EFFECT OF INDUSTRIAL ACTION
22 Mr Milne believes that further industrial action on the Project by the respondents is probable, given the on‑going implementation of the Accommodation Changes over the next 2 months.
23 He believes the alleged impact of the industrial action on the Project is significant, totalling well in excess of $500,000 per day. These losses arise from:
(a) delay to the current construction program, which ultimately could affect the completion date for the Project;
(b) the costs of having machinery, plant and equipment and general site infrastructure available but not being effectively utilised;
(c) the loss of a percentage of workers who resign due to the industrial action and have to be replaced. There is already a shortage of adequately qualified workers in certain positions and therefore some workers who choose to resign to avoid the industrial action will be very difficult to replace;
(d) significant accommodation costs while no productive work is being carried out (approximately $90 per night, per employee); and
(e) the costs of additional security on site.
24 There is also a risk that delay to the construction program resulting from industrial action will cause:
(a) extension of time claims by contractors;
(b) contractual penalties claims against contractors for non‑completion of contracted work within the contracted time; and
(c) the inability of WBPL to meet contracts for future gas sales.
25 Mr Milne has been informed that the situation in and around the accommodation camps, particularly at Gap Ridge Village, is volatile and could easily become violent. He is informed and believes that threats have been made against employees who are not participating in the industrial action, which has resulted in FWW significantly increasing the level of security personnel on site and around the accommodation.
26 The respondents are currently and have been since 22 January 2010, striking in protest over changes to their accommodation arrangements. There are over 1500 employees involved in this action. Their action is said to be disrupting the performance of the work on the Project and causing significant financial loss to the applicants.
27 On 23 January 2010, orders were made by Commissioner Cloghan of Fair Work Australia for employees of the applicants (other than the thirteenth applicant) who were union members to return to work, such orders to remain in force until 28 February 2010. The applicants say that most workers have not done so but those who have returned to work are said to be subject to threats from those who have not returned.
28 The applicants argue that the respondents are engaged in unlawful industrial action for the purposes of the BCII Act.
29 The Court has jurisdiction to grant an interim injunction to prevent the respondents from engaging in unlawful action under s 39 and s 48 of the BCII Act.
30 Section 39(1) of the BCII Act empowers the Court to grant an injunction if it is satisfied that unlawful industrial action is:
(a) occurring; or
(b) threatened, impending or probable.
31 Section 39(3) of the BCII Act provides that the power may be exercised whether or not it appears to the Court that:
(a) the defendant intends to engage again, or continue to engage, in conduct of that kind; and
(b) …
(c) there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.
32 Section 49(1)(c) and (3) of the BCII Act empower the Court to grant injunctions (including interim injunctions) in relation to a person who has contravened a civil penalty provision. Section 49(6) defines an eligible person to make an application under s 49(1) and (3) to include 'a person affected by the contravention'. It follows that s 49(1) and s 49(3)(a) of the BCII empower the Court on the present application, to make an interim injunction in relation to a person who has contravened s 38 of the BCII.
33 Importantly, s 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].
34 The power to grant injunctive orders in circumstances where a breach or arguable breach of an Act has or is likely to occur is not uncommon in Federal statutes. The considerations to be taken into account are the strength of the case on that issue, the purpose and objectives of the statute and the balance of convenience. Except to the extent that the specific considerations of the Act in question require addressing, the determination as to whether or not to grant injunctive relief is a process which accords with the general approach in equity to the grant of injunctions.
35 The power to grant an injunction, including an interim injunction, under s 49 is additional to the Court's power under s 39 and, unlike the power in s 39, is not predicated on the Court's satisfaction that unlawful industrial action is occurring or is threatened, impending or probable. Rather, the Court may make any order 'that it considers appropriate'.
36 As with s 39(3), s 49(4) also provides that:
(4) If the contravention is a contravention of section 38, then the power of the court to grant an injunction restraining a person (the defendant) from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the defendant has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.
37 The grant of interim relief under the BCII Act must also be considered in light of the objects of the Act. The main object of the BCII Act is set out in s 3. Relevantly, subs 2 provides that the main object is to be achieved by the following means:
…
(b) promoting respect for the rule of law;
(c) ensuring respect for the rights of building industry participants;
(d) ensuring that building industry participants are accountable for their unlawful conduct;
38 The Court is also empowered to grant interim injunctions under s 417(3)(b) and s 545(2) of the Fair Work Act in respect of industrial action and s 421 in respect of any contravention of an order of Fair Work Australia. There may well also be an arguable case on that ground. I am satisfied that there is an arguable case that the respondents are engaging in unlawful industrial action under the BCII Act and in industrial action under the Fair Work Act contrary to that Act in that they have not obeyed the order of Commissioner Cloghan in contravention of s 421(1) of that Act. For present purposes, however, given the urgency of the matter, s 39 and s 49 BCII provide sufficient a basis on which to frame the grant of interim short term relief.
39 As to the balance of convenience, the evidence at this stage discloses that the actions of the respondents have been and are disrupting the construction of the Project and are causing severe financial loss to the applicants. The daily costs is in hundreds of thousands of dollars. Damages would not be an adequate remedy in this matter because:
(a) the respondents are individuals and are unlikely to have the financial means to meet the level of damages awarded;
(b) the employees who are not participating in industrial action are being subjected to a serious risk of physical and/or psychological harm.
40 The balance of convenience, in my view, favours the grant of the relief on an interim basis.
41 An interim injunction in the terms sought in the first part of the applicants' application for interlocutory relief will be granted. The relief will be short term relief which in substance, requires compliance with the order of Fair Work Australia, that is to say, a return to work. The orders also direct that others returning to work should not be prevented from doing so. However, I have also added liberty to any person affected by the restraints imposed by the orders to apply on short notice. I made the following orders:
1 Upon the applicants giving the usual undertaking as to damages, until 5.00 pm on 5 February 2010, pursuant to s 39 and/or s 49(1)(c) of the Building and Construction Industry Improvement Act 2005 (Cth) each respondent is restrained from: