used for the job. No "excavation with a machine" was required. · Proceedings in Fair Work Australia did not directly involve Joe McDonald and he did not ask his lawyers to seek an order that applied to Joe McDonald. In that, Probuild were guided by the advice of their lawyers. · Marcus Gordon, the site manager, was present in the Court during this hearing. · A range of Probuild's staff including himself, Jason Ball, Craig Hughes and Marcus Gordon would all be at work tomorrow, Saturday 22 August 2009. · Probuild are expecting the relocation of the amenities block to the B1 basement area to proceed over the weekend. The relevant contractors were all expected to attend that work. · The scheduled work to remove the Alimak this weekend is expected to proceed, involving the relevant subcontractors. The scaffolders involved in relation to that work are also expected to attend. · Following the Fair Work Australia order, he advised the site representative for CFMEU, Mr Reid, of the outcome. Mr Reid said that's what he would expect the outcome to be. He did not indicate in any way that the workers would not be at work tomorrow. He did not indicate in any way that the workers would not be at work on Monday. He (Mr Wolf) did not have any reason to believe that the workers would not be at work tomorrow - that is Saturday. He did not have any reason to believe they would not be at work on Monday. · So far as evidence that Mr Graham Pallot would give that the CFMEU is complying with the orders issued by Fair Work Australia, Mr Wolf commented "it's yet to be demonstrated". However, he had no reason to disagree with the proposition that the CFMEU is complying with the orders issued by Fair Work Australia. 8 In re‑examination, Mr Wolf stated: · There is no reward at all for Probuild for finishing their work on schedule, but there is a detriment in that liquidated damages apply if the project is not completed on the agreed contract date. · The relocation of the amenities out of the Wellington building into the actual main tower on the B1 basement was planned up to two months ago to facilitate the redevelopment of a heritage building within the project area. · Notwithstanding the objection of counsel for the respondents, that this was allowed, the witness was permitted to give some further evidence concerning instances in which Mr McDonald had attended at 140 William Street since the letter of October 2008, one event was 2 February 2009. Another was on 15 January 2009 and the other was on 24 June 2009. On 15 January 2009 there was a termination of concrete pour, on 24 June 2009 there was some industrial action but Mr Wolf could not recall exactly what the action was on that particular occasion. 9 Counsel for the respondents was permitted, in the circumstances in which the evidence in re‑examination had developed in relation to visits by Mr McDonald to the work site, to ask some further questions. He confirmed that in January 2009, Probuild commenced proceedings in the Industrial Relations Commission (as it then was) alleging unlawful industrial action and sought s 496 orders as a result of Mr McDonald's conduct. However, he could not recall instituting proceedings in respect of the February 2009 incident and did not believe that proceedings had been instituted in respected of the June 2009 incident.

consideration of application for interim injunction 10 The application for an interim injunction is made by the Commissioner pursuant to s 39 of the Act. 11 Section 39(1) provides that: (1) If, on application by the ABC Commissioner or any other person, an appropriate court is satisfied that unlawful industrial action is: (a) occurring; or (b) threatened, impending or probable; then the court may grant an injunction in such terms as the court considers appropriate. 12 Section 39(2) permits the Court to grant an "interim injunction" pending determination of an application under subs (1). 13 Section 39(3) makes it plain that the power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: (a) whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and (b) whether or not the defendant has previously engaged in conduct of that kind; and (c) whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind. 14 In my view it is clear that an injunction, including an interim injunction of the type here sought, is a statutory injunction that may only be granted under s 39 on the application of the Commissioner if unlawful industrial action is either occurring or threatened, impending or probable. 15 While the Court may grant an injunction whether or not the circumstances described in s 39(3)(a), (b) or (c) exist, the circumstances in s 39(3) are not of themselves sources of power that justify the grant of an injunction. Rather, they empower the Court to grant an injunction in circumstances where the usual principles governing the grant of injunctions at equity might suggest an injunction should not be granted: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 (Cardile). For example, whereas at equity the grant of a quia timet injunction, to prevent threatened harm, might on some tests only be granted if harm is imminent, s 39(3) modifies any such requirement. As to the circumstances in which a quia timet injunction might go, see Spry, The Principles of Equitable Remedies, (7th ed, Lawbook Co., 2007) pp 377 - 382. In other words, the touchstone for the Court's power to grant an injunction under s 39 is satisfaction that unlawful industrial action is occurring or threatened, impending or probable as set out in s 39(1). 16 The expression "unlawful industrial action", which is also action prohibited by s 38 and the subject of a Grade A civil penalty, is defined by s 37 of the Act as follows: Building industrial action is unlawful industrial action if: (a) the action is industrially‑motivated; and (b) the action is constitutionally‑connected action; and (c) the action is not excluded action. (emphasis in original) 17 To win an interlocutory injunction under the general law, it is well understood that the applicant needs to establish a serious case to go to trial and address the question of where the balance of convenience or justice lies in the circumstances of the case. I consider these factors are also relevant to the grant of a statutory interim injunction under the Act. Under the general law, the adequacy of a remedy in damages if an injunction is not granted, is also taken into account, where rights may be interfered with. Here, the Commissioner is not a person who can claim damages under the Act, but the Commissioner can seek compensation for others (such as Probuild) and pecuniary penalties. 