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[2013] FCA 133
Federal Court of Australia
2013-02-25
Collier J
Original judgment source is linked above.
Number of paragraphs: 43
Counsel for the First, Second, Third, Fourth and Fifth Applicants: Mr JE Murdoch SC
Solicitor for the First, Second, Third, Fourth and Fifth Applicants: Minter Ellison Lawyers
Counsel for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: Mr WL Friend SC
Solicitor for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Respondents: Hall Payne Lawyers
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 86 of 2013
BETWEEN: LAING O'ROURKE AUSTRALIA PTY LTD (ACN 111 023 431)
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION)
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA (AS A TRANSITIONALLY REGISTERED ORGANISATION)
JUDGE: COLLIER J DATE OF ORDER: 25 FEBRUARY 2013 WHERE MADE: BRISBANE
On the provision of the usual undertakings as to damages by the applicants, until further order:
IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY FAIR WORK DIVISION QUD 86 of 2013
BETWEEN: LAING O'ROURKE AUSTRALIA PTY LTD (ACN 111 023 431)
AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS' FEDERATION (QUEENSLAND BRANCH) UNION OF EMPLOYEES (AS A TRANSITIONALLY REGISTERED ORGANISATION)
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA (AS A TRANSITIONALLY REGISTERED ORGANISATION)
JUDGE: COLLIER J DATE: 25 FEBRUARY 2013 PLACE: BRISBANE
REASONS FOR JUDGMENT 1 This matter involves the return of ex parte interim injunctions and an application for interlocutory injunctive relief by a construction group against unions and individuals in relation to a major building site in Brisbane. Before me on Friday the respondents made powerful submissions concerning the nature of the orders currently in force and the orders now proposed by the applicants. In particular, the respondents have expressed grave concerns in respect of what they claim to be the highly restrictive and unusual terms of those orders. In light of the seriousness of the issues at stake for all parties in this proceeding, the application has been heard and determined as a matter of urgency. 2 On 15 February 2013 the applicants sought and obtained urgent ex parte interim injunctions in this Court against nine respondents - namely three unions (the Construction, Forestry, Mining and Energy Union ("CFMEU"), the Australian Building Construction Employees and Builders' Labourers' Federation (Queensland Branch) Union of Employees ("BLF") and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("CEPU")) and six union officials (Mr Michael Ravbar, Mr Andrew Sutherland, Mr Kevin Griffin, Mr Scott Vink, Mr Tim Jarvis and Mr Mark Bateman). 3 In addition to making those orders, Greenwood J ordered that the matter be listed urgently for return of the interlocutory application in a hearing at where the respondents would be given an opportunity to be heard in relation to the interlocutory application as well as the orders made. The matter returned last Wednesday before me, and I extended the operation of his Honour's orders to Friday afternoon to allow submissions from Counsel for both parties to be heard on Friday. On Friday afternoon I reserved judgment over the weekend in this proceeding, and again extended his Honour's orders, to expire midday on Monday 25 February 2013. 4 I have considered submissions of Counsel, and have formed the view that interlocutory orders should be made in the terms submitted by the applicants, including an undertaking as to damages given by Mr Murdoch SC on behalf of the applicants. I have formed this view for the following reasons.
Background to the present hearing 5 The applicants are corporations involved in a major construction project for residential and commercial towers in Fortitude Valley, adjacent to the central business district of Brisbane. The project is located at the corner of McLachlan and Ann Streets, Fortitude Valley, and is known as the "M&A Project". Employees at the site are employed by the second applicant, Laing O'Rourke Australia Construction Pty Ltd ("LORAC") which is the head contractor and project manager of the M&A Project, and subcontractors engaged to supply labour and services to the site ("subcontractors"). Those subcontractors include: Lindores Construction Logistics Pty Ltd ("Lindores"); QPI Pty Ltd; Freshmore (QLD) Pty Ltd trading as Advanced Precast (Aust); Northwest Commercial Industries (QLD) Pty Ltd; Blue Star Pacific Pty Ltd; G James Glass & Aluminium Pty Ltd; Active Platforms Pty Ltd; Dig It Landscapes Pty Ltd. 6 The orders made by Greenwood J on 15 February 2013 were extensive and detailed. At the ex parte hearing his Honour had before him substantial affidavits sworn on 15 February 2013 by: Mr Lindsay McGibbon, General Manager - Building Group North. Mr McGibbon is employed by the second applicant; Mr Pawel Zielinski, a solicitor with carriage of the matter on behalf of the applicants; and Mr Murray Middleton, Queensland General Manager - Development. Mr Middleton is employed by the Laing O'Rourke group in Queensland. 7 In substance, his Honour's orders restrained various combinations of the respondents from: Taking any action or initiating or being involved in any communication likely to have the effect that any employee of LORAC or the subcontractors ("M&A Project Employee") places a ban or restriction on work at the M&A Project (order 2(a)). Advising or encouraging any M&A Project Employee not to carry out work on the M&A Project at any time when required to by the employer (order 2(b)). Advising any M&A Subcontractor that they should not carry out work on the M&A Project when requested by LORAC or taking any action detrimental to the commercial interests of any M&A Subcontractor because they carry out or propose to carry out work on the M&A Project (order 3). Engaging or attempting to engage in conduct in concert with any other person which has the purpose or likely effect of preventing an M&A Subcontractor from carrying out construction work on the M&A Project (order 4). Reaching an agreement with any M&A Subcontractor for the purpose of preventing that subcontractor from carrying out work on the M&A Project (order 5). Advising, encouraging, or procuring industrial action by M&A Project Employees, impeding entry or exit of persons or vehicles to and from the M&A Project, organising a picket line at the M&A Project or placing or leaving any vehicle or other thing within 100 metres of any entrance or exit to the M&A Project (order 6). 8 Orders 2-6 did not apply to the organisation of protected industrial action in accordance with s 408 of the Fair Work Act 2009 (Cth) ("Fair Work Act") or activity which was not industrial action because of the operation of s 19(2) of the Fair Work Act (order 7). 9 The first, second and third respondents were also ordered to take reasonable steps by no later than midday on Monday 18 February 2013 to advise each M&A Subcontractor that there was no restriction on their ability to carry out work on the M&A Project until further order (order 9).
