Director, Fair Work Building Industry Inspectorate v Construction, Forestry,... [2016] FCA 1225 | Case summary

Director, Fair Work Building Industry Inspectorate v Construction, Forestry,... [2016] FCA 1225 | Case summary | Zoe

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).
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.
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.
Within 24 hours of this order being issued, the first respondent post a copy of this order on its website.
Personal service of this order be permitted to be effected on all respondents by a copy of this order being served by email to Luke Tiley of Hall Payne Lawyers at luket@hallpayne.com.au.
Costs be reserved.
Liberty to apply reserved on 24 hours' notice. AND THE COURT ORDERS BY CONSENT THAT:
By 4 pm on 8 November 2016, the applicant is to file and serve any amended originating application and a statement of claim.
By 4 pm on 6 December 2016, the respondents are to file and serve their defences.
By 4 pm on 20 December 2016, the applicant is to file and serve any reply.
The trial of the proceeding be by way of affidavit, except with leave of the Court.
By 4 pm on 20 January 2017, the applicant is to file and serve any affidavits on which it intends to rely.
By 4 pm on 10 February 2017, the respondents are to file and serve any affidavits on which they intend to rely.
By 4 pm on 24 February 2017, the applicant is to file and serve any affidavits in reply on which it intends to rely.
If any party proposes to call a witness at the trial who will not make an affidavit, such party is to file and serve an outline of anticipated evidence of the witness and identify the witness.
Between 27 February 2017 and 17 March 2017 the parties shall attend a mediation before a Registrar.
By 4 pm 21 days prior to the first hearing date, the parties are to exchange any objections to evidence.
By 4 pm 14 days prior to the first hearing date, the parties are to exchange responses to any objections to evidence.
By 4 pm 14 days prior to the first hearing date, the applicant is to file an outline of submissions of no more than 10 pages.
By 4 pm 7 days prior to the first hearing date, the respondents are to file an outline of submissions of no more than 10 pages.
By 4 pm 5 days before the first hearing date, the applicant must file and serve a list of authorities and legislation.
By 4 pm 3 days before the first hearing date, the respondents must file and serve their list of authorities and legislation.
By no later than 48 hours before the first hearing date, the applicant must file and serve any outline of submissions in reply.
The matter be listed for hearing for 5 days commencing at 10.15 am on a date to be fixed in Brisbane.
There be liberty to apply in respect of any further directions or any application to vary these directions. Endorsement pursuant to r 41.06 of the Federal Court Rules 2011 (Cth) TO: Construction, Forestry, Mining and Energy Union, the First Respondent Matthew Parfitt, the Second Respondent Justin Steele, the Third Respondent Kurt Pauls, the Fourth Respondent Edward Bland, the Fifth Respondent Antonio Floro, the Sixth Respondent Anthony Stott, the Seventh Respondent Michael Davis, the Eighth Respondent You will be liable to imprisonment, sequestration of property or punishment for contempt if: (a) for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or (b) for an order that requires you not to do an act or thing - you disobey the order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This matter concerns the scope of interlocutory injunctive relief the Court should order against the respondents in light of their conduct on sites occupied by and/or in the control or responsibility (in whole or in part) of J Hutchinson Pty Ltd T/A Hutchinson Builders (Hutchinson Builders). 2 On 28 September 2016 the Director, Fair Work Building Industry Inspectorate (the Director) filed an originating application against the respondents in which he sought the following substantive orders: 1. The imposition of penalties against the Respondents for engaging in the conduct identified in the accompanying affidavits on 25 August 2016 and 7, 13, 14, 15, 21, 23, 26 and 27 September 2016 at various construction sites of the head contractor, J Hutchinson Pty Ltd T/A Hutchinson Builders, in contravention of ss. 343 (1)(a) and (b), 346 (b) and (c), 348, 355 (b) and 417 of the Fair Work Act 2009 (Cth) (FW Act) (the contravening conduct). 2. The penalties imposed for the contravening conduct be paid to the Commonwealth. 3. The Respondents, pursuant to s. 545 of the FW Act, pay compensation in respect of the contravening conduct. 4. An injunction against the Respondents that the contravening conduct cease and not further occur. 3 The Director also sought by way of interim or interlocutory relief a number of orders. For present purposes the key orders sought were: 1. Until the hearing and 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 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 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. 4 On 29 September 2016 Greenwood J made interim injunctive orders in the terms sought by the Director, although returnable for further interlocutory consideration by the Court. The matter returned to Court before me on Wednesday for this purpose. 5 At the hearing Mr Friend QC for the respondents conceded that interlocutory injunctive orders would be made - in other words the respondents conceded the force, in the circumstances, of the Director's application for interlocutory injunctive relief. In particular Mr Friend conceded that there was a serious question to be tried within the meaning of that phrase as explained by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. Further, Counsel did not dispute that the balance of convenience favoured interlocutory injunctive relief against the respondents. 6 The parties also agreed on timetabling orders to take the Director's originating application to trial in early 2017. 7 Where the parties diverge is in the proper scope of interlocutory orders the Court ought make to restrain the respondents. In summary - the Director seeks a continuation of the interim orders made by Greenwood J, with a modification referable to safety issues by the proposed addition of the following order: 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. 8 The respondents seek vacation of the interim orders currently in place, and the imposition of the following alternative orders: 1. For the Purposes of this Order "Projects" shall mean any or all of the following: (a) The building project located at 38 Wharf Street, Brisbane known as "38 Wharf Street"; (b) The building project located at 28 Merivale Street, South Brisbane known as the "Ivy Apartments"; (c) The building project located at 47 Cordelia Street, South Brisbane, known as the "Opera Apartments"; (d) The building project located at 35A Hercules Street, Hamilton known as the "Hercules Apartments"; (e) The building project located at Stratton Street, Newstead, known as "Newstead Central"; (f) The building project located at 222 Margaret Street, Brisbane known as the "Skytower"; (g) The building project located at 555 Queen Street, Brisbane known as the "Spire Apartments"; (h) The building project located at 9 Lissner Street, Toowong known as "Illumina Apartments"; and (i) The building project located at the corner Tribune and Grey Streets, South Brisbane known as "South Point A". 2. Until the hearing and determination of this matter, the respondents whether by themselves, their officers, employees, agents or howsoever otherwise be restrained from organising, encouraging, directing, counselling, procuring, aiding or assisting any stoppage, cessation, disruption or interference in the performance of work in accordance with their contracts of employment by any person at the Projects. 3. The order in paragraph 2 does not apply to the organising or taking by any person of protected industrial action in accordance with s 408 of the Fair Work Act 2009 (Cth) or activity which is not industrial action because of the operation of s 19 (2) of the Fair Work Act 2009 (Cth). 4. There be liberty to apply on 24 hours notice. 9 In analysing the competing forms of interlocutory injunctive relief advanced by the parties it is appropriate to briefly examine the background facts to the current proceeding. Those background facts are clearly relevant to the proper framing of interlocutory injunctive relief pending the final hearing of this matter.

