Construction, Forestry, Maritime, Mining and Energy Union v CPB Contractors Pty Ltd

GREENWOOD J: 1 There is a large scale infrastructure project being undertaken in Brisbane for and on behalf of the Queensland government (the State of Queensland) described as the Cross River Rail Project (the "CRR Project"). The CRR Project is said to have a delivery cost of $5 billion, predominantly funded by the State. 2 The CRR Project involves the construction of a 10.2 kilometre rail line from Dutton Park to Bowen Hills which involves establishing 5.9 kilometres of twin tunnels under the Brisbane River and the Central Business District of Brisbane; the construction of railway stations; the upgrading of existing rail lines and other stations where there is interface with the CRR Project; and attendant works. 3 The respondent, CPB Contractors Pty Ltd ("CPB"), is the principal contractor for the CRR Project and in that capacity, CPB occupies workplaces that constitute the numerous construction sites established for the purposes of the CRR Project at Albert Street, Boggo Road, Roma Street, areas called the Southern Area and the Northern Portal, and Woolloongabba. These workplaces are described as "separate workplaces", in the affidavit evidence relied upon by CPB in these proceedings, to which I will return. Some of these locations have two separate and distinct workplaces, such as the Albert Street site which has a workplace at which "tunnelling" is undertaken, and a separate workplace at which "surface works" are undertaken. In some cases, these workplaces may be adjacent to each other, but they have separate access points and are separated by fencing and other barricading. This information is contained in an affidavit by Mr Malcolm Davis, the solicitor for CPB. Mr Davis has knowledge of these matters having acted for CPB in relation to the CRR Project. Mr Davis also says that he is informed by Mr Terry Prior, the Industrial Relations Manager of CPB for the CRR Project, that the "workplaces" for the surface works, and the "tunnelling workplaces", are controlled and directed by different management teams. 4 Mr Davis says that the CRR Project is comprised of three major "packages of works" described as follows: (a) the "Tunnel, Station and Development Package" (the "TSD works") which has been undertaken as a Public Private Partnership ("PPP"); (b) the "Rail, Integration and Systems Package" (the "RIS works") which has been undertaken as an "alliance"; and (c) the "European Train Control System" (the "ETCS contract"). 5 CPB is a part of the Pulse Consortium that successfully tended for the TSD works. CSB was also part of the "Unity Alliance" that successfully tended for the RIS works. The head contractor for the TSD works is Pulse Partnership Pty Ltd ("Pulse") which is a special purpose vehicle established for the purpose of carrying out the PPP obligations in relation to the CRR Project (and for other related purposes). Under the Project Agreement between the State of Queensland and Pulse, Pulse is required to design, construct, operate, maintain and finance the TSD works within a fixed time for a fixed cost. Pulse has engaged, as the "Design and Construct subcontractor", an unincorporated joint venture described as the "CBGUJV" of which CPB is a member, and as mentioned earlier, CPB is the principal contractor on the CRR Project. 6 Mr Davis says that he is instructed by Mr Christopher Butler, the Shared Services Director of CPB on the CRR Project that the tasks and activities being performed at the separate workplaces earlier identified, may vary significantly depending upon the works that are scheduled to be undertaken at the various locations. Mr Butler says, through Mr Davis, that the various workplaces established for the CRR Project fall into two categories, first, workplaces at which tunnelling work is undertaken and second, workplaces at which surface works are undertaken. 7 Access to, and egress from, these workplaces is said to be "tightly controlled and monitored" by CPB. CPB (Mr Davis on information and belief) says that as site conditions vary from workplace to workplace depending upon the activities being undertaken at any particular time, the controls implemented in order to comply with obligations arising under the Work Health and Safety Act 2011 (Qld) (the "WHS Act") will vary to take into account the attendant risks from the tasks being performed and the environment within which particular work is undertaken. The nature of the workplace safety inductions that must be undertaken by any person seeking to enter a workplace may vary from workplace to workplace and the mandated level of personal protection equipment and safety controls that apply at the various sites will vary. 8 This is said to be particularly the case at workplaces at which tunnelling work is undertaken. 9 The need to distinguish between workplaces at which tunnelling is undertaken, and other workplaces at which surface works are undertaken, has been recognised by the entirely separate industrial instruments that have been put in place between CPB and The Australian Workers' Union ("AWU"). 10 On 12 September 2019, CPB made an application to the Fair Work Commission (the "Commission") for the approval of two "Greenfield Agreements" entered into with the AWU prescribing the terms and conditions of employment of workers employed by CPB on the CRR Project. 