Claim of the applicants 10 The background to the interlocutory application as alleged by the applicants was set out in detail in the affidavit of Mr McGibbon sworn 15 February 2013, and may be summarised as follows: The Practical Completion of the commercial building was scheduled to be achieved by 31 October 2012 (subsequently revised to 30 November 2012 and then 5 March 2013), and Practical Completion of the residential building by 11 April 2013 (subsequently revised to 18 October 2013). The M&A Project has suffered from a high degree of industrial disruption, in relation to which LORAC maintains a schedule of construction delays. The M&A Project has lost 40.25 days due to industrial action, which was not protected industrial action or otherwise authorised by LORAC. Annexed to Mr McGibbon's affidavit was a record of construction delays. The applicants claim that the unauthorised industrial action was encouraged or directed by union organisers employed by the CFMEU and the BLF. The CFMEU and the BLF represent the majority of the workforce on the M&A Project. On 19 November 2012 workers on the M&A Project took part in unlawful industrial action. There was an ongoing dispute concerning payment for workers for that day. LORAC needs to schedule work out of core hours in order to meet its construction schedule. LORAC also needs to schedule work on weekends and after hours because certain types of work (including installation of precast concrete) are safest done when the site and surrounding commercial and retail areas are depopulated. On 18 and 19 December 2012 when LORAC had programmed night work involving the installation of precast concrete panels, LORAC was contacted by a number of subcontractors who were involved in this work, and who informed LORAC that the unions had told the subcontractors not to send any labour into the project. Works were therefore cancelled for those nights. On 4 January 2013 a CFMEU organiser attended the site and directed CFMEU members not to work, on the basis that the day was a rostered day off ("RDO"). The employees' non-attendance continued on the following day. On 14 January 2013 at a meeting between LORAC staff and union officials, Mr Ravbar informed Mr McGibbon that it is custom and practice for CBD contractors to produce notifications to the unions of affected workers in relation to out of hours work, and further that the HSC had the right to make a decision that work should not proceed. On 16 January 2013 after work had taken place the previous night on the site, Mr McGibbon was forwarded an email from Mr Scott Lloyd, the Labour Manager of Lindores, who wrote that Lindores had "been absolutely reamed all day today by the union because we sent the 2 teams to site last night without [union] consent". Mr Lindores also informed Mr Payten of LORAC that Mr Lindores had been told that if he sent labour to the M&A Project site without union consent the CFMEU would "come down heavy on them on other projects" (or words to that effect). Accordingly, no Lindores employees attended the site, and planned night works on 16 January 2013 were cancelled. On 23 January 2013 Mr McGibbon wrote to Mr Ravbar of the CFMEU, outlining what Mr McGibbon believed to be the significant industrial issues outstanding between LORAC and the CFMEU and BLF. In summary, those issues were: right of entry by CFMEU and BLF organisers on to the project site without LORAC approval and without notification under the Fair Work Act; the role of the Health and Safety Committee ("HSC") under the Work Health and Safety Act 2011 (Qld) ("WHS Act") and the LORAC Building and Construction Enterprise Agreement ("the Enterprise Agreement"). In particular, whether the HSC had authority to decide whether or not work could continue following the identification of a safety issue was a matter in dispute; work undertaken outside of core hours (namely 6.30 am - 6.30 pm), and in particular whether LORAC and the subcontractors have the right to schedule overtime work outside of core hours, including at night, without union approval. In his letter, Mr McGibbon wrote of his understanding that the CFMEU's position was that work outside of core hours must be approved by the union before it could take place. The position of the applicants was that the Enterprise Agreement allowed LORAC to schedule out of hours work without union approval; no response had been provided to Mr McGibbon's letter by Mr Ravbar as at 15 February 2013. Mr McGibbon and Mr Ravbar agreed to meet on 8 February 2013 to discuss the CFMEU ban on overtime and compliance by the CFMEU and its organisers with statutory rights of entry. Mr Ravbar cancelled the meeting and could not be contacted. On 8 February 2013 Mr McGibbon made arrangements to complete the work scheduled that night, to take place on 11 February 2013 (tiling work to be carried out by Saba Bros Tiling (QLD) Pty Ltd ("Saba")) and on 12 February 2013 (erection of panels requiring support from Lindores). The tiling work went ahead without incident. On 12 February 2013 Mr McGibbon was contacted by Mr John Hanna of Saba to the effect that Mr Hanna had been contacted by the CFMEU, the CFMEU did not approve of working out of hours on the M&A Project, and no more night work was allowed unless specifically approved by the fifth respondent, Mr Sutherland. Similarly on 12 February 2013 Mr Lindores informed Mr McGibbon that he had been told by Mr Sutherland that Mr Lindores was not allowed to provide crews to the M&A site that night, and that if he did seven other sites where Mr Lindores was carrying out work would be disrupted by the union's use of a two hour meeting clause. Mr Lindores further told Mr McGibbon that he (Mr Lindores) had told Mr Sutherland that work must progress out of hours for safety and other reasons. In Mr McGibbon's view, the CFMEU has put a "ban" on subcontractors at the M&A Project carrying out work after