Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate

1. The application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 This is an application for leave to appeal against interlocutory orders made by Collier J on 14 October 2016. The applicants are the Construction, Forestry, Mining and Energy Union ("CFMEU") and seven of its organisers or officials. The respondent is the Director, Fair Work Building Industry Inspectorate. 2 On 28 September 2016, the respondent commenced proceedings QUD755/2016 against the applicants. The respondent alleges that the applicants contravened ss 343, 346, 348, 355 and 417 of the Fair Work Act 2009 (Cth). Broadly described, the allegations are that the applicants caused unlawful industrial action to be taken at nine building sites occupied by Hutchinson Builders ("Hutchinson") in Brisbane. The industrial action is alleged to be aimed at the use by Hutchinson of "non-EBA subcontractors" in Darwin. 3 The respondent sought interim and interlocutory injunctions against the applicants. On 29 September 2016, Greenwood J granted interim injunctions. At the hearing of the application for interlocutory injunctions on 12 October 2016 before Collier J, the applicants did not dispute that the respondent had demonstrated a prima facie case or that the balance of convenience favoured the granting of injunctions. However, the applicants contested the width of the injunctions sought by the respondent. In particular, the applicants contended that the injunctions should be restricted to preventing industrial action at the nine Hutchinson's building sites in Brisbane and should specifically exclude protected industrial action from their reach. 4 Justice Collier substantially rejected the applicants' submissions and, relevantly, made the following orders: 1. Until the hearing and final determination of the proceeding or further order, the first respondent (whether by its officers, delegates, employees or agents, or howsoever otherwise) and the second to eighth respondents be restrained from organising, encouraging, directing, counselling, procuring, aiding or assisting in any stoppage, cessation, disruption or interference of paid work at any building site occupied and/or in the control or responsibility (in whole or in part) of J Hutchinson Pty Ltd T/A Hutchinson Builders (Hutchinson sites). 2. Without limiting the effect of paragraph 1 of this order, until the hearing and final determination of the proceeding or further order, the first respondent (whether by its officers, delegates, employees or agents, or howsoever otherwise) and the second to eighth respondents be restrained from: (a) convening, organising or conducting more than one meeting of workers at the same Hutchinson site within any 7 day period; and (b) convening, organising or conducting the meeting referred to in (a) without first giving 48 hours written notice to J Hutchinson Pty Ltd T/A Hutchinson Builders and any employer of any workers that are anticipated to attend the meeting, such notice to include a brief statement of the purpose of the meeting and the precise time, date, location and expected duration of the meeting. 3. For the avoidance of doubt, paragraphs 1 and 2 of this order do not apply to: (a) any bona fide exercise of a right under any State or Territory OHS law as that expression is defined in s 494(3) of the Fair Work Act 2009 (Cth) (FW Act) and r 3.25 of the Fair Work Regulations 2009 (Cth) where such right is exercised by a person holding an entry permit issued pursuant to s 512 of the FW Act; or (b) any bona fide advice provided to a person working on a Hutchinson site as to that person's rights in respect of any occupational health and safety issue, including any advice as to when it may be appropriate for a person to cease working because of a reasonable concern of an imminent risk to the person's health or safety. … 7. Liberty to apply reserved on 24 hours' notice. 5 The applicants now seek leave to appeal against Collier J's orders. The applicants do not seek to dispute the granting of interlocutory injunctions, but only the width and language of those orders. The proposed grounds of appeal, as explained in oral submissions, may be summarised as follows: