Construction, Forestry, Mining and Energy Union v Abigroup Contractors [2012] FCA 1134 | Case summary

Leave is granted to appeal from Order 1 of the orders of the Federal Magistrates Court of Australia made on 12 June 2012.
The appeal is upheld.
Order 1 of the orders of the Federal Magistrates Court of Australia made on 12 June 2012 is set aside.
That part of the interlocutory application before the Federal Magistrates Court of Australia relating to the relief reflected in Order 1 is dismissed.
The respondent is ordered to pay the costs of the applicants of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT 1 These proceedings concern an application under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act"), having regard to s 24(1A) of the Federal Court Act, for leave to appeal from interlocutory orders of the Federal Magistrates Court of Australia made on 12 June 2012 restraining the applicants who are the respondents in the principal proceeding from engaging in particular conduct until 26 November 2012, the date of commencement of the trial of the action: Abigroup Contractors Pty Ltd v CFMEU & Ors [2012] FMCA 639. 2 The first two applicants are organisations registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and are known under the acronyms CFMEU and CEPU. The third applicant is a transitionally registered organisation under Schedule 1 of the Fair Work (Registered Organisations) Act 2009 (Cth) and is described as the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees (the "third respondent Union"). 3 The fourth, fifth, sixth, seventh and eighth applicants are employees of the CEPU. 4 The ninth and eleventh applicants are employees of the Construction Employees and third respondent Union. 5 The tenth and twelfth applicants are employed by the CFMEU as Union organisers. 6 The respondent to the present application and the applicant in the principal proceeding is Abigroup Contractors Pty Ltd ("Abigroup"). Each numbered applicant is similarly the respondent by that number in the principal proceeding. 7 The principal application was filed in the Federal Magistrates Court on 24 May 2012 and amended by leave on 30 May 2012. The amended application is Annexure "TWI" to the affidavit of Mr Walthall sworn 25 September 2012. 8 By the amended application, Abigroup contends that from 10 May 2012 to the date of filing of the amended application, the CFMEU, CEPU and the third respondent Union through the fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth respondents conducted themselves "in a manner whereby they have engaged in besetting, intimidatory and blockading conduct which is intended to and has had the effect of counselling or procuring a substantial number of Employees to cease the performance of building work" at a project described as the Cairns Base Hospital Construction Project (the "CBH Project") (para 1(g) of the amended application). 9 It is common ground that the CBH Project is a significant infrastructure project being undertaken in far north Queensland involving significant expenditure. 10 By para 1(h) of the amended application, Abigroup contends that from 15 May 2012 to the date of filing of the amended application, the CFMEU, CEPU and the third respondent Union through the same individual respondents: … conducted themselves in a manner whereby they have impeded or denied access to the CBH Project for: i. Employees performing building work at the CBH; and ii. persons attempting to deliver goods and materials to the CBH Project. 11 By para 1(i) of the amended application, Abigroup contends that all respondents have impeded employees and persons attempting to deliver goods and materials to the CBH Project by means of, "besetting activity and the intermittent physical barring of access to the gates and entrances to the CBH Project with the intention of preventing or procuring those persons not to enter the CBH Project and perform work at the CBH Project". 12 By para 1(j) of the amended application, Abigroup contends that as a consequence of the actions described at 1(g), (h) and (i), stoppages of building work at the CBH Project occurred from 10 May 2012 and due to the absence of required personnel and materials, the applicant believes that work would continue to be prevented, delayed or interrupted unless each of the respondents is restrained from engaging in the identified conduct. 13 By para 1(l) of the amended application, Abigroup contends that the respondents had undertaken the identified action "with intent to coerce [Abigroup] to not engage or alternatively not allocate particular [subcontract] responsibilities to JGP Electrical CQ Pty Ltd known as 'John Goss Projects' at the CBH Project". 14 The foundation upon which final relief is sought is this. 15 Abigroup contends that the pleaded conduct constitutes "unlawful industrial action" for the purposes of s 37 of the Building and Construction Industry Improvement Act 2005 (Cth) (the "2005 Act"). Section 37 of that Act is in these terms: 37 Definition of unlawful industrial action Building industrial action is unlawful industrial action if: (a) the action is industrially-motivated; and (b) the action is constitutionally-connected action; and (c) the action is not excluded action. 16 Section 38 of the 2005 Act is in these terms: 38 Unlawful industrial action prohibited A person must not engage in unlawful industrial action. Note: Grade A civil penalty. 17 The terms industrially-motivated, constitutionally-connected action and excluded action are all defined terms under s 36 of the 2005 Act. 18 Abigroup contends that the identified actions on the part of the respondents in preventing, interrupting and/or delaying building work on the CBH Project is unlawful industrial action within the meaning of s 37 and has been undertaken in contravention of s 38 of the 2005 Act. Abigroup contends that the actions of the respondents so described "have been, are being and will continue to be undertaken in contravention of s 43(1)(b) and s 43(1)(c) of the 2005 Act. Section 43 of the 2005 Act is in these terms: 43 Coercion in relation to engagement etc. of building employees and building contractors (1) A person (the first person) must not organise or take action, or threaten to organise or take action, with intent to coerce another person (the second person): (a) to employ, or not employ, a person as a building employee; or (b) to engage, or not engage, a person as a building contractor; or (c) to allocate, or not allocate, particular responsibilities to a building employee or building contractor; or (d) to designate a building employee or building contractor as having, or not having, particular duties or responsibilities. Note: Grade A civil penalty. (2) Subsection (1) does not apply unless: (a) the first person is an organisation or a constitutional corporation; or (b) the second person is a constitutional corporation; or (c) the conduct occurs in a Territory or Commonwealth place. 