Evidence of Mr Jenkinson 11 Despite the length of the bundle annexed to his affidavit, Mr Jenkinson's evidence primarily consists of a summary of various statements made by individuals in respect of activities of the respondents on Hutchinson sites. Relevantly, those statements were: in respect of the 38 Wharf Street Project - a statement of Mr Andrew Bruce Morgan, Site Manager employed by Hutchinson Builders, provided to Mr Jenkinson on 15 September 2016; in respect of the Ivy Apartments Project - statements of Mr Mitchel Anthony Smith, Site Manager employed by Hutchinson Builders, provided on 15 September 2016 and 26 September 2016 to Mr Ken Fitzjohn, an Inspector with the Fair Work Building Inspectorate; in respect of the Opera Apartments Project - statements of Mr Stephen James Rushton, a Site Manager employed by Hutchinson Builders, provided on 15 September 2016 and 23 September 2016 to Mr Fitzjohn; in respect of the Hercules Project - statements of Mr Bryce Ward, a Site Manager employed by Hutchinson Builders, provided on 15 September 2016 and 23 September 2016 to Mr Neale Smith, an Inspector with the Fair Work Building Inspectorate; in respect of the Newstead Central Project - statements of Mr Wayne Raymond Sengelman, a Site Manager employed by Hutchinson Builders, provided on 15 September 2016 to Ms Kaz Kelly, an Inspector with the Fair Work Building Inspectorate, and on 23 September 2016 to Mr Graeme Hogan, an Inspector with the Fair Work Building Inspectorate. Mr Jenkinson also gave evidence as to a recording Mr Sengelman made on 23 September 2016; in respect of the Skytower Project - a statement of Mr Peter Owen Haidley, a Site Manager employed by Hutchinson Builders, provided to Mr Jenkinson on 23 September 2016; in respect of the Spire Apartments Project - a statement of Mr Terence David Bowden, a Site Manager employed by Hutchinson Builders, provided to Mr Graeme Hogan on 26 September 2016; in respect of the Illumina Apartments Project - a statement of Mr Gavin Grosse, a Structural Foreman and Acting Site Manager employed by Hutchinson Builders, provided to Mr Jenkinson on 27 September 2016; in respect of the South Point A Project - a statement of Mr Henk Nicholaas Throne, a Site Manager employed by Hutchinson Builders, provided to Mr Graeme Hogan on 27 September 2016. 12 Mr Jenkinson also annexed enterprise agreements between Hutchinson Builders, the CFMEU and employees of Hutchinson Builders engaged in construction work and in classifications outlined in those enterprise agreements. 13 At the hearing Mr Friend conceded this evidence was admissible (presumably pursuant to s 75 of the Evidence Act 1995 (Cth)), but also submitted that it was "all hearsay or hearsay on hearsay". I accept that this is the case, however note that evidence at an interlocutory level may be acceptable notwithstanding that it is sketchy and would be inadequate at the final hearing: Brennan J in Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 20 ALR 129 at 146. 14 In this light, aspects of Mr Jenkinson's evidence include the following.

