BALANCE OF CONVENIENCE
48 The CFMEU's members and other employees covered by the Eco Agreement may be subjected to inconvenience or injury in the absence of the Court granting interim relief. Their employment and their earning capacity is dependant upon a continuing demand for Eco's demolition services. A refusal by McCorkell to utilise Eco's services for Victorian public building and construction work may have a bearing upon the extent to which Eco's employees will be required for work. The extent of any such harm between now and when the proceeding is finally determined is difficult to assess.
49 On the same basis, harm may be experienced by Eco itself. For the reasons I will explain however, Eco contends that there are better ways of avoiding any future harm to it and its employees than by granting the orders sought by the CFMEU.
50 Neither the State of Victoria nor McCorkell point to or rely upon any injury or inconvenience which may be occasioned upon them should the relief sought be granted. Both indicated a preparedness to give undertakings which mirrored the interlocutory orders sought directly against them by the CFMEU, so long as those orders were confined to the use of Eco's services by McCorkell on the Circus Oz project. Those orders were therefore said to be unnecessary.
51 The main focus of the submission of the State of Victoria and McCorkell was on the orders sought which would prohibit or restrict the pursuance by Eco of its variation application before the Commission (proposed orders 1 and 2 as set out at [6]). Those parties contended that the Court should not interfere with that application. They say that the CFMEU has the capacity to raise the concerns raised in this proceeding by opposing the variation application. Any inconvenience which may be occasioned upon the CFMEU or its members may be dealt with in that forum. In that respect, they contend that whether Eco and those of its employees who voted to approve the proposed variations did so due to the 'coercion' applied by the State of Victoria and McCorkell, is a matter relevant to whether the variation has been "genuinely agreed to by the employees covered" by the Eco Agreement. That issue arises for consideration in the variation application because of the requirements of s 211(1)(a) in conjunction with s 186(2)(a) of the Act.
52 As to the CFMEU's 'adverse action' claim, they contend that the Commission could take into account that claim in determining pursuant to s 211(1) of the Act whether, "there are serious public interest grounds for not approving the variation". They say that there is no basis for the Court to interfere with the statutory scheme and that the Court should allow the Commission to perform its statutory functions.
53 Eco also contended that the Commission should not be precluded from dealing with its variation application. Eco perceives that the variation application provides it with its best chance of avoiding any harm as a consequence of the application to it of the Code and Guidelines. Whilst the orders sought by the CFMEU would have the effect of precluding harm being occasioned upon Eco in relation to services for McCorkell, Eco rightly contended that the orders sought are limited to Eco's engagement by McCorkell and not other contractors. In contrast, if Eco's application to the Commission succeeded, the prospect that other contractors may refuse to engage Eco by reason of the non-compliance of the Eco Agreement with the Code and Guidelines would likely evaporate.
54 The CFMEU contended in support of its proposed orders 1 and 2, that those orders were essential. The primary basis for that contention is that the orders are necessary in order for the Court to protect the effective exercise of its jurisdiction. In support of that submission the CFMEU relied on the following observation made in the judgment of the majority in Patrick Stevedores v Maritime Union of Australia (1998) 195 CLR 1 at [35]:
The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked (citing Tait v The Queen (1962) 108 CLR 620).
55 If the variation application were allowed to proceed and the Commission approved it, the CFMEU contended that the Court could well be left without the power to restore the Eco Agreement to its present state. That would leave the employees of Eco subject to terms and conditions which they were coerced into adopting and would allow the contraveners to retain the fruits of their contraventions. In the CFMEU's contention, that would be a most unjust outcome which the grant of proposed orders 1 and 2 would avoid. Contrary to the submissions put by the other parties, the CFMEU contended that the variation application before the Commission was not an appropriate forum in which to resolve the CFMEU's claims of 'adverse action' and 'coercion'. Those matters should be answered by this Court in this application. Permitting the Commission to embark upon an exercise in which it will likely be called upon to make factual findings on the same or similar issues to those raised in this proceeding, is a recipe for embarrassment by reason of the potential for inconsistent findings. Additionally, if ultimately the Court determines that it does have the power to restore the Eco Agreement if it were varied by the Commission, complications and difficulties may arise including in the process of trying to unscramble a change which should never have been made. For all those reasons the CFMEU argued that 'prevention is better than cure'.
56 The balancing exercise which the Court is required to address is complicated. I should begin my consideration by expressing my concern to make orders which minimise the potential harm to Eco and its employees. They are innocent parties caught in a large legal battle the scope of which appears to transcend this proceeding. There is another recently commenced proceeding before the Court which raises the same or similar legal issues about the Code and Guidelines and the extent to which the application of them by the State of Victoria may contravene the Act. The issues raised by this proceeding are significant, not only in terms of the legal questions they pose, but also in terms of the potential ramifications the answers to those questions are likely to have for a large number of participants in the Victorian building and construction industry. This is a proceeding which of itself and by reason of its potential impact generally, justifies early disposition by a speedy trial. Subject to hearing further from the parties, my disposition is to make orders (in due course) facilitating an early trial. The interlocutory orders I make are based on the presumption of an early trial and may need to be reconsidered should that presumption not eventuate.
57 The evidence suggests that Eco and its employees need an urgent and immediate remedy so as to avoid losing further work. Eco's preference of obtaining such a remedy through its variation application seems to me to be misplaced. It has no application before the Commission for urgent interlocutory relief. The final hearing is unlikely to be determined quickly, including because of the prospect that the CFMEU will (as the State of Victoria and McCorkell say it can) oppose the application on the basis that there was no genuine agreement to the proposed variation by the employees and on the public interest ground that the variation is infected by unlawfulness. The prospect of Eco obtaining urgent or even early relief from the Commission does not appear to me to be likely.
