Fair Work Act 2009_

s.418 - Application for an order that industrial action by employees or employers stop etc.

Construction, Forestry, Mining and Energy Union

Industrial action at various companies performing work at QUT Creative Industries Precinct Project.

[1] At 3:44 PM on Tuesday 27 May 2014, John Holland Queensland Proprietary Limited ("the employer") made application under s.418 of the Fair Work Act 2009 ("the Act") for an order to stop (etc) alleged unprotected industrial action in relation to its site at the Queensland University of Technology Creative Industries Precinct Project ("the site"). The site concerns a $60 million project relating to the demolition and refurbishment of existing buildings and the construction of a new building at the Kelvin Grove campus of the Queensland University of Technology.

[2] This hearing has been expedited following the hearing that concluded late this afternoon (28 May 2014).

[3] The order as sought was against the Construction, Forestry, Mining and Energy Union ("the CFMEU") and its officers and its delegates, employees and agents who come into contact with, or have responsibility for employees of the employer and those of various sub contracting businesses and who are members or eligible to be members of the CFMEU. The order also sought to bind those same employees.

[4] The matter was brought on in the early evening of 27 May 2014. At that time the CFMEU sought an adjournment on the basis it had not been able to take instructions in relation to the application and would not be able to do so until the following day. In such circumstances, the employer agitated that the Commission should make an interim order by way of s.589 of the Act.

Initial decision- jurisdiction to make an interim order by way of s.589

[5] There was a contest between the parties as to whether or not there was scope for the Commission under s.589 of the Act to make an interim decision of the kind sought.

[6] Section 589 of the Act provides as follows:

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(4) this section does not limit the FWC's power to make decisions.

[7] Section 420 of the Act is headed, "Interim Orders etc", and provides as follows:

(1) 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.

(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).

(3) However, the FWC must not make the interim order if the FWC is satisfied that it would be contrary to the public interest to do so.

(4) In making the interim order, the FWC does not have to specify the particular industrial action.

(5) An interim order continues in operation until the application is determined.

[8] Section 418(1) of the Act also states that the Commission must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period if any of the applicable preconditions are satisfied (at either s.418(1)(a), (b) or (c) of the Act.

[9] I have previously discussed the scope of power under s.589 of the Act in my decision in [2014] FWC 1769. In that decision I found as follows:

[28] It has been put to me by the CFMEU that s.420 of the Act is, in effect, a code or else otherwise exhausts the Commission's jurisdiction in relation to its discretion to make an interim order against employees/organisations the subject of a s.418 application. That is, the CFMEU contented that s.420 operates to oust the operation of the general discretion to make interim orders under s.589 of the Act. The CFMEU put the matter this way, in essence:

The generalised power that your Honour referred the applicant to in your email exchange earlier today does not override the provision of this particular part of the Act where an interim order is specifically provided for where the application cannot be determined within two days. So I would submit that on a proper construction of the Act the power is not there for you to make an interim order in this circumstance, but in any event, your Honour, it is not appropriate for an interim order to be issued because it is clearly contrary to the public interest.

We have allegations of safety breaches on this particular job. We have an application that is not supported by statutory declarations. They are unsubstantiated allegations and nothing more, and the granting of an interim injunction would be completely inappropriate and it may well see workers return to work in an unsafe workplace and that clearly is against the public interest.

[29] As a matter of construction, I have come to conclude, though not without some preliminary doubt, that there are difficulties with this approach, and that s.420 and s.589 of the Act are capable of operating together and without conflict.

[30] Section 420 of the Act, on its plain terms, concerns an interim order that is obligatory in nature. Section 420 mandates the Commission to make such an order once certain preconditions are met - that being once the Commission is satisfied to the requisite degree that the application under s.418 of the Act cannot be determined within 48 hours.

[31] The interim order operates automatically, in effect, upon specific conditions being fulfilled.

[32] Section 420 of the Act is a carryover of the provision as introduced into the Workplace Relations Act 1996 by way of the 2005 amending legislation.

[33] The Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 put the rationale for the statutory amendment that introduced the provision in 2005 in the following way:

1524. Subsections 111(6), (7) and (8) would address the situation where the AIRC is unable to determine an application within 48 hours of it being made. In such circumstances, the [AIRC] would be required to issue an interim order (within 48 hours of the application being made), which would operate until the application is determined. The only circumstance in which the AIRC must not make an order is where it would be contrary to the public interest to do so.

[34] The Explanatory Memorandum reinforces my view that an interim order under s.420 of the Act is an order that only applies automatically (in so far as it is mandatory for the Commission to make such an interim order) upon the prescribed conditions being met.

[35] An interim order under s.589 of the Act, I have come now to conclude, is an order of a different (albeit procedural) kind that is generally available.

[36] Such an order is open to be made as a matter of discretion on application by a party or at the Commission's own initiative.

[37] There is nothing mandatory in an interim order process under s.589 of the Act, and there are no statutorily prescribed conditions that must be met before it is made, other than that those principles implicit in the ordinary exercise of the Commission's discretion must inform the discretion.

[38] Section 589 is not to be read subject to any qualification or condition.

[39] Thus s.420 of the Act does not constrain the accessibility of the general procedural or the particular powers under s.589 of the Act. Such powers are generally available to the Commission in the conduct of its proceedings and are not derogated from by s.420 of the Act. Though, as I discuss below, regard would need to be had to circumstances in which an interim order under s.589 of the Act and s.420 of the Act would apply.

[40] For these reasons I think s.420 of the Act and s.589 of the Act can be read together and that the provisions operate conformably (as I will discuss at a practical level below).

[10] In the course of that decision I also considered the circumstances where a safety issue was afoot and whether or not the public interest would cause me to not make an interim decision under s.589 of the Act. In this regard I commented as follows:

[47] I add that so far as a safety issue is raised it may be an important issue in considering whether to exercise the discretion to make an interim order and whether any public interest issues are applicable in the circumstances. I think any consideration of an interim order must have regard to whether any such order, if granted, would be contrary to the public interest.

[48] Equally, however, in such same circumstances an interim order may be drafted in such a form as to conform to s.19(2)(c)(i) and (ii) of the Act, and to accommodate circumstances in which a safety issue was afoot, or may come to be on foot.

[49] That is, an interim order (for example only) might include that employees (at least) whose names are enumerated in the application (or otherwise as defined) stop taking any unprotected industrial action and perform available work, whether at the same workplace or another workplace, that is safe for the employees to perform. Such an order in such terms, of course, would not denigrate from an employee's usual right to not perform work where they are on authorised leave, etc.

[50] Such an interim order might come into effect at the time specified and remain in place until such time as the substantive matter is determined (which is a matter to be considered in the context of the continuing operation of s.420 of the Act). Where an interim order was to come into effect for a period of more than 48 hours it would reasonably be necessary to set that order aside to allow for the ordinary operation of an interim order under s.420 of the Act. Equally, however, the interim order may be set aside where a member reaches the requisite degree of satisfaction that the substantive matter cannot be determined within 48 hours.

[11] In the current circumstances I have been asked to make a decision as to whether an interim decision should be made under s.589 of the Act with the effect of an interim order until such time as the substantive matter can be heard (and within the 48-hour window referred to in s.420 of the Act).

[12] The CFMEU has put to me that s.418 and s.420 of the Act stipulate that the Commission may - subject of the relevant conditions being satisfied - make an order that stops etc the apparent unprotected industrial action happening, being threatened and organised et cetera.

[13] This is a distinguishable exercise of power, so the CFMEU contends, than that which is capable of being exercised under s.589 of the Act.

[14] The CFMEU contends that the scope of power available under s.589 of the Act is limited to a decision and that is an important terminological distinction from the statutory concept of an order under s.418 and s.420 of the Act.