11 On 16 October 2019, the Commission approved an agreement described as the "CPB Contractors Pty Ltd Cross River Rail - Tunnel and Shaft Greenfields Agreement 2019 - 2023" (the "Tunnel Agreement") and approved an agreement described as the "CPB Contractors Pty Ltd Cross River Rail - Civil and Surface Works Greenfields Agreement 2019 - 2023" (the "Surface Works Agreement"). 12 Mr Davis says that he is informed by Mr Butler that in the 22 month period since the approval of the Tunnel Agreement, representatives of the AWU have routinely exercised rights of entry at two of the four tunnel sites each week and in some weeks they have exercised rights of entry at three of the tunnel sites. Mr Butler says that the vast majority of the rights of entry were exercised under s 484 of the Fair Work Act 2009 (Cth) (the "FW Act") with, on occasions, multiple entries to the same tunnel site on the same day to enable representatives of the AWU to meet with different shifts of workers working in the relevant tunnel site. Mr Butler says that the AWU has increased its rate of exercise of rights of entry to the tunnel sites since February 2020 and in doing so, AWU representatives have conducted discussions with CPB direct hire employees and also with employees of specialist tunnelling subcontractors who may be in attendance in the same crib sheds. Mr Davis says that he is advised by Mr Prior that those discussions have regularly included reference to safety issues, pay issues and any other issue any member of the workforce working in the tunnels chooses to raise. The "feedback" from these sessions is always given to CPB's direct hire site management team so that matters may be actioned where necessary. 13 Mr Davis says that he is informed by Mr Prior that in addition to the regular exercise of rights of entry by AWU permit holders at the four tunnel sites, inspectors and other representatives from Work Health and Safety Queensland ("WHSQ") have also conducted safety inspections on 199 different occasions across the tunnel sites. 14 The questions in issue in these proceedings have arisen in the context of what is understood to be a "demarcation dispute" between the AWU and the Construction, Forestry, Maritime, Mining and Energy Union (the "CFMMEU"). 15 Mr Paul Cradden is a Union organiser employed by the Queensland branch of the AWU. He says that he has worked "in and around civil construction projects" for many years. He says that the AWU has always been the Union with sole coverage of works in tunnelling and the CFMMEU has not accepted that demarcation and seeks to "force their way into tunnels" in circumstances where, in Mr Cradden's view, the CFMMEU does not have coverage of workers undertaking work in tunnels. Mr Cradden puts that view in a pejorative way and I will return to the specific legal issue shortly. 16 Nevertheless, contextually, Mr Cradden says that demarcation disputes of this kind are "likely to cause disruption and dispute". 17 The question in issue in this proceeding is whether an interlocutory injunction ought to be granted on the application of the CFMMEU and four other applicants, Mr Gibson, Mr Mitchell, Mr Seiffert and Mr Blakeley, all of whom are employees (organisers) of the CFMMEU, restraining CPB pending the trial of the principal proceeding, from refusing, delaying, hindering or obstructing officials of the CFMMEU (who hold permits issued under s 512 of the FW Act and s 134 of the WHS Act), access to CPB's site for the CRR Project at the corner of Albert and Mary Streets in Brisbane under s 117 of the WHS Act "by reason only, or for reasons that include, that [CPB] contends that there are no relevant workers as defined in s 116 of the WHS Act who work at the workplace" [emphasis added]. 18 The applicants seek a further interlocutory injunction in the same terms except that the other site is described as being at the corner of Roma Street and Parkland Boulevard. 19 Those two interlocutory orders are sought pending the final determination of the following claims for relief (using earlier abbreviations): 1. Declarations that on 2 September 2021 CPB contravened sections 501 and/or 502 of the FW Act by refusing or delaying entry to the CRR Project by the Second to Fifth Applicants and/or otherwise hindering or obstructing them in the exercise of their rights as permit holders under s 117 of the WHS Act, and the FW Act. 2. The imposition of pecuniary penalties on CPB pursuant to s 546(1) of the FW Act in respect of the contraventions set out above. 3. An order pursuant to s 546(3) of the FW Act that any pecuniary penalty imposed upon CPB be paid to the CFMMEU. 4. … 20 In the course of the hearing of the interlocutory application, CPB contended that the interlocutory orders sought by the applicants can only go in aid of final relief. However, the applicants do not seek final relief in terms of the restraints contemplated by the interlocutory orders. CPB says that the interlocutory orders cannot go in aid of a pecuniary penalty or the declaration. 21 As a result, counsel for the applicants sought leave to amend the originating application to seek injunctions in terms of the interlocutory orders as final relief, as well. CPB says that amending the originating application in that way does not solve a fundamental problem with the scope of the proposed interlocutory orders. I will also return to that matter shortly. 