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[2024] FCA 528
Federal Court of Australia
2024-05-15
Logan J
Original judgment source is linked above.
PENAL NOTICE TO: CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION (INCLUDING ITS DELEGATES, OFFICE HOLDERS, EMPLOYEES, OR OTHER REPRESENTATIVES), DYLAN HOWARD, HAYDEN TURNER-DAVEY, JAMIE PORTER, DEAN MATTAS, EBEN COX, MATTHEW VONHOFF, DEAN RIELLY, HOANI EDWARDS, JADE INGHAM, TREVOR SINCLAIR AND JOSHUA THOMPSON. IF YOU (BEING THE PERSONS BOUND BY THIS ORDER): (a) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR (b) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO, YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT. ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED. UPON THE APPLICANT, BY ITS COUNSEL, UNDERTAKING: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and (b) To pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.
LOGAN J: 1 B.M.D Constructions Proprietary Limited (B.M.D) is, with Georgiou Group Proprietary Limited, presently engaged in a joint venture in respect of the upgrading, by duplication, of the Centenary Bridge across the Brisbane River. That bridge carries the Centenary Highway across the Brisbane River towards Jindalee and further west (the project). The undertaking of those works in respect of the project is pursuant to a contract between the joint venturers and the State of Queensland via the state's Department of Transport and Main Roads. 2 An application was filed earlier today by B.M.D, whereby it seeks the following declaratory relief against the Construction, Forestry and Maritime Employees Union (the Union) and certain named individual respondents: 1. In this order: The Project means the construction sites established for the Centenary Bridge Upgrade Project at the date of this order, being the fenced construction site running parallel to the western side of the Centennial Highway between Sinnamon Road and Kenmore Road. Point of Entry means any point of entry to (or exit from) the Project, and includes any gate, turnstile, entrance way, driveway or door. Visitor Induction means the electronic visitor induction process mandated by B.M.D for all visitors attending The Project and amended from time to time. 2. The First Respondent (whether by its delegates, office holders, employees, or other representatives) and the Second to Tenth Respondents are prohibited from: (a) physically obstructing or physically impeding the free movement of goods or people to and from the Project or a Point of Entry; (b) aiding, abetting, counselling, procuring or inducing any person to engage in the conduct referred to in orders 2(a) above. 3. The First Respondent must forthwith: (a) notify officers and employees of the First Respondent's Construction and General Division, Queensland and Northern Territory Divisional Branch (CFMEU Qld Branch), and its delegates or agents of the First Respondent who are employed or engaged to work at the Project, of: 1. the existence and terms of the order; and 2. the withdrawal of any direction, authorisation or encouragement by the First Respondent for any of its members employed to work at the Site (Relevant Employees) to engage in the action at order 2. (b) issue and distribute (including but not limited to posting, and maintaining for the duration that the order is in force, on the home pages of the Respondent and of the CFMEU Qld Branch (https://www.cfmeu.org.au/ and https://www.qnt.cfmeu.org) to the Relevant Employees a communication which: 1. includes a copy of this Order; 2. states that the action defined in this Order is to cease and any prior authorisation of such action is cancelled. 4. The Second to Seventh and Ninth to Twelfth Respondents must not exercise any right of entry at The Project, in accordance with Chapter 3 Division 4 of the Fair Work Act 2009 (Cth), or Part 7 of the Work Health and Safety Act 2011 (Qld) unless they undertake the Visitor Induction. 5. The requirement under Rule 41.07 of the Federal Court Rules for personal service of this Order on the First Respondent is dispensed with and, instead, service of this Order upon the First Respondent is permitted by forwarding a copy of it by email or facsimile transmission addressed to the Secretary of the CFMEU Qld Branch. [emphasis in original] 3 The background against which such relief is sought is related in two affidavits filed today, one of B.M.D's construction manager, Mr Gary Grant (Mr Grant), and the other of its solicitor, Mr Damian John Hegarty. From these, as well as a viewing of audiovisual footage, which comprises exhibit GG2, referred to in [30] of Mr Grant's affidavit, which is the audiovisual file for which has become exhibit 1 during today's hearing, it emerges that, prima facie, yesterday there occurred on the project site what may be regarded as the latest manifestation of differences which have occurred between the Union and B.M.D. 4 The differences are with respect to the imposition by B.M.D of a requirement that those seeking to enter the project site, including those who, at least purportedly, seek to do so in the exercise of a permit granted under the Fair Work Act 2009 (Cth) (Fair Work Act) (which enables the exercise onsite of occupational health and safety rights otherwise granted under s 117 of the Work Health and Safety Act 2011 (Qld) (WHS Act)), to undergo a particular site induction upon entry and to sign digitally acknowledgement of having undertaken such induction. 