Mr Smith's statements 19 At material times Mr Smith was site manager for Hutchinson Builders at the Ivy Apartments Project site. The project consists of two thirty story apartment towers with 472 apartments and two commercial spaces. The cost of the project is approximately $135 million. It commenced in September 2015 and is expected to complete in February 2018. 20 On 7 September 2016 he was informed that a number of organisers and a union delegate intended to "go for a walk on the job" because of safety concerns. At around 8 am he was informed that Mr Justin Steele, a CFMEU organiser, had moved a motion at a meeting of workers on the site to shut down the site because of health and safety issues. Mr Smith said that he understood the site was shut down notwithstanding that the vote did not carry at the meeting. 21 On 14 September 2016 a similar incident occurred whereby Mr Steele and another union official arrived at the site. Mr Steele said to Mr Smith words to the effect of "Mate, I have been instructed from above to come to your site and shut you down". Mr Smith then put the concrete pour "on hold" while he awaited the outcome of a meeting of workers at the site. Mr Smith said: 52. I felt there was no point in discussing anything further because Steele told me he was there to shut the site down and I knew I could not do anything about it. 22 On 21 September 2016 Mr Steele returned to the site at around 6.35 am and said words to the effect of "You need to pull up your pour up mate and I want to talk to the concrete labour and then after that speak to the concreters". Mr Smith said: 7. I interpreted his words to mean that he is allowed to have two hours with each individual trade as a rolling meeting. I am aware that Steele has never exercised that power before on any of the sites I've been involved with. 23 Mr Smith said that the meetings took place and said: 15. We could not commence the pour because of these meetings. The concrete pour was an 8.5 hour pour so if we start that pour at 10am we go past the 5.30pm and past the ten hour nominated working day. That meant we [sic] we're then finishing at 6.30pm in the evening and generally their rule (CFMEU) is if you do that one day you're stopped the next day. 16. … 17. I then asked a sub-contractor whose name I do not wish to divulge, what had been discussed during those meetings and he told me with words to the effect that something had been going on in Darwin. 18. The impact of the delay of the concrete pour meant that we added another day to our program which meant our subcontractors also suffered due to the fact that they paid workers to do their contract works on that day of a 2 hour meeting …

Mr Ward's statements 28 At material times Mr Ward was the site manager of the Hercules Project. On 25 August 2016 at approximately 6.30 am Mr Ward saw Mr Matt Parfit (a CFMEU organiser) and Mr Dave Smith (a CFMEU delegate) at the Hercules Project site. Shortly afterwards Mr Smith and Mr Parfit directed workers at the site to attend a meeting. At approximately 6.45 am Mr Ward spoke with Mr Parfit in the following terms: Mr Ward: "Mate. What's going on here?" Mr Parfit: "Hutchies aren't consulting. You're using non-EBA subcontractors." Mr Ward: "What contractors are you talking about?" Mr Parfit: "Precision". Mr Ward: "Do you have an issue with Baronforge as well?" 29 Mr Parfit and Mr Ward engaged in a conversation whereby Mr Parfit told Mr Ward that the Hutchinson employees would also leave the site. This subsequently occurred. 30 On 13 September 2016 Mr Parfit attended the site and around 10.20 am called a meeting of workers. A exchange to the following effect took place: Mr Ward: "What's going on. What's the issue?" Mr Parfit: "It's bigger than you." Mr Ward: "It it an issue onsite?" Mr Parfit: "It could be. We're just having a meeting." Mr Ward: "So it's something in upper management?" Mr Parfit: "Hutchies are fucked and aren't playing the game." Mr Ward: "Whatever." 31 Shortly afterwards Mr Ward noticed workers leaving the site. 32 Later that day Mr Ward met with his boss, Mr Fred Brands. In Mr Ward's presence a conversation between Mr Brands and Mr Parfit then occurred in the following terms: Mr Parfit: "It's basically no consultation with the CFMEU and Hutchies are not using contractors within the EBA Agreement. Mr Brands: "Is it just our job or is it Hutchies-wide?" Mr Parfit: "It's Hutchies as a banner." Mr Brands: "Why this job? The guys have lost a whole days pay in the past week now." Mr Parfit: "You're under the Hutchies banner. You're not a franchise are you?" 33 On 23 September 2016 Mr Tony Floro, a CFMEU organiser, attended the site with another organiser (apparently from Gladstone). A concrete pour was about to occur at the site. Mr Floro called a meeting of workers at the site shortly after 8.05 am. Mr Ward was then informed by Mr Dave Smith, a CFMEU delegate at the site, that the workers had voted to go home. No reason was given for that decision.

