CPB Contractors Pty Ltd v Construction, Forestry and Maritime Employees Union

1. The interlocutory application dated 20 April 2024 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The respondents other than the second respondent (the Union Parties) seek an urgent interim injunction restraining the Fair Work Commission (the Commission) from hearing and deciding proceedings (C2024/2471), commenced by the applicant, CPB Contractors Pty Ltd (CPB), in the Commission. 2 The Commission has listed the matter for an urgent hearing tomorrow, Sunday, 21 April 2024, at 10 am. In that proceeding, CPB applies for orders stopping any industrial action deriving from, and setting aside the result of any ballot under, protected action ballot orders made by the Commission on 27 March and 3 April 2024. 3 CPB's application to the Commission is made under s 418(1) of the Fair Work Act 2009 (Cth) (FWA), which provides: (1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order. 4 The Union Parties seek an injunction restraining the Commission from proceeding with the hearing of the application scheduled for tomorrow and from determining CPB's application. 5 The proceeding commenced by CPB in the Commission has a relationship with the present proceeding commenced by CPB in this Court. It is necessary to explain the history of the respective proceedings in order to give context to the Union Parties' application. 6 CPB is the principal contractor for the Cross River Rail Project in Brisbane. There are two enterprise agreements covering CPB's employees, both of which have nominally expired. CPB and the first respondent (the Union), are engaged in negotiations for new enterprise agreements. 7 The Union applied to the Commission for protected action ballot orders pursuant to s 443(1) of the FWA, and such orders were made on 27 March and 3 April 2024. Voting under the orders about whether protected action should be taken and the form of any such action was completed on 12 April 2024. 8 On 12 April 2024, CPB commenced proceedings in this Court seeking relief including orders restraining the respondents from taking any steps in, or completing, the protected action ballots, or organising any industrial action under those ballots. 9 The second respondent is a "protected action ballot agent" appointed by the Commission under s 444(1A) of the FWA. The third to sixth respondents are Union organisers or delegates. 10 The basis of the proceedings in this Court is an allegation that the Union Parties contravened s 462 of the FWA, which provides, relevantly: 462 Interferences etc. with protected action ballot General (1) A person (the first person) must not do any of the following in relation to a protected action ballot: (a) hinder or obstruct the holding of the ballot; (b) use any form of intimidation to prevent a person entitled to vote in the ballot from voting, or to influence the vote of such a person; … (o) request, require or induce another person: (i) to show a ballot paper to the first person; or … while the vote is being made, or after the vote has been made, on the ballot paper; … 11 CPB also sought urgent interim injunctions, and, on 12 April 2024, Collier J made orders that, until the hearing of the applications for interlocutory injunctions, the Union Parties be restrained from: …taking further steps in or completing the protection action ballots in protected action ballot orders PR772775 and PR772781 made respectively by the Fair Work Commission in matters B2024/260 and B2024/261 (PABO Orders), or organising any industrial action in reliance on those ballots. 12 The hearing of CPB's application for interlocutory injunctions was listed before me yesterday, on 19 April 2024. In support of that application, CPB relied upon affidavits of Malcolm Davis, Alicia Wood and Jessica Allam. Those affidavits annexed statements said to have been provided by employees alleging that organisers and delegates of the Union had engaged in conduct amounting to intimidation and breaches of the secrecy of the ballot. The employees who provided that information were not identified and CPB asserted that the employees did not wish to be identified for fear of being intimidated or harassed. 13 The Union Parties objected to the admission into evidence of the paragraphs of the affidavits containing statements made by the employees on the basis that the evidence was hearsay. CPB contended that the evidence was admissible in the interlocutory application under s 75 of the Evidence Act 1995 (Cth) (the Evidence Act). I ruled that the evidence was inadmissible. 14 The only remaining evidence relied upon by CPB was a text message from the Union to its members who were employed by CPB stating: Voting will be conducted at a meeting with your delegate. Pls DO NOT vote separately. UNITED WE STAND! 15 After hearing the parties' arguments, I ruled that the application for interlocutory injunctions should be dismissed. I indicated that I was not satisfied that a prima facie case had been established, nor that the balance of convenience favoured granting the injunctions, and that I would provide my reasons in due course. 16 The hearing of the application for interlocutory injunctions concluded at about 3.45 pm on 19 April 2024. At about 4.15 pm, CPB commenced its proceedings in the Commission. 17 As I have indicated, the hearing before the Commission is set to commence at 10 am tomorrow, Sunday, 21 April 2024. The hearing has been set down urgently before the Commission because s 420(1) of the FWA provides, "As far as practicable, the FWC must determine an application for an order under section 418 or 419 within 2 days after the application is made". 18 It may be noted that under s 420(2), "If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be)". 