Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union

REASONS FOR JUDGMENT 1 The applicant is presently engaged in constructing two building projects. One is described in the evidence as the "Gold Coast University hospital site". The other is the Supreme and District Court building project. The first project is, of course, at the Gold Coast. The second is in Brisbane. The applicant employs workers at both sites, but some work is performed by subcontractors. The first respondent is an industrial union which has coverage at each site and is a party to an enterprise agreement which applies to employers, employees and relevant unions at each site. The evidence discloses that there has, for some time, been a dispute concerning the allegedly inappropriate use of subcontractors rather than employees at both sites. There has been a history of industrial action at both sites, particularly in the last three days. Such action has involved the withholding of labour by persons working on the sites. 2 In action QUD 79 of 2011 interlocutory relief has previously been granted and then dissolved. That matter is proceeding to trial. It involves allegations that the first respondent has breached provisions of the relevant enterprise agreement. The applicant seeks injunctive relief and pecuniary penalties. That action deals with both sites. Earlier this week, a further action was started, concerning similar conduct occurring at the Gold Coast University hospital site. It is QUD 110 of 2011. It is now accepted that the matters in dispute in that action can best be dealt with in action No QUD 79 of 2011. 3 Earlier this week, on Tuesday and yesterday, I entertained an application on the part of the applicant for interlocutory relief in action No QUD 110 of 2011. It was asserted that officers of the first respondent had been actively encouraging workers not to enter the site for the purpose of working. It seems that a strike was organised for a period of three days, expiring on Friday. The applicant sought injunctive relief restraining the first respondent from continuing with this conduct. In the end, the matter was resolved on the basis of the first respondent's undertakings to take all reasonable steps to inform its members employed at the Gold Coast hospital project and at the Courts project, of the existence and terms of certain orders made by Fair Work Australia on 4 and 12 April 2011 relating to each site, distributing copies of the orders and indicating that the first respondent did not authorise or encourage the taking of any industrial action. 4 There appears to have been, at the very least, formal compliance with the terms of those undertakings. However that has not led to a return to work by any of the workers. If the material demonstrated only that, then I would not consider it appropriate to revisit the application for interlocutory relief. I would, as has been suggested by Mr Friend for the first respondent, consider that the applicant had accepted the proffered undertakings as a reasonable basis for the ongoing management of work on the two sites. If the accepted solution did not work, then the applicant would have to bear the consequences of its misjudgement. However that is not the position as I see it from the material. It seems to me that there has been further conduct by at least two officers of the first respondent encouraging workers to continue to refuse to provide their labour on each of site. 5 The conduct to which I refer must be seen in the context of earlier conduct. I refer firstly to the affidavit of Mr Liversidge. He says that on 24 May, he observed an officer of the union, Cane Pearson, talking to workers at the Court site, after which the workers told him that there was to be a site meeting across the street in the park at 8 am. There is some other rather informal evidence to that effect. A meeting took place at 8.20 am. By 9.00 am it had finished. The workers did not return to work on that day. Mr Liversidge was told that there was a vote to strike and return on Friday for a report-back meeting. 6 On 25 May, Mr Liversidge arrived at the site at about 4.30 am and was told that Mr Pearson was at the front personnel door. He heard Mr Pearson telling workers who turned up at the gates, "This is a picket line and the boys are on strike". This occurred from just after 6.00 am until about 7.30 am. On 26 May, Mr Liversidge arrived at work at about 5.30 am and again saw Mr Pearson at about 5.40 am. He saw Mr Pearson gesturing to workers in ways which suggested to him that he was telling them not to enter the site. This continued until about 6.30 am. He heard one employee say to Mr Pearson, "I've got milk to put in the fridge". Mr Pearson laughed and said, "It will be off by Monday." 7 Two other workers said that they wished to leave their tools at the place of work. Mr Pearson told them to bring them with them, apparently a reference to a meeting which was to be held across the street. That meeting started at about 6.30 am. Subsequently, workers who attended the meeting said to Mr Liversidge, "We're out until Monday". 8 Insofar as concerns the Gold Coast Hospital site, Mr Plumber swears that this morning, at about 6.30 am, he saw Mr Malone, an officer of another union at the main entrance to the site. Mr Malone introduced Mr McQueen, an officer of the first respondent, to workers. Mr McQueen gave effect to the undertakings to which I have referred. After he had finished, Mr Malone addressed the meeting again, saying words to the following effect: You have just heard from a CFMEU official not to fuck off out the gate. We are not copping this shit any more, we are not copping the guys getting below award wages, we are not copping sham contracting. How are we going to fix this on this project? We want EBA rates. Those of you here yesterday voted not to return to work until Friday. Anyone who crosses the picket line is less than a favourable personal - I think you know what that means. 9 After Mr Malone finished addressing the meeting, Tim Jarvis, an officer of the first respondent, said words to the effect of, "We have made a commitment as the union to man this gate and we are going to do that". That statement must be taken in the context of Mr Malone's comment concerning the picket line. The only available inference is that Mr Jarvis was adopting Mr Malone's urgings that a picket line be maintained. Photographs in evidence suggest that the first respondent has a substantial presence at the site gate. Some signs refer to the Builders Labourers Federation ("BLF"), apparently references to a division of the first respondent. 