19 Having regard to these conduct allegations and the contended contraventions, Abigroup seeks a range of orders by way of final relief at trial in the proceeding before the Federal Magistrates Court. 20 By Order 1 of the claims for final relief, Abigroup seeks an order pursuant to ss 39 and/or 49(1)(c) and 49(3)(a) of the 2005 Act restraining the CFMEU, CEPU and the third respondent Union from organising or being involved in organising any unlawful industrial action at the CBH Project (1a); aiding, abetting, counselling, procuring, inducing or conspiring with any employee of Abigroup or any subcontractor to Abigroup employed at the CBH Project ("Employees"), to take or to continue to take unlawful industrial action (1b); organising, encouraging, assisting or participating in a picket line at the entry or exit points to or from the CBH Project which has the effect of causing conduct which impedes, hinders or prevents the entry or exit of persons or vehicles to or from the CBH Project or has the effect of unlawfully counselling or procuring any employee not to work upon the CBH Project or has the effect of verbally abusing or threatening any person in the vicinity of the CBH Project (1c); restraining orders directed to any conduct of the CFMEU, the CEPU or the third respondent Union which has the effect of impeding, hindering or preventing the entry or exit of persons or vehicles to or from the CBH Project, unlawfully counselling employees not to work upon the CBH Project or verbally abusing or threatening persons in the vicinity of the CBH Project (1d, e and f); placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the CBH Project (1g); attending or organising or procuring any person to attend within 100 metres of any entrance or exit to the CBH Project except as authorised by law or for the purpose of using a public road for reasons unconnected with the CBH Project or for the purpose of complying with proposed final orders (1h); and affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of the CBH Project (1i). 21 The remedial provisions of the 2005 Act relied upon in respect of Order 1 of the final relief are ss 39, 49(1)(c) and 49(3)(a). 22 Section 39 of the 2005 Act is in these terms: 39 Injunction against unlawful industrial action (1) If, on application by the ABC Commissioner or any other person, an appropriate court is satisfied that unlawful industrial action is: (a) occurring; or (b) threatened, impending or probable; then the court may grant an injunction in such terms as the court considers appropriate. (2) If, in the opinion of the court it is desirable to do so, the court may grant an interim injunction pending determination of an application under subsection (1). (3) 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. (4) In this section: appropriate court means the Federal Court, the Federal Magistrates Court, a Supreme Court of a State or Territory or a District Court, or County Court, of a State. 23 Section 49(1) of the 2005 Act provides that on an application by an eligible person an appropriate court may make an order imposing a pecuniary penalty upon a person who has contravened a civil penalty provision. The appropriate court may by s 49(1)(c) make "any other order that the court considers appropriate". Section 49(3) amplifies the orders which might be made under s 49(1)(c) by providing as follows: (3) The orders that may be made under paragraph (1)(c) include: (a) injunctions (including interim injunctions); and (b) any other orders that the court considers necessary to stop the conduct or remedy its effects, including orders for the sequestration of assets. 24 Section 49(4) provides that if the contravention in issue in the proceedings is a contravention of s 38, the power of the appropriate court to grant an injunction restraining a person from engaging in contravening conduct may be exercised 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; whether or not the defendant has previously engaged in such conduct and whether or not there is imminent danger of substantial damage to any person if the defendant engages in conduct of that kind. 25 Section 49(6) provides that an eligible person includes a person "affected by the contravention". 26 Order 2 of the final relief seeks orders under the same provisions of the 2005 Act restraining each of the individuals from engaging in any unlawful industrial action at the CBH Project in the familiar distributed way by reference to organising such conduct, aiding or abetting such conduct, encouraging or participating in a picket line at entry or exit points of the CBH Project, impeding or hindering entry or exit, unlawfully counselling an employee not to work upon the CBH Project, and abusing or threatening any person in the vicinity of the CBH Project. Orders are also sought as part of Order 2 restraining the individuals in connection with conduct described above at [20] as paras 1g, h and i. 27 By Order 3 of the claim for final relief, Abigroup seeks an order under s 43(1)(b) restraining the CFMEU, CEPU and the third respondent Union from organising any industrial action with the intention of coercing Abigroup to not engage a person as a building contractor or to not allocate particular responsibilities to a building contractor. 28 By Order 4, Abigroup seeks an order under s 43(1)(b) against all of the individual respondents restraining them in the same terms as Order 3. 29 By Order 5, Abigroup seeks an order that the respondents pay a pecuniary penalty under s 49(1) of the 2005 Act in respect of the contraventions of ss 38, 43 or 44(1) of the 2005 Act. 30 Section 44(1) of the 2005 Act provides: 44 Coercion of persons to make, vary, terminate etc certified agreements etc. (1) A person must not: (a) take or threaten to take any action; or (b) refrain or threaten to refrain from taking any action; with intent to coerce another person, or with intent to apply undue pressure to another person, to agree, or not to agree: (c) to make, vary or terminate, or extend the nominal expiry date of, a building enterprise agreement … or (d) to approve any of the things mentioned in paragraph (c). Note: Grade A civil penalty. 31 By Order 6, Abigroup seeks an order that any penalty so ordered by paid to Abigroup. 32 By Orders 8, 9 and 10, Abigroup seeks compensation under s 49(1)(b) of the 2005 Act for damage suffered by reason of a contravention of a civil penalty provision, and interest and costs. Order 7 provides that this order does not apply to the organising or taking by any person of protected industrial action in accordance with the Fair Work Act 2009 (Cth). 33 Section 49(1)(b) provides that an appropriate court may make an order against a person who has contravened a civil penalty provision requiring the defendant to "pay a specified amount to another person as compensation for damage suffered by the other person as a result of the contravention". 34 Apart from the final relief, the amended application recites a claim for interlocutory relief. The claim for interlocutory relief is in these terms: 1. Until the final determination of these proceedings or further order, the First Respondent [CFMEU], Second Respondent [CEPU] and the Third Respondent (whether by their officers, delegates or employees, or howsoever otherwise) be restrained in terms of paragraph 1 of this Application and/or paragraph 3 of this Application. 2. Until the final determination of these proceedings or further order, that the [4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th Respondents] be restrained in the terms set out in paragraph 2 of this Application and/or paragraph Application. 3. On or before 5.00pm 30 May 2012 the Firth Respondent, Second Respondent and Third Respondent prepare and distribute to the Employees at the CBH Project a notice in writing: a. advising them of the making of this order; b. advising them to: i. immediately cease and refrain from engaging in unlawful industrial action; ii. make themselves available for work and perform work the Applicant or any subcontractor to the Applicant may reasonably require save and except as entitled to cease work under the Work Health & Safety Act 2011; and iii. attend for work in accordance with their roster as the case may be. 35 The application for urgent interim relief came before the Federal Magistrates Court on 25 May 2012. Federal Magistrate Burnett treated the application as an application for short-term interim relief in accordance with the principles in Williams v Automotive, Food, Metals, Engineering, Printing, Kindred Industries Union [2009] FCA 86 during a period within which the parties might be in a position to properly argue the merits of an application for relief pending the trial of the proceeding. On 25 May 2012, Federal Magistrate Burnett made the following orders: THE COURT ORDERS: 1. Until the final determination of these proceedings or further order, the First Respondent, Second Respondent and Third Respondent (whether by their officers, delegates or employees, or howsoever otherwise) be restrained by order pursuant to sections 39 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) from: (a) organising, or being involved in organising, any unlawful industrial action at the Cairns Base Hospital Project, The Esplanade, Cairns (CBH Project); (b) aiding, abetting, counselling, procuring, inducing or conspiring with any employee of either the Applicant, or any subcontractor to the Applicant, employed at the Applicant's site at the CBH Project (Employees) to take or to continue to take unlawful industrial action; (c) organising, encouraging, assisting or participating in a picket line at the entry or exit points of the CBH Project which has the effect of causing conduct the subject of sub clause d, e or f herein; (d) impeding, hindering or preventing the entry or exit of persons or vehicles to and from the CBH Project; (e) unlawfully counselling or procuring any Employee not to work upon the CBH Project; (f) verbally abusing or threatening any person in the vicinity of the CBH Project; (g) placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the CBH Project; (h) attending, or organising or procuring any person to attend, within 100 metres of any entrance or exit to the CBH Project, save for such entry: (i) as may be lawfully authorised, (ii) for the purpose of using a public road for reasons unconnected with the said CBH Project; or (iii) for the purpose of complying with these orders; and (i) affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of the CBH Project. 2. Until the final determination of these proceedings or further order, that the Fourth Respondent, Fifth Respondent, Sixth Respondent, Seventh Respondent, Eighth Respondent, Ninth Respondent and Tenth Respondent be restrained pursuant to sections 39 of the BCII Act from: (a) organising, or being involved in organising, any unlawful industrial action at the Cairns Base Hospital Project, The Esplanade, Cairns (CBH Project); (b) aiding, abetting, counselling, procuring, inducing or conspiring with any employee of either the Applicant, or any subcontractor to the Applicant, employed at the Applicant's site at the CBH Project (Employees) to take or to continue to take unlawful industrial action; (c) organising, encouraging, assisting or participating in a picket line at the entry or exit points of the CBH Project which has the effect of causing conduct the subject of sub clause d, e or f herein; (d) impeding, hindering or preventing the entry or exit of persons or vehicles to and from the CBH Project; (e) unlawfully counselling or procuring any Employee not to work upon the CBH Project; (f) verbally abusing or threatening any person in the vicinity of the CBH Project; (g) placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance or exit to the CBH Project; (h) attending, or organising or procuring any person to attend, within 100 metres of any entrance or exit to the CBH Project, save for such entry: (i) as may be lawfully authorised, (ii) for the purpose of using a public road for reasons unconnected with the said CBH Project; or (iii) for the purpose of complying with these orders; and (i) affixing or displaying any offensive poster, banner, photograph or any material whatsoever on any hoarding, post or any surface in the vicinity of the CBH Project. 