5 The work site for the project is, by the very nature of the project, elongated and relatively narrow. It spans some two kilometres in length. It embraces the Jindalee side of the Brisbane River to the south and the Kenmore side of the Brisbane River to the north. There are six access gates to the site. The site is confined in the sense that access is via these gates. Mr Grant offers detail in his affidavit as to the location of those gates. 6 Between 17 April this year and yesterday, critical path works in respect of the project were being undertaken. These entailed the pouring of concrete pylons for the duplication of the Centenary Bridge to sit upon. Mr Grant states that such tasks must be finished on time to complete the entire project on time, as they are essential elements. Obviously enough, given that the project entails the duplication of a bridge, if there are no pylons, there cannot be a bridge to sit upon them. The pouring of the concrete is an essential part of the construction of the pylons. 7 There are numerous contractors. There are, and have between 17 April and yesterday been, numerous contractors, as detailed by Mr Grant in his affidavit, working to B.M.D and its joint venturer to the end of the completion of the project. Unsurprisingly, but nonetheless as related by Mr Grant in his affidavit, these contractors collectively use a variety of plant and equipment to complete their activities. Such plant and equipment includes cranes, excavators, piling rigs, compactors, telehandlers, barges, tugboats and water trucks. Necessarily, this involves a great deal of coordinated activity. It also involves the receipt of deliveries of items, such as formwork, reinforcing steel and concrete, to construct the pylons. In turn, and as Mr Grant also relates, with respect, unsurprisingly, it is very important that those at the site understand what other trades are doing and how their particular activities will interface one with the other. It also entails specific measures being taken to facilitate particular deliveries or movement of plant on a particular day. The nature of the project is such that this requirement is ever-changing, in accordance with progression of the works. 8 Ever since 17 April 2024, and episodically, there have been visits to the project site by various officers or officials of the Union. These visits have, at least purportedly, and as I have mentioned, been pursuant to the WHS Act, but have entailed differences as between B.M.D's officers and Union officers or officials as to the requirements for such access lawfully to be undertaken. On occasion, this has additionally entailed, as Mr Grant relates, the presence onsite of inspectors appointed under the WHS Act, as well as members of the Queensland Police. 9 There was an endeavour to resolve differences by conciliation in the Queensland Industrial Relations Commission and, for that matter, for a hearing commencing earlier this week to be fixed to occur in that commission. For one reason or another, that particular hearing has been vacated. One might, with respect, question, at least, the continued utility of a hearing in the State commission as opposed, perhaps, to further conciliation either in that commission or in the federal conciliation and arbitration commission, presently known as the Fair Work Commission (Federal Industrial Commission). That is because, having regard to the relief sought in the present case, there may be potential for an embarrassment, as between the State commission and this Court, in terms of overlapping evidentiary foundation and the seeking in this Court of, amongst other relief, civil penalties. I do, though, take into account, in deciding whether or not to grant any interim relief, that there has been an attempt at conciliation in a specialist forum, and that this has not resolved differences. 10 Of most immediate concern to B.M.D, and the apparent catalyst for the seeking urgently of interim relief, are events which occurred yesterday. In summary, and as revealed by the affidavits, what is said to have occurred is that a Mr Hayden Turner-Davey and a Mr Jamie Porter, each of whom is said to be an official of the Union and who are respectively the third and fourth named respondents, and who hold an entry permit issued under the Fair Work Act, purported to exercise a right under s 117 of the WHS Act to enter the project site. B.M.D alleges that in so doing, they were seeking to exercise a state OHS right within the meaning of s 494 of the Fair Work Act. It is further alleged that in so doing, they were exercising, or seeking to exercise, rights in accordance with Pt 3.4 of that Act, such that their conduct was regulated by, presently materially, s 500 of that Act. Prima facie, in a way in which I shall shortly explain, what is disclosed by the affidavit material, is that it is also inherently likely that s 500 has application. Included in B.M.D's site management plan for the project is a requirement that visitors to the site complete a site induction, which is said to be brief, and electronically sign an acknowledgement that they have done so. 11 The affidavits disclose that Messrs Turner-Davey and Porter were each asked to complete such an induction prior to entering the site and that each of them refused. B.M.D alleges that such a request was reasonable and that it was a reasonable request to comply with a work health and safety requirement applicable to the project site, in accordance with s 128(a) of the WHS Act, and, further, a reasonable request to comply with an occupational health and safety requirement by the occupier of the project site, in terms of s 499 of the Fair Work Act. It will be immediately apparent from the bifurcation in the allegation of the potential for embarrassment as between the State industrial commission in any hearing and the further exercise by this Court of the jurisdiction invoked by B.M.D. 12 The reasonableness or otherwise of the particular induction and related request, of course, would fall for determination at trial. As a general proposition, it is established by authority recently in the Full Court, Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2024] FCAFC 1, that a request to complete site inductions and site registers can and were, in the circumstances of that case held to be, reasonable. 13 The affidavits filed disclose that Messrs Turner-Davey and Porter refused to complete the induction and that they remained on the public footpath between project site traffic controllers and a concrete truck, blocking its entry. 14 Later yesterday, at about 1.29 pm, between 30 and 40 individuals, many said to be wearing union-branded clothing, walked along Sinnamon Road, blockading the entrance to the project site and preventing access to it until about 4 pm. Part of that event is recorded in the audio-visual footage (exhibit 1), which I have viewed in open court. At about 2.50 pm, during the course of this blockade, a Mr Dylan Howard, who is named as second respondent, advised officers of B.M.D that if Messrs Turner-Davey and Porter were permitted to enter the project site without complying with visitor entry requirements, the cement trucks which were due to enter the site would be allowed through. 15 B.M.D's case is that the blockade described was organised collectively by the Union and other named respondents to pressure it to permit Messrs Turner-Davey and Porter to enter the site without complying with the site entry requirements. B.M.D alleges that Messrs Turner-Davey and Porter each behaved improperly in terms of s 500 of the Fair Work Act in that they breached the standards of conduct that would be expected by a person in the position of the alleged defendant by reasonable persons with knowledge of the duties, powers and authority of the position and circumstances of the case. 16 B.M.D's case is also that, in organising and participating in the blockade and support of the entry without site induction of Messrs Turner-Davey and Porter, each of the other individual respondents was involved in the contravention, in terms of s 550 of the Fair Work Act. B.M.D further alleges that by virtue of s 793 of that Act, the acts or omissions of the permit holder are taken to be the acts or omissions of the Union. Thus, part of its case is that although the Union is not obliged to act in accordance with s 500, by undertaking the acts or omissions or its representative, it becomes knowingly concerned in a contravention by the operation of s 550 of the Fair Work Act. 17 B.M.D also alleges that the conduct of the Union in engaging in the blockade in concert with individual respondents prevented access to the project site by concrete mixer trucks. It is said in the affidavits that the concrete was being supplied by Boral and was to be used by B.M.D in a concrete pour on the site. It is said that the conduct alleged had the effect of preventing B.M.D from capping a pylon. That is said to be conduct in contravention of s 45D of what, these days, is called the Competition and Consumer Act 2010 (Cth) (hitherto the Trade Practices Act). That is said to have occurred because it prevented B.M.D from obtaining services from Boral and the latter's related entities and also prevented B.M.D from obtaining concrete pumping services. The latter is also referred to in the affidavit material. 18 It is also said in the affidavits, and alleged as part of B.M.D's s 45D case, that a consequence of the inability to undertake, yesterday, the concrete pour's completion is that remedial works will need to be undertaken. As presently estimated, these are said to be at a cost of at least $300,000. That cost will not be able to be recovered under the contract, so it is said. 19 It is also alleged that the related removal of the partly completed pylons and their completion will result in project work progression being delayed by up to two weeks. 