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

Submissions of the parties in relation to injunctive relief sought 18 In summary, Lend Lease Project Management & Construction (Australia) Pty Ltd ("Lend Lease") and the Director, Fair Work Building Industry Inspectorate ("Director") submit that the Court has jurisdiction to make the orders agreed by the parties in relation to injunctive relief. The respondent unions submit that the Court does not. 19 Lend Lease submits, in summary, that: Section 7 of the Acts Interpretation Act 1901 (Cth) deals with the repeal of a statute. Section 7(2)(e) provides: (2) If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not: (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. The right on the part of Lend Lease and the Director to pursue their cause of action under the BCII Act against the respondents was a right accrued under s 38 of the BCII Act and was unaffected by the repeal of Ch 5 and Ch 6 of that Act. No contrary intention was disclosed in the Amendment Act which repealed Ch 5 and Ch 6 of the BCII Act. In any event, Greenwood J's decision in Abigroup is distinguishable from these proceedings because: o unlike the position in Abigroup the respondents in this case have admitted their contraventions of the BCII Act and agreed to give undertakings and consent to an injunction being granted by the Court. The proposed injunction and undertakings agreed to by the parties forms an essential component of the settlement between the parties. o Abigroup involved an application for an interlocutory injunction pending a final hearing later in the year. In this case the application is for final relief following a hearing of the matter which took place several months before the relevant provisions of the BCII Act were repealed. o the industrial action the subject of the proposed undertakings and injunctions in this case is industrial action which the respondents would, in any event, be prohibited from undertaking pursuant to ss 417-421 of the Fair Work Act 2009 (Cth) ("Fair Work Act"). 20 The Director adopted and supported the submissions of Lend Lease, and further submitted, in summary, that: Abigroup is distinguishable in this case. by the plain words of s 2.3 of the Regulation the BCII Act continues in force to the extent necessary to allow the proceeding to be dealt with. the proceedings here have been compromised on agreed terms, and the phrase "to the extent necessary to allow the proceeding to be dealt with" is clearly engaged in that the compromise of the proceedings, to be effected, requires such orders to be allowed to be made (although subject to the Court's discretion). 21 The case of the respondents, namely that the Court lacks jurisdiction to make the orders sought, is (in summary) as follows: although the respondents do not resile from the position as stated in the Statement of Agreed Facts and Contentions, the law has clearly changed. the parties cannot confer on the Court jurisdiction which the Court does not have. The reasoning in Abigroup applies to the effect that the Court no longer has jurisdiction to grant the agreed injunctive relief.

Injunctive relief 22 The form of the interlocutory injunction ordered by Dowsett J on 26 May 2011 is not controversial. It is not unusual for interlocutory orders to be made until trial or earlier order (cf discussion in Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (4th ed, LexisNexis Butterworths, 2002) at [21-405]). As the High Court observed in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 181: Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf Woods v Sheriff of Queensland; Hutchinson v Nominal Defendant; Chanel Ltd v F.W. Woolworth & Co Ltd. (footnotes omitted.) 23 Further in Chanel Ltd v F.W. Woolworth & Co Ltd [1981] 1 All ER 745 Buckley LJ, with whom the other judges of the Court of Appeal agreed, observed (at 751): In my judgment an order or an undertaking to the court expressed to be until further order, by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown. 24 There appears to be no dispute before the Court that his Honour's orders remains in force. No trial of the proceedings has taken place; nor has any order been made by the Court to disturb the injunction. To that extent, while the parties have reached agreement to resolve the dispute between them, the respondents remain bound by his Honour's orders of 26 May 2011. Practically, the parties have, in the Statement of Agreed Facts and Contentions, agreed that the injunction should, in fact, cease to have effect at the practical completion of the Law Courts Project and the Gold Coast University Hospital ("GCUH") Project. The Court has been presented with submissions and material from which the inference must be drawn that circumstances have changed such that the intervention of the Court, bringing to an orderly conclusion the injunction currently in force, is warranted. 25 In my respectful view the reasoning of Greenwood J in Abigroup clearly states the law. However, the peculiar facts in the proceedings before me are clearly distinguishable from those in Abigroup where the Federal Magistrate had made interlocutory injunctive orders, extending existing injunctive relief pursuant to the BCII Act, after the relevant legislation had ceased to have effect. The injunctive relief which the parties in these proceedings agreed in the Statement of Agreed Facts and Contentions should be granted by this Court can be most accurately described as the continuation of a proceeding commenced prior to the repeal of Ch 5 and Ch 6 of the BCII Act. In order for the proceedings in this Court to be properly finalised now that the parties have reached agreement in relation to substantive claims, it is necessary that dispositive orders be made in relation to the current injunctive orders binding the respondents. This is not a case where the Court is only varying an existing interlocutory injunction, pending orders by way of final relief, as was the case in Abigroup. Section 2.3(1)(a) of the Regulation provides that the BCII Act continues in force to the extent necessary to allow the proceeding to be dealt with. An orderly disposition of the existing interlocutory order, of necessity, requires an order in terms of now-repealed provisions of the BCII Act. In my view, the proceedings currently before the Court are precisely the type of fact situation contemplated by the relevant transitional provisions. It follows that, in my view, the Court has jurisdiction to make the orders to which the parties have agreed. 26 In any event, it is also clear that the interlocutory orders made by Dowsett J on 26 May 2011 were made pursuant to s 421 of the Fair Work Act as well as s 39 of the BCII Act. Section 421 remains in effect, and is a separate statutory basis for the injunctive relief to which the parties have agreed. While it is not in dispute that the orders made by Dowsett J on 26 May 2011 related to orders of Fair Work Australia which expired on 12 June 2011 and 1 June 2011 respectively: I am not persuaded that those orders cannot form the foundation of any continuing injunction as submitted by the respondents. Indeed, if that were the case one might hypothesise that his Honour's orders of 26 May 2011 should have automatically lapsed at the expiry of the Fair Work Australia orders on 12 June 2011 and 1 June 2011, and no suggestion is made by the parties that this was the case. It is clear that his Honour's orders were made on the basis that his orders would continue in operation beyond the expiry of the Fair Work Australia orders. His Honour's approach in granting injunctive relief extending past the expiry of the Fair Work Australia orders is neither unusual nor improper - another recent example of an injunction being granted by this Court following breach of orders of Fair Work Australia which had expired prior to the grant of the injunction is United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432. It is clear that his Honour made orders granting interlocutory relief on 26 May 2011 on the basis that the orders of Fair Work Australia, made pursuant to s 418 of the Fair Work Act, had been breached. Paragraph 5 of the Orders PR508384 (dated 12 April 2011) and PR508114 (dated 4 April 2011) made by Fair Work Australia defined industrial action in terms of, inter alia, failure or refusal to attend or perform work. While breaches of the orders of Fair Work Australia are not expressly admitted in the Statement of Agreed Facts and Contentions, it is clear from the conduct admitted in that document that those orders were in fact breached. Section 421(3) of the Fair Work Act specifically empowers the Court to grant an injunction if the Court is satisfied that a person has contravened an order of Fair Work Australia. 27 It follows in my view that this Court has power under s 421 of the Fair Work Act to order that the current interlocutory injunction binding the respondents be discharged at a date specified.

