Mortimore v Construction, Forestry, Mining and Energy Union

REASONS FOR JUDGMENT 1 There is before the Court an application for interlocutory relief under ss 39(2) and 49 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the Act"). The injunctions are sought by an Inspector appointed under the Act in a proceeding commenced by her on 20 May 2010 in which she sought the imposition of penalties on the Respondent for contraventions of ss 38 and 44 of the Act. 2 The proceeding relates to a construction project at 315 Cooper Street, Epping ("the site"). There is under a construction at that site a new Melbourne wholesale fruit, vegetable and flower market. The principal contractor for the project is Bovis Lend Lease Pty Ltd ("Bovis"). Bovis has engaged FRH Group Pty Ltd ("Fulton Hogan") to perform earthworks on the project. Those works commenced in December 2009 and are due for completion in October 2010. The terms and conditions of employees of Fulton Hogan who are working at the site are regulated by a Greenfields Agreement between Fulton Hogan and the Australian Workers Union ("the AWU"). The agreement is entitled the Fulton Hogan and the Australian Workers Union Melbourne Market Relocation Project Agreement 2009/2012 ("the Agreement"). The Agreement commenced operation on 29 January 2010 and has a nominal expiry date of 30 November 2012. The Construction, Forestry, Mining and Energy Union ("the CFMEU") lodged an appeal against a decision of a Commissioner of Fair Work Australia to certify the Agreement. The appeal was listed for hearing on 14 April 2010. The CFMEU requested an extension of time within which to prosecute the appeal. When this request was refused it withdrew the appeal. 3 On 14 May 2010 two CFMEU organisers, Mr Gareth Stephenson and Mr Mick Powell, sought to enter the site without observing the appropriate procedures under the Fair Work Act 2009 (Cth) ("the FW Act"). 4 On 19 May 2010 Mr Stephen Broadhead, the Victorian Industrial Relations Manager of Bovis, arrived at the site at about 6:15 am. He observed about 13 people standing near the front gate to the site. They included Mr Powell, Mr Derek Christopher, Mr Sean Reardon and Mr Gerry Benstead, all of whom he identified as CFMEU officials. There were six cars obstructing the driveway. A CFMEU flag had been erected near the entrance. Approximately 75 workers were due to attend work at the site on that day. On a number of occasions Mr Broadhead asked Mr Benstead to arrange for the cars blocking the entrance to be removed so that workers could enter the site. The vehicles were not moved. 5 At about 7:30 am about 15 Fulton Hogan workers entered the site through a side entrance. At about 9:30 am the workers advised their managers that they felt intimidated and wanted to cease work. All work at the site ceased at 9:30 am. At about 2:45 pm Mr Broadhead observed a 44 gallon drum, a tent and firewood being delivered to the persons who were gathered at the front gate. By this time a seventh vehicle had been added to the blockade. A number of the vehicles were registered to the CFMEU. 6 On 20 May 2010 Mr Broadhead arrived at the site at approximately 7:00 am. The cars had been moved from the entrance. In their place there was a 10 cubic metre pile of rocks obstructing the entrance. The rock pile made it impossible for trucks to enter the site. There was a space on the side of the pile that appeared wide enough for cars to get through. This space was, however, blocked by a 44 gallon drum with a fire burning in it. Gazebos had been erected behind the rock pile. CFMEU flags had been erected around the entrance. The lock to the side gate to the site had been glued shut with superglue. 7 Mr Broadhead observed Mr Elias Spernovasilis near the entrance. He knew Mr Spernovasilis to be an official of the CFMEU. He asked Mr Spernovasilis to move the individuals on the blockade and the 44 gallon drum so that persons could drive onto the site. Mr Spernovasilis said that he would "make a call". About 10 minutes later Mr Spernovasilis advised Mr Broadhead that the picketers would allow the office staff to walk on to the site but that they could not drive their cars through the gate. The persons and the 44 gallon drum were not removed. As a result no construction work was going on on the site and none has since been performed. 8 Mr Broadhead's evidence was substantially corroborated by other employees of Bovis and Fulton Hogan and by inspectors from the Australian Building and Construction Commission. 9 The costs of the delay in performing work on the site has been estimated at about $120,000 per day. Under the terms of its contract with the Victorian Government Bovis is obliged to pay liquid damages of $25,000 per day for the first 30 days of delay in completion of the project and $50,000 per day after that. 10 An urgent application for interim relief was made to me on 20 May 2010. Having heard counsel for the Applicant I made the following orders: "1. Until the hearing and determination of this proceeding or until further order, the respondent whether by itself, its officers, employees or agents be restrained from: (a) preventing or hindering the access of any person or vehicle to the construction site for the new Melbourne Wholesale Fruit, Vegetable and Flower Market at 315 Cooper Street, Epping; (b) counselling or procuring any person not to enter the said site; (c) counselling or procuring any employee or agent of, or person contracted to, Bovis Lend Lease Pty Ltd or Fulton Hogan Pty Ltd, not to work upon the said site; (d) placing or leaving any vehicle, trailer, apparatus, equipment or thing within 100 metres of any entrance to the said site; and (e) attending or organising or procuring any person or persons to attend, within 100 metres of any entrance to the said site, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders. 2. The further hearing of the application be adjourned until 2:15pm on 24 May 2010. 3. Costs be reserved." 