[15] The Act makes clear by using such distinctive terms, so the CFMEU argues, the legislative intention was that the scope of power available under s.589 of the Act is intended to be distinguishable to that which is required to be exercised under s.418 and s.420 the Act. This demonstrates, so the CFMEU contends, that s.589 of the Act is limited to being no more than a "decision" and has no application in the circumstances.

[17] The Act and its predecessor legislation had utilised a range of terminology to describe the means by which the Commission discharges its various functions.

[18] The Commission may make decisions, terminations, issue directions, make orders, and also decisions in relation to orders, and all in varying circumstances.

[19] The substance of these terminological distinctions is not entirely clear in all cases and can often only be reconstructed from their circumstances as opposed to their statutory expression, as it is at first blush.

[20] The Act does not define its terms and these regards.

[21] Decisions, therefore, can be orders in terms of the effect (such as an interlocutory-style direction or decision that command something be done by someone, or (the contrasting purposes) were a decision brings the matter to finality or secures the status quo pending final settlement.

[22] Decisions, in short, can be orders, depending on the scope and binding nature.

[23] Much depends on the context, as I have alluded to earlier.

[24] An interim decision under s.589 of the Act, in my view, is not limited in its application or effects, other than by its interim and interlocutory nature. Section 589 of the Act is a general source of power, therefore, providing to the Commission power to make an interim decision, subject to the usual common law principles involving the balance of convenience and other discretionary considerations derived from the circumstances. I would add to this that the consideration of the public interest may also be invoked.

[25] Section 589 of the Act does not limit the decision that can be made to a particular characteristic - interim decisions under s.589 of the Act may embody interim orders of a particular binding effect - but they may embody decisions of other kinds, and of a different nature.

[26] There is no evident statutory intention to write down the scope of the effect of the decision to one type of consequence or another.

[27] Interim decision, in short, can have binding effects that express the characteristics of binding orders; other decisions do not, and need not.

[28] Section 589 of the Act therefore gives a wide scope for the decision to have varied characteristics depending on the circumstances, including that of an order.

[29] Section 418 and s.420 of the Act refer to the making of orders because they require an outcome that is of a binding nature. This is what would be expected in the context where a binding outcome is intended by the statute.

[30] There is no incompatibility between an interim decision which is an interim order in its effect (as made under s.589 of the Act) and an order or interim order under s.418 or s.420 of the Act.

[31] Section 589 of the Act is an interim decision making power of wide scope with application in many circumstances across the Act. Section 418 and s.420 are confined in nature to their particular necessary context. An interim decision to make an order applies to circumstances may be warranted in the "space" where no order under s.418 of the Act can be made or where the particular circumstances required for an interim order under s.420 of the Act have so far not been made out.

[32] In my view, therefore, on this construction, it is within the Commission's power to make an interim decision under s.589 of the Act that is an interim order in character in appropriate circumstances and in the context of an application under s.418 of the Act.

[33] In the particular circumstances of this case, however, I have not made the interim order as requested. This is only for reason that by the time that I have concluded a view on the submissions put to me the practical utility of such an order had ceased to exist.

[34] The evidence before me in relation to the substantive application persuades me that it appears that unprotected industrial action happened yesterday at the site and that unprotected industrial action appeared to again have manifested itself at the site today.

[35] Employees of the subcontractors and of the employer left the site yesterday morning at around 7:00 AM. They did so following a meeting which involved Mr Mick Myles, a CFMEU organiser and two other CFMEU site delegates (for the employer and one of the subcontractors).

[36] The issue in contention appears to have been the conduct of Mr Brian Weigel, the employer's site manager, in failing to inform workers in the jump form that the crane crew would be finishing work owing to wet weather and the crane would not be available for purposes of any emergency evacuation procedure. Mr Weigel had also ordered a concrete pump to site in circumstances where the task lighting was insufficient for its safe operation.