hours, to enforce the ban Mr Ravbar and Mr Sutherland are threatening the subcontractors, and the subcontractors have been influenced by those threats to withdraw from night work at the M&A Project. Unless the applicants are able to schedule overtime work outside of core hours prior to 5 March 2013 it is highly unlikely they will be able reach Practical Completion of the commercial building on that day, and their ability to bring the residential building to Practical Completion by 18 October 2013 will be in jeopardy. The types of work required to be done at night involve: further precast concrete installations; ceiling, tiling electrical and glazing works; removal of roof scaffolding; landscaping and external road finishing. The subcontracts between LORAC and the subcontractors involved in night work include terms giving LORAC the right to require subcontractors to work when reasonably required by LORAC, including outside of core hours and at night. On 11 February 2013 the seventh respondent Mr Vink (a CFMEU organiser) and the eighth respondent Mr Jarvis (a BLF organiser) entered the M&A Project without authorisation or a right of entry, and arranged a meeting which was unlawful. Shortly after the meeting the bulk of the workforce began to leave the site, and did not return to work that day. On 15 February 2013 the ninth respondent Mr Bateman arrived at the M&A Project site. Mr Bateman informed Mr Payten that he had been told by other unions to attend the M&A Project site. Mr Bateman also said that he understood there was an issue with a failure to hold an emergency evacuation, and that a temporary electrical cable had been noted as running along a deck where a concrete pour was occurring. Mr Payten informed Mr Bateman that an emergency evacuation had taken place on 8 February 2013, and the electrical cable had been dealt with on 14 February 2013. Mr Sutherland and the sixth respondent Mr Griffin then arrived and joined with Mr Bateman in expressing concern over safety issues at the M&A Project. The union organisers then held a meeting and shortly thereafter workers began leaving the M&A Project site. A meeting was subsequently held between LORAC management staff and the union organisers, and Mr Griffin said that the HSC needed to be consulted with respect to the procedure regarding emergency evacuations. 11 Before his Honour the applicants submitted in summary as follows: The M&A Project has been plagued by high levels of unlawful industrial action. There is powerful evidence that the current industrial action has been instigated by the respondents to coerce LORAC to settle (favourably to the respondents) issues concerning the right of entry of officials and organisers of the union respondents in respect of the work site, and payment for workers for 19 November 2012. The majority of M&A Project employees are covered by enterprise agreements approved under the Fair Work Act which have not yet passed their nominal expiry dates, and which also cover the CFMEU. Two example subcontracts (LORAC and Lindores, and LORAC and Saba) were in evidence. Both subcontracts plainly authorise LORAC to require work whenever the project schedule requires it. Other subcontracts were in similar terms. On the evidence there is a serious question to be tried that the CFMEU, and Messrs Ravbar and Sutherland are engaging in coercive and intimidatory conduct towards subcontractors to prevent them carrying out work which can be lawfully required of them by LORAC, and that this conduct contravenes s 348 of the Fair Work Act. There is also a serious question to be tried that Messrs Ravbar, Sutherland and Griffin are engaging in unlawful conduct in breach of s 45D and s 45E of the Competition and Consumer Act 2010 (Cth) ("CC Act"), as well as conduct which constitutes the tort of interference with contractual relationships between LORAC and the subcontractors, the tort of unlawful interference with the applicants' trade or business, and the tort of conspiracy to inflict economic loss on the applicants. A work ban is industrial action for the purposes of s 19 of the Fair Work Act. There is a triable issue that the ban is unlawful industrial action being organised in breach of s 417 of the Fair Work Act. An individual will not be exercising their own choice to refuse to work outside of ordinary hours where there is evidence of a coordinated and collective ban. Accordingly, there is also a triable issue that conduct of the respondents. has had, and will continue to have, the effect of counselling or procuring M&A Project Employees to take action in contravention of s 417 of the Fair Work Act; and constitutes action against the applicants with intent to coerce M&A Project Employees to engage in industrial activity as defined in s 347(c), (d) and (f). The balance of convenience favours the grant of injunctive relief because: there is a strong prima facie case that the respondents are organising industrial action contrary to the scheme put in place by the Fair Work Act; the damage which will be sustained by the applicants if the injunction is not granted heavily outweighs any damages to the respondents if the injunction is granted; LORAC is likely to suffer significant reputational loss if it is unable to meet key milestones as a result of the respondents' actions. 12 I note that the applicants have also asked me to take into consideration in the present proceeding their written submissions before Greenwood J.
Evidence before the Court on 22 February 2013 13 Between the ex parte hearing on 15 February 2013 and the hearing on 22 February 2013 extensive additional affidavit material was filed by both parties. Supplementary affidavits sworn by Mr McGibbon have been filed on behalf of the applicants, in addition to affidavits by Mr Payten. On behalf of the respondents affidavits have been sworn by Messrs Ravbar, Bateman, Close, Ramsay, Griffin and Sutherland.