3. The First Respondent, Second Respondent and Third Respondent prepare and distribute to the Employees who are members engaged to work at the CBH Project a notice in writing: (a) advising them of the making of this order; (b) advising them to: (i) immediately cease and refrain from engaging in unlawful industrial action; (ii) make themselves available for work and perform work the Applicant or any subcontractor of the Applicant may reasonably require save and except as entitled to cease work under the Work Health & Safety Act 2011; and (iii) attend for work in accordance with their roster as the case may be. 4. That the matter be listed for further hearing at 10am on Wednesday 30 May 2012. 36 On 30 May 2012, the interim orders made on 25 May 2012 were extended until 4.00pm on 4 June 2012. On 4 June 2012, the interim orders were extended until 12 June 2012. On 12 June 2012, the orders were extended "until 26 November 2012". Interlocutory orders were made on 12 June 2012 including the listing of the proceeding for hearing commencing on 26 November 2012 for five days. The parties were given liberty to apply. 37 In determining the question of whether the interlocutory orders ought to be made, Federal Magistrate Burnett at [65] of the reasons for judgment observes that the parties agreed that the relevant test for determining whether interlocutory relief lies in the circumstances of the case are those principles identified by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. In the course of the reasons for judgment, Federal Magistrate Burnett extensively examines from [5] to [60] of the reasons for judgment, the factual questions reflected in the various affidavits so as to determine whether a prima facie case is made out in the sense explained in the organising principles governing the grant of interlocutory relief. 38 At [61], [62] and [63], the Federal Magistrate Burnett said this: 61. At this stage, this being an interlocutory hearing, it is not appropriate to make any findings of fact, and I make no such findings, but I simply outline some of the detail on the history of this application to illustrate the contest which exists between these parties as to whether or not the true motivation for the conduct of the respondent[s] is safety or whether indeed it is, as the applicant contends, an industrial matter being the choice of Abigroup's third party contractors. 62. They are matters that can only be resolved upon the hearing of the evidence. However, it is at least accepted in part by the respondents that there is some issue also in relation to these matters. In its material, the respondents concede for instance the poor industrial history concerning John Goss and some of the contraventions that occurred concerning it prior to these events - see in particular the matters addressed in Mr Ong's affidavit. 63. However, notwithstanding the fact that the motivation alleged by the applicant is denied, the circumstances cannot be entirely ignored when viewed as a whole. Notwithstanding the respondents' efforts to place an industrially innocent and safety focused emphasis on the events and exchanges, there is plainly much at issue between these parties concerning whether the conduct was industrially motivated. Those matters can only be resolved following a close examination of the factual context and considering what was said together with the various issues identified concerning safety and their seriousness. [emphasis added] 39 At [66], Federal Magistrate Burnett observed that the facts deposed to by the applicant's witnesses demonstrated a prima facie case. 40 In this application for leave to appeal, the applicant respondents do not contest the acceptance by Federal Magistrate Burnett of a prima facie case in the sense required by the organising principles described by their Honours Gummow and Hayne JJ at [65] to [72] and Gleeson CJ and Crennan J at [19] in ABC v O'Neill. 41 The interlocutory injunction orders (and implicitly the mandatory order at Order 3) are expressed to be made in reliance upon s 39 of the 2005 Act. Section 39(1) confers power on an "appropriate court" (defined to include the Federal Magistrates Court) to grant an injunction in such terms as the court "considers appropriate" and by s 39(2), subject to forming the relevant opinion, the court may grant an interim injunction pending determination of an application for a final injunction. Section 75 of the 2005 Act conferred jurisdiction in these terms: 75 Jurisdiction of courts (1) If a provision of this Act, expressly or by implication, authorises a proceeding to be instituted in a particular court in relation to a matter: (a) that provision is taken to vest that court with jurisdiction in that matter; and … (c) in the case of the … Federal Magistrates Court - the jurisdiction so vested is not limited by any limits to which the other jurisdiction of the court might be subject … 42 Section 39 expressly authorises the making of an application (that is, the commencement of a proceeding) in the Federal Magistrates Court by operation of ss 39(1) and 39(4). It follows that s 39 not only confers power to grant a final or interim injunction but ss 39 and 75 confer jurisdiction to do so. By s 75B of the 2005 Act, the jurisdiction is to be exercised in the Fair Work Division of the Federal Magistrates Court. Section 15 of the Federal Magistrates Act 1999 (Cth) confers power to make orders in these terms: 15 Making of orders and issue of writs The Federal Magistrates Court has power, in relation to matters in which it has jurisdiction, to: (a) make orders of such kinds, including interlocutory orders, as the Federal Magistrates Court thinks appropriate; and (b) issue, or direct the issue of, writs of such kinds as the Federal Magistrates Court thinks appropriate. 43 The real contest between the parties concerns the question of whether an interlocutory injunction lies in aid of final injunctive relief in the proceedings having regard to the legislative changes that have occurred. 44 Those changes are these. 45 Item 51 of Schedule 1 of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) (the "Amendment Act") provides that Chapters 5 and 6 of the Building and Construction Industry Improvement Act 2005 (Cth) are repealed. The Amendment Act was assented to on 15 April 2012 and Schedule 1 of the Amendment Act commenced by operation of s 2 of that Act on a day or days to be fixed by Proclamation. By Proclamation of 24 May 2012, the date of commencement of Schedule 1 is 1 June 2012. Chapter 5 of the 2005 Act contains ss 37, 38 and 39 of the 2005 Act and the inter-related definitions contained in s 36 of the 2005 Act upon which those sections depend. Chapter 6 contains ss 43 and 44 of the 2005 Act. Item 52 of the Amendment Act repeals Part 1 of Chapter 7 and substitutes a new Part 1 under the heading "Powers to Obtain Information etc". The former Part 1 under the heading "Contravention of Civil Penalty Provisions" of Chapter 7 contained s 49 and the inter-related definitions contained in s 48 upon which, in part, s 49 depends. 