[37] These two events occurred earlier in May 2014 (seemingly on 9 May 2014 and 16 May 2014).

[38] I add that the site was also deficient in its safety procedures in relation to a number of other areas as well. These include some safe storage issues, maintaining an up to date first aid box, the cleanliness of a refrigerator and so forth.

[39] Shortly after the meeting of early morning 27 May 2014, Mr Myles, the CFMEU organiser, stated to Mr Weigel that the meeting of members had decided that he had core safety issues on site and needed to be stood down for a day and re-inducted. Mr Myles commented that the workers were "going to sit out and not do any work until" there was compliance with this request.

[40] I state at this point that Mr Weigel had expressed contrition for his conduct (publicly) and admitted to his departure from safe work practices in relation to the above incidents. In particular, he accepted responsibility for not personally informing the workers in the jump form that the crane crew were no longer at work, which he admitted was an error on his part. Mr Weigel had relied upon a worker (the employer's CFMEU site delegate) to inform the employees, when it was not that employee's responsibility to communicate such issues.

[41] The employer did not agree that it was necessary to require Mr Weigel to be re-inducted in the circumstances.

[42] Mr Myles reported the outcome of the meeting referred to above in the following way, at least initially:

The meeting has decided that, as a result of your actions in causing safety issues on site, you need to be stood down from the site for one day and that you need to be re-inducted

[43] During a subsequent discussion between the employer and the CFMEU organiser the following exchange was said to have taken place (through Mr Weigel's uncontested evidence):

Mr Myles: we want Brian to be stood aside and to him to undergo re-induction

Mr Kazaglis (the Project Manager): no, that is not going to happen. We are not happy to go down that path. We are not going to be standing Brian aside.

Mr Weigel: I am happy to do some orders of your task risk assessments to get the guys back to work.

Mr Myles: no, we have decided we want you to stand aside and for you to be re-inducted.

[44] Mr Weigel gave evidence that "the discussion proceeds in that way for some 20 minutes, with Mr Myles repeating that he wanted me to be stood aside and to undergo re-induction [...]".

[45] The meeting broke up at around 7:30 AM because the situation could not be resolved.

[46] The employer's evidence was that subsequently employees of subcontractors and the employer left the site.

[47] On 28 May 2014 Mr Myles again presented at the site at around 6:15 AM.

[48] It was uncontested that the following exchange occurred at a meeting between the employer and Mr Myles, which appears to have taken place around 6:30 AM:

Mr Myles: well what is happening about Brian's re-induction and training? Has it been done?

Mr Weigel: no it has not been done and it's not going to be done.

Mr Myles: I want to enter the site under section 81(3) of the Workplace Health and Safety Act to help resolve the ongoing dispute that we are having.

Ms Coombes (HR Advisor): you are not able to enter the site under that provision without first providing 24 hours notice. You have not done that. You cannot enter the site using that section.

[49] The evidence was that Mr Myles then again raised the safety issues referred to earlier in which Mr Weigel was involved (which concerned informing workers who were in the jump form that the crane crew had left site). Discussion occurred around this same issue once more.

[50] It appears after this time the CFMEU called onto the site Workplace Health and Safety officers from Workplace Health and Safety Queensland in an endeavour to resolve the issue, which again focused upon the re-induction of Mr Weigel.

[51] The evidence before me through Mr Weigel's statement was that the employees of the subcontractors were at site today, 28 May 2014, as were employees of the employer. That evidence was to the effect that the employees were not performing any work.

[52] It was put to me by the CFMEU that the workers were actually performing a review and audit of site safety procedures, but there was no evidence to this effect. There was no evidentiary case led by the CFMEU at all in this matter. The only evidence that is before me in relation to the conduct of employees of the subcontractors and the employer is that as led by Mr Weigel.

[53] The employer and the CFMEU appear to have had difficulties in their relationship in recent months arising from a series of right of entry issues, amongst other matters. Be that as it may, the stoppage of work that has been in evidence appears to me to arise from a set of circumstances relating to a contest over the manner in which the site manager should be treated following two safety breaches earlier this month.