18 In Australian Securities and Investments Commission v Mauer‑Swisse Securities Limited (2002) 42 ACSR 605, Palmer J reflected on the power of a court to issue an interim injunction pursuant to s 1324(4) of the Corporations Act 2001 (Cth) (CA). At [16] Palmer J expressed agreement with the earlier observations made by Austin J in Australian Securities and Investments Commission v Parkes (2001) 38 ACSR 355 (Parkes) and Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 (Sweeney) to the effect that the source of the injunction power in s 1324 is statutory, and so additional to and not merely ancillary to the inherent equitable jurisdiction of the Supreme Court of New South Wales to grant injunctions, so that discretionary factors influencing the exercise of that power were to be found mainly, if not entirely, within the framework of the statute and its associated legislation. Palmer J at [36] summarised the principles that he drew from the authorities: · the jurisdiction which the Court exercises under CA, s 1324 is a statutory jurisdiction, not the Court's traditional equity jurisdiction; · parliament has made it increasingly clear by successive statutory enactments that the Court, in exercising its statutory jurisdiction under s 1324, is not to be confined by the considerations which would be applicable if it were exercising its traditional equity jurisdiction; · among the considerations which the Court must take into account in an application for an injunction under CA s 1324 are the wider issues referred to by Austin J in Sweeney and Parkes and other authorities that may be gathered under the broad question whether the injunction would have some utility or would serve some purpose within the contemplation of the CA; · these considerations are to be taken into account regardless of whether the application is for a permanent injunction or an interim injunction under the CA; · where an application is made under s 1324(4) by ASIC rather than a private litigant, the Court is more likely to give greater weight to the broader question whether the injunction would serve a purpose within the contemplation of the CA; · where there is an appreciable - that is, not fanciful - risk of particular future contraventions of the CA by the defendant, it would serve a purpose within the contemplation of the CA that the Court not only grant a permanent injunction, but in an appropriate case, an interim injunction restraining such conduct; · although the question whether there is a serious question to be tried and where the balance of convenience lies will not circumscribe the Court's consideration in an application for an interim injunction under s 1324(4) of the CA, the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the Court, even where the protection of the public is said to be involved; · the balance of convenience will be viewed differently according to whether the applicant, under s 1324(4) of the CA is ASIC or a private litigant. Where ASIC is acting to protect the public interest, the absence of an undertaking as to damages, exempted by s 1324(8), will usually be of little consequence. 19 In Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd (2003) 48 ACSR 249 at 255, Barrett J at [24] noted there may be some debate about Palmer J's previous observations in relation to the injunctive power, but at [25] his Honour observed that: It seems to me that the statutory nature of the s 1324(4) jurisdiction and the words of the legislation ('Where in the opinion of the Court it is desirable to do so'), mean that the court is not constrained by the traditional methods of equity. But there can be no doubt that those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory role ASIC plays and the wider question of what is 'desirable' in the statutory context. 20 It seems to me that these two authorities in particular, when read in the light of the observations of the joint judgment in Cardile referred to above, provide appropriate guidance to the exercise of power of the Court under s 39 of the Act to grant an injunction, including an interim injunction. 21 In my view, the substantive power to grant an injunction under s 39 of the Act, and the general design of s 39 reflects the type of statutory injunction power that is found in s 1324 of the CA. The wording of s 39(2) of the Act, whereby "if, in the opinion of the Court it is desirable to do so" the Court may grant an interim injunction, is quite similar to that used in the CA for a similar purpose. The removal of constraints that might govern the grant of an interim or interlocutory injunction at equity by s 39(3) again emphasises the breadth, but also the special nature of the statutory injunction power created by s 39 of the Act. Further, as in the case of the CA, the statutory injunction under the Act may be sought by both a government agency, the Commissioner, as well as "any other person". The Commissioner plainly has special functions under the Act, as set out in s 10 of the Act. In that regard the functions of the Commissioner have a particular public purpose that may generally be equated with that of ASIC under the CA. By s 76 of the Act the Commissioner is not required to give an undertaking as to damages, if an applicant is in court proceedings under s 39 (or s 49) of the Act. 22 Applying these considerations generally, questions arise concerning how strong or weak a case is put forward, as well as issues of prejudice, financial and otherwise to the parties if an interim injunction is not granted and whether compensatory orders will or might be an adequate remedy. It also must be borne in mind that the grant of an injunction at any time and particularly an interim injunction, is a serious step for a court to take, and that is because it has the real potential to interfere with the existing rights of individuals or organisations on both sides of a dispute. One only has to have regard to the breadth of the proposed interim injunctions that are asked for in this case to appreciate this observation. 