Affidavit of Mr Ravbar 14 In his affidavit sworn 21 February 2013 Mr Ravbar deposed, in summary, as follows: Mr Ravbar is the Divisional Branch Secretary of the CFMEU in Queensland. Agreements to which the CFMEU is a party in the building and construction industry in Queensland contain a clause setting the hours of work, generally providing that the ordinary hours of work are between either 5.00 am or 6.00 am and 6.00 pm, and that the maximum number of hours per week per employee is 58 (being 10 hours per day Monday to Friday and 8 hours on Saturday). The standard clause is in the following terms: 25. HOURS OF WORK 25.1 Except as provided elsewhere in this agreement, the ordinary working hours will be 36 per week (7.2 hours per day) worked between 6.00am and 6.00pm Monday to Friday. 25.2 The maximum number of hours worked on site by any employee will be not more than 58 hours per week, which shall be taken to mean no more than 10 hours per day Monday to Friday and 8 hours Saturday. In certain circumstances, hours may be extended to perform works which are critical to the ongoing productivity of other workers on the project or where a critical work task is delayed due to unforeseen circumstances. However, it is agreed that Sunday work and hours in excess of the aforementioned will not be worked unless written agreement is reached between the parties. Whilst such agreement will not be unreasonably withheld, an appropriate consultative process must be implemented prior to agreement being sought. 25.3. If an employer is found to have breached the previous sub clause on more than 2 instances in any 28 day period, each employee required to work in excess of the maximum hours shall be paid double time for all hours worked on that day. This standard clause has been in existence for approximately 6-8 rounds of enterprise bargaining, and has been a feature of the industrial landscape in the commercial construction industry in Queensland for approximately 20 years. The spread of hours clauses and the lack of provision for shift work reflect the established practice with all of the major subcontractors and most of the major builders that work is not performed outside of the hours of 5.00 am or 6.00 am to 6.00 pm without the agreement of the CFMEU. This practice has existed for approximately 20 years and was developed to reduce the risks associated with employees on construction sites working long hours, at night, or without proper supervision. He was not aware of any circumstances of a subcontractor electing to perform work outside of these hours without first obtaining the union's agreement, and further was not aware of any subcontractor engaged by the applicants expressing any dissatisfaction with these arrangements to the CFMEU. All enterprise bargaining agreements negotiated by the CFMEU in respect of commercial construction contain a clause requiring the employer to consult with employees over major workplace change, which includes changes to employees' hours of work. Mr Ravbar was aware of industrial issues on the M&A Project site, in particular: the manner in which Mr Sutherland was gaining access to the site; whether Laing O'Rourke management were refusing to accept the proper role of the HSC to direct employees not to perform work that the HSC believed to be unsafe; the proposal that employees work on RDOs and the lack of notification to the CFMEU of that proposal. Mr Ravbar attended a meeting with union officials and LORAC employees including Mr McGibbon on 7 January 2013, and at that meeting objected to M&A Project Employees working on RDOs (as this was an important entitlement to be taken) and outside of the 6.00 am to 6.00 pm span of hours (for fatigue and safety reasons). After discussion Mr Ravbar informed Mr McGibbon that the union would not oppose the night work proposed. There was, however, no discussion that night landscaping work might occur that night, and he understood that that it took place. At a meeting on 14 January 2013 Mr Ravbar attended another meeting with union officials and LORAC employees including Mr McGibbon where night work was discussed. During that meeting: Mr Ravbar expressed his view that the subcontractors could not perform work outside of 6.00 am to 6.00 pm without union agreement, and that this was a well-established custom and practice for major building contractors; Mr Ravbar informed Mr McGibbon that the CFMEU would not unreasonably withhold agreement to night works if it was consulted by the applicants, however Mr McGibbon was unwilling to accept that the subcontractors needed the CFMEU's agreement to perform work outside of core work hours. In relation to this issue, Mr Ravbar deposed at [36] in his affidavit: The CFMEU is unaware of whether Laing O'Rourke want to extend the hours of employees who work during the day to work through the night or whether Laing O'Rourke is preposing (sic) to roster separate crews to work the period outside of 6am to 6pm. Further, the CFMEU is unaware of what arrangements Laing O'Rourke or the subcontractors propose to put in place to regulate the performance of night work so as to ensure that those workers performing night work have a proper break before they resume day work. Mr McGibbon stated his view that the HSC did not have a right to direct workers not to perform work if the HSC thought it was unsafe, a view Mr Ravbar considered inconsistent with s 85 of the WHS Act; Mr Ravbar informed Mr McGibbon that Mr McGibbon's attitude concerning rights of the union in respect of work outside of core hours would lead to further disputes at the M&A Project site, and the CFMEU would not be prepared to authorise any work outside normal hours until the LORAC changed its attitude. On 15 January 2013 it was clear to Mr Ravbar that Mr McGibbon had been misleading in respect of the amount of night work LORAC had planned, and Mr Ravbar immediately rang Mr McGibbon to raise concerns. At a meeting on 30 January 2013 Mr Ravbar informed Mr McGibbon that the CFMEU had no overtime ban in place in respect of the M&A Project, but the CFMEU would not authorise the subcontractors that had agreements to work outside of the ordinary hours until LORAC was prepared to properly consult with the union about the risks of working those hours. Mr Ravbar also informed Mr McGibbon that he did not agree with LORAC's position in relation to right of entry by union officials. In summary, the CFMEU position is that: there is no ban on the performance of overtime at the M&A Project; the union does not oppose the performance of overtime by employees working at the M&A Project; the CFMEU considers that the subcontractors working at the M&A Project, who have an agreement with the CFMEU, cannot perform work outside of 6.00 am to 6.00 pm without the agreement of the CFMEU; none of the subcontractors engaged at the M&A Project have sought to consult with the CFMEU or their employees in respect of a change to working hours; the CFMEU is not presently prepared to authorise the performance of work outside of 6.00 am to 6.00 pm, and will not be prepared to do so until the applicants properly consult with the union and outline a thorough and detailed fatigue management plan and schedule for the performance of that work, and recognise the important role that the WHS Act confers upon the HSC.
Affidavit of Mr Bateman 15 In his affidavit sworn 20 February 2013 Mr Bateman deposed, in summary, as follows: Mr Bateman is an organiser employed by the CEPU and the Electrical Trades Union of Employees Qld ("ETUQ"). Mr Bateman has visited the M&A Project site approximately once every two weeks during the past year. On a number of occasions various issues had to be brought to the attention of LORAC by the union because they created an unsafe working environment, including unsafe cutting of boards generating high quantities of carcinogenic dust, and exposure of live electrical cables creating a safety risk. In his observation the HSC has not received proper respect from LORAC. This attitude has caused concern among union members on the site. On 16 January 2013 Mr Bateman attended the M&A Project site and conducted a safety audit, during which time he identified electrical safety risks including non-compliant wiring of electrical boards. LORAC's responses to this had been to put temporary measures in place to alleviate the risk, however the solution implemented by LORAC was unsatisfactory to Mr Bateman and the HSC because the problem had been one of long standing. Mr Bateman attended the M&A Project site on 13 February 2013 in response to an invitation by Mr Griffin for the purposes of addressing particular safety issues. The workers at the site decided to hold a meeting in relation to safety issues, and Mr Bateman decided to attend and address the meeting. The workers were very agitated regarding their unsafe working conditions and the relationship between LORAC and the HSC, and unanimously voted to withdraw their labour for 48 hours.
