Baulderstone Qld Pty Ltd v Construction, Forestry, Mining and Energy Union

REASONS FOR JUDGMENT 1 On Monday of this week, I made interim orders restraining conduct associated with an industrial dispute, which conduct was taking place on a building site at the Mackay Base Hospital. The applicant is the builder. Today I am entertaining an application for an extension of such interim relief pending trial. In order to justify the grant of interlocutory relief the applicant must demonstrate, firstly, that it has a prima facie case in the sense in which that term has been explained in recent High Court authorities, and secondly, that the balance of convenience favours the grant of such relief. The meaning of the term "prima facie case" may vary, depending upon the seriousness of the matters alleged and the likely consequences of the interlocutory relief. In Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156, the Full Court canvassed in detail the present state of the authorities. My decision today is informed by that consideration. 2 Many affidavits have been read before me. It would be difficult, in the time available, to analyse them all in great detail. I am committed to sitting in Darwin for all of next week. As I will be leaving for Darwin early on Sunday morning, I must dispose of this matter now. 3 The applicant's evidence suggests a course of conduct prior to, on and after 18 April this year which, it is submitted, should be construed as conduct designed to incite persons working on the Mackay Hospital site to withhold their labour in support of industrial action being taken by the first respondent against the applicant. There is also evidence of subsequent similar conduct at two other sites: the Australian Institute of Marine Science near Townsville (the "AIMS site") and The Prince Charles Hospital in Brisbane. The applicant is also carrying out building work on those sites. 4 The respondents have filed affidavits giving their versions of events. Broadly speaking, they suggest that rather than seeking to discourage people from providing their labour, they have been seeking simply to exercise their right of free speech by suggesting to workers that they should not enter the relevant site, or remain there for the purpose of performing their duties. 5 The context in which these events occurred appears primarily from the affidavits of Mr Winter and Mr Hughes. Mr Winter explained some aspects of the operation at the Mackay Base Hospital, indicating that there are, on the site at the present time, approximately 350 workers employed by sub-contractors and only four construction workers employed by the applicant, together with other staff employees. The first respondent, on behalf of those four employees, is engaged in negotiation of a new workplace agreement with the applicant. Those negotiations are not immediately relevant to the conditions and circumstances of employment of the subcontractors' workers. On 17 April 2012, Mr Winter attended a meeting with the first respondent. Also present were Mr Jade Ingham, the assistant state secretary of the first respondent, and a Construction, Forestry, Mining and Energy Union ("CFMEU") organizer by the name of Kane. Representing the first respondent were Messrs Olsen and Myles. Other members of the applicant's staff were present, as well as Mr Bell, a construction worker employed by Baulderstone, and an elected union representative on the site. 6 At the meeting Mr Ingham advised that he had addressed the workforce on site, including subcontractors and their employees, and that all subcontractors' employees on site fully supported the planned industrial action. In particular, he said: I have addressed the workforce. The CFMEU has the full support of all subcontractors in relation to protected industrial action that we have planned on site. All the workers are back at work now, but you need to know that if Baulderstone do not agree to the union's demands by the close of business today, the whole workforce will go out tomorrow. Baulderstone has brought this upon itself. 7 Mr Winter responded: Look, I am aware of the issues surrounding the re-negotiation of the Enterprise Bargaining Agreement. However, stopping work is not necessary as the issues are being sorted out at a higher level. These issues are beyond my influence, but stopping the project will hurt the project. If you do take action, you need to be aware that this site is on government property and within a working hospital so please don't disrupt the working operations of the hospital. We need to ensure that whatever happens we work reasonably together, as when all this is over we will still need to have a working relationship. 8 Mr Hughes said, concerning events on 17 April, that at about 9.00 am he was told by Mr Torralba that Mr Olsen and Mr Myles were on site talking to workers, including subcontractors, advising them that the union was calling a meeting on site at 9.30 am that morning. He spoke to Mr Ingham at about 10.43. Mr Hughes subsequently attended the meeting referred to in Mr Winter's evidence. He heard Mr Ingham say: Lee and Mike, just want to let you know that I just met the workforce this morning. I have obtained their support for the upcoming protected action that Baulderstone employees are going to take. The workforce has returned to work, except PKF employees. Mate, you need to know that if Baulderstone do not resolve our Enterprise Bargaining Agreement negotiations today then the boys will be going out tomorrow. 9 Mr Myles said words to the effect of: We have the full support of the building site. We will get what we want; we know that. 10 Mr Ingham continued: Look we have noticed a distinct change in the Baulderstone attitude since the takeover by Lend Lease. Baulderstone are now just a bunch of puppet masters. 