22 The questions in issue on the facts arise in the following way. 23 Mr Andrew Blakeley is employed by the CFMMEU as an organiser. He holds a right of entry permit issued by the Commission under s 512 of the FW Act and a right of entry permit issued by the Queensland Industrial Relations Commission (the "QIRC") under s 134 of the WHS Act. At para 21 of Mr Blakeley's affidavit of 6 September 2021, he says that the CRR Project has various "types of work" being performed "at present". He says that some of that work is "above ground" and relates to the construction of the stations, while there is "separate work" being performed in relation to the tunnels. He says that he has only ever been "permitted entry" by CPB in relation to above ground work. At para 22, he again observes that he has not been permitted entry to the "tunnel worksites" and is not "fully aware of the type of work that is being performed" in the tunnel worksites. 24 To the extent that the reference by Mr Blakeley to only ever having been permitted entry to the above ground works suggests a pattern of refusals, Mr Davis says, based on information from Mr Prior, that at no time prior to 2 September 2021 did Mr Blakeley or any other CFMMEU permit holder seek to exercise a right of entry at a workplace at which tunnelling work was being undertaken on the CRR Project and nor had Mr Blakeley sought to exercise a right of entry pursuant to s 484 of the FW Act to hold discussions for the purpose of determining what, if any, alleged issues workers may have in performing tunnelling work at the Albert Street tunnelling site. 25 Mr Blakeley says that notwithstanding that he is not fully aware of the type of work being performed in the tunnel worksites, he is able to say, based on his "previous construction experience" and "through the many conversations" he has had with workers, that he is aware that, as at 2 September 2021, there were "several categories of workers who are eligible" to be members of the CFMMEU performing work in the tunnel worksites including: (a) plant operators, particularly workers who operate: i. forklifts ii. telehandlers; iii. elevated work platforms; iv. mobile concrete pumps; and v. excavators, (b) concreters; (c) concrete cutters; (d) concrete finishers; (e) formworkers; (f) water proofers; and (g) workers involved in the erection of pre-cast concrete beams. 26 Mr Blakeley does not say whether his construction experience extends to experience in undertaking tunnelling works and nor does he identify the circumstances of the discussions he has "had with workers" which has led him to conclude that as at 2 September 2021 there were workers performing work in the tunnel worksites who were eligible to be members of the CFMMEU. 27 However, Mr Blakeley does say that he believes that there are workers performing work in the tunnel worksites of the CRR Project who are eligible to be members of the CFMMEU, employed by Kenny's Construction, Dundrum Civil, Cut Right and Large Concrete Pumping. 28 As to Dundrum Civil ("DC"), Mr Blakeley says that on 3 September 2021, he spoke with Mr Michael O'Brien of that firm who told him that DC had hired out several excavators (presumably to CPB) to perform work in the tunnel worksite at the "Roma Street site" on a "wet hire" basis which means that the plant was supplied with workers to operate it and to perform the duties of spotters. Mr Blakeley says that Mr O'Brien told him that "those workers were performing work in the tunnel worksites of the [CRR] Project on 2 September 2021". He says that Mr O'Brien told him that there are DC workers performing work as mobile plant operators and spotters in the tunnel worksite at the Roma Street site "every week day and have done so for several months, including on 2 September 2021". He says that Mr O'Brien told him that he, Mr O'Brien, expects that DC will continue to have workers performing work as mobile plant operators and spotters "at the tunnel worksite" at the Roma Street site "until the completion of the tunnel which could be months, even years". 29 Although Mr O'Brien's remarks made to Mr Blakeley seemed to be confined to the "tunnel worksite" at the "Roma Street site", Mr Blakeley says at para 26 that the workers that DC employs to perform work at the tunnel sites at the Roma Street site and the Albert Street site, namely Mobile Plant Operators and Spotters, are eligible to be members of the CFMMEU. 30 As to Large Concrete Pumping ("LCP"), Mr Blakeley says that on 3 September 2021, he spoke to Mr Large, the owner of LCP. He says that Mr Large told him that LCP has hired out seven mobile pumps and several trailer pumps to perform work at "all of the tunnel worksites at the Roma Street, Woolloongabba and Albert Street sites" of the CRR Project on a "wet hire" basis, that is, the supply of the plant together with workers to operate it. He says that Mr Large told him that there are three workers allocated to each mobile pump and trailer pump hired out and that workers employed by LCP were performing work at the tunnel worksites at Albert Street and Roma Street on 2 September 2021 operating mobile plant and pumping concrete. He says that Mr Large told him that LCP has a contract "with Unity and CPB to perform work at all of the tunnel worksites at the Project" and LCP "expects to have workers performing work at all of the tunnel worksites at the Project until they [work at the worksites] are completed, which will be several months and possibly years". 31 Again, Mr Blakeley says that the workers employed by LCP to perform work at the tunnel sites at the Albert Street and Roma Street sites, namely, mobile plant operators and concrete pumpers, are eligible to be members of the CFMMEU. 32 As to Cut Right ("CR"), Mr Blakeley says that on 6 September 2021, he spoke with Mr Andrew Thompson, the owner of CR, and that during that conversation Mr Thompson told him that CR has workers performing concrete cutting work at various tunnel worksites of the CRR Project including the Roma Street, Albert Street and Woolloongabba sites on an "as needed" basis depending upon the scope of works and that they have been performing that work for a couple of months; on 2 September 2021, there was at least one CR employee performing concrete cutting work at the tunnel worksite at the Albert Street site; when concrete cutting work is being perform by CR employees at the tunnel worksites, there are usually one or two employees performing that work; and, CR expects that it will continue to have employees performing work at the tunnel worksites of the CRR Project for several months to come, including at the Roma Street and Albert Street sites. 33 Mr Blakeley says that the workers CR employs to perform work at the tunnel sites at the Albert Street and Roma Street sites, namely, concrete cutters, are eligible to be members of the CFMMEU. 34 At para 32, Mr Blakeley says that he is not sure how many workers are performing work in the tunnel worksites at the CRR Project, or the rosters they are working to, as he has "not been there to talk to the workers" and he expects that the crew sizes would "vary from day to day" depending on the type of scheduled work. Nevertheless, Mr Blakeley relies upon the "conversations" described above as the basis for a belief that there are workers who are eligible to be members of the CFMMEU performing work at the tunnel worksites of both the "Albert Street and Roma Street sites" of the CRR Project "every working day". 35 Mr Blakeley says that on 31 August 2021 and 1 September 2021, he attended the Southern Portal site of the CRR Project (which is near the Princess Alexandra Hospital, on Kent Street in Buranda) with Mr Seiffert. Mr Seiffert also holds the relevant entry permits under the FW Act and the WHS Act. Mr Blakeley says that he and Mr Seiffert attended that site to conduct investigations into suspected safety contraventions of work areas that are located above ground. They did so in purported reliance upon s 117 of the WHS Act. Mr Blakeley says that Mr Gibson and Mr Mitchell attended the Boggo Road site of the CRR Project on both those days. 36 Mr Blakeley says that while he was on the Southern Portal site (above ground) "several workers" approached him and Mr Seiffert and said words to the effect of: "What are you doing up here? You should go and have a look at the tunnels. There is a mess in the tunnels. Are you going to go and take a look?" Mr Blakeley says that the workers who said those things were "carpenters who were performing work nearby at the site while Mr Seiffert and I were there" [emphasis added]. 37 Mr Blakeley also says that another CFMMEU organiser, Mr Von Hoff, told him that he had been approached by workers who said words to this effect: "How far are we supposed to be away from toilets? It feels like we are walking kilometres to be able to go to the toilet or get drinking water in the tunnels". 38 Mr Blakeley says that on 31 August 2021 and 1 September 2021, he sought the assistance of WHSQ inspectors to resolve safety contraventions in relation to a shaft which resulted in statutory notices being issued to CPB for access and egress related issues. Mr Blakeley says other issues were raised as well. He also says that as he was leaving the site a group of workers approached him and asked him about safety issues in relation to the shaft. He says that those workers (formworkers) said words to the following effect: "Go and have a look in the tunnels. There are heaps of issues". Mr Blakeley responded: "Oh yeah? We have seen the news reports about the silica. Have you ever seen it in the tunnels?" The response was: "Yes, you need to go and have a look. The place is a mess. It doesn't look right". 39 At para 41, Mr Blakeley says that based on the above conversation, it was clear to him that there were formworkers performing work in the tunnel worksites who were eligible to be members of the CFMMEU. 40 At para 41, Mr Blakeley says that when he heard that there were safety issues in the tunnels at the CRR Project, he suspected that there were contraventions of the WHS Act occurring in the tunnels. He says that he had spoken to "several workers over the last two days about concerns that they had in relation to safety in the worksites for the tunnels" and he had seen several media reports in relation to "unmanaged silica dust". He says that workers who had been working outside the tunnels had reported to him directly that they "could see the dust coming out of them from where they were standing". 41 Mr Blakeley says that he attended a meeting at the CFMMEU offices at 5.30am on 2 September 2021 and discussed issues in relation to construction work in the tunnels and safety issues, with other CFMMEU organisers. Mr Blakeley and Mr Seiffert spoke about contended safety contraventions they had seen at the Southern Portal site in relation to access and egress delineation between mobile plant and pedestrians and other matters. Issues in relation to formworkers at the Southern Portal site having "seen the issues in relation to the management of silica dust in the tunnels", was raised at the meeting. 