Affidavit of Mr Close 16 Mr Peter Close is the Assistant Secretary of the Queensland Construction Workers Divisional Branch of the CFMEU. In his affidavit sworn 21 February 2013 he deposes materially as follows: Mr Close is responsible for receiving requests for out of hours work made by either email or telephone by subcontractors or builders. Upon receiving a request Mr Close usually consults with the relevant organiser from the CFMEU, and will then often make contact with the subcontractor or builder to ascertain the nature and extent of works proposed, and proposed safety plans. Mr Close then discusses the matter with Mr Ravbar and advises the subcontractor or builder of the CFMEU's position in respect of their request. The requests are dealt with on an ad hoc basis, and the CFMEU does not keep records of these requests. However Mr Close did locate a request by Lindores to work outside of hours at another site on 15 January 2013.
Affidavit of Mr Ramsay 17 Mr Ramsay is jointly employed by the CFMEU, the CFMEU Queensland, and another union. In his affidavit sworn 22 February 2013 he deposes materially as follows: Mr Ramsay has a role as a workplace health and safety coordinator for the CFMEU. Mr Ramsay has heard there have been safety problems at the M&A Project site. Mr Ramsay attended the M&A Project site on 19 February 2013 with Mr Sutherland pursuant to s 117 of the WHS Act because there was inclement weather that day and he knew there were likely to be resultant safety risks. The union officials convened a meeting with the workforce in the basement areas at the site to discuss a number of matters including the orders made by his Honour on 15 February 2013, the need for a safety inspection in light of the inclement weather, and the tragic death of a worker in Melbourne on 18 February 2013. After the meeting the HSC began to assemble with a view to conducting a whole of site safety inspection, accompanied by union officials. A number of safety issues were identified in the commercial building including out of date electrical leads and electrical equipment, inadequate lighting, housekeeping problems and trip hazards, and incorrectly built temporary scaffolding. The inspection commenced at 7.30 am and concluded at 1.30 pm. Mr Ramsay returned to the M&A Project site on 20 February 2013 to continue the safety inspection, this time in the residential building. Mr McGibbon met Mr Ramsay and informed him that he was denied entry to the site, however Mr Ramsay nonetheless entered the site. The HSC convened and inspected the residential building, identifying safety concerns including inadequate lighting in stairwells, insufficient fire extinguishers, uncapped sewerage pipes and poor housekeeping. The inspection commenced at 7.00 am and concluded at 1.00 pm. Mr Ramsay returned to the M&A Project site on 21 February 2013 to conduct a further entry to the site pursuant to s 117 of the WHS Act, and in particular to inspect the "swing stage" of the project located on top of the residential building. After leaving the site on 21 February 2013 Mr Ramsay and two members of the HSC attended a meeting with Workplace Health and Safety Queensland.
Affidavit of Mr Griffin 18 Evidence in Mr Griffin's affidavit sworn 21 February 2013 is substantially consistent with the evidence of the other respondents. In particular, Mr Griffin deposes: Mr Griffin is an organiser employed by the BLF. In his experience if an employer wishes to perform work outside the hours of 6.00 am to 6.00 pm the employer must consult with and reach agreement with the relevant unions and employees. LORAC has sought authorisation from the BLF to undertake night works at the M&A Project on various occasions. Workers and safety representatives at the M&A Project have raised numerous safety concerns with Mr Griffin, and he has in turn raised those issues with LORAC. Mr Griffin is concerned that LORAC's managers do not recognise the role of the HSC, or accept that the HSC has authority to direct that unsafe work not be carried out. On 15 February 2013 workers expressed concerns about LORAC's continued treatment of the HSC, and in particular that an evacuation drill had not taken place. The workers of their own volition decided to strike for 48 hours. On 18 February 2013 Mr Griffin telephoned or left a message with a number of subcontractors to the effect that there were no bans or restrictions upon the performance of work at the M&A Project. On 19 and 20 February 2013 Mr Griffin attended the site under s 117 of the WHS Act. His evidence in relation to safety issues is more detailed than, but consistent with, that of Mr Ramsay. Exhibited to Mr Griffin's affidavit are what appear to be photographs indicating safety issues at the M&A Project site, including insufficient lighting and access to ladder, lack of proper signage and edge protection, poor housekeeping, insufficient access and egress throughout the commercial building, and a wheelie bin blocking access to the nurse call system.
Affidavit of Mr Sutherland 19 Evidence in Mr Sutherland's affidavit sworn 22 February 2013 is substantially consistent with the evidence of the other respondents. In particular, Mr Sutherland deposes: Mr Sutherland is an organiser employed by the CFMEU in relation to the Queensland divisional branch. Throughout the life of the M&A Project CFMEU members and the HSC have raised safety concerns with Mr Sutherland. LORAC appears unwilling to address matters that relate to safety unless those maters can be described as an imminent risk. In his experience work on construction sites is performed between the hours of 5.00 am or 6.00 am until 6.00 pm. Employers who wish to perform work outside of these hours must reach agreement with the union and affected employees. Mr Sutherland rang Mr Chris Lindores on 18 December 2012 and informed him that the CFMEU did not agree to night works occurring on the M&A Project, and that because of this it was not lawful for Lindores to perform that work. Mr Sutherland had similar discussions with Mr John Hannah of Saba and Mr Lindores on 12 February 2013. Mr Sutherland attended the site on 15 February 2013 and workers of their own volition left the site. On 18 February 2013 Mr Sutherland telephoned Lindores and Saba, and advised persons at both subcontractors that there were no bans or restrictions on the performance of work at the M&A Project. Mr Sutherland participated in a safety inspection at the M&A Project site on 19 and 20 February 2013. Mr Sutherland's evidence is materially consistent with that of Mr Ramsay in respect of those inspections.