46 It follows that as from 1 June 2012, the law of the Commonwealth did not comprehend a prohibition upon "unlawful industrial action" as that term was defined and understood for the purposes of Chapter 5 of the 2005 Act. Nor did Commonwealth law comprehend the prohibitions reflected in ss 43 and 44 of Chapter 6 of the 2005 Act, for the purposes of that Act. Similarly, from 1 June 2012, s 49 of the 2005 Act formed no part of the law of the Commonwealth. 47 It follows that conduct rendered unlawful under these provisions of the 2005 Act was no longer unlawful on and after 1 June 2012. 48 The Explanatory Memorandum circulated by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations and relied upon before the House of Representatives explains Items 51 and 52 of the Amendment Act in these terms: Item 51 - Chapters 5 and 6 67. The report "Transition to Fair Work Australia for the Building and Construction Industry" (the Wilcox Report) recommended that the provisions of the [Fair Work Act] governing the conduct of employers, employees and industrial associations and penalties for contraventions of the [Fair Work Act] apply unchanged to building industry participants. The Government accepted that recommendation. This item gives effect to that recommendation by repealing the provisions dealing with unlawful industrial action and other building industry-specific workplace relations prohibitions. Item 51 - Part 1 of Chapter 7 68. Part 1 of Chapter 7 deals with contraventions of civil remedy provisions. As other amendments will repeal all existing civil remedy provisions in the Act, these provisions are no longer required and are therefore repealed by Item 52. This Part will be replaced with a new Part relating to powers to obtain information. … 49 The Amendment Act by Item 1 of Schedule 1 also changed the name of the Building and Construction Industry Improvement Act 2005 (Cth) to the Fair Work (Building Industry) Act 2012 (Cth) from 1 June 2012. 50 The repeal by the Commonwealth Parliament of the provisions I have mentioned immediately gives rise to the transitional question of the entitlement of a party to a remedy in respect of contraventions of the law occurring up to the date of repeal of both the remedial provisions and those provisions giving rise to the substantive prohibitions upon particular conduct. 51 Item 1(1) of Schedule 2 to the Amendment Act under the heading "Transitional and consequential provisions" provides that the "Governor-General" may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by the [Amendment Act]. By Select Legislative Instrument No. 80 of 2012, the Governor-General made a regulation described as Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulation 2012. Part 2 of that Regulation addresses "Transitional matters" and s 2.3 addresses "Proceedings" and is, relevantly for the present proceedings, in these terms: 2.3 Proceedings (1) For subitem 1(1) of Schedule 2 to the Act: (a) if an application, proceeding, appeal or other action (a proceeding) was started under the 2005 Act but not completed before the commencement of this regulation, the 2005 Act (other than Divisions 1 and 2 of Part 2 of Chapter 7) continues in force to the extent necessary to allow the proceeding to be dealt with; and (b) if a proceeding could have been started under the 2005 Act in relation to conduct that happened before the commencement of this regulation, but was not started before the commencement of this regulation, the 2005 Act (other than Divisions 1 and 2 of Part 2 of Chapter 7) continues in force to the extent necessary to allow the proceeding to be started and dealt with. Example of proceeding A proceeding that would be started because of a person's failure to comply with a requirement to produce a document. [emphasis added but for the bold reference] 52 The reference to the "2005 Act" is defined by s 1.3 of Part 1 of the Regulation as the Building and Construction Industry Improvement Act 2005 as in force immediately before the commencement of the Regulation. Divisions 1 and 2 of Part 2 of Chapter 7 of the 2005 Act are concerned with the powers of the Commissioner to obtain information and the powers of inspectors, and do not bear on the question of construction of the transitional provision. The Regulation by para 1.2 commenced on the commencement of Schedule 1 to the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth). Schedule 1 to that Act commenced on 1 June 2012. 53 Section 2.4 of the regulation is in these terms: 2.4 Decisions (1) For subitem 1(1) of Schedule 2 to the Act, this section applies if a decision: (a) was made under the 2005 Act; and (b) is in force immediately before the commencement of this regulation. Example of decisions A declaration, delegation, direction, instruction or court or tribunal order. (2) The decision is taken to continue in force as if it had been made under the [Fair Work (Building Industry) Act 2012]. 54 The applicants contend that Federal Magistrate Burnett fell into error in exercising the discretion to grant interlocutory orders by failing to recognise that by reason of the repeal of ss 36, 37, 38 and 39 of the 2005 Act, the conduct the subject of the interlocutory orders made under s 39 on the statutory footing required by s 39(1) that the court is "satisfied" that "unlawful industrial action" is occurring, threatened, impending or probable (in contravention of s 38), simply could not be conduct in contravention of the 2005 Act because on and after 1 June 2012 the law of the Commonwealth did not comprehend a notion of "unlawful industrial action" nor any prohibition upon it, nor any power or jurisdiction to grant an injunction restraining a person from engaging in conduct that prior to 1 June 2012 may have fallen within the definition of unlawful industrial action and may have involved a prima facie contravention of the former s 38. 55 The applicants contend that on 12 June 2012, when the two interlocutory restraining orders and the mandatory order were made, there was simply no power and no jurisdiction to make the orders. 