Mr Sengelman's statements 34 At material times Mr Sengelman was the site manager at the Newstead Central project. The project is a three stage, three tower, 20 level residential apartment block. It is worth approximately $120 million. The project commenced in April 2015, with stage 2 due for completion in April 2017. 35 On 13 September 2016 at approximately 9.10 am Mr Sengelman received a telephone call informing him that Mr Kurt Pauls, a CFMEU organiser, had arrived at the site. Materially Mr Sengelman said: 13. Kurt approached me in the carpark and said "good morning Sango". I greeted him in return and shook hands. This was a polite greeting. Kurt then asked if Eddie [Mr Sengelman's team leader] was around. I told Kurt Eddie was off site but that I had just spoken with him and he would be at site soon. I don't recall who initiated the discussion on why Kurt was on the site however he did say words to the effect of "if they sort that Darwin thing out I might not be here", "I'll be bringing down the CFMEU boys only and more than likely they will be leaving site, I will be taking the crane crews and hoist drivers so the other workers can still work up to level 4". This was a very quick conversation and no further information was provided by Kurt. I recall asking him numerous times why this was happening and Kurt said something along the lines of "you guys have done the right thing (referring to our Project) but sometimes you've got to do what you've got to do" from his body language I got the feeling that he was not going to divulge any more information regarding the statements made. 36 Mr Sengelman continued: 16. I was still in the carpark when I called Chad Bragdon who is the company industrial relations manager for the area hoping he could shed some light on the situation. Chad said something like "oh is it happening already?" He also said with words to the effect of "I thought it had been sorted out". I asked Chad if he could come to site. 17. This conversation with Chad confirmed for me that Kurt had been directed to take this course of action from higher up in the CFMEU and gave good reason as to why the conversation had no in depth details. This conversation is not like conversations I have had with Kurt in the past, where he has been cooperative, given reasons, explanations and in depth information as to why he is on site. 37 On 23 September 2016 Mr Sengelman had scheduled a concrete pour at the site, due to commence at 5.30 am, requiring 4 hours to place the concrete and 4 hours to finish. At around 6 am Mr Sengelman was informed that "the unions [sic] here and they're going to stop the pour". 38 Mr Sengelman arrived at the site and saw Mr Tony Stott, a CFMEU organiser. He said to Mr Stott words to the effect of: I've heard what's going on here. It's pretty obvious what's going on here today. We've got a pretty big pour on. Eddie's on his way. Eddie's asked if we can all get together and have a chat. 39 A subsequent conversation took place between Mr Eddie Gangemi, Mr Stott and Mr Sengelman. Mr Sengelman observed in his statement: 28. Tony made all the responses and the message I got from Tony was that the day's action from the CFMEU resulted from a thing that I know now as "The Darwin Issue." Whether that is true or not I don't know but that is the message that Tony was delivering. 29. I am aware The Darwin Issues involve the letting of the tiling contract on a Hutchinson site in Darwin and I think it's a shopping centre site. 40 Mr Sengelman recorded this conversation, and a transcript is attached to his statement. Materially, Mr Stott in that transcript talked about "boy's jobs up there? Our member's jobs. That aren't fucking getting work".