Evidence in respect of safety issues - Mr McGibbon and Mr Payten 20 In supplementary affidavits both Mr McGibbon and Mr Payten give evidence rejecting statements of the respondents that safety issues at the M&A Project site created an imminent risk to the health and safety of any worker at the site. In particular, exhibited to Mr McGibbon's affidavit of 22 February 2013 is a copy of an inspection report produced by Workplace Health & Safety Queensland ("WHS Qld") relating to the attendance of inspectors from WHS Qld and the Building Services Authority's Electrical Safety Office ("ESO") at the M&A Project site on 19 February 2013. Materially, the observations in the report were as follows: 1) Directed to site by acting regional director Marc Dennett to address issues of safety which had been identified by union personnel. I was accompanied to site by Ian Mclean from ESO, Inspector John Barber and Inspector Pat Edwards from the Lutwyche office. On entry to site we met with Matt Skinner services engineer, Laing O'Rourke Management and members of the safety committee and union representatives. We were taken to level eight to look at an electrical outlet box, while there Ian Mclean from the ESO was asked to check if the outlet box was compliant. The electrician from Blue star electrical opened the electrical outlet box so Ian Mclean could look at how it was wired we observed the armoured cable extending into the box an adequate distance. A photograph was taken of how the box was wired and Ian Mclean deemed the box to be electrically safe. The union organisers came to the floor and were concerned that foam-a-fill and zip ties had been used to secure the cable. The electrical outlet box was clipped to the floor with brackets and bolts into the concrete. ESO Inspector Mclean advised that the electrical outlet box presented no imminent or immediate risk to personnel in the way it had been connected. The union would not accept this point of view and insisted that the box was a one off and that we should inspect another electrical outlet box on level one. The group went to level one where we observed an electrical outlet box to one side of the walkway, again it appeared connected adequately and did not present an imminent or immediate risk. The excess cable had been put to one side and we advised that the cable may present a trip hazard in the area, and we were advised that this would be addressed immediately. The union members still argued that the electrical outlet boxes were not adequate but they walked from the area and left site. We were advised by Laing O'Rourke management that the electrical outlet boxes in this area would be removed over the next five days and this added with the fact that there was no imminent or immediate risks we decided no notices were required. 21 Also annexed to Mr McGibbon's affidavit is a safety review report conducted by Mr Jason Tait, LORAC's Health, Safety and Environment Manager, following the safety inspections undertaken on 19 and 20 February 2013. In that report Mr Tait opined that none of the items identified by those inspections posed an immediate or imminent serious risk to the health and safety of personnel on the M&A Project, a number of items had been dealt with immediately following the inspection, and no-one working on the M&A Project was at greater risk than workers working on any project within the Brisbane central business district.
Principles relevant to applications for interlocutory injunctive relief 22 As explained by the High Court of Australia in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, an applicant seeking interlocutory relief must demonstrate that: there is a serious question to be tried as to the applicant's entitlement to relief; and the applicant is likely to suffer injury for which damages will not be an adequate remedy; and the balance of convenience favours the granting of an interlocutory injunction. 23 In relation to whether the applicant has shown that there is a serious question to be tried: it is sufficient that the applicant show a sufficient likelihood of success to justify the preservation of the status quo pending the trial; the applicant need not demonstrate more than a 50% chance of ultimate success; in that light the issue may be understood as whether the applicant has made out a prima facie case for relief; whether the applicant shows a sufficient likelihood of success depends on the: nature of the rights asserted; and practical consequences likely to flow from the interlocutory order sought. Particular considerations arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. (Gleeson CJ and Crennan J at [19], Gummow and Hayne JJ at [65]-[72])
Consideration 24 Extensive evidence has been filed both in support of and opposing the interlocutory application before me. In my view however, the evidence strongly supports findings that there are serious questions to be tried, that damages would be an inadequate remedy for the applicants, and that the balance of convenience favours the grant of orders sought by the applicants. 25 I take this view for the following reasons.
Serious questions to be tried 26 This is not a case where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application. Practical Completion of the residential building in the M&A Project is now scheduled to be achieved by 18 October 2013, some eight months away. The issues between the parties agitated in the originating application for relief will remain alive at least until that date.
Workplace rights and adverse action 27 The applicants broadly frame their claim for interlocutory relief in terms of paragraphs 2, 3 and 6 of the originating application filed 15 February 2013. They rely, in summary, on ss 340, 343, 348, 362, 363, 417, 545(1), 545(2), 550, and 793 of the Fair Work Act. In summary: section 340 provides that a person must not take adverse action against another person because the other person (inter alia) has a work place right, or has or has not exercised or proposed to exercise a workplace right; section 343 provides that 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 exercise or not exercise a workplace right (including in a particular way); section 348 provides that a person must not knowingly or recklessly make a false or misleading representation about another person's obligation to engage in industrial activity; section 362 provides that, subject to s 550, a person must not advise, encourage or incite a second person to take action if that action would contravene a provision of Pt 3-1 of the Fair Work Act; section 363 defines actions of industrial associations, to include actions of officers of the associations; section 417 prohibits employers, employees, employee organisations or officers of employee organisations from organising or engaging in industrial action before the nominal expiry date of an enterprise agreement; section 545 grants wide powers to the Court, including the power to grant injunctions, in respect of the contravention or proposed contravention of civil penalty provisions; section 550 provides that involvement in a contravention of the Fair Work Act shall be treated in the same way as an actual contravention; section 793 provides (inter alia) that conduct engaged in on behalf of a body corporate by an officer or agent of the body within the scope of that person's actual or apparent authority is taken to have been engaged in also by the body. 28 Relevantly, "workplace right" is defined by s 341 of the Fair Work Act in the following terms: (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee--in relation to his or her employment. … … 29 The respondents submit, in summary, that the applicants have not identified any relevant workplace right. 30 The respondents also submit that although relevant "adverse action" in this case is presumably as defined in Item 7(a) of the table appended to s 342 of the Fair Work Act, it is not possible to draw any connection between any perceived workplace right and the alleged industrial action taken. "Adverse action" is defined in Item 7(a) of the Table in s 342(1) in the following terms: Meaning of adverse action (1) The following table sets out circumstances in which a person takes adverse action against another person. Item Column 1 Column 2 Adverse action is taken by ... if ... 7 an industrial association, or an officer or member of an industrial association, against a person the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person's employment or prospective employment; or (c) if the person is an independent contractor--takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association--imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).
