FEDERAL COURT OF AUSTRALIA

BGC Contracting Pty Ltd v The Construction Forestry Mining

and Energy Union of Workers [2004] FCA 272

BGC CONTRACTING PTY LTD v THE CONSTRUCTION FORESTRY MINING & ENERGY UNION OF WORKERS

W38 of 2004

CARR J

20 FEBRUARY 2004

PERTH

The Court notes the respondent’s undertaking through counsel as expressed in paragraph 32 of the affidavit of Timothy Robert Kucera, sworn and filed today, namely: The CFMEUW undertakes that it will not seek any orders from the Western Australian Industrial Relations Commission against BGC Contracting Pty Ltd in Commission matter C13 of 2004 and will upon the acceptance of this undertaking immediately discontinue that matter insofar as it seeks any relief against BGC Contracting Pty Ltd.  

AND THE COURT ORDERS THAT:

1.           The applicant's application for the interlocutory relief sought in its amended application filed on 19 February 2004 is refused, but with liberty to renew that application on two days written notice to the respondent.

2.           The application is otherwise adjourned to a directions hearing on a date to be fixed, at which time the Court will also consider the motion filed by SNC-Lavalin (SA) Inc on 19 February 2004 to be joined as a respondent to this application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

introduction

1                     As part of the relief sought by the applicant in its amended originating application, it seeks an interlocutory injunction to restrain the respondent, by its officers or authorised representatives, from taking any further steps in certain proceedings in the Western Australian Industrial Relations Commission and also to restrain them from exercising rights of entry which they claim under the Industrial Relations Act 1979 (WA) (“the State Act”). 

2                     From the affidavit evidence filed to date the facts would appear to be as follows.  I emphasise the words “would appear to be” because, of course, no facts have been finally found.  At the trial of this application the facts may be found not to accord with the facts as placed before the Court for the purposes of this urgent interlocutory application. 

3                     The applicant is a building contractor which, on 28 November 2003, entered into a contract with Oil Field Construction Services Ltd [now called Paramount (WA) Ltd], which I shall refer to as “Paramount”, to provide design and construction services in relation to the design and construction of a liquid anhydrous ammonia plant to be constructed on a site on the Burrup Peninsula (“the Site”).  Paramount is a sub-contractor to the head contractor, SNC-Lavalin (SA) Inc which I shall call “Lavalin”.  The building owner is a company known as Burrup Fertilisers Pty Ltd (“Burrup Fertilisers”).  The registered proprietor of the Site is Western Australian Land Authority.  Western Australian Land Authority has leased the Site to Burrup Fertilisers by a registered lease stamped on 24 December 2002.  By the head contract, dated 17 December 2002, Lavalin was given control and management of the Site as project manager for the design and construction of the ammonia plant. 

4                     The applicant has in turn, by an agreement dated 19 December 2003, sub-contracted some of its obligations to a company called Shamrock Holdings Pty Ltd which trades under the business name “Killarnee Formwork”.  I shall refer to that company as “Killarnee”. 

5                     The applicant and Killarnee employ workers on the Site.  All of those workers are parties to Australian Workplace Agreements registered pursuant to Part VID of the Workplace Relations Act 1996 (Cth).  I shall refer to that Act as “the Federal Act” and to Australian Workplace Agreements as “AWAs”, being a term employed in the Federal Act itself. 

6                     Messrs Michael Buchan and Mark Hudston are officers of the respondent.  They are also authorised representatives of the respondent for the purposes of the State Act. 

7                     On or about 17 January 2004, Messrs Buchan and Hudston purported to exercise a right of entry to the Site pursuant to Part II Div 2G of the State Act. 

8                     A security guard employed by a company called Lythven Pty Ltd, trading under the business name “Shelf Security”, for and on behalf of Lavalin (i.e. the head contractor) refused permission to Messrs Buchan and Hudston to enter the Site. 

9                     As a result of that incident the respondent commenced proceedings in the Western Australian Industrial Relations Commission (which I shall henceforth refer to as “the Commission”) on 20 January 2004 by filing an application.

10                  Those proceedings were allocated No CR13 of 2004.  I was informed from the bar table that the application as then filed was simply for a compulsory conference pursuant to s 44 of the State Act.  The respondents to that application were Lavalin, the applicant and Killarnee. 

11                  On 23 January 2004, Mr Leonard Buckeridge, a director of the applicant, attended a conciliation conference before the Commission, pursuant to a summons issued to him by it.  The letter by which the Commission summoned Mr Buckeridge to the conference stated:

‘The purpose of the conference is to enable the parties to further discuss the issues involved in an endeavour to resolve the matters by conciliation.’