19 The Union Parties contend that the proceeding in the Commission is an abuse of process, and that the Commission should be restrained from hearing and determining the application. They submit, in the alternative, that in circumstances where there are competing proceedings in the Commission and the Court, it is in the interests of justice to grant the injunction sought. 20 The Union Parties submit that the proceeding in the Commission seeks the same relief on the same evidence as the application heard in this Court yesterday. They submit that as the Court dismissed the application for interlocutory injunctions, the application to the Commission is vexatious. They rely upon UBS AG v Tyne (2018) 265 CLR 77 at [45] and [46], and seem to assert that the proceedings are an abuse of process as a manipulation of the process of the Court and Commission, or on the basis that they pursue substantially the same claim by serial proceedings in different jurisdictions. 21 In both proceedings, it is alleged that the Union Parties engaged in conduct that contravened s 462 of the FWA inconsistently with the statutory requirements for the democratic conduct of the protected action ballot. The proceeding brought in the Commission involves much the same allegations of fact and seek substantially similar relief, but is not identical to the proceedings brought in the Court. 22 There are two significant differences between the respective proceedings. The Commission will have to determine, under s 418(1), whether the alleged conduct of the Union Parties contravened s 462; and whether, in consequence, any proposed industrial action would not be "protected industrial action". This Court will have to determine the first of those issues, but not the second. The relief sought by CPB in this Court does not require determination of whether any industrial action taken in consequence of a ballot compromised by contravention of s 462 would mean that any action taken as a result of the ballot was not "protected industrial action". 23 The second difference is that the Commission has a discretion to decide whether to admit hearsay evidence in the form of statements of the unidentified CPB employees, whereas the Court had no general discretion to allow the admission of that evidence under s 75 of the Evidence Act: see Deputy Commissioner of Taxation v Ahern (No 2) [1988] 2 Qd R 158 at [162]. Under s 591 of the FWA, the Commission is not bound by the rules of evidence. Accordingly, the application before the Commission is proposed to be supported by evidence that was not before the Court in the application for interlocutory injunctions. 24 The proceeding before the Commission is sufficiently different to that in the Court that it cannot be said that they are substantially the same. Nor is CPB's attempt to put before the Commission evidence that was inadmissible before the Court an illegitimate "manipulation" of the process of the Court or the Commission. In my opinion, the proceeding before the Commission is not an abuse of process. 25 The Union Parties rely upon several cases in which this Court restrained the continuation of proceedings in the Commission in circumstances where there were competing, concurrent proceedings: namely, Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033; Qantas Airways Ltd and Australian Licensed Aircraft Engineers Association (2020) 295 IR 373; [2020] FCA 682; and National Tertiary Education Union v Monash University [2022] FCA 1368 (NTEU v Monash University). 26 In circumstances where there are proceedings covering the same subject matter commenced in different courts or tribunals and it is alleged that the continuation of one is oppressive, the question is whether the interests of justice require that one of the proceedings be stayed or otherwise restrained: Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152 at 156. 27 The starting point must be that CPB has regularly engaged the jurisdiction of the Commission: McMahon v Gould (1982) 7 ACLR 202 at 206; Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287 (Sterling Pharmaceuticals) at 291. Certainly, no submission has been made to the contrary. Accordingly, CPB has a prima facie entitlement to have its application heard and determined by the Commission. 28 Each of the cases relied upon by the Union Parties concerned the proper interpretation of an industrial instrument and the issue before the Court and the Commission was the same. In those cases, there was no contentious issue of any evidence potentially admissible in the Commission but not in the Court. In this case, there exist the two significant differences that I have identified. 29 It is relevant that if the injunction sought were granted, CPB would be deprived of a legal entitlement before the Commission, namely, to seek the exercise of the Commission's discretion to adduce evidence that was inadmissible in this Court. CPB should not be lightly deprived of such an entitlement: see NTEU v Monash University at [7], and the cases cited therein. 30 While the Union Parties submit that there is a risk of conflicting decisions as to whether industrial action subject to s 462 of the FWA is protected industrial action, I do not think that there is any such risk based upon the present form of the two proceedings. 31 I have had regard to the considerations set out in Sterling Pharmaceuticals at 290-291. I accept that several of those considerations, including that the proceeding in this Court was commenced first and the law should strive against permitting a multiplicity of proceedings concerning the same (or similar) issues, provide some support for the Union Parties' case. 32 However, I am not ultimately persuaded that it is in the interests of justice that the injunction sought should be granted. 33 Accordingly, the Union Parties' application will be dismissed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.