11 According to Mr Ingham, Mr Winter replied much in the way that he indicated in his evidence. Mr Ingham said: Negotiations are taking too long. Civil negotiations have started a year ago and building negotiations have been tacked on to the end of that. 12 Concerning events on 17 April, Mr Ingham said that he attended the site at about 9.30 am and conducted a meeting, attended by about 350 workers. He said that he discussed legislative changes, sham contracting, workplace health and safety issues, and that CFMEU members were bargaining with the applicant for a new enterprise agreement. He said: I informed the workers that at some stage over the next few days, it was a "fair chance" that the Baulderstone employees would be taking protected industrial action. The CFMEU officials present - including myself - encouraged the persons who were present at that meeting, many of whom were contractors, to support the campaign of the Baulderstone employees for a new building works enterprise agreement. I said to the workers in words to the following effect: Some of the other builders have already signed the EBA. Baulderstone is not the problem; Lend Lease is the problem. CFMEU Members employed by Bauldies would appreciate your support in their campaign for the EBA. 13 Mr Ingham then said: At no time during the meeting did I encourage the workers present to take industrial action. 14 This leaves unidentified the support which he was seeking. He then spoke to Mr Hughes and subsequently attended the meeting to which I have previously referred. He said that he told Mr Hughes that: … it was likely that if there was no movement from Baulderstone in relation to the EBA negotiations that protected industrial action by Baulderstone employees was likely to occur, [and that] the protected action is not far away. I hope there is a phone call by the end of the day so we can resolve it before the boys take protected action." 15 The protected action was, of course, protected action by the applicant's four employees. Various other comments were made in connection with the matter. I should say that in his evidence, Mr Ingham did not distinguish between the meeting with Mr Hughes on 17 December and the later meeting at which Mr Winter was present. This does not matter for present purposes. 16 Mr Olsen, a union organizer employed by the first respondent, also gave evidence concerning the meetings on 17 April 2012. He said at paras 20 and 21 of his affidavit: 20 The purpose of the meeting was to advise Baulderstone that their employees would be taking protected industrial action on and from 18 April 2012. 21 Neither I or the other CFMEU officials provided Baulderstone with any advice regarding the intentions of the subcontractors as that was not a matter within our knowledge at that time. We also discussed with the Baulderstone management, the following issues: (a) that we intended to hold a peaceful demonstration outside the site in support of the workers who were taking protected industrial action; (b) what amenities would be provided by Baulderstone for those assembled there such as toilet and barbecue facilities; (c) the issues in dispute in the enterprise bargaining and how those issues could be resolved. 17 Reference to a peaceful demonstration does not emerge from some of the other evidence, but the expression may well have been used. However the meaning is uncertain. In particular, it is not clear whether Mr Olsen meant a peaceful demonstration by the four Baulderstone employees, a peaceful demonstration by other union members or a peaceful demonstration which was to involve workers other than the applicant's employees on the site. The point seems to be that nothing was said, at that stage at least, which would suggest that the union was intending to encourage non-employees of Baulderstone to refrain from entering the site or performing their duties. Mr Lowth, who appears to be the person referred to as "Kane", gave similar evidence, as did Mr Myles. 18 I turn to events on 18 April. Some of these events are disputed, but the main dispute between the parties is as to the proper construction to be put upon them. Mr Winter said that he was at work at about 6.55 am, when he was telephoned by Mr Hughes. Mr Hughes said that industrial action was commencing. Mr Winter received further reports from Mr Hughes and understood that most of the subcontractors and their employees had left the site. On Thursday, 19 April, he was given similar information. Mr Hughes said that shortly after his arrival at the site on 18 December, at about 5.30 am, he was told that union organisers had been seen walking around the site. He was subsequently told by an employee, Mr Oliver, that: The unions are starting to erect banners around the gates and they are standing in front of the gates. 19 Mr Hughes advised subcontractors of possible protected industrial action by a small number of the applicant's employees, that the site would remain open and that subcontractors were required to be present for normal operations. He subsequently received a number of emails from Mr Brammer of Nilson Queensland Proprietary Limited, one of the subcontractors. He was eventually told by Mr Brammer that he had been advised by the AMWU and BLF that the gates had been locked, and that no one was allowed onto the site until further notice. Mr Brammer later informed him that all Nilson staff had left the site due to the union action. He said that the gates had not been physically locked as he had previously asserted. However his men did not believe that safe access to the site was possible. There is other evidence concerning the opening and closing of gates, but I find it all a little equivocal at this stage. At about 12.30 pm on 18 April, Mr Hughes met Mr Ingham, Mr Lund from the second respondent and Mr Bell in his office. Mr Torralba was also present. Mr Ingham said that he was concerned for the safety of two men who were on the site, working in the kitchen in H Block. He said words to the following effect: There are a couple of workers on site and I am concerned about their safety. 20 Mr Hughes replied: In terms of safety, we have supervisors on site. They are not in any risk to their health and safety; all first-aid facilities are available to them. 21 Mr Torralba said: Mate, we have two health and safety guys on site; the workers are fine. 22 Mr Ingham said: Just bringing it to your attention for their personal safety. I'm [sic] giving you the opportunity to speak to them, some workers may take action into their own hands. 23 As a result of this, Mr Hughes raised with Mr Winter concerns for the safety of the workers. It was agreed that they should be sent off the site. In any event, by that time they had left. Mr Hughes said that all deliveries were cancelled by his staff. On 19 December, Mr Hughes received various reports concerning events on the site. It is not necessary that I go into those matters in detail. 24 Mr Ingham said, concerning events on 19 April, that he arrived at the gates at about 5.30 am and found them locked. He set up flags and banners adjacent to the gates. Individual members who were taking industrial action also turned up at about the same time. Other workers attended during the course of the morning "to assist in the peaceful protest". He said that there were protesters outside gates 1 and 2. There were also a couple of people at gate 3. The gates were unlocked in the course of the morning. He said that during the day people entered and exited the sites. He did not see any union officials direct any member of the peaceful protest to hinder or obstruct anybody entering or exiting the site, to withdraw their labour, or in any other way damage the applicant or the site. Mr Ingham, too, engaged in no such conduct. 25 During that day Mr Ingham spoke to a number of subcontractors. They inquired whether there was any news from the applicant, whether he had anything from senior management in Brisbane, whether the applicant had signed the relevant agreement and whether the first respondent minded if they entered the site to get their tools. Mr Ingham told them that there was no news from the applicant's senior management, the protest was continuing, the workers were still taking protected action, the workers appreciated the support they were receiving from other workers at the site, and that it was "their call" whether they entered the site, but the protesters were not going to prevent them from entering or exiting the site. The evidence from Messrs Olsen, Lowth and Myles is to similar effect. Mr Hughes' evidence concerning the conversations with Mr Ingham on 18 December is uncontradicted. 26 It seems relatively clear that from the commencement of industrial action on 18 April until the time of my order, little or no work was done by subcontractors on the site. I am told that since the order was made, some subcontractors, or their employees, have re-entered the site. 27 Mr Winter says, concerning The Prince Charles Hospital site, that at about 12.30 pm on 24 April he received a telephone call from the project manager at the site in which he was told that: Tony Kong, of the CFMEU, and Eddie Bland of the BLF, arrived on site earlier and advised me that they had been notified that there were safety issues on the site. We did a bit of a walk around. Tony Kong also requested a list of trades on site and the number of workers from those trades. I provided them with a list with trades and numbers only. Subcontractor company names were not detailed on the list but Tony verbally requested these and obtained them from the site pigeon holes. 28 Later in the day Mr Winter was told by the project manager, Mr Orazio, that he had a conversation with somebody from Nilson Electrical, in which the possibility of industrial action was mentioned, apparently as a result of information obtained from Mr Kong. On 26 April, Mr Winter again spoke by telephone to Mr Orazio. Mr Orazio told him that there were four union representatives at the site, telling workers not to go onto site and wanting to address the workforce. Mr Winter directed Mr Orazio to go to the site and explain to the union representatives they were not allowed to engage in inciting unlawful action. 29 Mr Winter arrived at the site at 6.50 am. There were no workers on site, but some were milling around near the site entrance and across the road from the main gate. He spoke to a group, which included Mr Kong, Mr Bragdon, and Mr Winders from another union. He then went onto the site with the union representatives and the site safety committee. The union representatives indicated that there were a number of minor safety issues which needed attention. Mr Bragdon then said he wanted to address the workforce. There was an exchange about whether the applicant's representatives would also be present. When union representatives again asked to address the workers in the absence of management, there was an exchange about the Howard government and Work Choices, which is not presently relevant, save for the fact that it indicated a determination on the part of the union representatives to enter the site and to speak to the workers. 30 Mr Butler is responsible for the management of projects for the applicant in North Queensland, including the AIMS site. On 23 April 2012, he spoke to Mr Robinson, an organiser employed by the first respondent, and to Mr Ingham. Mr Robinson and Mr Ingham came to his office in Townsville and indicated that they had "a couple of right of entry notices" and intended to visit the AIMS site on that day. The applicant employs no construction workers at the AIMS site, all the work being undertaken by subcontractors. Mr Butler inquired as to their purpose. They said, "It's just a normal visit." Mr Ingham said: Look, I'm here for the week. As you know we can't come to an agreement over the EBA, we are into our 6th day of the picket at Mackay and it doesn't seem to be resolving or putting enough pressure on you and therefore we need to spread the action onto other Baulderstone projects. That's why I'm in Townsville. 