10 The first respondent has filed material which suggests compliance with the undertakings. As I have said I accept at face value that there has been compliance. As to incidents which allegedly occurred before today, in the earlier proceedings before me there was some dispute concerning them. However there is evidence from which one might reasonably infer that officers of the first respondent have, both before and after the hearing on Tuesday and Wednesday, encouraged workers on each site to withdraw or withhold their labour. As I have previously said, the matter has been going on for some time. 11 When matter QUD 110 of 2011 came before me on Tuesday and Wednesday, it was in the form of an application for an injunction pursuant to s 421(3) of the Australian Fair Work Act 2009 (Cth), based upon an order made by Fair Work Australia on 4 April 2011. That order relates to the Gold Coast Hospital site and expires on 1 June this year. The order purported to bind entities other than the first respondent, apparently because there were mistaken references in the order to various divisions of the first respondent. 12 As a result of the proceedings on Tuesday, application was made to Fair Work Australia to correct that order to make it clear that it was binding upon the first respondent. An appropriate correction was issued on 25 May, that is, yesterday. I proceed on the basis that the order is binding on the first respondent, its officials, delegates, employees and agents, employees of the applicant who are members or eligible to be members of the first respondent, the applicant and various other persons and entities. Paragraph 3.1 provides: All persons and organisations bound by this order must stop, not engage in, and/or not organise industrial action as defined in clause 5, in respect of work being conducted at the sites, and must not further engage in, recommence, or threaten to engage in industrial action as defined in clause 5 whilst the order remains in operation. 13 It then, particularly, states: The CFMEU and BLF must stop organising and refrain from further organizing or recommencing the organisation of industrial action. Not aid, abet, direct, counsel, procure, authorise, influence or encourage any person, to whom this order applies, to engage in conduct referred to in clause 3.2.1. Not threaten or propose to do any of the things referred to in clause 5. 14 Clause 5 defines industrial action as follows: A failure or refusal by a person to attend for work, or a failure or refusal to perform any work at all by employees who attend for work. A ban, limitation or restriction on the performance of work by a person or on the acceptance of or offering for work by a person. The performance of work by a person in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by a person, the result of which is a restriction or limitation on or a delay in the performance of work. 15 In my view, the conduct of the various officers of the union, both before today and today, amounted to, at least, aiding, abetting, directing, counselling, procuring, authorising, influencing or encouraging a person to fail or refuse to attend for work or to perform any work. 16 Another order was made by Fair Work Australia on 12 April 2011 and expires, as I understand it, on 12 June. It was in substantially similar form and is clearly binding upon the first respondent, its servants and agents. 17 Pursuant to s 344(2) of the Fair Work (Registered Organisations) Act 2009 (Cth), any conduct engaged in on behalf of a body corporate, by an officer, directory employee or agent, within the scope of his or her actual or apparent authority, is taken, for the purposes of the Act, to have been engaged in by the body corporate. In the present circumstances, it seems reasonable to infer that a prima facie case has been established in that regard as against the first respondent in connection with both sites. The applicant also seeks to justify its application for relief by reliance upon the Building and Construction Industry Improvement Act 2005 (Cth). 18 Pursuant to s 69(1) of that Act, the first respondent is responsible for the conduct of its officers and agents. Section 39 provides that an injunction may be made restraining unlawful industrial action. As I understand the way in which the first respondent has conducted proceedings today, it resists relief only upon the basis that it submits that it is not responsible for what the various officers did, or that their conduct was not sufficiently serious to justify the grant of an injunction. It is not, as I understand it, disputed that if I accept evidence of what was done, it demonstrates unlawful industrial action. For reasons which I have given, it seems to me to be clear that there is a prima facie case of conduct by officers of the first respondent, amounting to unlawful industrial action. In those circumstances, I find that there is a prima facie case against the first respondent. 19 That raises consideration of the balance of convenience. It is said, against the application, that the evidence of misconduct, since the giving of the undertakings yesterday, is minimal. There is some merit in that submission. It is then said that, in those circumstances, the balance of convenience may not favour the grant of an injunction. The incursion of courts of law into matters of industrial relations is, in general, something to be avoided. Specialist tribunals are provided for the purpose of resolving such disputes, and the processes of the law are not always, in my view, an appropriate mechanism for resolving such disputes. 20 On the other hand, Parliament has made it clear that the court is to offer support to Fair Work Australia in the performance of its functions, and that it may do so by the use of injunctive relief. I accept that the conduct of Mr Jarvis and Mr Pearson, since the undertakings given yesterday, could be treated as being simply inadvertent or examples of their going off on frolics of their own. However, when that conduct is seen in the context of what went before, it is very difficult to come to that conclusion. 21 The first respondent's position is that it is not presently engaging in industrial action or encouraging workers to do so. In those circumstances, it seems to me that the balance of convenience favours the grant of injunctive relief because it will not interfere in anything which the union presently indicates that it wishes to do, and it will assist it, one would think, in compelling its officers to refrain from conduct which is contrary to the provisions of the law and the orders of Fair Work Australia. 22 In those circumstances, I am minded to grant injunctive relief against the first respondent. Such relief will apply until the trial of the action or other earlier order. The order will restrain the first respondent from organising industrial action as defined in cl 5 of the order made by Fair Work Australia on 4 April 2011, or from aiding, abetting, directing, counselling, procuring, authorising, influencing, or encouraging any person to engage in such conduct. The injunction will restrain the first respondent by itself, its employees, agents, or otherwise how so ever from so doing. That will apply with respect to both sites except, of course, that there will be a reference to the different Fair Work Australia orders, depending upon the site. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.