SHOULD RELIEF BE GRANTED WHEN RESPONDENTS HAVE RETURNED TO WORK, CEASING THEIR UNLAWFUL INDUSTRIAL ACTION?
11 As previously observed in United Group No 1, s 49(3) of the BCII Act confers power to grant an interlocutory 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]). As with s 39(3), s 49(4) of the BCII Act provides, in effect, that if the contravention is a contravention of s 38, then the power of the Court to grant an injunction restraining conduct may be exercised whether or not it appears to the Court that the defendant intends to engage in again or to continue to engage in conduct of the kind prohibited by s 38. The power to grant an injunction including an interlocutory injunction under s 49 of the BCII Act is additional to the Court's power under s 39 of the BCII Act. It does not require the Court to be satisfied that unlawful industrial action is occurring or is threatened, impending or probable. It is open to the Court under s 49 of the BCII Act to make and order that 'it considers appropriate'.
12 The power to grant an interim injunction under s 49(3) of the BCII Act will be exercised having regard to the principles applied by a court of equity, nevertheless noting that the main object of the BCII Act is a relevant consideration: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 (at [23]-[25]). As previously observed in United Group No 1, the main object of the BCII Act is set out in s 3. Section 3(1) provides:
3 Main object of Act
(1) The main object of this Act is to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole.
13 Subsection (2) spells out that the main object is to be achieved by the following means amongst others:
· promoting respect for the rule of law;
· ensuring respect for the rights of building industry participants;
· ensuring that building industry participants are accountable for their unlawful conduct.
14 As observed in United Group No 1, there is also an arguable case at present that in addition to the conduct being unlawful by virtue of s 38 of the BCII Act, the industrial action in which the respondents have engaged to date contravenes s 417(1) and s 421 of the Fair Work Act. Importantly, it also contravenes a breach of the order of Commissioner Cloghan of Fair Work Australia of 23 January 2010.
15 The dialogue directly between the applicants and the respondents on this industrial issue appears to be relatively limited. There does not appear to have been any undertaking given to the applicants that further unlawful industrial action will not occur. However, there is evidence that dialogue has been ensuing between the Unions of which the respondents are members (on the one hand) and (on the other), Foster Wheeler WorleyParsons, which supervises the Project. This has occurred with the helpful assistance of the Hon Deputy President BP McCarthy of Fair Work Australia.
16 I have had concerns as to the appropriateness of continuing an injunction in circumstances where the respondents have not been given specific notice of the intention to apply for an interlocutory injunction. That said, I do note counsel for the applicants' assurance that the respective unions representing the various workers covered in the schedule of respondents were notified of the intention to bring the application and have not notified the Court or the applicants of any wish to be heard or heard on behalf of the respondents.
17 Nevertheless, express notification to the respondents of the intention to apply for an interlocutory injunction is the more preferable course before seeking or granting that relief without notice.
18 Although there is a strong arguable case that contraventions have occurred in the past, the strength of the case as to 'probable' future contraventions is, nevertheless, not great as the majority of the respondents have returned to work. While there is evidence that the dispute is not resolved, the evidence that the respondents will resume unlawful industrial action between now and 18 February 2010 is very limited.
19 Several previous decisions have addressed the question of whether or not the fact that unlawful conduct has ceased should in itself be sufficient to decline the grant of an injunction sought. It has been determined that the fact the unlawful industrial action has ceased is not of itself a reason not to grant an injunction. Examples of such decisions include Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228; John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 144 IR 418; United Group Infrastructure; CBI Construction Pty Ltd v Abbott (2008) 177 IR 134; and Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092.
20 Specifically in John Holland, Le Miere J held at [77]:
[77] The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances: Hooper v Rogers at 50 per Russell LJ followed by the Full Federal Court in Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd at 269-270. Provided that there is a real risk of wrongful conduct which would cause injury which is more than trivial, there may be no good reason to refuse quia timet relief: CGM Investments Pty Ltd v Chelliah (No 2) [2003] FCA 305 at [4] per Finkelstein J.
21 Likewise, also Nicholson J in United Group Infrastructure (at 44), held as follows:
[44] The balance of convenience then requires consideration. I accept the submission that the strength of the case of the arguability of the serious issues to be tried does weigh to some degree in the balance of convenience. I am influenced by the reference to Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [22]-[30] particularly at [22], [28] and [30] which I will not repeat here.
22 In that decision cited by Nicholson J (Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634), Chesterman J said (at [30]):
[30] In this context it is relevant that the defendants maintained their unlawful obstruction for several weeks and only permitted free access after the interlocutory injunction was ordered. This is not a case of idle threats. The defendants have in the past acted unlawfully in violation of the plaintiffs' rights. This factor makes the case different from those in which an injunction is sought because of conduct which is only apprehended. The principles applicable to quia timet injunctions are not entirely applicable. The fact that unlawful conduct has occurred makes the court more disposed towards ordering relief. See Dean and Chapter of Chester v. Smelting Corporation Limited (1901) 85 LT 67 at 69 and Attorney General v. Beck [1980] 2 NSWLR 77 at 94-95.
23 The Full Court has also held that the question of repetition of unlawful conduct is relevant to the exercise of discretion, but relevance is set in the particular context of public interest injunctions as distinct from those related only to private proprietary interests: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256-257 per Lockhart J; at 267 per Gummow J and 268 per French J.