58 The interlocutory orders the Court can make and which I intend to make have a capacity to provide Eco and its employees some protection immediately. Subject to hearing from the parties as to the form of the orders, I intend to make orders which have the effect of precluding McCorkell from refusing or threatening to refuse to engage or use the services of Eco because of any actual or perceived non-compliance of the Eco Agreement with the Code or Guidelines. Those orders will extend to all potential engagements of Eco by McCorkell and will not be limited to the Circus Oz project. As I have earlier stated, the prima facie case established by the CFMEU extends to include the threatened non-engagement of Eco across all public building and construction projects. Whilst on a prima facie basis, that threat is exemplified by McCorkell's conduct in relation to the Circus Oz project, the prima facie case is not limited to that project. I will also make orders which will restrain the State of Victoria from requiring or inducing McCorkell to not engage or use the services of Eco because of any actual or perceived non-compliance of the Eco Agreement with the Code or Guidelines.
59 I accept that despite an early trial in this Court, Eco may nevertheless be faced, in the interim, with other contractors who, by reason of the application upon them of the Victorian Code and Guidelines, may refuse to engage Eco because of actual or perceived non-compliance. The scope of the orders sought by the CFMEU do not permit such circumstances being addressed at present. However all parties, including Eco, have liberty to apply to the Court should the need arise: Patrick Stevedores at [80]. Whether the extent of protection from potential harm to Eco and its employees should be extended can be urgently considered should such consideration become necessary.
60 I note in that regard that cl 1.3.3 of the Code envisages that circumstances may arise which call for exceptions to be made to the strict application of the Code. The fact that the legality of the State of Victoria's application of the Code and the Guidelines upon Eco and its employees is a matter pending determination before the Court in which the State of Victoria has conceded that a prima facie case has been established, may well constitute the kind of circumstances envisaged by cl 1.3.3. If that was thought to be the case by the State of Victoria, the potential need for the Court to consider extending the scope for the interim relief granted will likely dissipate.
61 As to the orders sought by the CFMEU which would have the effect of precluding the variation application being considered by the Commission, I am not persuaded that those orders are necessary at this time.
62 In coming to that view, I have not accepted the respondents' contention that the matters sought to be agitated by the CFMEU in this Court may conveniently be dealt with by the Commission in the variation application. Jurisdiction in relation to those causes of action is given to this Court and not to the Commission. Whilst a contravention of s 340(1) of the Act ('adverse action') may well be a ground of public interest relevant to the exercise of the Commission's discretion under s 211(1), I very much doubt that the Commission would be prepared to engage with that issue whilst an early trial is pending before this Court. The notion that the Commission will attempt to second guess the outcome of this proceeding is unattractive. If it were persuaded down that course, the potential for embarrassment by reason of inconsistency is manifest. Similar, but perhaps not the same, observations may be made in relation to the Commission dealing with the issue of the genuine approval by employees of the variation application, whilst the CFMEU's 'coercion' claim is pending in this Court.
63 I also take the view that neither the parties nor the resources of the Commonwealth ought to be vexed by the duplication of effort which may be involved in both the Court and the Commission grappling with related issues. Further, the prospect that the effect of any variation granted by the Commission may later need to be unscrambled, should the CFMEU succeed in this proceeding, also weights in favour of the Commission not proceeding with the variation application.
64 I presume, given the undertakings made to the Court by the parties at the conclusion of the hearing, that the variation application in the Commission is currently adjourned pending this judgment. Having considered these reasons for judgment, including the fact of an early trial, Eco may come to the view that the proceedings in the Commission should not be pursued. If Eco does pursue that proceeding, it may be expected (given its position in this Court) that the CFMEU will resist and seek an adjournment or stay. The Commission will need to consider that application. I assume it will do so with the benefit of these reasons for judgment. If the Commission comes to the view that it should proceed, I expect that it will give its reasons.
65 The need for comity between Courts and Tribunals and in particular between this Court and the Commission suggests two matters. First, that before finally determining whether an order should be made to preclude the Commission from proceeding, the Court should await any decision by the Commission that it will proceed and consider any reasons of the Commission for intending to do so. Second, if the Commission decides to proceed, the Commission will give the CFMEU an opportunity to approach the Court so that the Court can give further consideration to the orders sought by the CFMEU in the light of the Commission's reasons.
66 For those reasons I do not consider it necessary that the CFMEU's proposed orders 1 and 2 be made at this juncture.
67 For the sake of completeness, I should add that whilst the matter is not entirely free from doubt (and not appropriate for final determination here and now), the very wide power given by s 545(1) of the Act to "make any order the Court considers appropriate" including orders which "remedy the effects of a contravention" (s 545(2)(a)), is likely to include a power to make an order which would restore the Eco Agreement should it be varied by the Commission. In Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [186], Katzmann J characterised s 545 as conferring "the broadest of discretions on the Court". However, as the judgment of Gray J in Independent Education Union of Australia v Australian International Academy of Education Inc [2012] FCA 1512 shows, there are bound to be some limitations on the scope of the Court's powers, despite the broadness of the language utilised (see at [17]). The fact that I consider the matter not entirely free from doubt, is somewhat supportive of the CFMEU's position, but not substantially so.
68 It is preferable that orders made to restrain conduct are precise in identifying the conduct which is restrained. The form of orders proposed by the CFMEU by its proposed orders 1-3 suffers from the potential for ambiguity which arises when orders are drafted by reference to defined terms sourced from the legislative provisions relied upon to found the underlying cause of action. I have set out at [58] the content of the orders I have in mind to make. I will hear the parties as to the form of the orders that should be made and as to what directions the Court should make to facilitate the trial.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.