Evidence of Mr Ravbar 61 In his affidavit Mr Ravbar gave evidence that the CFMEU is organised into separate and autonomous divisions based on relevant industries they work in. In relation to the Construction and General Division there are autonomous divisional branches in each State and the Australian Capital territory which are responsible for the division's conduct in their respective areas (paragraph 3). Materially in this case, Mr Ravbar deposed that the Queensland and Northern Territory Divisional Branch of the Construction and General Division is responsible for the division's operations in Queensland and the Northern Territory, with a separate leadership and decision-making structure to each of the other divisional branches (at paragraph 4). 62 Mr Ravbar referred in his affidavit to clause 32.9 of the J Hutchinson Pty Ltd T/A Hutchinson Builders and CFMEU Union Collective Agreement 2015-2019 (the enterprise agreement). Clause 32 is entitled "Union rights promoting representation of members". Clause 32.9 provides: The Employer agrees to Employees attending Union meetings or participating in Union activities during working hours and that the Employees shall be entitled to receive payment for attendance at those meetings/activities provided that: (a) the Union provides the Employer with written notice of the intention to hold the meeting/undertake the activities prior to commencement; (b) the duration of the meeting/activities is two hours or less (the duration of the meeting/activities may be extended beyond two hours by way of agreement between the Union and the Company). Authority to grant extension by the Employer rests with the General Manager or their nominee; (c) up to two meetings/activities of up to two hours each may be held per shift, either consecutively or separately, provided that notice is given in accordance with clause 32.9 (a) above. 63 Mr Ravbar deposed that the clause is important because, in summary (paragraphs 11-15): historically it is difficult to hold meetings of any length with members, because meetings longer than the scheduled 20 to 30 minute break time would be deemed to be taking industrial action for which employers were required to deduct at least 4 hours wages from each employee; if meetings are held outside work hours they are often poorly attended; the clause allows members to attend union activities such as rallies, demonstrations and memorial services without being deemed unlawful or in breach of their contracts of employment; the clause allows workers to meet with the union or participate in union activities at short notice without having to worry about legislative restrictions such as right of entry. This allows the union to speak with members about urgent issues which arise, for example a safety incident or an entitlements issue; under the former regulatory regime "an aggressive and impractical approach" was taken to even five minutes of alleged industrial action. 64 Mr Ravbar deposed: 16. The idea behind the clause was that we could still go about our business as a Union and further the objects of the Union including in discussions with our members without causing any great disruption to work or creating legal risk for the members, the Union, or causing members to lose any pay. 65 Mr Ravbar deposed that the CFMEU had utilised clause 32.9 for many purposes over the previous two enterprise agreement rounds (at paragraph 17). 66 Mr Ravbar gave evidence that meetings in accordance with union activities are held on a confidential basis (paragraph 18). Further, it is sometimes necessary to hold meetings in accordance with clause 32.9 on short notice. At paragraph 21 he deposed: If the Union was required to give 24 or 48 hours notice of meetings, we could be refused a request for a meeting on shorter notice by an employer. This change would cause difficulties, for example: (a) members are used to being able to attend the meetings on short notice to resolve disputes as they arise; (b) the removal of that right could make members upset that their issue cannot be resolved quickly and expeditiously and thereby lead to further and more protracted disputation; (c) in my experience, in the event of a dispute, organisers of the Union often use the clause to play a proactive dispute resolution role with the aim of getting members back to work, however the requirement to provide notice would remove this ability; and (d) given that a key benefit of the clause is to allow meetings of members to be held in a simple and expeditious way, the requirement to give specific written notice would undermine that entitlement. 67 At paragraphs 22-24 Mr Ravbar gave evidence of issues he claimed were associated with the interim injunction, in summary: It is common for union members to seek union advice in respect of safety issues, and it is important that the union be able to answer these questions openly, honestly and in a straightforward manner. The interim injunction in its present form prevents the CFMEU doing this. Another common issue in the construction industry is the insolvency of sub-contractors. The interim injunction in its present form prevents the CFMEU from providing advice to its members about the work wages bargain and their entitlement to cease performing work until they are paid.