56 Abigroup contends that the transitional or savings provision contained in the Regulation has the effect of preserving the jurisdiction and power of the Federal Magistrates Court to make, in and for the purposes of the proceeding, the interlocutory orders of 12 June 2012. That is said to follow because all of the necessary integers of Regulation 2.3(1)(a) are satisfied: first, the proceeding was "started" under the 2005 Act (that is, the pre-Amendment Act); second, it was not "completed" before the commencement of the Regulation on 1 June 2012; third, the 2005 Act (the pre-Amended Act) continues in force; and, fourth, ss 36, 37, 38 and 39 of the 2005 Act are saved and "continue" expressly for the purpose of enabling "the proceeding to be dealt with". Abigroup also contends that s 49(1)(c) continues to operate including the explanatory amplification of that provision by s 49(3)(a) so as to confer power and jurisdiction to grant the interlocutory orders made on 12 June 2012 as orders directed to enabling the proceeding to be dealt with in terms of the language of the Regulation. 57 Abigroup also contends that at trial it will seek, and maintains an entitlement to the grant of, final injunctions in terms of the amended application on the footing that final orders would necessarily be orders made in the "proceeding" for the purposes of Regulation 2.3(1)(a) (which is relevantly engaged) and notwithstanding the Parliament's repeal of ss 36, 37, 38, 39 and 49 of the 2005 Act, those provisions continue to apply as a law of the Commonwealth providing a proper foundation for permanent injunctions at trial restraining the applicants from engaging in conduct that would not be unlawful if engaged in by any other citizen and would not be unlawful if engaged in by these applicants but for the contended scope of the Regulation's transitional application. 58 The applicants contend that Regulation 2.3(1)(a) simply raises a question of construction and the only role of the Regulation is to continue in force the 2005 Act so as to enable a remedy in the nature of a pecuniary penalty to be imposed in relation to proven contravening conduct or compensation for damage suffered as a result of proven contravening conduct. 59 The critical words addressing the continuation in force of the 2005 Act prior to the Amendment Act are said to be the words "to the extent necessary to allow a proceeding to be dealt with". The applicants contend, in effect, that since the conduct complained of in the proceeding cannot be unlawful on and after 1 June 2012, a continuing power and jurisdiction to enjoin that conduct on and from 1 June 2012 is not "necessary" to "allow" the "proceeding" to be "dealt with". The proceeding, it is said, can be dealt with according to the relief claimed that is properly open, that is, penalties, compensation, interest and costs. 60 As to the question of construction of the transitional Regulation, Federal Magistrate Burnett said this: 69. … There is in my mind a serious issue to be resolved in relation to this matter. Plainly, the legislation has repealed the Act as it stood but the transitional provisions provide that, at least in respect of proceedings that were on foot in respect of conduct which took place before the repeal of the Act, those proceedings remain. 70. … The argument advanced by the respondent[s] has some appeal but respectfully I think that it might be somewhat superficial. 71. That is to say that what is being sought to be restrained into the future is conduct which is no longer unlawful under the new Act. However, the serious issue to be tried in my view is as to what is meant by the term "proceeding". A proceeding is simply more than just a statement of claim. A proceeding includes not only the claim or the basis for the claim but also the relief which is sought in respect of the claim. 72. Arguably, the drafting of the legislation and in particular the drafting of the transitional Act, particularly the words "to the extent necessary to allow the proceeding to be dealt with", contemplated the prospect that any proceeding that had been commenced and yet to be exhausted could have involved any of various forms of relief including relief in the nature of declarations, injunctions and damages. 73. On one reading of the section, the Parliament did not seek to fetter any particular proceeding which had been commenced before the repeal of the Act on the basis of the relief sought. That issue, in my view, remains a serious issue that ought to be tried, and, notwithstanding the arguments advanced by the respondent(s) at this early stage, I am not inclined to simply dismiss the application and dissolve the injunctions until there has been a detailed consideration and argument on that matter. … 75. It follows in my view that the applicant has made out a prima facie case in the sense that if the evidence remains as it is at least for the applicant's part, there remains a probability that at the conclusion of the trial of the action the applicant would be entitled to the relief sought. [emphasis added] 61 The question of law to be determined as to the construction of the transitional Regulation does not depend upon any finding of fact. It is common ground that the Regulation is engaged. It is also common ground (or at least the applicants make no challenge to the position) that a prima facie case of contravening conduct during the period the subject of the amended claim up to 1 June 2012 is made out. 62 The merits or otherwise of the question of construction of the scope and operation of the transitional Regulation upon which the interlocutory orders rest can get no better or worse by findings of fact at trial. 63 It is also common ground that the well-settled principles derived from the Full Court's decision in Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397; (1991) 104 ALR 621, to be applied in determining whether leave to appeal from an interlocutory judgment ought to be granted, are first, whether the primary decision is attended by sufficient doubt to warrant reconsideration and second, whether the Court is satisfied that substantial injustice would result should leave be refused, supposing the primary decision to be wrong. Although the discretion exercised on an application for leave to appeal is "wide", it is nevertheless exercised according to these settled principles. See also Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58; Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 at [24]; Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; (2010) 265 ALR 112 at [108]; Cement Australia Pty Ltd v Australian Competition and Consumer Commission (ACCC) [2010] FCAFC 101 at [20]. 