[2014] FWC 4766

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; The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland

Alleged industrial action at Lend Lease Building Pty Ltd, Academic Research Facility, South Brisbane.

[1] On 10 July 2014, Lend Lease Building Pty Ltd ("Lend Lease") made application under s.418 of the Fair Work Act 2009 ("the Act") seeking a stop order in relation to the alleged industrial action occurring at the Lend Lease Academic Research Facility construction site in South Brisbane ("the Lend Lease site").

[2] As the matter was not able to be determined within 48 hours, an interim order (PR553009) was issued under s.420 of the Act. That interim order applied to employees of Lend Lease Project Management and Construction (Australia) Pty Ltd who were members or eligible to be members of the Construction, Forestry, Mining and Energy Union or the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland ("the CFMEU").

[3] The interim order also extended to employees of subcontractors engaged by Lend Lease Project Management and Construction (Australia) Pty Ltd at the site who are eligible or eligible to be members of the CFMEU. The relevant subcontractors were Brisbane Brick and Block Pty Ltd (ABN 53790943528); Doraville Pty Ltd (ABN 99132978261); Harsco Infrastructure Pty Ltd (ACN 010647328); Hosken Site Steel Pty Ltd (ABN 68126025956); Jangho Curtain Wall (ABN 40164760435); Oneform Pty Ltd (ACN 106917293); Superior Walls and Ceilings Pty Ltd (ABN 31524948134); Tilecorp Pty Ltd (ABN 3701086943); and VTS Rigging Pty Ltd (ABN 85160936612).

[4] I did not apply the interim order to the CFMEU as the unexamined evidence was not sufficient to give me confidence that the interim order should apply to that organisation at the time.

[5] The substantive matter was set down for hearing on 16 July 2014.

[6] The evidence in this matter suggests that on Thursday 10 July 2014 at around 0625hrs, two CFMEU officials, Mr Jade Ingham and Mr Mark O'Brien, attended the Lend Lease site and sought entry without a right of entry permit or any notice. The two officials admitted they had no "paperwork" and "just wanted to speak with the boys on site".

[7] The officials were informed by a site manager that entry to the site was refused.

[8] Notwithstanding this, the two officials entered the site regardless. When asked once more to leave the site Mr O'Brien was said to have stated, "not leaving".

[9] Lend Lease contacted Fair Work Building and Construction and the Queensland Police Service. The police attended the site at around 0659hrs.

[10] The two officials received approaches after 0704hrs to exit the site and see the police. In the course of being present on site the two officials had separated and were talking to employees. The two officials eventually made their way back down to talk to the police but only did so after stopping on the way and talking to more employees and not taking the available direct route.

[11] Mr O'Brien of the CFMEU was overheard to have informed the police that he had been on site to deal with a wages or pay issue.

[12] It appears that at around 0756hrs the two CFMEU officials exited the site.

[13] However, a short while later the two CFMEU officials were said to be in attendance at a meeting of CFMEU members at a nearby off-site location. Evidence was given in these proceedings by Mr Simon Shannon (site manager), that a CFMEU delegate whom he identified had rounded up members of the CFMEU and let them know that there would be a meeting in 5 minutes time. Mr Shannon says that he witnessed Mr O'Brien and Mr Ingham addressing workers at a nearby, off-site location. I have no reason to doubt Mr Shannon's evidence as to his observations, regardless of him having provided a short supplementary statement on 16 July 2014 (in addition to his initial evidence).

[14] Mr John Palleschi of Lend Lease also gave evidence that he saw about 100 CFMEU members in a circle speaking with Mr Ingham and Mr O'Brien (though he could not hear what was said).

[15] Following that meeting, at around 0850hrs, Mr O'Brien and Mr Ingham were said to have driven off in a vehicle and some 90 workers left the site (leaving a workforce of some 60 employees).

[16] Mr Palleschi gave evidence that upon the dispersal of the meeting one of the CFMEU members who was in attendance at the meeting said to him words to the effect that it "looks like we are out of the gate until next Tuesday", with another member thereafter stating to the member who so informed him (Mr Palleschi) that he should not "talk to management about what we are doing".

[17] At around the same time upon the dispersal of the meeting Mr Shannon gave evidence of "workers walking past stating "see you Tuesday"". Mr Shannon also gave evidence that one of the workers had stated to him that "had we not called the cops they would still be working".

[18] Mr Mark Taylor, the construction manager, gave evidence that he was advised by one labourer who attended the meeting that the CFMEU had instructed the workers to take the rest of the day off. The reason was because "Lend Lease called the police", Mr Taylor stated.