42 Sometime between 7.00am and 8.00am, Mr Blakeley, Mr Seiffert, Mr Gibson and Mr Mitchell attended the Roma Street Parklands. Mr Blakeley had earlier that morning spoken with Ms Helen Burgess at WHSQ (described as the Director of Construction Compliance and Field Services for WHSQ). Ms Burgess advised that she would direct inspectors to attend the Roma Street site and the Albert Street site by 9.00am. Apparently they did so. Mr Gibson and Mr Mitchell proceeded to the Roma Street site and Mr Blakeley and Mr Seiffert attended the Albert Street site. It seems that they each attended the respective sites at about 9.00am. 43 Mr Blakeley says that he and Mr Seiffert were admitted to the Albert Street site by one of the workers. They proceeded up the stairs into the main waiting area. They were greeted by Mr Bekkers, a CPB industrial relations adviser. Over a 90 minute period, Mr Blakeley and Mr Seiffert were refused entry into the tunnel. While waiting during this period, Mr Blakeley took a photograph of a whiteboard with several lines on it. Mr Blakeley understood the lines to mean that pre-cast concrete panels were to be installed as the concrete borers were progressing through the tunnel. Mr Blakeley says that he noted the reference to "Formwork install P19 to P24" and "steel fixing" scheduled for 2 September 2021. He also noticed a reference to "Concrete pour" scheduled for 4 September 2021. He says that the workers required for the performance of those tasks are eligible for membership of the CFMMEU. 44 Mr Blakeley says that he and Mr Seiffert were refused entry on the footing that there were "no relevant workers", enabling a proper basis for entry. 45 I have also considered the affidavit of Mr Gibson. Access to the tunnel worksite was denied to Mr Gibson and Mr Mitchell on 2 September 2021 "at the Roma Street site" of the CRR Project on the footing that there were no relevant workers engaging an entitlement to entry to the tunnel worksite. 46 I will turn to the evidence of CPB on these factual issues shortly. 47 Before doing so, it is convenient to examine the basis upon which Mr Blakeley, Mr Seiffert, Mr Gibson and Mr Mitchell contend that they were entitled to enter the respective tunnel workplaces at the sites they attended on 2 September 2021, and the basis upon which the contended contraventions by CPB of ss 501 and/or 502 of the FW Act are said to arise. 48 Section 117 of the WHS Act provides that a WHS entry permit holder (Mr Blakeley, and I will only focus on Mr Blakeley for present purposes) "may enter" a "workplace" for the purpose of inquiring into a "suspected contravention" of the WHS Act that relates to, or affects, a "relevant worker": s 117(1). The permit holder "must reasonably suspect" before entering the workplace that the contravention "has occurred or is occurring": s 117(2). A "relevant worker" in relation to a "workplace" means a worker who is a member, or "eligible to be a member", of a relevant Union; and whose industrial interests the relevant Union is entitled to represent; and who works at "that workplace": s 116. A "workplace" is, relevantly, a "place" where work is carried out for a business or undertaking: s 8, WHS Act. The term "place" has an inclusive definition. The relevant workplace for the purpose of these proceedings is the place where "tunnelling" is undertaken or as Mr Blakeley recognises at para 21 of his affidavit, "separate work" (from the "above ground" work). 49 For the purposes of at least the interlocutory application, CPB does not raise any question or take any point about whether Mr Blakeley on 2 September 2021 reasonably suspected, before attempting to enter the place of tunnelling work (the workplace) that a contravention of the WHS Act arguably either had occurred or was occurring. 50 The point of distinction CPB emphasises is that s 117(1) is only engaged where the purpose of entry to the relevant workplace is for the purpose of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a "relevant worker" and since, on 2 September 2021, there was no person working at the tunnelling workplace who was "eligible" to be a member of the CFMMEU (and there is no suggestion that a CFMMEU member was so working), Mr Blakeley was not entitled to enter "that workplace". 51 If there was a person so working at the tunnelling workplace who was eligible to be a member of the CFMMEU, the contended entry by Mr Blakeley would be in respect of "a relevant worker". If there was such a person, so working, Mr Blakeley (as a permit holder under the WHS Act and the FW Act) would be exercising or purporting to exercise a "State or Territory OHS Right" for the purposes of the FW Act: ss 494(2) and (3); 495-499. Section 501 of the FW Act provides that a person "must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter" the premises in accordance with Part 3-4 of the FW Act, and s 502 provides that a person must not "intentionally hinder or obstruct a permit holder exercising rights" in accordance with Part 3-4 of the FW Act. 52 If ss 501 and 502 are engaged (which are civil remedy provisions; s 539, FW Act) and CPB, by its conduct, has contravened either or both of ss 501 and 502, the Court may impose a pecuniary penalty (s 546) it considers appropriate within the limits of the FW Act, on the application of, relevantly, a person affected by the contravention: s 539. 53 The Court may also make any order it considers appropriate if satisfied that a person has contravened, or proposes to contravene, a civil remedy provision (s 545(1)) including an order granting an injunction or interim injunction: s 545(2)(a). 54 Of course, all of these questions are determined at a final hearing of the matter on the basis of admissible probative evidence in respect of which findings of fact are made. 55 As to the interim or interlocutory injunction, the applicants rely upon a denial of entry on a particular day, 2 September 2021, where entry was said to be in relation to or affecting a person or persons who were said to be working at the workplace (the place of tunnelling work as distinct from above ground site work) on that day, and who were eligible to be a member or members of the CFMMEU as the basis for an interim order restraining CPB from denying (refusing, delaying, hinder or obstructing) access (entry) to "the site" (which can only be understood as the separate place of tunnelling work), to officials of the CFMMEU on any day in the future where the ground of refusal is that there is no worker who meets the statutory description of "a relevant worker" in s 116 and s 117 of the WHS Act working at the relevant workplace on any one of those future days, even though there is no "relevant worker" working at the workplace on the day in question. An order of that scope might be made as a matter of final relief (although unlikely) after a trial at which very particular findings of fact were made about conduct on the part of a respondent. However, no such order as a matter of proper scope and reach ought to be made on an interim basis. Apart from the question of the framing of the proposed interim order, a question arises about the state of the evidence going to the strength of the contended prima facie case. I will turn to the further evidence on that matter shortly. 56 As to the principles to be applied when determining whether an interlocutory injunction ought to be granted, I apply the principles reflected in the observations of Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65]-[72] and the observations of the Full Court of this Court in Samsung Electronics Company Ltd v Apple Inc and Another (2011) 217 FCR 238 at [44]-[74]. I also note the observations of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at [65] and [66]. 57 Thus, the Court must be satisfied that the applicants have demonstrated a "sufficient likelihood of success" to justify the preservation of the position pending the trial of the proceeding and the ultimate determination of the availability of the relevant final relief in the action. How "strong" the probability needs to be depends upon "the nature of the rights" the applicant asserts and the "practical consequences likely to flow" from the orders sought: Gummow and Hayne JJ at [65] and [71]. The seriousness of the question, like the strength of the probability, is to be determined according to the principles in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623. 58 As to the practical consequences likely to flow from the orders sought, particular considerations will arise where the grant or refusal of the interlocutory injunction, in effect, would dispose of the action finally in favour of whichever party succeeds on the interlocutory application: Gummow and Hayne JJ at [65] and [72]. 59 The further aspect of the inquiry concerns the balance of convenience although the question of a sufficient likelihood of success and where the balance of convenience lies are taken into account together in reaching an overall evaluative judgment about whether the interlocutory orders sought are to be made. 60 It is now necessary to return to the evidence of Mr Davis. 61 Mr Davis says these things based on the information of Mr Prior. Mr Prior can speak directly to these matters. 62 Mr Prior says that on 2 September 2021 when Mr Blakeley and Mr Seiffert purported to exercise a right of entry to the Albert Street "tunnel site", the only workers performing work at that site were direct hire employees of CPB plus contract surveyors who were engaged in "cavern mining" which is said to be a form of tunnelling and does not involve a tunnel boring machine ("TBM"). Mr Prior says that when cavern mining is being undertaken, no other activity can be undertaken. Mr Prior says that any plant or equipment used by tunnelling workers on 2 September 2021 at the Albert Street tunnel site, was "completely incidental to the conduct of cavern mining". 63 Mr Prior says that with the sole exception of the contract surveyors, no other "subcontractor workers" were working at the Albert Street tunnel site on 2 September 2021. Mr Prior has read the affidavit of Mr Blakeley. Mr Prior says that apart from subcontractors providing surveying services, no employee of a contractor provided any services or performed any work at the Albert Street tunnel site on 2 September 2021. 64 Mr Prior says that, in particular, no employee of Kenny's Construction, Dundrum Civil, Cut Right and/or Large Concrete Pumping performed work at the Albert Street tunnel site on 2 September 2021. 