23 So far as the fact finding exercise in relation to the present application for interim relief is concerned, there is evidence before the Court that could lead to a finding that the CFMEU through Mr McDonald has engaged in unlawful industrial action on 20 and 21 August 2009. It is not necessary for the Court to make any definitive findings at this stage of the proceedings, but the conduct of Mr McDonald apparently on behalf of the CFMEU in encouraging workers to leave the project site on Thursday 20 August 2009 and not return until Monday 24 August 2009, would appear to constitute "building industrial action" as defined by s 36(1)(d) of the Act. Given the evidence at this point that the blockage in the amenities was being or had been repaired, which was acknowledged by Mr McDonald at his meeting with Mr Wolf, may lead to the conclusion that the action was not based on a reasonable concern by employees about an imminent risk to their health or safety, which is one of the circumstances which will make employees actions fall outside the expression of building industrial action under s 36(1)(g)(i) of the Act. The action, on the face of it, appears to be "constitutionally‑connected action" within the definition of that expression provided by s 36(1)(a). On the face of the materials put forward at this stage, it may also be said that the action taken is "industrially‑motivated" within the definition provided by s 36(1)(d) in that it is action that includes the purpose of disrupting the performance of work. Additionally there is no material before the Court presently to suggest that the action is "excluded action" as that expression is defined by s 36(1) of the Act. In summary, the action complained of would appear to satisfy the definition of unlawful industrial action provided by s 37 of the Act. 24 The evidence before the Court importantly shows that at about 2pm today, Friday 21 August 2009, an order was made by Fair Work Australia requiring the CFMEU and employees to stop industrial action and not engage in industrial action. The CFMEU was to advise all its delegates of the order and that the order requires employees to stop and not engage in industrial action. The evidence put on, on behalf of the CFMEU, to which I refer further below, suggests that the CFMEU is respecting and complying with the Fair Work Australia order. Further, Mr Wolf on behalf of Probuild had no particular reason to suggest that the CFMEU and its members engaged on the project site would not respect the orders made and return to work forthwith. 25 In these circumstances, there is for me a real question whether the unlawful industrial action identified by the Commissioner in this case, is still "occurring", even if it was occurring at material times on Thursday 20 August 2009 and the morning of Friday 21 August 2009. There is also a question, in those circumstances, whether it can be said that any such industrial action is threatened, impending or improbable. I entertain real doubt, in light of the Fair Work Australia order and the CFMEU response to it, whether such industrial action is occurring; certainly I consider it is no longer threatened, impending or probable. 26 If the facts were different in this case and there had not been the intervening event of the order made on Friday 21 August 2009 at about 2pm, then I think this would be quite a different case. I am concerned, however, as I indicated in the course of argument, that the statutory circumstances about which I have to be satisfied under s 39(1) of the Act have not been made out. I am doubtful, although I do not finally base my ruling on this point, that there is an allegedly unlawful industrial action occurring. But even if one assumes that there is, I think it is very difficult to say that it is threatened, impending or probable in light of the order made by Fair Work Australia this afternoon and the expressed commitment of the CFMEU to comply with it. 27 I understand the submissions that senior counsel makes on behalf of the Commissioner, that the CFMEU's statement in Mr Pallot's affidavit is a broad statement. I think the practical point is that the CFMEU's statement of intention to comply with the orders of Fair Work Australia is probably still finding its way through to the workers, but its' statement of intention is there, it is unequivocal. If the facts turn out to show that it was disingenuous, then that would be an important consequence, but as it stands, I consider the conditions or circumstances for the exercise of the statutory injunction power, under s 39, if they are arguable, are not at the strong end of the scale. 28 When it comes to considering the balance of convenience, or the justice of the case, and the prejudice that might seem to exist if the unlawful industrial action is still occurring, again the order of Fair Work Australia seems to me, in the circumstances of this case, to be a very important intervening factor. That order has been made, and although it is not exactly in the same terms as the terms of the interim injunction sought, it is to the same effect, in substance. It is appropriate to refer to the terms of para 3. It is headed Industrial Action Must Stop. Paragraph 3.1 says: The Union and the employees bound by this order must stop and not engage in industrial action. It is very blunt. Paragraph 3.2 adds: The Union shall advise all its delegates working on the One40 William Project Site, at 140 William Street, Perth that this order requires the employees bound to stop and not engage in industrial action. 29 The union evidence, by virtue of the affidavit of Mr Graham Pallot, which has been read and received into evidence today, shows that the CFMEU's intention is to comply with the order and that Mr Pallot has spoken with the organisers who have responsibility for this project site and confirmed with them that advice to members is that each should comply with the order. I appreciate that there might be some fine wording in all of that, but I consider in all the circumstances, that the fact that the CFMEU unreservedly expresses its intention to comply with the order militates against the grant of an interim injunction. 30 It is also relevant to note that, if the Commissioner can make out a case on the main application, it is possible that compensation and pecuniary penalties may be imposed on the respondents including in favour of Probuild, the most directly affected party. This, in the present circumstances, would suggest an adequate, alternative remedy to an interim injunction. 31 Taking all these factors into account, in my discretion I would refuse to grant an interim injunction.

conclusion and order 32 For these reasons I dismiss the application for an interim injunction. The main action remains on foot and, of course, if circumstances should develop in some other way, there might be fresh grounds for interim relief to be sought. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate: Dated: 2 September 2009 Counsel for the Applicant: Mr KM Petit SC

Solicitor for the Respondents: Construction, Forestry, Mining and Energy Union