[2]

SUBMISSIONS OF THE APPLICANT 68 Mr Bourke QC presented detailed submissions to the Court in support of the Director's claim for injunctive relief. In light of the concession by the respondents that the Court would grant injunctive relief, and the limitation of the issue in dispute to the scope of that relief, the key submissions of the applicant in support of the continuation of the existing interim orders are: The case of the Director against the CFMEU and the individual respondents in terms of the substantive relief sought in the originating application is strong. The CFMEU organisers seek to cloak their involvement on Hutchinson sites as a purported exercise of clause 32.9 of the enterprise agreement. This clause is for the purpose of genuine union meetings, not meetings held as a ruse to cause industrial disruption, as has occurred here. The substance, not the form, of the CFMEU's conduct is the primary consideration. The conduct here had a malicious and improper purpose. The contravening conduct of the respondents has resulted in significant disruption at Hutchinson sites by reason of strike action being taken for the day, stop work meetings, forced cancellation of concrete pours and crane work, and a delayed start to the work day. The contravening conduct affects not only Hutchinson Builders as the principal contractor on site but owners of the projects, the other contractors such as those who supply concrete, the numerous sub-contractors that work on the Hutchinson sites, and their employees. No facts in Mr Jenkinson's affidavit are challenged by evidence from the respondents. The respondents claim that the industrial action of the CFMEU relates to a local issue in Queensland and the Northern Territory, however as the applicant claims the conduct of the respondents is coercive and there is no reason why that conduct would not be replicated in other States. This is particularly so in light of the evidence that Hutchinson sites had been targeted because they were under the "Hutchinson banner". The CFMEU is a federal body, operating federally, and it follows that a national approach to their conduct is warranted. If the Court made orders in terms of those proposed by the respondents, it is likely that the campaign against Hutchinson Builders would continue, but organisers would not be so candid when on site and giving their reasons for being on site. If there is an issue with proper protected industrial action, where real prejudice arises regarding the orders, there is liberty to apply. At present there is no material before the Court to indicate any prejudice to the respondents from the operation of the interim orders since those orders were made by Greenwood J. Evidence before the Court suggests that clause 32.9 has been abused by the respondents. Draft order 2 proposed by the applicant seeks to achieve balance by recognising the right of the union to have meetings and allowing one such meeting per week per site. There is nothing to prevent the CFMEU conducting meetings with its members outside working hours.

[4]

CONSIDERATION 70 As Mr Friend for the respondents correctly submitted, the orthodox approach in respect of granting injunctive relief is that it should be no wider in ambit than is necessary. Sheppard J explained in Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 18: Nevertheless, a court asked to grant an injunction should be careful to see that it does not go further than the circumstances of the instant case require. 71 I also note the following comments of Charles JA in Optus Networks Pty Ltd v City of Boroondara (1997) 2 VR 318 at 336: The relevant principles relating to the wording of interlocutory injunctions are well-settled, although their application is often a matter of difficulty. Because a restraining injunction prevents the person affected from acting in a particular way, on pain of penalties for contempt of court, it is essential that the injunction be certain in its terms, so that the defendant may know precisely what may or may not be done pursuant to the injunction. Imprecision and ambiguity must, so far as possible, be avoided in the language used … 72 The proper terms of the interlocutory relief to be granted in this case must be considered in light of both the background facts and the claims of the applicant. I have already set out in some detail the background facts, at least so far as they are alleged by the applicant. In this regard, I note that none of these background facts, to date, have been contested by the respondents, and to that extent I accept them at this interlocutory level as forming a proper basis for interlocutory relief. 73 So far as concerns the substantive claims of the applicant, I note the seriousness of the alleged conduct of the respondents referable to the provisions of the Fair Work Act 2009 (Cth) (the FW Act) the applicant submits have been contravened. Those provisions are ss 343(1)(a) and (b), 346(b) and (c), 348, 355(b) and 417. 74 Materially s 343 provides: Coercion (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. Note: This subsection is a civil remedy provision (see Part 4-1). 75 Section 346(b) and (c) provide: Protection A person must not take adverse action against another person because the other person: (a) … (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). Note: This section is a civil remedy provision (see Part 4-1). 76 Section 348 provides: Coercion A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity. Note: This section is a civil remedy provision (see Part 4-1). 77 Section 355(b) provides: Coercion - allocation of duties etc. to particular person A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) … (b) engage, or not engage, a particular independent contractor; … … Note: This section is a civil remedy provision (see Part 4-1). 78 Section 417 provides: Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc. No industrial action (1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which: (a) an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or (b) a workplace determination comes into operation until its nominal expiry date has passed; whether or not the industrial action relates to a matter dealt with in the agreement or determination. Note: This subsection is a civil remedy provision (see Part 4?1). (2) The persons are: (a) an employer, employee, or employee organisation, who is covered by the agreement or determination; or (b) an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity. Injunctions and other orders (3) If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following: (a) grant an injunction under this subsection; (b) make any other order under subsection 545(1); that the court considers necessary to stop, or remedy the effects of, the contravention. (4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2). (5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2). Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions. 79 Each of these provisions constitutes or relates to civil remedies under the FW Act. Coercion in itself is a serious allegation, representing unlawful conduct fundamentally contrary to the object of the FW Act in s 3 to promote cooperative and productive workplace relations in Australia. As Mortimer J recently observed in Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2016] FCA 436 at [156], coercion entails an abuse of industrial power to try to force a desired industrial outcome. It is important that interlocutory injunctive restraints - particularly where the conduct is not disputed - be comprehensively drafted and be effective to address such conduct. 80 In so saying, I note that any restraint will not only affect the respondents, but many third parties, in particular the workers, other contractors and sub-contractors on Hutchinson sites who are not parties to this proceeding. In this context I note that Hutchinson Builders itself is a stranger to this litigation, although at this interlocutory level I consider it fair to observe that its interests align with those of the Director in respect of the relief which has been sought. 81 The balance which the Court must strive to achieve between the interests of the applicant and the respondents should reflect the effect of any restraint on third parties as well as the inevitable constraints on the respondents. 82 Having made these preliminary observations, and the alternative forms of relief proposed by the applicant and the respondents, I have concluded that the form of relief proposed by the applicant is appropriate in the current circumstances before the Court. I have formed this view for the following reasons.