12                  At that conference Mr Buckeridge undertook to Commissioner S J Kenner (who for relevant purposes constituted the Commission) to attend the Site after completing his involvement in a case in the Supreme Court of Western Australia the following week.  The undertaking was that Mr Buckeridge would attend on the Site and enter into discussions with various workers in order to report to the Commission.  As a result of that undertaking the Commission convened a further conciliation conference to receive the report from Mr Buckeridge of those discussions on 3 February 2004. 

13                  Mr Buckeridge says that he attended the Site on 29 January 2004 and had discussions with about 20 workers on the Site.  He spoke to every worker he could see, either in the lunch room or working on the Site.  Each of those workers said that they did not want any representative of the respondent on Site.  One person told him that he had been “black-banned” in Perth by the respondent and that he had gone to Karratha to earn a living, as the only place where he could get a job.  He had told Mr Buckeridge that if the respondent became involved at the Site, he did not know what he would do, but there was a fair chance that there would be violence.  He said that if Mr Joe McDonald (an officer of the respondent) came on Site, he would “do him”.  Another employee told Mr Buckeridge that the respondent had bankrupted him before and said words to the effect that “if McDonald comes on Site, I’ll kill the bastard”. 

14                  Mr Buckeridge says that other workers on the Site told him that the Site was the best Site they had ever worked on and that they did not want the respondent to have representatives come on to the Site because their experience with those persons previously had been that they had been engaged in disruptive conduct.  Several of the workers told Mr Buckeridge that they just wanted to earn a living and that they believed that if the respondent came on to the Site their ability to earn good money would be ruined. 

15                  Mr Buckeridge gives some further hearsay evidence to the effect that the workers on the Site had voted against approving an agreement with the Australian Workers Union which was proposed to be certified under the Federal Act, preferring instead to stay on AWAs.  The vote was 24 to 6 against. 

16                  On 4 February 2004, Mr Buckeridge again attended a conciliation conference before Commissioner Kenner.  He told Commissioner Kenner of his concerns about what he had been told on Site.  He suggested that Commissioner Kenner attend on Site to meet the workers for himself.  Mr Buckeridge gave Commissioner Kenner a broad outline of his discussions with the workers in the absence of representatives from the respondent, but suggested that Commissioner Kenner should attend on Site to meet and have discussions with the workers in the parties’ absence, to confirm for himself whether Mr Buckeridge’s understanding of what they have told him was accurate. 

17                  Mr Buckeridge was accompanied at both conciliation conferences by Mr Michael Hotchkin, his solicitor. 

18                  At the first conference (on 23 January 2004) Mr Hotchkin raised with the Commissioner the question of inconsistency between Federal and State laws, but said that as the conference had been convened in order to conciliate, his client (i.e. the applicant in this matter) would put those arguments to one side for the purpose of endeavouring to conciliate. 

19                  At the second conference Mr Hotchkin told the Commissioner that in view of what Mr Buckeridge had heard on Site, his client could not conciliate the matter and that the legal issue thus had to be addressed at that point.  Mr Hotchkin then engaged in a brief exchange with Commissioner Kenner about whether the rights of entry under the State Act were inconsistent with the rights of entry under the Federal Act where AWAs applied on Site.

20                  At that stage the respondent’s application to the Commission was worded in terms which only sought a compulsory conference.  No other orders were sought. 

21                  Commissioner Kenner ordered the respondent to file an amended application.  In the amended application, filed on 9 February 2004 (and for some unexplained reason given a further proceeding number, CR32 of 2004) the respondent sought (and still seeks) the following orders:

‘Interim relief

THAT until the matters referred in CR13 of 2004 are determined, or further order of the Commission, SNC-Lavalin Australia Pty Ltd, BGC Contracting Pty Ltd and Shamrock Holdings Pty Ltd trading as Killarnee Formwork should allow the authorised representatives of the Construction Forestry Mining and Energy Union of Workers entry on to the Ammonia Plant Construction Project to exercise their rights of entry under the Act in relation to relevant employees of Shamrock Holdings Pty Ltd trading as Killarnee Formwork.

Final Relief

A declaration that by reason of the terms of Division 2G of the Act, the respondents are not entitled to deny right of entry to an authorised representative of the applicant, in possession of the requisite authority, exercising rights under Division 2G of the Act in respect of relevant employees working on the premises of the respondents.’

22                  The Commission ordered the applicant in these proceedings to file its Notice of Answer and Counter-Proposal by 13 February 2004. 

