Admissions made by represented respondents
24 As outlined, various comprehensive admissions of fact and law were made after commencement of the trial. (Some of the facts had been agreed prior to trial).
25 The agreement between those parties (with defined terms applicable only to the agreement), was in the following terms:
…
The applicants and the CFMEU Respondents [defined in para 6 of this statement of agreed facts], CEPU Respondents [defined in para 7 of this statement of agreed facts] and AMWU Respondents [defined in para 8 of this statement of agreed facts] (together, the Respondents) … agree as follows:
Parties
Applicants
1 During the period 22 to 30 January 2010, each applicant was:
(a) a corporation incorporated under the Corporations Act 2001 (Cth) and to which paragraph 51(xx) of the Australian Constitution applied;
(b) the employer of some of the Respondents;
(c) a "building employer" which employed "building employees" within the meaning of the [BCII Act];
(d) a building sub-contractor engaged by [WBPL] to carry out "building work" within the meaning of the BCII Act, on the project known as the "Pluto LNG Project" or "Pluto LNG Development Project" for the development, production and processing of petroleum, including the construction of a single gas processing train and ancillary facilities between Onslow and the Burrup Peninsula in Western Australia (Project); and
(e) a "building industry participant" within the meaning of the BCII Act.
Respondents
2 During the period 22 to 30 January 2010, each Respondent was:
(a) a "building employee" whose employment consisted of or included "building work" within the meaning of the BCII Act;
(b) employed by one of the applicants to undertake "building work" on the Project;
(c) employed under a Commonwealth industrial instrument, which is or was a workplace agreement pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act); [The applicable industrial instruments are set out in para 4 of this statement of agreed facts] and
(d) a "building industry participant" within the meaning of the BCII Act.
Intervener
3 The intervener is the [ABCC] appointed under s.15 of the BCII Act who intervenes in the proceeding pursuant to section 71 of that Act.
Industrial context
4 During the period 22 to 30 January 2010, the industrial instruments which covered and applied to the applicants and Respondents employed by them were:
(a) United Group Resources Pty Ltd Employee Collective Pluto Project Agreement 2009;
(b) AGC Industries Pty Ltd Employee Collective Pluto Project Agreement 2009;
(c) Modern Access Services Pty Ltd Employee Collective Pluto Project Agreement 2009;
(d) Downer EDI Engineering Power Pty Ltd Employee Collective Pluto Project Agreement 2009;
(e) Monadelphous Engineering Associates Pty Ltd Employee Collective Pluto Project Agreement 2009;
(f) CBI Constructors Pty Ltd Interim Transitional Employment Agreements;
(g) Decmil Australia Pty Ltd Employee Collective Pluto Project Agreement 2009;
(h) Freo Machinery Pluto Project Greenfields Agreement 2008;
(i) Mammoet Australia Pty Ltd Greenfields Agreement 2008;
(j) PCH Group Limited Employee Collective Pluto Project Agreement 2009;
(k) RCR Construction & Maintenance Pluto Project Greenfields Agreement 2008;
(l) Positron Trident Pty Ltd Pluto Project Greenfields Agreement 2009,
(together, the Industrial Instruments).
5 During the period 22 to 30 January 2010, each Respondent employed by:
(a) United Group Resources Pty Ltd (first applicant);
(b) AGC Industries Pty Ltd (second applicant);
(c) MAS Australasia Pty Ltd (third applicant);
(d) Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e) Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f) Decmil Australia Pty Ltd (seventh applicant);
(g) PCH Group Ltd (tenth applicant); or
(h) RCR Power Pty Ltd (twelfth applicant),
was covered by an "enterprise agreement" for the purposes of section 417 of the [FW Act], each of which is a workplace agreement pursuant to the Transitional Act, and was within its nominal term.
Union membership
6 Each Respondent listed in:
(a) Attachment 1 was a member of the CFMEU during the whole period 23 to 30 January 2010;
(b) Attachment 2 was not a member of the CFMEU during the whole period 23 to 30 January 2010,
(together, the CFMEU Respondents).
7 Each Respondent listed in Attachment 3 was a member of the CEPU during the period 27 November 2009 to 28 February 2010 (together, the CEPU Respondents).
8 Each Respondent listed in:
(a) Attachment 4 was a member of the AMWU during the period 27 November 2009 to 28 February 2010; and
(b) Attachment 5 was not a member of the AMWU during the period 27 November 2009 to 28 February 2010,
(together, the AMWU Respondents).
The Project
9 The events relevant to the proceeding happened on and in relation to the on-shore component of the Project, which is situated approximately 26 km from Karratha. Exhibits A2 to A5 are photographs which show the location of relevant places within and nearby the Project site.
10 The majority owner, operator and manager of the Project is Woodside Burrup, a subsidiary of Woodside Energy Ltd.
11 The Project involves, amongst other things, the construction of a single gas processing train and ancillary facilities to process gas from the Pluto and Xena gas fields located in the Carnarvon Basin about 190km north-west of Karratha, Western Australia.
12 Work on the Project commenced in around July 2007.
13 Since the commencement of work on the Project, Foster Wheeler (WA) Pty Ltd in joint venture with WorleyParsons Pty Ltd, [FWWP], has been the engineering, procurement and construction manager (EPCM) of the Project.
14 The overall performance of the building work on the Project is, and since the commencement of the building work on the Project has been, supervised by [FWWP].
15 Approximately 3800 workers were employed to work on the Project during the period 22 to 30 January 2010. The 3800 workers referred to in this paragraph included construction and non-construction (staff) employees of the applicants and employees of contractors who are not parties to this proceeding.
Rostering on the Project
16 Whilst engaged to work on the Project, the Respondents were required to work pursuant to roster cycles of one of the following configurations:
(a) 4 weeks on, 1 week off;
(b) 5 weeks on, 1 week off; or
(c) 6 [weeks] on, 1 week off.
17 During their rostered "on-time", the Respondents' ordinary hours of work on the Project were usually worked Monday to Saturday on rostered shifts of 10 hours duration, either on a day shift usually commencing at either 6.00am or 6.30am and finishing at 4.30pm or 5.00pm respectively, or on a night shift usually commencing at 6.30pm and finishing at 4.30am.
Accommodation at the Project
18 Many Respondents who perform work on the Project do so on a fly in/fly out basis.
19 Whilst each Respondent was engaged to work on the Project, they were accommodated in one of two accommodation villages (Gap Ridge Village and Searipple Village), or in their own local accommodation near the Project.
20 Gap Ridge Village is located about 20km from the project site and Searipple Village is located about 30km from the project site.
21 Gap Ridge Village contains 2,100 rooms. It is owned by Woodside Burrup and is operated for Woodside Burrup by Sodexho under the management of [FWWP]. Searipple Village is privately owned and operated not by Woodside Burrup.
22 Each of the Industrial Instruments contains terms to the following effect (in clause 42 and Appendix 7, clause 6):
"42. Distant Workers
Employees classified as Distant Workers as defined and International Distant Workers as defined shall be entitled to the conditions contained at Appendix 7 - Distant Work Provisions of this Agreement."
"APPENDIX 7: DISTANT WORK PROVISIONS
(6) The Company shall have the choice of providing each Distant Worker with either suitable board and lodging or paying the Living Away from Home Allowance set out in this Appendix."
23 During the period from 22 to 30 January 2010, many of the Respondents were Distant Workers within the meaning of the Industrial Instruments.
24 The Respondents who were accommodated at Gap Ridge Village in the period from 22 to 30 January 2010 did so on terms and conditions of occupancy which were effective from 17 June 2009 and which applied throughout the period 22 January 2010 to 30 January 2010.
25 During the period from 22 to 30 January 2010 the Applicants paid the owner or operator of the Gap Ridge Village and the Searipple Village a daily fee for the accommodation of each of their employees in those villages.
Motelling
26 Until February 2010, Gap Ridge Village accommodated construction workers in single occupancy en-suite accommodation units. These accommodation units were occupied by construction workers, including some of the Respondents, on a 'dedicated' basis i.e. over the course of their work on the Project for a particular applicant, the Respondent would occupy the same particular accommodation unit during their rostered periods of work.
27 At pre-start meetings on 27 November 2009, the applicants' representatives informed their employees (who were in attendance at those meetings), including many of the Respondents, that, with effect from 4 January 2010, Woodside intended to introduce new accommodation arrangements for employees residing at Gap Ridge Village.
28 Under these new arrangements, construction workers who resided at Gap Ridge Village would no longer have use of the same accommodation unit for each period that they were rostered to work. Instead, they would be assigned a new accommodation unit each time they returned to Gap Ridge Village for a rostered period of work ("Accommodation Changes").
December 2009 dispute
29 On 1 and 2 December 2010 many of the then employees including some of the Respondents who were rostered to work failed to present for work. The absence was not authorised or agreed to by the applicants who were their relevant employers.
30 On 2 December 2009, Deputy President McCarthy of [FWA] made an order under section 418 of the FW Act requiring employees of the first applicant to return to work. The order was to remain in force until 18 January 2010.
31 All construction workers on the Project returned to work on 3 December 2009.
32 During the period 3 December 2009 to 21 January 2010, the Respondents attended work as rostered.
33 On 21 January 2010, [FWWP] delivered a letter entitled 'Subject: Acknowledgement Forms and availability of accommodation at Gap Ridge Village' ([FWWP] Letter) to between 150 and 400 Respondents on the Project who resided at Gap Ridge Village. The [FWWP] Letter concerned the introduction of the Accommodation Changes.