64 The application of these settled principles to the reasoning under challenge of the primary judge does not mean that when the Court or a Judge is called upon to exercise the discretion conferred under s 24(1A), leave is to be granted simply because a different view on the question in issue might be taken. The applicant must demonstrate sufficient doubt to warrant reconsideration and satisfy the Court that substantial injustice would arise should leave be refused assuming the primary decision to be wrong. 65 The answer to the question of whether these tests are satisfied concerning the interlocutory injunction orders made by the Federal Magistrates Court on 12 June 2012 lies first, in an examination of the fundamental role and remedial purpose of an interlocutory injunction and second, in the proper construction of the critical words of the transitional Regulation in the context of the final relief sought in the proceeding. 66 The very first question to be asked when an applicant seeks an interlocutory injunction whether in the exercise of a special statutory jurisdiction conferred upon the primary Court as in this case or in the exclusive or auxiliary jurisdiction, is, what is the legal right, equity or cause of action sought to be vindicated at trial? 67 That question necessarily arises first because the very purpose of an interlocutory injunction is to restrain another person from engaging in conduct that might, if left unrestrained, render final relief at trial illusory or valueless, or so diminish the subject matter of the proceeding (the rights in which are sought to be vindicated at trial) that the status quo (that is, the steady state between the parties prior to the conduct complained of) must be preserved in the interests of justice pending trial and the final quelling of the controversy by an exercise, as in this case, of the judicial power of the Commonwealth by fact finding and the application of the law to the facts as found. 68 There is simply no basis in principle and thus no basis in law for the grant of an interlocutory injunction if the applicant has no legal right (including a statutory right) to vindicate by final relief. There is no such thing as a "free-standing" entitlement to an immediate interim order by Court intervention in the conduct of the parties absent a right recognised at law in the applicant capable of vindication at trial. 69 This is why the first consideration whether in private law or public law litigation is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the applicant will be held entitled to relief. A prima facie case means (ABC v O'Neill at [65], Gummow and Hayne JJ): … a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. 70 The phrase "serious question" to be tried might also be used to describe this threshold requirement so long as the phrase is "understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham Group Ltd v Bristol Laboratories (1968) 118 CLR 618, depends upon the considerations emphasised in Beecham" (ABC v O'Neill at [70], Gummow and Hayne JJ). Those considerations, of course, are the need for the applicant to make out a prima facie as described; the need to demonstrate that the balance of convenience lies in favour of the applicant; and the need to address the question of whether the applicant is likely to suffer incompensable irreparable injury should the Court not intervene. 71 All of these considerations represent the settled principles upon which a Court having jurisdiction and power in the subject matter of the controversy may exercise a discretion to intervene prior to trial: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 24 [21]; Fejo v Northern Territory (1998) 195 CLR 96 at 121-122 [26] - [27]; ABC v O'Neill (supra), Gleeson CJ and Crennan J at [19]; Gummow and Hayne JJ at [65] - [72]. 72 If, however, the applicant has no legal right to vindicate at trial because the conduct complained of does not reveal an infraction of a right in the applicant or found, under the relevant Act, a basis for suit, the entire foundation for an interlocutory remedy falls away. 73 In this proceeding, Abigroup claims a right which it seeks to have vindicated by a permanent injunction at trial under ss 39 and 49 of the 2005 Act to prevent the applicants from engaging in conduct constituting s 37 "unlawful industrial action" in contravention of s 38 of the 2005 Act. The prohibition in s 43 of the 2005 Act is also said to be engaged. 74 There can be no justification, in principle, for granting an interlocutory injunction in the principal proceeding pending the determination of the rights of the parties in aid of final injunctive relief if there is no basis upon which a permanent injunction might be granted. If Abigroup cannot show a "sufficient colour of right" of the kind sought to be vindicated by final relief, the "foundation of the claim for interlocutory relief disappears": Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, Gleeson CJ at [15]. 75 The interlocutory order can only go in aid of final relief. 76 Moreover, the conferral of the power and jurisdiction to grant an injunction "in such terms as the Court considers appropriate" as recited in ss 39(1) and 49(1)(c) does not confer a discretion "at large". The discretion is to be exercised according to settled principle. In Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 394, [28] and [29], Gaudron, McHugh, Gummow and Callinan JJ said this: 28. The term "injunction" is used in numerous statutes to identify a particular species of order, the making of which the law in question provides as part of a new regulatory or other regime, which may be supported by penal provisions. Notable examples in statutes presently in force nationally are found in s 80 of the Trade Practices Act 1974 (Cth), s 114 of the Family Law Act 1975 (Cth), s 1324 of the Corporations Law (Cth) and s 170NG of the Workplace Relations Act 1996 (Cth). These provision empower courts to give a remedy in many cases where none would have been available in a court of equity in the exercise of its jurisdiction, whether to protect the legal [including statutory] or equitable rights of the plaintiff, the administration of a trust for charitable purposes, or the observance of public law at the suit of the Attorney-General, with or without a relator, or at the suit of a person with a sufficient interest. 