31 Mr Ingham also said: There are no projects in SEQ [presumably South East Queensland]; that's why I'm in Townsville and will be for the week. I know Baulderstone were trying to commission a barrister and that's evidence that Baulderstone are not going to agree to our terms. 32 There was further discussion about the AIMS site. On 26 April, Mr Butler was informed that Mr Robinson and Mr Ingham were on site. He went to the site, and during the drive he was told by telephone that, "The subbies have downed tools and withdrawn their labour." He arrived at the site at about 7.45 am and saw Mr Robinson and Mr Ingham near their car. Mr Ingham said: The guys have gone out. It's unfortunate we've got to do this and that's where things are at. 33 Mr Butler said: Have you got anything else to tell me? There was no response. 34 Mr Butler then said: Well, I've got to go and do what I have to do. 35 He then went to the office and emailed a notice to all subcontractors on the project. The email indicated that the site was open, and that subcontractors were required to attend to their duties as per contractual obligations. He subsequently spoke to Mr Ingham, asking for how long labour had been withdrawn. Mr Ingham said: I'm not sure. 36 Mr Butler said: Is it just for today? 37 Mr Ingham said: Well, it could be, but I'm not sure. 38 Mr Butler said: Are they coming back for another meeting, or is it indefinite? 39 Mr Ingham said: I don't know, I don't think it's going to be indefinite. No further work was performed on that day. 40 There is evidence from two of the subcontractors. Mr Brammer, the project manager for Nilson on the Mackay Base Hospital project, said that on 18 April he sent an email to Mr Hughes saying: I have been advised by the AMWU and BLF the gates are locked and that no one is allowed on site, until further notice. 41 He said also that his employees presented for work on 18 April. He had a conversation with Jason Lund, an officer of the second respondent, and Wayne Bell of the BLF, which is affiliated with the first respondent. They said words to the effect of: The gates are locked. You can't go on site. 42 Mr Brammer was informed by Mr Whyte, a member of the applicant's staff, that this was not so, and that the gates were unlocked. He then spoke to Mr Lund and Mr Bell again. The conversation was as follows: LUND: They're not physically locked, but you can't go in. Brammer: Do the ETU know about this? LUND: We're representing the ETU on this. 43 There were subsequent exchanges. Mr Brammer then sent a further email to Mr Hughes saying: I have to advise you all Nilson staff have left site due to the union action. You are correct the gates are not physically locked as was reported to me by the unions however, our men do not believe a safe access or safe site has been provided for them to continue to work. 44 On arrival at the site, Mr Brammer had observed a large number of people congregating outside the entry gate to the subcontractor compound, including a large number of workers and a number of union officials. They were standing directly outside the gates. He estimated that there were about 300 people there, with union flags and banners plastered all over the gates. He considered the atmosphere to be intimidating and unpleasant. 45 He called a meeting of his workers and said to them: I know that you didn't know there was going to be union action today. But now that there is, you've all got 3 choices. You can go on strike with the rest of them; you can go on site and break the line, or you can all go home and we'll treat it as an RDO. 46 All of the employees made it clear that they were not going to go on to the site in its present state. They said words to the following effect: We're not going to cross the line. But we're not going on strike either. 47 All employees left the site. Various other statements were made by Mr Brammer, but I need not refer to them. They are speculative and, to some extent, of doubtful admissibility. 48 Mr Bourke is the general manager of Premier Fire NQ Pty Ltd, a sub-contractor at the Mackay Base Hospital project. On 24 April he received an email from the applicant indicating that it expected all subcontractors to direct their employees to attend and perform work. He sent an email in reply. He subsequently saw my order. On Tuesday, 24 April, he was at the site at around 8.30 am and carried out an inspection. He observed that one gate was locked but another gate was open. He observed personnel from the first respondent and employees of the applicant at the gate. Three of them were sitting next to it. An employee of Premier Fire told him that a CFMEU official had addressed the employees and urged them not to enter. 49 As I understand the application, it is based upon the injunctive power conferred by s 39 of the Building and Construction Industry Improvement Act 2005 (Cth) (the "BCIA Act"), and the general power conferred by Ch 7, particularly Pt 1, in connection with contravention of civil penalty provisions. Pursuant to s 39, injunctive relief may be granted if an appropriate court is satisfied that unlawful industrial action is occurring or threatened, impending or probable. Section 39(2) deals specifically with interim relief. Section 39(3) provides: The power of the court to grant an injunction restraining a person [the defendant] 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. 