January 2010 dispute
34 On 22, 23, 25, 27, 28, 29 and 30 January 2010, each Respondent failed to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift.
35 [The schedule to the orders now made by the Court] set out the days on which each Respondent was rostered to work and whether he or she was absent for the whole or part of their shift. Where a Respondent was absent for up to 4 hours of their rostered shift, he or she has been designated as being absent for half a day. Where a Respondent was absent for 4 hours or more of their rostered shift, he or she has been designated as being absent for a full day.
36 In each case, the absence specified in [the schedule to the orders now made by the Court] was not authorised or agreed to by any of the applicants.
37 Between 22 January 2010 and 30 January 2010 inclusive, there was no protected action ballot and no notice of intention to take protected industrial action by the Respondents or any relevant union in relation to the work at the Project.
38 Each Respondent engaged in:
(a) industrial action within the meaning of s.19 of the FW Act; and
(b) building industrial action within the meaning of s.36(1) of the BCII Act
in respect of each day (or part thereof) on which they were absent from work as specified in [the schedule to the orders now made by the Court].
Fair Work Proceedings
39 On 23 January 2010, all applicants and others except the thirteenth applicant applied to [FWA] under section 418 of the FW Act for orders that the Respondents return to work (Application).
40 A copy of the Application was served on the CFMEU, the CEPU and the AMWU by email.
41 A hearing was held before Commissioner Cloghan of [FWA] on 23 January 2010. The hearing was attended by representatives of the applicants, the intervener, the CFMEU, the CEPU and the AMWU.
42 At the conclusion of the hearing on 23 January 2010, Commissioner Cloghan made an interim order under section 420 of the FW Act, known as the Woodside Pluto LNG Project 2009 No. 2 Order (Interim Order).
43 The Interim Order was validly made, and was published on the [FWA] website on Monday 25 January 2010 at 1.40pm AWST in accordance with s.601 of the FW Act. Service of the Interim Order was effected in accordance with the requirements of the Interim Order and the FW Act.
44 Following the making of the Interim Order, certain Respondents continued to fail to attend for work on one or more days on which they were rostered to work, for either the whole or part of their rostered shift as set out in paragraph 35 of this statement of agreed facts.
Federal Court proceedings
45 The applicants commenced this proceeding on 27 January 2010.
46 On 27 January 2010, Justice McKerracher granted an interim injunction which was expressed to operate until 5.00 pm on 5 February 2010.
47 On 5 February 2010, Justice McKerracher extended the interim injunction until 5.00 pm on 18 February 2010.
48 On 18 February 2010, Justice McKerracher further extended the interim injunction until final hearing and determination of the proceeding or further order.
Section 417 FW Act contravention
49 Each Respondent employed by:
(a) United Group Resources Pty Ltd (first applicant);
(b) AGC Industries Pty Ltd (second applicant);
(c) MAS Australasia Pty Ltd (third applicant);
(d) Downer EDI Engineering Power Pty Ltd (fourth applicant);
(e) Monadelphous Engineering Associates Pty Ltd (fifth applicant);
(f) Decmil Australia Pty Ltd (seventh applicant);
(g) PCH Group Ltd (tenth applicant); or
(h) RCR Power Pty Ltd (twelfth applicant)
contravened s.417 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
Section 421 FW Act contravention
50 Each Respondent (other than those Respondents referred to in Attachments 2 and 5) contravened s.421 of the FW Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
BCII Act contravention
51 Each Respondent was motivated by one or more of the following purposes in respect of each day of industrial action taken by them on 22, 23, 25, 27, 28, 29 and 30 January 2010:
(a) supporting or advancing a claim against the applicants, alternatively against the applicant which was the Respondent's employer at the time, that motelling not be introduced; or
(b) disrupting the performance of work on the Project.
52 Accordingly, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was industrially-motivated action within the meaning of s.37(a) of the BCII Act.
53 The industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010:
(a) related to work that was regulated by a Commonwealth industrial instrument; and
(b) adversely affected each of the applicants in their capacity as building industry participants.
54 Accordingly, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was constitutionally-connected action within the meaning of s.36(1) of the BCII Act.
55 By reason of the facts and matters set out in paragraph 37 above, the industrial action taken by each Respondent on 22, 23, 25, 27, 28, 29 and 30 January 2010 was not excluded action within the meaning of s.36(1) of the BCII Act.
56 Each Respondent contravened s.38 of the BCII Act in respect of each day on which they took industrial action on 22, 23, 25, 27, 28, 29 and 30 January 2010.
57 Paragraphs 1 - 37, 39 - 48 and 51 of this statement are tendered pursuant to s.191 of the Evidence Act (Cth).
58 Paragraphs 38, 49 - 50 and 52 - 56 of this statement contain admissions by the Respondents, which admissions should be treated as though they were made in a points of defence filed on behalf of the relevant Respondents.