Proposed qualification to "Projects" 84 Second, however, the critical qualification proposed by the respondents to the comprehensive injunctive language concerns the locations where the restraint should operate. The respondents urge the Court to limit the interlocutory injunctive relief to the "Projects" - namely the building sites the subject of Mr Jenkinson's affidavit and the statements of Hutchinson site managers incorporated into that affidavit. 85 As I have already noted, the respondents submit that the evidence is that it is on these sites only that the allegedly coercive conduct occurred. Further they rely heavily on evidence of Mr Ravbar that the CFMEU Construction and General Division in Queensland and the Northern Territory operates autonomously. To that extent, the respondents submit that whatever issues there are between the respondents and Hutchinson Builders which have resulted in the allegedly contravening conduct, they are limited to Queensland and the Northern Territory. 86 In my view these submissions do not address the concern of the applicant that the limitation to the injunctive relief proposed by the respondents would be ineffective to prevent future contravening conduct by the respondents in respect of other Hutchinson sites in Australia. I take this view for the following reasons, namely: There is ample evidence before the Court that CFMEU activities constituting alleged contraventions of the FW Act on Hutchinson project sites to date have been referable not to issues at the specific sites, but because those sites were (in the words of CFMEU organiser Mr Matt Parfit on 13 September 2016) "under the Hutchies banner". So, for example, as appears in Mr Jenkinson's affidavit, Mr Rushton referred to his understanding that meetings at the Opera Apartments site related to "the 457 Visa issue in Darwin", Mr Morgan made a similar statement in respect of disruption at the 38 Wharf Street site, Mr Parfit allegedly told Mr Ward at the Hercules project that the issue in dispute was "bigger than you", Mr Sengelman was told that action at the Newstead Central project on 23 September 2016 related to "the Darwin Issue", Mr Justin Steele allegedly told Mr Smith at the Ivy Apartments site on 7 September 2016 that Mr Smith had been "instructed from above to come to your site and shut you down". There is no evidence before me of Hutchinson projects or sites in Queensland or the Northern Territory other than those to which Mr Jenkinson refers in his affidavit. I note, however, that even on the respondents' proposed formulation of the interlocutory restraint, such projects and sites would be vulnerable to disruptive activity of the respondents (or some of them) potentially constituting contravention of the FW Act. In any event it is not controversial that Hutchinson Builders is a large building and construction company operating throughout Australia. The projects the subject of disruption to date appear to be valued in the hundreds of millions of dollars. I consider it likely that there are many Hutchinson projects in Australia outside Queensland and the Northern Territory. The CFMEU is a large federally registered union under the Fair Work (Registered Organisations) Act 2009 (Cth), operating nationally with a federal structure. Notwithstanding Mr Ravbar's evidence of the autonomous operation of the Divisional Branches of the CFMEU, I am not convinced at this stage of the proceeding that the CFMEU would not act holistically in respect of Hutchinson sites outside Queensland and the Northern Territory to achieve an outcome desired by one of the Divisional Branches.