65 Mr Prior says that Mr Blakeley and Mr Seiffert were refused entry to the tunnel site on 2 September 2021because CPB was of the view that there were no "relevant workers" for the purposes of ss 116 and 117 of the WHS Act "working" at the "tunnel workplace" which the CFMMEU organisers sought to enter. 66 Mr Prior also says that the activities being performed at the Roma Street tunnel site related exclusively to the operation of a TBM. He says that the TBM is designed to simultaneously bore the tunnel, and as it progresses, lay preform concrete lining panels behind it. Mr Prior says that workers engaged at the Roma Street tunnel site on 2 September 2021 were tasked with the operation and transit of the TBM as it continued its progression through the planned tunnel route. Mr Prior says that when the TBM is in operation, no other activity can be undertaken and any plant or equipment used by tunnelling workers on 2 September 2021 at the Roma Street tunnel site was completely incidental to the "operation and progression of the TBM on its planned tunnel route". Mr Prior says that the activities being undertaken on the Roma Street site on that day related to tunnelling work and did not involve the erection of any building. He says that any contractors engaged by the CBGUJV at the Roma Street tunnel site were for the purpose of supporting the activities of the TBM and did not relate to the erection of any building. 67 Mr Prior says that no employee of any subcontractor in the following categories were performing services in the Roma Street tunnel site on 2 September 2021: plant operation, including forklifts and excavators; concrete pumping; concrete pouring; concrete cutting; concrete finishing; and formwork. Mr Prior says that Mr Gibson and Mr Mitchell were refused entry on 2 September 2021 on the ground that CPB was of the view that there were no relevant workers working at the tunnel workplace for the purposes of s 116 and s 117 of the WHS Act, when those organisers sought to enter the Roma Street tunnel site. 68 Mr Prior also has this to say about the whiteboard referred to by Mr Blakeley in his affidavit. Mr Prior says that the lines on the whiteboard reflected a schedule and program of works being undertaken at the Albert Street Station site which is purely a surface works site. He says that the tasks listed on the whiteboard related to tasks that were planned or in the process of being undertaken in the Albert Street Station work surface site. Mr Prior says that none of the tasks referred to on the whiteboard had any connection to the Albert Street tunnel site at which tunnelling work is being performed. 69 Mr Butler, CPB's Shared Services Director for the CRR Project, also says this about the changing nature of the workforce. 70 There are currently 271 direct employees of CPB currently working across all tunnel sites on the CRR Project. He says that where subcontractors are engaged by CBGUJV to provide services to aid in the activities undertaken in the tunnel site, the CBGUJV has no control over the identity of the workers that the subcontractor sends to the site to perform the contracted services. He says that the services provided by subcontractors can be intermittent and supplied when particular services are needed. He says, that in short, other than the direct hire employees of CPB, the workers employed by subcontractors will likely change on a regular basis depending upon the other activities undertaken by subcontractors in the performance of their own business undertaking. 71 Apart from the questions in issue as between the applicants and CPB, an application has been made by the Australian Workers' Union for leave to intervene in the proceeding. I am satisfied that both the interlocutory application and the relief sought in the principal proceeding is likely to have an impact on the legal interests of the AWU and on that footing leave to intervene will be granted having regard to Roadshow Films Pty Ltd v iiNet Pty Ltd (2011) 248 CLR 37 ("Roadshow Films"), French CJ, Gummow, Hayne, Crennan and Kiefel JJ at [2]-[4]; Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 3) [2015] FCA 542, Edelman J at [13] taking into account the observations in Roadshow Films at [2]-[4]. 72 As to the question of eligibility which is determined according to the rules of the CFMMEU in respect of the contended relevant worker, the AWU accepts that the eligibility rules of a trade union must be broadly construed and that the scope of a membership clause should not be read narrowly or read down by reference to the membership clauses of other industrial organisations. The AWU also accepts that it is not relevant to the construction of the relevant eligibility rules that there may be another industrial organisation that might be a more natural representative of a given employee: Construction, Forestry, Mining and Energy Union v CSBP Ltd (2012) 212 IR 206 at [48]. The point of distinction adopted by the AWU is that the CFMMEU has no coverage because there are two sites (above ground and working in the tunnels) and there are no relevant workers working in the tunnels. 