20 Related to the events said to have occurred is an allegation that the respondents have engaged at common law in an interference with contractual relations. 21 Yet further, it is alleged that the blockade conduct constituted a public nuisance by obstruction or besetting. 22 The requirements for the granting of interlocutory injunctive relief were the subject of exposition by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (ABC v O'Neill). Factors which thereby arise for consideration are whether or not there is shown a prima facie case (not in the sense of a case more likely than not to succeed, but one which is sufficient to warrant the granting of an interlocutory or interim injunction), together with the balance of convenience. Related to the latter is whether or not damages would be an adequate remedy. 23 B.M.D offers the usual undertaking as to damages by its counsel. 24 B.M.D must show a sufficient likelihood of success to warrant a preservation of the status quo. It seems to me that its affidavits, as considered in conjunction with the audiovisual footage, do that at least on an interim basis. I am particularly conscious that the application has come on urgently and, related to that, that the Union has had very little time indeed to engage factually, if it chooses, with the case as put in the affidavits upon which B.M.D has relied. 25 The individually named respondents have not yet been served. Such considerations moved Jessup J, in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2009) 178 IR 458 (Williams), to fix a very short return date for the interim relief which, in the circumstances of that case, he was disposed to grant. 26 Strictly, the application, insofar as relief is sought against the Union, is not ex parte, but it does have the shortness of notice feature I have described. It is obviously ex parte in relation to individual respondents. 27 It is said of the undertaking, on behalf of the Union, that its worth is moot given that B.M.D's financial position is not described in the affidavits. In terms of precise data, that is true, but it is, with its fellow joint venturer, a party to what, on any view, is a major construction project for the State. It seems to me inherently unlikely that the State would consign such a project to a company, B.M.D, which it regarded as of no worth. 28 It is also put, on behalf of the Union, that damages would be an adequate remedy. It is further so put, in developing that, that the effect of the delay, if any, on final completion is not clear. I do not accept these submissions, even on the material to hand. There is reference to a two-week delay being engendered, and it seems to me, inferentially, inherently likely that there may be a delay in completion. 29 I bear in mind that this particular bridge duplication is a duplication of a significant river crossing. I consider that I am entitled judicially to notice the existence of major population centres, and thus commuters, connected by this bridge: s 144(1)(a), Evidence Act 1995 (Cth). Related to that, it seems to me there is a singular public interest in its due completion according to law, which includes its due completion in accordance with the contract, to which B.M.D, its fellow joint venturer and the State are parties. It is an important public transport corridor that is involved. That being so, I am not at all persuaded that damages would be an adequate remedy. To the contrary, my view is that, overwhelmingly, the balance of convenience, taken in conjunction with what I accept to be an established prima facie (in the sense of ABC v O'Neill), favours the granting of injunctive relief, but for the present on a short-term, interim basis, for like reasons to those given by Jessup J in Williams. I therefore propose to limit temporally the injunctive relief to midnight next Thursday. That will allow time for notification to occur in respect of individual respondents and for the respondents generally to make such factual response and legal submissions as they may be advised. 30 It was put on behalf of the Union, and in keeping with a duty of counsel, even though not presently instructed to appear for individual respondents, that order 2 really did nothing more than require obedience to the law. On one view that is so, and it is true that there are cases, which counsel at least caution in granting such orders, but there is no settled prohibition against the making of an order in terms of paragraph 2, if it is considered that it will be of assistance in the preservation of a status quo pending the exercise of judicial power. That consideration influences me to make an order in terms of paragraph 2. 