31 I do not accept that the applicants have failed to identify a workplace right or relevant adverse action. The applicants could, in their submissions, have been more specific in directly linking their complaints to s 340 and s 342 of the Fair Work Act. However it appears that the applicants are claiming, at the very least, that they have: a workplace right to require work whenever the project schedule requires it, in accordance with the Enterprise Agreement, without the consent of the unions. The alleged adverse action taken by the CFMEU and the BLF in particular relates to: the ban on after-hours work without the consent of those unions; and the pressure being placed on LORAC (including through the subcontractors) by officials of the CFMEU and the BLF to conform with the union position concerning union consent to after-hours work, which pressure has resulted in subcontractors refusing to supply workers to work on the M&A Project site after hours where the unions refuse consent. a workplace right to require union officials to exercise rights of entry only in accordance with Pt 3-4 of Ch 3 of the Fair Work Act, which provides a framework within which union officials may exercise a right of entry to premises occupied by employers. The alleged adverse action taken by the CFMEU, the BLF and the CEPU includes reference to the conduct of Messrs Bateman, Griffin and Sutherland on 15 February 2013 in entering the site without right of entry permits. a workplace right to require work to take place on the M&A Project site contrary to the views of the HSC, which in the submission of LORAC has neither a right of veto over the commencement of work nor the power to make decisions in relation to the manner in which workers will be deployed when safety issues arise. The alleged adverse action taken by the CFMEU, the BLF and the CEPU relates to the conduct of Messrs Bateman, Griffin and Sutherland on 15 February 2013 in, inter alia, organising industrial action by calling a meeting at the site and then directing workers to leave the site. a workplace right that no industrial action be organised or engaged in by the unions prior to the expiry date of the enterprise agreement between LORAC and the CFMEU and the BLF. The alleged adverse action taken by the CFMEU, the BLF and the CEPU include the conduct of Messrs Bateman, Griffin and Sutherland on 15 February 2013 in, inter alia, organising industrial action by calling a meeting at the site and then directing workers to leave the site, and the bans on after-hours work. 32 On the material before the Court there is clearly a serious question to be tried as to the existence of these workplace rights, and whether adverse action has been taken in relation to them. I also consider that there is a serious question to be tried in relation to contraventions of s 343 and s 417 of the Fair Work Act. The respondents submit that: There are clear safety issues at the M&A Project site. On 15 February 2013 union organisers legitimately exercised rights of entry to the M&A Project site in accordance with s 117 of the WHS Act, which entitles a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act that relates to, or affects, a relevant worker. The unions are entitled to take a position and to communicate with the subcontractors to inform them of the unions' position in relation to after-hours work (including the need for union consent). This is not "coercion" within the meaning of s 343 of the Fair Work Act - cf observations of Dixon J in James v The Commonwealth (1939) 62 CLR 339 at 370-371. Further, Mr Sutherland denies making any threats to subcontractors, and it is significant that none of the subcontractors came to Court complaining of coercion. As is clear from Mr Ravbar's evidence, the union respondents have a view of the law and industry practice concerning the need for union consent for after-hours work, relating to the "standard clause" set out in Mr Ravbar's affidavit. This is supported by evidence of Mr Close. Clauses concerning hours of work should be interpreted against the historical background: Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518. It is open for the Court to find that union approval is required for after-hours work. The respondents have also not taken industrial action in contravention of s 417 where they suggest to the subcontractors that the subcontractors comply with the terms of an industrial instrument. There is no evidence before the Court of any breach of s 417, because the evidence demonstrates that it has been the decisions of the subcontractors that employees will not attend the M&A Project site in defiance of union views, rather than decisions of the relevant employees. There is no evidence before the Court that the M&A Project employees left the site on 15 February 2013 at the instigation of the respondent unions. The orders of his Honour of 15 February 2013 are too broad and without juridical basis. 33 However in my view: There is a serious question to be tried as to whether, on the facts of this case and particularly taking into account the recent history of industrial dispute between the parties, there is an element of abuse in the exercise of rights of entry by officials of the three respondent unions on 15 February 2013 purportedly pursuant to the WHS Act. I note that allegations of serious workplace health and safety issues at the site are contradicted by the safety review conducted by LORAC. More particularly those allegations are not supported by the independent inspection conducted by WHS Qld and the ESO on 19 February 2013. Significantly, the WHS Qld inspector observes in his report that: The union would not accept this point of view and insisted that the box was a one off and that we should inspect another electrical outlet box on level one… The union members still argued that the electrical outlet boxes were not adequate but they walked from the area and left site. The contrary views upon which the union officials appeared to insist during the inspection, in the face of the views adopted at the site by WHS Qld, suggests an agenda by the relevant union officials other than a pure interest in workplace health and safety issues. I am not persuaded that James v The Commonwealth supports the proposition advanced by Mr Friend SC. Notwithstanding the views taken by the union respondents concerning industry practice and the need for union consent prior to workers working after hours, if the circumstances of communication of those views can, indeed, be seen as intimidation of subcontractors and (potentially, through the subcontractors) industrial action against the applicants, I do not accept that the respondents have a "right" to continue with this conduct. I agree with Mr Murdoch SC for the applicants that James v The Commonwealth involved very different facts to those before me. The proposition that, in fact, s 417 cannot have been contravened because the subcontractors took the decision not to work out of the hands of their employees (in the face of the apparent union position concerning after-hours work) is dubious at best. I consider that there is a serious question to be tried in relation to this issue. The evidence of the respondents is, in a number of respects, weak and implausible. So, for example: I consider it more likely than not, on the material before the Court, that the CFMEU and the BLF were acting in an intimidatory manner towards the applicants, as well as subcontractors. In the circumstances, I consider it unlikely that the M&A Project Employees decided to leave the site at any time without encouragement, if not instructions, from the respondent unions. Mr Ravbar deposed in his affidavit to the effect that the CFMEU was unaware of whether LORAC proposed to extend the hours of employees who worked during the day to work through the night or whether LORAC was proposing to roster separate crews to work the period outside of 6.00 am to 6.00 pm. However I note a letter from Mr Peter Payten of LORAC to Mr Ravbar dated 10 December 2012, exhibited as LM6 to Mr McGibbon's affidavit of 15 February 2013, in which Mr Payten wrote: Further to previous correspondence and discussions pertaining to our notification of works to be carried out, outside normal working hours, please note the below. … The labour and supervision required to fulfil the requirements of the PM shift are a separate work crew to those performing the day shift to ensure the concerns around fatigue management are addressed. It follows that the applicants had informed the CFMEU of the rostering arrangements proposed for out of hours work. I note Mr Close's evidence that all requests by subcontractors for CFMEU consent to after-hours work were dealt with on an ad hoc basis, and that the CFMEU did not keep records of these requests. However in view of the purported importance accorded to the need for union consent to after-hours work, it is at best curious, and more likely implausible, that the CFMEU would not keep records of such an important issue, if only for tracking purposes. There is little support in the material before me for the respondents' contentions in relation to the role and authority of the HSC. I note, for example, clause 7.1 and 7.2 of the Enterprise Agreement, which refers to the HSC as having a "consultative" role (clause 7.1). Real authority to "veto" work on safety reasons appears to reside (for the purposes of Part 7 of the Enterprise Agreement) in WHS Qld. Finally, while the respondents maintain their position concerning the "standard clause" and union consent to after-hours work, the applicants point to Part 5 of the Enterprise Agreement as refuting the union position that consent is necessary. In my view, issues raised by the applicants at least give rise to a serious question to be tried as to whether union consent is necessary.