[54] It appears to me that workers at the site would have a reasonable expectation that a person in a supervisory position on a site would exhibit heightened awareness of safety procedures and protocols.

[55] But it is another thing altogether to cease to perform work because there is a disagreement about the appropriate level of action to be taken in respect of Mr Weigel. The employer contends that it has done enough and that Mr Weigel has done enough to demonstrate his future commitment to safety on site. The CFMEU and the employees believe otherwise (particularly where an employee of a subcontractor was stood down for one day and re-inducted following what appears to be two breaches of safety procedures).

[56] These are the kinds of matters that give rise to site tensions. Unless they generate and immediate or imminent threat to the safety and health of an employee, a stoppage of work as it appears to me has occurred here over the last 48 hours is not exempted from the meaning of industrial action under s.19 of the Act.

[57] It appears to me that given the circumstances and the evidence before me that unprotected industrial action appears to have happened at the site on 27 May 2014 and continued to manifest itself on 28 May 2014. The unprotected industrial action which appears to have taken place was taken by employees of the employer and employees of the various subcontractors.

[58] In my view, it is also the case that further unprotected industrial action is probable given that the site has exhibited instability in the past and has been subject to 2 sets of orders by me of extended duration previously [in PR540156] and [PR543936] (with the latter being corrected by way of [PR544003]). On the last occasion, on 30 October 2013 I made orders of a six-month duration. Those orders expired at the beginning of this month.

[59] It appears to me that the site remains unstable and exposed to further stoppages of work. An order of significant duration is again required in the circumstances. On this occasion I will make an order that will extend to the contractual completion date of the site, which is 28 February 2015.

[60] This leads me to determine whether or not the CFMEU should be bound by the order.

[61] It is not enough to draw an inference that the CFMEU organiser was responsible for organising the unprotected industrial action which appears to have been happening at the site merely by reason of his presence alone. A motive should not be insinuated merely by the execution of a representative role in the ordinary manner.

[62] But in this case, Mr Myles has exhibited a level of personal engagement with the issues which together with his presence in the relevant meetings with employees, and the wider background (including the application of my previous orders), is sufficient to cause me to reasonably infer that the CFMEU is organising the industrial action.

[63] The uncontested evidence led by Mr Weigel was that Mr Myles had made the following comments (which are set out in full above):

Mr Myles: we want Brian to be stood aside and to him to undergo re-induction

Mr Kazaglis (the Project Manager): no, that is not going to happen. We are not happy to go down that path. We are not going to be standing Brian aside.

Mr Weigel: I am happy to do some orders of your task risk assessments to get the guys back to work.

Mr Myles: no, we have decided we want you to stand aside and for you to be re-inducted.

[64] Mr Weigel gave evidence that "the discussion proceeds in that way for some 20 minutes, with Mr Myles repeating that he wanted me to be stood aside and to undergo re-induction [...]". [My emphasis]

[65] Again, the use of the personal pronoun suggests that Mr Myles was much more than a mere conduit of the employees' opinions and positions.

[66] I reach this conclusion notwithstanding that Mr Myles took steps today, it seems, to invite the Work Place Health and Safety Qld officials on site. Whilst this may be construed as a step taken to resolve the issue, Mr Myles did not communicate this approach to the employer, and his other conduct today at the meeting held around 6.30 AM evinced a continuing desire to agitate issues around Mr Weigel's conduct on 9 May 2014. The safety officials communicated that that was the CFMEU position later this same morning was that it still held that Mr Weigel had to be re-inducted.

[67] The order that I make will therefore be binding upon the CFMEU as well is the employees of the employer and the employees of the subcontractors who are eligible to be or who are members of the CFMEU.

[68] In order to this effect will now issue along with this decision.

Mr V. Rogers, Ashurst Australia, for the Applicant.

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