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

REASONS FOR JUDGMENT 1 The applicants on the motion (the CFMEU parties) by para 1 seek an order extending the time within which they may file and serve a motion for leave to appeal from part of my judgment in WAD 106 of 2009. Judgment in that matter was given in two separate sets of reasons. 2 The proceedings arose from strike action taken by employees of several contractors on 5, 6, 8, 24 and 25 June 2009 at a high rise building site at 915 Hay Street, Perth (the Site) controlled by Diploma Constructions (WA) Pty Ltd (Diploma). 3 In its substantive application filed in June 2009, the applicant, the Australian Building and Construction Commissioner (ABCC), which is the respondent to the motion, sought relief in respect of alleged breaches by the CFMEU parties of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), a civil penalty provision, which prohibits a person from engaging in unlawful industrial action. 4 On 29 September 2009, I delivered reasons for judgment in relation to the application by the ABCC for an interlocutory injunction to restrain the CFMEU parties from engaging in further unlawful industrial action in which I concluded that interlocutory relief ought be granted: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092 (the first judgment). 5 At that time, however, I deferred making orders as the respondents indicated that they wished to be heard on the form of those orders. 6 In Australian Building & Construction Commissioner v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 1587 (the second judgment) delivered on 23 December 2009, I made the following orders: 1. Until further determination of this application or until further order, each of the respondents (whether by their officers, delegates, agents, employees or other representatives) be restrained from: (a) being engaged in or involved in any contractor (and their employees) or employee who is required to perform building work for Diploma Constructions (WA) Pty Ltd (Diploma): (i) failing or refusing to attend for building work or failing or refusing to perform any work after attending for building work; or (ii) placing a ban, limitation or restriction on the performance of building work adopted in connection with an industrial dispute, (together action) save and except in relation to action by any employee of a contractor or of Diploma, required to perform building work for Diploma if the action by the employee is authorised or agreed to, in advance and in writing, by the employer of the employee; or action by an employer that is authorised or agreed to, in advance and in writing, by or on behalf of employees of the employer; or action based on a reasonable concern held by the employee about an imminent risk to his or her health or safety and the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe to perform. (b) attending or organising or procuring any person or persons, to attend, within 100 metres of any entrance to the Diploma construction site located at 915 Hay Street, Perth, Western Australia, save for such entry to the site as may be authorised by law pursuant to the provisions of Part 3-4 of the Fair Work Act 2009, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders. (c) Costs reserved. 7 There is no issue between the parties as to the applicable legal principles governing the disposition of this motion. 8 The considerations relevant to an application for an extension of time in which to seek leave to appeal from an interlocutory order were set out by Lindgren J in Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20]: In order for the Court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment, the following conditions must be satisfied: 1. There must be a satisfactory explanation for the delay beyond the seven-day time limit fixed by O 52 r 10(2)(b) (see, for example, Deighton v Telstra Corporation Ltd (unreported, Full Court, 17 October 1997)); 2. The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the 'arguable error' question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself. 3. Since an applicant for extension of time within which to appeal as of right must show 'special reasons' (O 52 r 15(2)), nothing less should be required of an applicant for an extension of time within which to apply for leave to appeal (Deighton v Telstra Corporation Ltd, above). 9 I will deal first with the question of whether the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court and whether substantial injustice would result if leave were refused supposing the decision to have been wrong. 10 As Lindgren J said in Sharman, the approach to the 'arguable error' question on a motion such as this is no different to that on an application for leave to appeal. 11 Central to the reasons for shaping the relief granted was my characterisation, as spurious, of the CFMEU parties claims that their conduct was justified or excused under s 36(1)(g)(i) of the BCIIActby reason that the industrial action was based on a reasonable concern by the employees about an imminent risk to health or safety. I concluded that whilst I was not prepared to reach a view as to the precise reasons underlying their conduct, it involved, plainly enough, action directed against Diploma. That the action was taken at the Site was incidental. It could have been at any other Diploma site in Western Australia: the first judgment at [144]-[145] and the second judgment at [30]. I refer to these paragraphs in detail below. 12 The CFMEU parties correctly submit that when the Court comes to exercise its discretion on a particular application, an important distinction lies between the common interlocutory decision on a point of practice where "a tight rein" is required on appeals, and an interlocutory decision determining a substantive right, where leave will more readily be granted: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400. 13 Here, however, no substantive right has been determined. The CFMEU parties have been enjoined, until further determination of the application, or until further order, from engaging in illegal conduct in the way of being engaged or involved in unlawful industrial action in relation to any contractor and its employees required to perform building work for Diploma. There is no substantive right to engage in illegal conduct. Whilst the injunction protects the interests of Diploma it is in the nature of a statutory injunction in the public interest in proceedings brought by the ABCC in its statutory capacity in aid of the main object found in s 3(1) of the BCII Act, which is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole. 14 The CFMEU parties filed a notice of appeal. As I advised their counsel at the hearing, I treat this as a draft notice of appeal for the purposes of these reasons. 15 The grounds contained in the draft notice of appeal are as follows: 1. The learned Judge made an error of law in granting an injunction extending beyond 915 Hay Street, Perth to all construction sites operated by Diploma Construction Pty Ltd ("Diploma") within Western Australia when that relief was beyond the scope of the relief sought in the Application. 2. The learned Judge made an error of fact and law in granting an injunction extending beyond 915 Hay Street, Perth to all construction sites operated by Diploma Construction Pty Ltd within Western Australia when: 2.1. There was no finding that unlawful industrial action by the appellant was occurring, threatened, impending or probable at any Diploma site apart from 915 Hay Street, Perth; 2.2. There was no evidence capable of supporting a finding that unlawful industrial action by the appellant was occurring, threatened, impending or probable at any Diploma site apart from 915 Hay Street, Perth; 2.3. It was not appropriate to do so because that was more than was necessary to do justice between the parties; 2.4. There was no evidence capable of supporting an extension of the injunction beyond 915 Hay Street Perth; 2.5. there was no reasonable basis for drawing an inference that the target of the respondent's actions was Diploma itself and not matters peculiar to 915 Hay Street, Perth. 16 Accordingly, both grounds are directed to the complaint of the CFMEU parties that the injunction is too widely expressed and should be confined to unlawful conduct at the Site.