Potential prejudice to workers 90 Fifth, in his affidavit Mr Ravbar referred to the importance of allowing workers to meet with the CFMEU at short notice, and the related importance of clause 32.9 of the EBA to both workers and the respondents. In my view these are valid points. However I also take the view that the need for workers to meet at short notice with the union must, in the current circumstances be balanced by the apparently deliberate and orchestrated campaign of damage inflicted by the CFMEU and the respondents on Hutchinson Builders, and, as a result, other contractors, sub-contractors and their employees. 91 Indeed it is apparent from the material before me that the CFMEU has relied on clause 32.9 to cause maximum disruption to Hutchinson sites for reasons known to the respondents. An example of an apparent stratagem to this effect is the coincidence of unannounced attendances by CFMEU organisers on Hutchinson sites across Brisbane - namely at Newstead Central, Skytower, Spire Apartments, Southpoint A, Opera Apartments and Hercules - on 23 September 2016 when concrete pours were scheduled and had to be cancelled as a result of delays caused by those attendances. In this regard I note the statement by Mr Rushton of Opera Apartments that on 23 September 2016 Mr Steele of the CFMEU had told him "Just call the concrete pour off and I will leave the site". 92 As was made clear in numerous of the statements, as a result of attendances by the CFMEU and the respondents, costs and lost productivity were incurred by Hutchinson, and workers lost pay because of directions by the CFMEU to leave the respective sites. In my view the benefits to the CFMEU and the respondents provided by clause 32.9 of the EBA must be balanced by their apparent abuse of that clause in this case. 93 Mr Friend for the respondents submitted that clause 32.9 also provides protection to workers. In this respect the respondents also proposed their order 3, which carves out from the general restraint the taking of protected industrial action in accordance with s 408 of the FW Act or activity which is not industrial action because of the operation of s 19(2) of the FW Act. 94 Section 408 of the FW Act provides: Protected industrial action Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following: (a) employee claim action for the agreement (see section 409); (b) employee response action for the agreement (see section 410); (c) employer response action for the agreement (see section 411). 95 Sections 409, 410 and 411 of the FW Act state particular conditions to be satisfied for each form of protected industrial action to which s 408 refers. 96 Section 19(2) of the FW Act provides: (2) However, industrial action does not include the following: (a) action by employees that is authorised or agreed to by the employer of the employees; (b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer; (c) action by an employee if: (i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and (ii) 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 and appropriate for the employee to perform. 97 The applicant has countered this proposal with his own alternative order 3 referable to potential safety issues arising on Hutchinson sites, which alternative order I have set out earlier in this judgment. 98 I am not persuaded that order 3 in the form proposed by the respondents is appropriate in these circumstances. 99 First, it is difficult to see why, in balancing the rights and interests of the parties in this case, there should be a carve out from the interlocutory restraining orders in respect of protected industrial action under s 408 of the FW Act. As Jessup J observed in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [19] industrial action will never be "protected industrial action" if it does not relate, in the statutory sense, to a proposed enterprise agreement. The enterprise agreement to which I referred earlier in this judgment was approved on 9 November 2015, with a nominal expiry date of 2 July 2019. In this context and at this stage of the life of the enterprise agreement there is no apparent imperative for an exception from the general proposed restraints for protected industrial action within the meaning of s 408. 100 Furthermore, and to the extent that there would or could be scope for protected industrial action in respect of a proposed enterprise agreement between Hutchinson and any party, or workers and any other party which could be affected by the restraints, I consider that the advantage of having the carve out proposed by the respondents would be outweighed by their potential abuse of the carve out. I have already referred to examples of conduct by the respondents which can potentially be described as a ruse, masquerading as exercise of rights under clause 32.9. In light of evidence of their conduct in respect of Hutchinson sites, in my view there is a serious risk that the respondents would continue their campaign against Hutchinson Builders while purporting to take protected industrial action. I agree with the submission of Mr Bourke for the applicant that until the final hearing of the proceeding it is unlikely that CFMEU organisers would be as candid in their interactions with Hutchinson site managers as they have been to date particularly in respect of reasons for attending Hutchinson sites. 101 Second, while in my view the submission of Mr Friend for the respondents concerning the ability of workers on Hutchinson sites to raise issues of safety and entitlements has merit, the order proposed by the applicant is adequate to protect workers' rights. This is because: The parties have agreed that there should be liberty to apply in respect of any of the orders made in this matter. This liberty to apply would clearly extend to circumstances where workers were concerned about entitlements, such as the insolvency of a sub-contractor as raised in his affidavit by Mr Ravbar. It is common ground that there is no bar on the CFMEU holding meetings with workers outside working hours. Notwithstanding the evidence of Mr Ravbar as to the undesirability of such meetings, such meetings could properly address worker concerns should there be any. I am satisfied that State occupational health and safety laws are adequate to address safety concerns arising at short notice.

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

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