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

REASONS FOR JUDGMENT 1 This matter arises from strike action taken by employees of several contractors on 5, 6, 8, 24 and 25 June 2009 at a high rise building site at 915 Hay Street, Perth (Site) which is controlled by Diploma Constructions (WA) Pty Ltd (Diploma). 2 In its substantive application filed in June 2009, the applicant (the ABCC) seeks relief in respect of alleged breaches by the respondents of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), a civil penalty provision, which prohibits a person engaging in unlawful industrial action. 3 On 29 September 2009 I delivered reasons for judgment in relation to the application by the ABCC for an interlocutory injunction to restrain the respondents from engaging in further unlawful industrial action in which I concluded that interlocutory relief ought be granted: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092. 4 At that time, however, I deferred making orders as the respondents indicated that they wished to be heard on the form of those orders. 5 I heard the parties in this respect on 16 December 2009. 6 The applicant seeks relief in terms that will restrain the respondents from unlawful conduct in respect to all building work being performed for Diploma throughout Western Australia. 7 The central submission of the respondents is that the interlocutory relief ought be confined to restraining unlawful conduct at the Site. This is so, they submit, because the originating Application, properly construed, seeks relief only in relation to the Site. This turns on the definition of "Diploma Workers" in para 1 of the Application under which declarations of contravention are sought. 8 The respondents correctly submit that a Court, in granting interlocutory injunctive relief, should generally grant the minimum relief necessary to do justice between the parties: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 409. The question then is what will achieve that result in this case between these parties. It is important, in this respect, to bear in mind that the applicant is not a private litigant. As I pointed out in my earlier reasons at [153]: The ABCC's application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply. It is not in respect of any interference with anylegal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations 38 FCR 248 per French J at [268]. 9 As I observed in CBI Construction Pty Ltd v Abbott (2008) 177 IR 134 at [22]: Consideration of the main object is a relevant consideration to the construction and application of the provisions of the BCII Act: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]; Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 at [50]-[51]. 10 The source of power I identified in my reasons at [30]-[33] and [156] as sufficient for present purposes was s 49(1) and (3) of the BCII Act. 11 As I said at [32]: The power to grant an injunction, including an interim injunction, under s 49 is additional to the Court's power under s 39 and, unlike the power in s 39, is not predicated on the Court's satisfaction that unlawful industrial action is occurring or is threatened, impending or probable. Rather, the Court may make any order "that it considers appropriate". 12 The minimum relief necessary to do justice between the parties will equate to what is "appropriate". 13 The question of what is appropriate also arises were the power sourced in s 23 of the Federal Court of Australia Act 1976 (Cth). In Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 622, Deane J said that: Section 23 of the Federal Court of Australia Act 1976 (Cth) confers upon the Federal Court a broad power to make orders of such kinds, including interlocutory orders, as it "thinks appropriate". Wide though that power is, it is subject to both jurisdictional and other limits. It exists only "in relation to matters" in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the "kinds" of order, whether final or interlocutory, which are capable of properly being seen as "appropriate" to be made by the Federal Court in the exercise of its jurisdiction [emphasis added]. 14 The respondents submit that the relevant subject matter, in respect of which relief ought appropriately be granted, concerns only the actions of the respondents in relation to the 'Diploma Workers' as defined in the Application, who were required to perform building work at the Site. 15 Further, the respondents submit that the only evidence concerning other Diploma sites adduced by the ABCC at the hearings on 17 and 20 July 2009 was from Mr Paul Day, project manager of the construction project at 915 Hay Street, Perth. Mr Day gave evidence by statement that he heard the third respondent, Mr Michael Buchan, say he was going to "raise a petition for all of the Diploma sites with regards to general safety concerns and send it to John Norup (a Diploma Director)". 16 By contrast, Mr Buchan gave evidence by statement that it was Mr Wes Francis, the Diploma Site Manager, who suggested that there should be a petition when he (Buchan) was telling the meeting about "issues" on other Diploma sites. 17 The ABCC submits that it is not germane whether it was Mr Francis or Mr Buchan who first suggested such a petition. What is significant, he submits, is that before the petition was mentioned by anyone, Mr Buchan had begun addressing issues on other sites, a matter which appears clearly from Mr Buchan's affidavit. 18 Paragraphs 24 and 25 of his affidavit are in these terms: 24. As I was telling the meeting about issues on other Diploma sites, Wes Francis, the Diploma site manager, suggested that we get a petition up. 25. In respect of the rest of paragraph 15, it is correct to say that I was discussing issues, not just at Hay Street, but at other Diploma sites. (Emphasis added) 19 This, the ABCC submits, evidences an implicit threat that there would be action of some sort on all or on other Diploma sites. As I said at [59] of my earlier reasons Mr Buchan did not expressly deny what he is alleged to have said but only that it was Mr Francis who (first) raised it. 20 The respondents submit that, in any assessment of this evidence, neither version is anything more than a comment about raising a petition of complaint and that such comments, even if followed up with a petition, could never amount to unlawful industrial action on other sites, without more. They further contend that there was no evidence that such a petition was ever raised and that Mr Buchan was not cross-examined on the point. 21 Accordingly, the respondents submit that extending the terms of the injunction to all building sites operated by Diploma is: (a) more than is just or appropriate; (b) more than the minimum relief necessary to do justice between the parties; (c) beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue as set out in the Application; (d) not supported by any evidence adduced by the applicant related to either a serious issue to be tried (because that is limited in the Application to the events at the Site), or the balance of convenience.