Conclusion 28 As in my view the Court has power to order the injunctive relief sought, I now turn to the question of whether the Court ought make those orders.

Discretion 29 The parties have agreed that, in summary, the unions should be restrained from organising, engaging in or being involved in unlawful industrial action on or in connection with the GCUH Project and the Law Courts Project until the practical completion of those projects. 30 Where a person has contravened a civil penalty, the Court has a broad discretion to make orders it considers appropriate. 31 In considering whether to grant the relief sought by the parties, I take the following considerations into account: "[T]he fact the unlawful industrial action has ceased is not of itself a reason not to grant an injunction": United Group Resources Pty Ltd v Calabro (No 2) [2010] FCA 71 at [19]. Similarly, the "degree of likelihood that the conduct will occur is obviously very relevant but no fixed degree of persuasion that the conduct will occur is necessary": Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [28], cited in Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748 at [53]. "The fact that unlawful conduct has occurred makes the court more disposed towards ordering relief": Kestrel Coal Pty Ltd at [30], cited in United Group Resources Pty Ltd v Calabro (No 2) at [22]. The conduct the subject of these proceedings was not a one-off incident. The fact that the unlawful industrial action conduct was repeated supports an order deterring similar future conduct: Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 at [84]; United Group Resources Pty Ltd v Calabro (No 7) at [49]. As observed by McKerracher J in United Group Resources Pty Ltd v Calabro (No 7) at [47]: Most statutes which empower a court to grant statutory injunctions are "public interest" statutes and as such the prime objective of the power thus conferred is to compel compliance with the statutory obligation so as to ensure that the public interest is served. To that end, it is relevant to consider whether granting the injunction would have some utility or serve a purpose within the contemplation of the legislation… In this case the injunctive relief sought only restrains the relevant unlawful conduct. This is consistent with the objects of the BCII Act: Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949 at [158]; United Group Resources Pty Ltd v Calabro (No 7) at [54]. The proposed injunction only restrains the respondent unions for a limited time, referable to the relevant projects and the sites on which those projects are being "practically completed", which is reasonable in the circumstances: United Group Resources Pty Ltd v Calabro (No 7) at [56]. The proposed injunction forms an essential part of the settlement between the parties: Woodside Burrup Pty Ltd at [160]. 32 In my view it is appropriate to grant injunctive relief in the terms agreed by the parties.

Bank Guarantee 33 The CFMEU has agreed to provide a bank guarantee in the sum of $150,000 in favour of Lend Lease as security for compliance by the unions with the terms of the agreed injunctive relief. 34 In my view this is in the nature of further deterrence of unlawful industrial action. It is appropriate to make an order in the terms agreed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.