29. In these situations, the term "injunction" takes its content from the provisions of the particular statute in question … 77 The Amendment Act repealed from 1 June 2012 all of the provisions relied upon by Abigroup as the source of the right to be vindicated at trial on 26 November 2012. There is simply no basis under the primary Act as amended for granting at trial a permanent injunction to restrain the applicants from engaging, as to the future, in the conduct complained of. That conduct is no longer prohibited conduct at least in terms of the law as it stood prior to 1 June 2012 under the 2005 Act. The perceived vice to be remedied by the Amendment Act's repeal of the relevant provisions as revealed by the Explanatory Memorandum is the perceived anomaly of a separate conduct regime for the Building and Construction industry rather than the general conduct regime of the Fair Work Act 2009 (Cth). 78 The Amendment Act gives effect to the recommendations of the Wilcox Report (see [48] of these reasons). This is the statutory context of the transitional Regulation. It might be said that the conduct the subject of the factual allegations reflected in the affidavits relied upon by Abigroup gives rise to contended contraventions of particular provisions of the Fair Work Act 2009. That contention is not relevant to these proceedings and if such a contention is to be made, it will be addressed in other proceedings under that Act to be addressed on the merits then arising. 79 Although the relevant provisions forming the basis of Abigroup's claims were repealed effective from 1 June 2012, the transitional Regulation continues the pre-Amendment Act provisions in force, not generally, but only to an extent. The relevant words are words of limitation not general extension. 80 The 2005 Act continues in force "to the extent necessary to allow the proceeding to be dealt with". Since the conduct complained of could not be unlawful (so far as the Act is concerned) if engaged in by citizens on and after 1 June 2012, it is a highly tortured construction of the transitional Regulation, directed as it is, to the statutory purpose of continuing the 2005 Act in force only to the extent necessary, to enable a particular uncompleted proceeding to be completed, to treat the transitional Regulation as continuing the 2005 Act in force to such an expansive extent that the applicants might be enjoined permanently from engaging in conduct no longer rendered unlawful or the subject of any statutory prohibition under the Act. 81 This gives an absurd continuing "bubble" effect to the 2005 Act in terms of forward-looking conduct that is entirely inconsistent with the statutory purpose of providing a continuing framework for the final resolution of an incomplete proceeding founded upon conduct rendered unlawful only up to 1 June 2012. 82 Abigroup contends that there is nevertheless a serious question to be tried as to the construction of the transitional Regulation. However, Abigroup must show a prima facie case or a serious question to be tried (as that phrase is properly understood) on the facts in relation to a right capable of demonstrated vindication at trial, not merely a serious question as to whether such a right subsists at all. If there is no right capable of vindication at trial because no injunction could properly be framed restraining the applicants from engaging in conduct shown not to be unlawful, no interlocutory injunction can be granted because it cannot go in aid of any final relief. 83 Accordingly, I am satisfied that there is no basis for the interlocutory orders made by the Federal Magistrates Court of Australia. The transitional Regulation does not confer power or jurisdiction to make the interlocutory orders in the relation to conduct in the period after 1 June 2012. The question of the power and jurisdiction of the Federal Magistrates Court to make the interlocutory orders was fully argued before the Federal Magistrates Court and has been fully argued before this Court. It involves questions of principle and only questions of law. 84 I give leave to appeal from the orders of the Federal Magistrates Court of Australia pursuant to s 24(1A) of the Federal Court Act. Since the question is purely a matter of law and has been fully argued, I exercise under s 25(1AA) the appellate jurisdiction conferred under s 24(1)(d) of the Federal Court Act by making the following orders:

Leave is granted to appeal from Order 1 of the orders of the Federal Magistrates Court of Australia made on 12 June 2012.
The appeal is upheld.
Order 1 of the orders of the Federal Magistrates Court of Australia made on 12 June 2012 is set aside.
That part of the interlocutory application before the Federal Magistrates Court of Australia relating to the relief reflected in Order 1 is dismissed.
The respondent is ordered to pay the costs of the applicants of and incidental to the appeal. 85 The application before the Federal Magistrates Court resulted in a range of other directions orders being made to progress the matter to trial for final relief. It may be that aspects of the costs associated with the application are also attributable to matters relating to those other orders. The Federal Magistrates Court is best placed to determine where the costs in relation to the interlocutory application before that Court ought to fall. The disposition of that matter is remitted to the Federal Magistrates Court. 86 Finally, two things should be noted. 87 First, counsel for the Intervener, Fair Work Building Industry Inspectorate, supports all of the arguments of Abigroup. 88 The Intervener also contends that there may be other transitional cases that might be affected by the construction to be attributed to the operation of the Regulation. However, the Intervener is unable to identify any other such case or any details of any other possible cases. I infer that if there are such cases, the Intervener would be likely to be in the best position to identify them to the Court in its capacity as an Intervener in the proceeding. 89 Second, the recognition that the conduct the subject of the affidavit evidence is not unlawful under the 2005 Act as amended does not mean that the conduct (consisting of extreme language and other extravagant conduct) reflected in those affidavits is lawful. It may or may not be. It is in contest in any event. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Construction, Forestry, Mining and Energy Union v Abigroup Contractors

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Judgment (15 paragraphs)

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Legislation Cited (11)

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