11 As a result of a clerical error, the orders were expressed in the normal interlocutory form rather than in interim form. It had been my intention that the orders would apply until 4:30 pm on 24 May 2010, and it was for that reason that I adjourned the proceeding until 2:15 pm today in order that the respondent could be served with the necessary documents and given the opportunity to argue that the orders should not be continued beyond the 24 May 2010, or should only be continued in a varied form. 12 When the matter was called on this afternoon there was no appearance on behalf of the respondent. There has been filed an affidavit of service in which an employee of the solicitors acting for the applicant deposes that she served a copy of the relevant documents, including the Court's order, at the offices of the respondent at 500 Swanston Street, Melbourne at about 10 o'clock on 21 May 2010. 13 During today's hearing the applicant sought a continuation of the orders earlier made with the addition of a further paragraph 1(f) which would read: "Interfering with the site or its perimeter fencing." 14 This additional restraint was sought on the basis of evidence which suggested that, over the weekend during the hours of darkness, the perimeter fence of the site had been cut at various points, and that lettuce leaves had been strewn around the gaps in the fence in an attempt, which appears to have been partially successful, of inducing feral kangaroos to enter the site. There was also evidence tendered to the Court which satisfies me that officers of the CFMEU and, in particular Mr Spernovasilis, are aware of the orders which I made last week, and appear to have made a conscious decision not to comply with them. 15 In the circumstances I must consider whether the applicant has established a prima facie case in the sense expounded by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 82 and, if so, whether the balance of convenience favours a continuation of the injunctive relief which I granted on 20 May 2010. 16 The Applicant brings the proceeding, as I have already noted, under ss 38 and 44 of the Act. There is some conflicting authority at first instance relating to the question of whether picketing of the kind, which the evidence established is being engaged in at the site, falls within the definition of "building industrial action" in the Act, and, in particular, within the phrase "ban on the performance of building work." In Cahill v Construction, Forestry, Mining and Energy Union (No. 2) (2008) 170 FCR 357, Kenny J was minded, at paras [42] to [58], to answer the question in the affirmative. However, in Williams v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No. 2) (2009) 184 IR 367, Jessup J was inclined to take a contrary view. 17 It is not necessary, for the purpose of dealing with the present application, for me to resolve those differences. Suffice it is to say that there is a respectable argument that can be advanced by the Applicant in the present case which, if accepted, would bring the activities that are presently taking place outside the site within the legislative terminology "building industrial action". It will, of course, be a matter at trial to determine the proper construction of that term. In other respects it seems to me that the Applicant has made out a prima facie case that the provisions of s 38 of the Act have been contravened. 18 The second cause of action is founded on s 44 of the Act. Section 44 provides that "a person must not take, or threaten to take, any action with intent to coerce another person, or with intent to apply undue pressure to another person, to agree to make a building enterprise agreement". The evidence satisfies me, at least on a basis appropriate for interlocutory proceedings, that the CFMEU, acting through its officials at the site, has sought to coerce other persons including the managers of the Fulton Hogan company, and possibly also their employees, to agree to either make a building enterprise agreement with the CFMEU, or to terminate the existing agreement with the AWU. 19 This pressure has taken various forms. It has involved email exchanges between union officials and representatives of Bovis and Fulton Hogan, and oral statements made by representatives of the CFMEU to managers of those companies both on the telephone and at and around the site. There is, therefore, in my opinion, a prima facie case made out by the Applicant under s 44 of the Act such as to warrant the grant of interlocutory relief. 20 The balance of convenience falls in favour of the Applicant. This is a large project being funded from the public purse. There is a large number of workers involved on the site who are being prevented from going about their daily business, and, unless their employers are able to redeploy them, then they are either having to be paid to do nothing or at risk of having their employment terminated. The employers face considerable penalties if the project is not completed on time. They are also having to bear the cost of repairs to vandalism being perpetrated, I infer, by some of those involved on the picket line or others recruited by them. 21 I am satisfied that the terms of the orders that I made on 20 May 2010 have been drawn to the attention of officials of the Respondent. The Respondent has chosen not to appear this afternoon, or to otherwise seek to explain its conduct on the site. 22 I will say no more about that aspect of the matter, because it would seem, on a provisional basis at least, that the Respondent may be in contempt of court by reason of a deliberate failure to abide by the orders made on 20 May 2010. Whether or not that is the case may be a matter for further litigation. 23 Accordingly, the orders that I will make are that the orders which I made on 20 May 2010 be varied: "(a) by adding a new subparagraph 1(f) in these terms: "interfering with the site or its perimeter fencing"; and (b) removing the word "and" at the end of paragraph (d) and inserting the word "and" at the end of the existing paragraph (e)." 24 I will also make an order reserving costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.