Sections 45D and 45E of the CC Act 34 In summary, s 45D of the CC Act prohibits secondary boycotts for the purpose of causing substantial loss or damage, and in particular prohibits a person engaging in conduct in concert with a second person which hinders or prevents a third person supplying services to a fourth person. Section 45E prohibits, inter alia, arrangements or understandings affecting the supply of goods and services, and including where a condition is imposed that is not a condition to which the supplier of goods and services had previously been subject. The respondents contend, in summary, that: once it is understood that the unions are contacting employers and advising them that they should comply with their obligations under the enterprise agreements, it cannot be said that they are engaged in unlawful conduct under s 45D. it is not clear how s 45E is supposed to apply to the facts. 35 In my view, however, and in light of the views I have already expressed in this judgment, there is a serious question to be tried in respect of whether there has been a contravention of this legislation. In particular in relation to s 45D: There is evidence before the Court from which an inference can be drawn that the individual respondents acted in concert to hinder or prevent the subcontractors from supplying services to LORAC, by directing or otherwise pressuring them not to send workers to the M&A Project site in accordance with the work ban imposed by the CFMEU and the BLF; and Their actions were for the purpose or included the purpose of causing substantial loss or damage to LORAC's business. 36 Further, in relation to s 45E: There is evidence before the Court from which an inference can be drawn that the CFMEU and the BLF, through the individual respondents, made an arrangement, or arrived at an understanding with M&A Project subcontractors that they would supply goods and services to LORAC only during ordinary working hours; This understanding or arrangement was different to the way in which M&A Subcontractors were obliged or accustomed to supplying goods and services to LORAC; and The condition is not one to which the supply of goods and services had previously been subject.
Case against CEPU 37 The respondents claim that the evidentiary case against the CEPU is insignificant, based only on the lawful entry by Mr Bateman on the M&A Project site on 15 February 2013 pursuant to the Fair Work Act and the WHS Act. The respondents also claim that there is no basis upon which any relief should be granted against the CEPU on the material proffered by the applicants. 38 I do not accept the proposition advanced by the respondents that there is no arguable basis for relief presented by the applicants against the CEPU and Mr Bateman. An inference open to the Court from the evidence is that: the CFMEU and the BLF have certain industrial issues with the applicants (in particular the right of entry of union organisers and officials and issues concerning payment of workers for 19 November 2012); the CFMEU and the BLF have employed a strategy of using alleged workplace health and safety problems at the site as a pretext for interfering with the construction schedule of the M&A Project, in a bid to pressure the applicants to resolve the outstanding industrial issues on terms favourable to those unions; on 15 February 2013 it appears that the CEPU had commenced providing support to the CFMEU and the BLF in this strategy, and there no reason to suppose that the CEPU will not continue to do so; as I indicated earlier in this judgment, there are questions relating to the conduct of the union organisers on 15 February 2013 which can properly be dealt with at trial.
Unlawful interference with contractual relations, unlawful interference with the applicants' trade or business, and conspiracy 39 For reasons I have already outlined, I consider there are serious questions to be tried as to whether the conduct of the respondents constitutes tortious conduct.
Damages and balance of convenience 40 The respondents submit that the balance of convenience does not favour the grant of the interlocutory orders sought by the applicants, in particular because: the losses complained of by the applicants have mostly already crystallised; and the orders sought are atypical, and include preventing the unions exercising what would otherwise be a legitimate right to advise employers that they ought to comply with enterprise agreements. 41 However, evidence of the applicants supports the drawing of an inference that the M&A Project is at a critical point in its construction schedule, and that the applicants will suffer significant financial prejudice should there be further industrial delays. There is also evidence before the Court to support an inference that the applicants will suffer reputational damage, for which damages would be an illusory remedy, should the M&A Project continue to experience delays. 42 While I note the submission of the respondents concerning the unusual nature of the orders sought, it is also clear that orders are not boilerplate, and must in every case meet the facts of the particular case. 43 In my view the balance of convenience favours the grant of interlocutory orders in the terms sought by the applicants. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
Laing O'Rourke Australia Pty Ltd
Construction, Forestry, Mining and Energy Union
(2006) 227 CLR 57
(1939) 62 CLR 339
(1993) 40 FCR 511