31 The parties have proposed, in the event that relief were granted, that there be particularisation, at least in terms of the number of alleged contraventions by B.M.D by noon on Monday. It is, I consider, in the interests of justice that this occur. It is important, firstly, for B.M.D to give some precision, even in advance of the imposition of a formal requirement for delivery of a statement of claim, to its contravention allegations. It is, if anything, even more important for the Union and individual respondents to understand what are said to be the number of contraventions. That will, obviously enough, inform thinking as to the degree of financial jeopardy in which the Union or, as the case may be, individuals may find themselves, if, ultimately, B.M.D is able to establish the civil penalty side of its case. 32 B.M.D has already, to date, given such precision as it can in terms of immediate remedial cost. It is clear enough from the affidavits that that may not be the metes and bounds of a damages claim. If anything, it looks as if the damages claim would be at least in the amount specified in respect of the remedial works. As to why I have concluded that the facts, as alleged, prima facie disclose the existence, apart from the Fair Work allegations, of a case, there exists here, in my view, on the affidavits, the likelihood of a loss which is of substance, not trivial. Thus, in being persuaded that the s 45D aspect of the case warrants the granting of injunctive relief, I am moved by like considerations to those set out by Middleton J in Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191. 33 As to the public nuisance aspect of B.M.D's case, the facts established prima facie disclose a form of blockading or picketing, which goes beyond that which is a mere peaceful public display of sentiment and transgresses into the realm of interference with rights of persons wishing to enter the project site in the way described by Murphy J in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, at 388 to 389. 34 Also controversial this afternoon is whether the relief sought in paragraphs 3(a)(ii) and 3(b)(ii) should be granted. Once the Court's jurisdiction is invoked, and it has been, a very wide charter, indeed, to craft relief necessary in the circumstances of a given case is granted by s 23 of the Federal Court of Australia Act 1976 (Cth). Such is the breadth of that charter, I accept that it would be possible to grant the particular relief sought in these particular identified paragraphs. But I am not persuaded that, at present, it is necessary to grant that relief, as opposed to imposing on the Union the notification requirements as detailed in paragraphs 3(a)(i) and (3)(b)(i). In particular, it seems to me that anyone of reasonable intelligence and understanding, notified in accordance with those particular paragraphs, would understand that an order of this Court necessarily carried with it withdrawal of any Union directions or authorisations or encouragements hitherto in place. Indeed, it would be a foolish individual, who, without reasonable excuse, contravened an order of this Court, but particularly an order given in the circumstances I have related. The order will carry with it a penal notice, which will offer notification of the consequence of a breach without reasonable excuse of the order. That too influences me that it is not necessary to impose on the Union the relief sought in 3(a)(ii) and 3(b)(ii). 35 It was put on behalf of the Union, and I have taken into account, that the notification issuing distribution obligations sought should fall on B.M.D. My view, though, is that it is better that this obligation fall on the Union. I am not at present persuaded on the evidence that that the Union will act other than responsibly in conveying the order as directed. It seems to me that it may well be better, industrially, for the Union to do that, rather than for B.M.D. That is a considered value judgement. 36 Another considered value judgement, aired with the Union and B.M.D in the course of submissions, is the desirability, if possible, of resolving differences between them by conciliation. That, of course, has occurred to date. But it is better, in my view, that that not be regarded as a closed dialogue. It may be, given the federal dimension to this case, that further conciliation might better be conducted in the Federal Industrial Commission, if only because of a likelihood of greater familiarity of encounter with the interface between the Fair Work Act access requirements and those in state WHS legislation. 37 In making the order, I shall reserve liberty to apply without specifying, in so doing, a particular notice period, leaving it to the good sense and judgement of the parties as to the degree of notice which is reasonable in given circumstances. I should also reserve costs, if only out of an abundance of caution. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
SCHEDULE OF PARTIES QUD 245 of 2024 Respondents Fourth Respondent: JAMIE PORTER Fifth Respondent: DEAN MATTAS Sixth Respondent: EBEN COX Seventh Respondent: MATTHEW VONHOFF Eighth Respondent: DEAN RIELLY Ninth Respondent: HOANI EDWARDS Tenth Respondent: JADE INGHAM Eleventh Respondent: TREVOR SINCLAIR Twelfth Respondent: JOSHUA THOMPSON
B.M.D Constructions Pty Ltd
Construction, Forestry and Maritime Employees Union