73 In relation to the eligibility rules of the CFMMEU, I have been taken to the rules annexed to the affidavit of Mr Williams and, in particular, to aspects of rule 2(A)(A)(3), rule 2(A)(b), rule 2(B)(1) and (2) and rule 2(E)(a). For the purposes of the interlocutory application, I accept that workers acting as forklift drivers, concrete pump operators, plant operators and workers doing formwork and acting as carpenters would either fall within or arguably fall within the eligibility rules for the CFMMEU, and in the event that they were working in those capacities in the tunnel workplaces on 2 September 2021 when the individual applicants sought to exercise a right of entry, those workers would be, arguably at least, a "relevant worker" in each case. 74 However, I am not satisfied on the present material that a sufficient likelihood of success in the proceeding has been demonstrated to warrant the grant of an interlocutory order. 75 I am not satisfied that there is sufficient precision in the evidence of the applicants to demonstrate a sufficiently strong case of the presence of relevant workers at the workplace in the tunnels on 2 September 2021. 76 I am satisfied that there is a contest on the facts about that matter. 77 However, having regard to the direct evidence of Mr Prior and Mr Butler (and particularly Mr Prior put on through Mr Davis), I am not satisfied that the evidence of the applicants is sufficiently precise about the differentiation between the above ground sites and the tunnel sites (workplaces) and the tasks performed at the tunnel worksites on 2 September 2021 on the one hand, and the tasks performed above ground, on the other hand. I am not satisfied that the evidence of the conversations that Mr Blakeley had with the subcontractors he nominates, as described in his affidavit, rises any higher in terms of the precise facts than a genuine expression of opinion by the subcontractors about what was or may have been happening in the tunnel workplaces on 2 September 2021. That view expressed by the subcontractors does not take into account the actual schedule of works for the day (or days) or variations in the activities undertaken according to whether CPB is undertaking, for example, "cavern mining" or operating the "TBM" on a particular day or across particular shifts (which vary). 78 The affidavits in support of the application do not identify which plant and equipment was actually being used and the tasks performed on the day at a relevant tunnelling site. The affidavits simply assert use of equipment on a wet hire basis on the relevant day. However, there is no engagement with the precise work at the relevant tunnels. The evidence of Mr Davis on the other hand is put forward on an informed basis as to the work tasks and schedules. 79 Some aspects of the evidence of the applicants rises no higher than speculation 80 As to the balance of convenience, I am not satisfied that the inconvenience or injury the applicants would be likely to suffer if an interlocutory injunction were refused pending the determining of whether the events of 2 September 2021 give rise to a contravention by CPB of ss 501 and/or 502 of the FW Act outweighs the injury or dislocation the respondent would suffer if an injunction were to be granted, especially having regard to the scope of the order sought. I have weighed that matter in the balance together with the views I have expressed about an insufficiently strong prima facie case. 81 Apart from those matters, the form of the order, in my view, extends well beyond the proper scope and reach of an interim order in the circumstances. 82 There are other considerations which are to be weighed in the balance. 83 They include the circumstance that the CRR Project is a very significant infrastructure project involving substantial (but not solely) public funds invested by the State of Queensland on behalf of the people of Queensland. The Project has the capacity to provide a range of workers with financial and emotional security for a number of years, against the background of a period where citizens have been anxious about dislocation and loss of work due to the COVID-19 pandemic. A project of this size in terms of its commitment to workers is important to many people. 84 The workers working at the tunnelling sites are represented by the AWU and their interests are also protected by the role and duties of WHS inspectors under the WHS Act. There is no suggestion that workers working at the workplace described as the tunnelling workplaces are unrepresented by an industrial organisation or unaided by the exercise of statutory powers vested in WHS inspectors under the WHS Act. 85 That is not to say that those matters are an answer to final relief if the applicants make good a contended contravention of the s 501 and/or s 502 of the FW Act but they are material considerations in relation to an interim order being made. 86 I note the coverage arrangements the subject of the Greenfield Agreements between CPB and the AWU mentioned earlier in these reasons approved by the Commission. 87 I note that in the contest between the AWU and the CFMMEU for workers as members, such demarcation disputes are likely to cause industrial disruption. 88 I also note that the WHS Act provides a mechanism for the speedy resolution of disputes before the QIRC about "rights of entry" set out in s 142 of the WHS Act. 89 Having regard to all of these considerations, I am not satisfied that the interlocutory orders as sought ought to be made. 90 The application is dismissed together with costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood.

SCHEDULE OF PARTIES QUD 284 of 2021 Applicants Fourth Applicant: BEAU SEIFFERT Fifth Applicant: ANDREW BLAKELEY