[19] As mentioned above my interim order was issued on 10 July 2014, which was the day on which the stoppage commenced.

[20] All Oneform employees left site on Thursday 10 July 2014. On Friday 11 July 2014, no Oneform employees had attended work, and nor had any attended work on Saturday 12 July 2014 (which is a usual day of work in the building and construction industry).

[21] This was similarly the case with Harsco, Brisbane Brick and Block; VTS and Hoskens.

[22] Jangho provided no labour on 10 July 2014 following the meeting referred to above. It supplied about half its crew on 11 July and no crew on Saturday 12 July 2014.

[23] Superior, with a crew of at least 18 employees, provided no labour after the meeting on 10 July 2014; 3 apprentices on 11 July 2014 and no employees on Saturday 12 July 2014.

[24] Tilecorp, which was named in the interim order, appears to have supplied labour following the issuing of the interim order. I will make further comment about the circumstances applicable to the employees of Tilecorp further below.

[25] Regardless of the interim order being in effect from late in the afternoon on 10 July 2014, a large number of employees of various contractors covered by the interim order did not resume work as directed by the terms of that interim order. Other than that, employees of other subcontractors to which the interim order applied resumed work in only a very limited capacity.

[26] On the basis of the evidence before me there is currently no industrial action happening at the Lend Lease site (on 16 July 2014).

[27] It is my understanding from the evidence of Mr Shannon that on the morning of 16 July 2014, Mr O'Brien, the CFMEU official, attended the Lend Lease site "to meet with workers and give a rundown on court orders". Mr O'Brien's attendance at site did not on this occasion give rise to any subsequent stoppage of work.

[28] It appears to me that on the evidence I have heard that the CFMEU organised industrial action that occurred over the course of 10 July 2014 to 12 July 2014 by the employees who are members or eligible to be members of the CFMEU who are employed by:

[29] I have reached this conclusion because it appears to me that there is a particularly close conjunction between the contested right of entry (between the CFMEU officials and the Lend Lease management); the calling of the police by Lend Lease management; the eventual departure of the CFMEU officials from site via the non-direct route; the return of the CFMEU officials some short time later; the subsequent organisation of a meeting by a known CFMEU delegate at a nearby offsite location; the addressing of that meeting by the two CFMEU officials in question; and the subsequent departure from the Lend Lease site by a large number of employees of subcontractors (who remained largely absent from the site for the following two working days). There was no evidentiary case led by the CFMEU, I add, and no other source of the cause of the stoppage of work, such as a safety issue etc, was suggested or advanced.

[30] As a consequence of the close conjunction of these activities and incidents, it appears to me that the industrial action was organised by the CFMEU. This is the inference that I draw from the totality of the circumstances before me, and it represents the most probable explanation of what was occurring at the time (see [2013] FWCFB 7736 PN 39).

[31] However, the industrial action is no longer happening at the Lend Lease site and I have no evidence that the CFMEU is continuing to organise further industrial action. As indicated above, Mr O'Brien of the CFMEU attended site on the morning of 16 July 2014 and no stoppage of work arose.

[32] Under the terms of s.418(1) of the Act, no order - it seems - can be made against the CFMEU given the circumstances I have set out, for the reason that the CFMEU is not currently organising industrial action.

[33] I remain, however, of the view that the employees of the subcontractors referred to above, who disregarded the interim order, did not present for work on Friday 11 July 2014 and Saturday 12 July 2014, are disposed to take further industrial action. That is, it appears to me that there is a probability that the employees (at their own initiative or because of their susceptibility to external direction) will take further industrial action in the future, given their disregard for the interim order imposed on them last week.

[34] For this reason, I will make an order on the grounds that industrial action that would likely be unprotected industrial action by the employees who are employees of the named subcontractors and who are eligible to be or who are members of the CFMEU is probable at the Lend Lease site.

[35] In the circumstances of this particular case, the duration of the order will be for a period from 4.30pm 17 July 2014 - 4.30pm 17 August 2014. This is a period of time in my view necessary to ensure site stability.

[36] An order to this effect will issue along with this decision.

[37] I add that I have excised from this final order the employees of Tilecorp. From what I understand of the evidence as advanced at the hearing, the employees of Tilecorp were only inadvertently covered by the interim order for reasons the location of the crew was not able to be ascertained on 10 July 2014. The crew, however, appears subsequently to have been at work at the relevant time. When such circumstances arise, an applicant should bring to the Commission's attention the relevant facts and the interim order (as it was in this case) could have been amended.

[38] As a result of this decision the interim order (PR553009) is now set aside.

Mr D. Cameron, of Queensland Master Builders Association, for the Applicant

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