50 Section 49(3) provides that orders may include injunctions, including interim injunctions, or any other orders which the court considers necessary to stop the conduct or remedy its effects, including orders for the sequestration of assets. Section 48(2) provides: For the purposes of this Part, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is involved in a contravention of a civil penalty provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 51 Section 38 is a grade A civil penalty provision. The provisions of s 48 therefore apply to it regardless of the operation of s 39. The term "unlawful industrial action" depends upon the definition of the term "building industrial action" in s 36. Relevantly, the applicant relies upon s 36(1)(c) which provides that the term "building industry action" means a: ban, limitation or restriction on the performance of building work, or on acceptance of or offering for building work, that is adopted in connection with an industrial dispute (within the meaning of subsection (4)). 52 There is a narrow legal question which arises in connection with this provision. The applicant's case is that the first respondent, in particular, has sought to invoke the assistance of subcontractors' employees in support of industrial action by the small number of the applicant's employees on the Mackay Hospital site. The work which, it is alleged, was to be banned at the site was not work to be done by the applicant's employees, but by the subcontractors. Some decisions suggest that a ban is not constituted by communicating information to others, as opposed to preventing or hindering the performance of their work. It is also said that to prevent others from performing their work is not a ban. See the decision of the Full Court in Davids Distribution Proprietary Limited v National Union of Workers (1999) 91 FCR 463 at [52] and the decision of Jessup J in Williams v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) (2009) 184 IR 367. 53 I accept for present purposes that these propositions are correct. However they do not address the question of whether, pursuant to s 48(2), encouragement by one person or other persons to impose a ban in support of industrial action would be excluded from the operation of the legislation. In other words if s 48(2) applies for the purposes of ss 38 and 39, as it seems to, then if the first respondent has aided, abetted, counselled or procured, a ban imposed by subcontractors' employees, whether willingly or otherwise, it may not be protected by the cases to which I have referred. In any event, I do not understand it to be disputed that such conduct would be caught by s 44 of the Act. Whether it is disputed or not, it seems to me that it may be so caught, depending upon my analysis of facts. 54 Whilst the evidence is, to some extent, fragmentary, the reality is that prior to the relevant events, Mr Ingham had made it clear to the applicant that he was committed to seeking the assistance of the subcontractors' employees in connection with his industrial dispute with the applicant, and that he had sought and obtained their "support". What does that mean? The first respondent seems to imply that it meant moral support in the sense of demonstrating and, perhaps, offering fraternal encouragement to that small number of employees who were directly affected by the industrial action. However, it is also relatively clear that the subcontractors' employees understood the position to be otherwise. It is also clear that on at least two occasions, Mr Ingham expressed concern for the safety of employees who remained on site. To my mind such concern is inconsistent with the suggestion that he was only looking for some fraternal support, or exercising his right of free speech in order to encourage people voluntarily to support his cause in whichever way seemed to them to be appropriate. His conduct supports the inference that he had established a situation in which the applicant would be deprived of the labour of the subcontractors' employees unless and until it entered into the agreement which the first respondent was seeking with it. The inference is available and is, in no sense, fanciful. There is a prima facie case of breach of either s 38 or s 44, justifying interlocutory injunctive relief, subject to consideration of the balance of convenience. 55 I accept that aspects of freedom of speech are raised in this case. I do not accept that the convenience of the applicant should be allowed to displace the entitlement of Mr Ingham, the respondents, those employees of the applicant who are affected by the industrial proceedings and the subcontractors' employees, to express their views. However there is an available inference that events went further, and were intended to go further. The balance of convenience, insofar as it affects the applicant, is obvious and compelling. It is committed to substantial contracts and has to complete them, presumably within an appropriate time frame, perhaps a quite strict time frame. It is possible to tailor an order which permits the first respondent, and anybody else who may wish to do so, to express their views in ways which do not deter subcontractors' employees from entering the various sites for the purpose of fulfilling their duties. I thought that I had done so by the orders which I made on the last occasion. I am still of that view. I consider that the balance of convenience favours the extension of injunctive relief until trial in the terms of my interim order. 56 That leaves only the question of the second respondent. The case as against it depends upon a number of relatively minor activities by Mr Lund. Whilst there is evidence capable of supporting the case against the second respondent, I suspect that in the absence of any action by the first respondent, it is unlikely that the second respondent will act in such a way as to cause significant disadvantage to the applicant. 57 I propose to discharge the interim injunction as against the second respondent. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.