23                  The applicant and Killarnee filed identical such notices in which they pleaded as follows. 

24                  First, each asserted that they did not control the Site.  Secondly, each asserted that all employees on the Site were parties to AWAs pursuant to Part VID of the Federal Act and: 

• by virtue of s 170VQ(1) of the Federal Act, the AWAs excluded the operation of any award that might otherwise apply;

• by virtue of s 170VQ(4) of the Federal Act, the AWAs operated to the exclusion of any State Award or State Agreement that would otherwise apply to the employees’ employment;

• by virtue of s 170VR(1) of the Federal Act, an AWA prevails over conditions of employment specified in a State Law, to the extent of any inconsistency;

• the only matters in an AWA which are subject to the provisions of a State law are those prescribed by s 170VR(2) of the Federal Act, which do not include rights of entry under the State law; and

• any right of entry provided by the State Act was a term and condition of employment and was thereby excluded.

25                  Alternatively, the applicant in these proceedings and Killarnee asserted that the right of entry provisions under the State Act were inconsistent with the provisions of ss 285B and 285C of the Federal Act and were invalid to the extent of that inconsistency.  In further alternative they pleaded that if s 49H of the State Act applied to give any right of entry to an authorised representative of the respondent to these proceedings, it was conditional upon such entry being for the purpose of discussions with employees who wished to participate in those discussions and the respondent had failed to inform those with power to permit entry on to the Site which employees, if any, wished to participate in any discussions with such authorised representatives and had failed to identify any such employees with such a desire, so as to permit entry on to the Site for the relevant purpose. 

26                  In the meantime, on 12 February 2004, the Australian Workers Union served a written request on Lavalin seeking access to the Site at 12.00 pm on 13 February 2004 “to meet with union members and potential members”. 

27                  On the same date, 12 February 2004, the Commission issued an amended notice of hearing.  The notice refers to the State Act and to proceedings No CR13 of 2004 which it describes as being in the matter of “Right of Entry” and names the respondent to these proceedings and Lavalin and the other respondents to the proceedings in the Commission.  The notice reads as follows:

‘TAKE NOTICE that the Commission (Commissioner S J Kenner) will sit at Karratha Industrial Relations Commission, cnr Welcome Road & Hedland Place, Karratha, Western Australia on Monday, 23 February 2004 at 10.30 o’clockin the forenoon to hear the abovementioned matter.’ 

28                  Mr Hotchkin has sworn an affidavit (yesterday) from which it appears that the application to the Commission again came before Commissioner Kenner on 18 February 2004.  Mr Hotchkin told Commissioner Kenner that he had formed the view that this Court was the more appropriate forum to determine the matter arising under s 109 of the Constitution, that he had prepared papers for filing in this Court on the weekend of 14 and 15 February 2004 and, upon obtaining further instructions regarding material to be included in the statement of claim, had filed this application on 17 February 2004. 

29                  At a further conference in the Commission yesterday, Mr Hotchkin asked the Commission to stay its proceedings until the Federal Court of Australia heard the present matter.  He submitted to the Commission that it was unfair to hold against his client the fact that it had engaged in the conciliation process in good faith. 

30                  Commissioner Kenner rejected the application for a stay of proceedings.

31                  The matter was left in the Commission yesterday on the basis that the Commission hearing would proceed in Karratha on Monday 23 February 2004 and that the hearing of argument on “the constitutional issue” would be convened before Commissioner Kenner next Friday, 27 February 2004. 

32                  The applicant filed this application on 17 February 2004.  It seeks a declaration that the respondent does not have any rights under Part II Div 2G of the State Act in respect of persons working on the site who are parties to AWAs registered pursuant to Part VID of the Federal Act.  It also seeks a permanent injunction restraining the respondent and its officers and authorised representatives from purporting to exercise any right pursuant to Part II Div 2G of the State Act in respect of persons working on the Site who are parties to AWAs registered pursuant to Part VID of the Federal Act. 

33                  The applicant contends that as all the workers on the Site have elected to be subject to the Federal Act, any right of entry under the State Act is inconsistent with the rights of entry under the Federal Act and thereby invalid to the extent of the inconsistency by virtue of s 109 of the Constitution.  

34                  Alternatively the applicant says that if Part II Div 2G of the State Act is not invalid in purporting to grant authorised representatives of the respondent a right of entry to the site in respect of those workers, by virtue of s 109 of the Constitution, it is invalid by virtue of s 170VR(1) of the Federal Act. 

35                  The applicant’s application for urgent interlocutory relief came before me yesterday afternoon (i.e. two days after the originating application was filed).

36                  Mr T R Kucera of counsel appeared for the respondent and sought an adjournment.  Counsel (Mr T H F Caspersz) also appeared on behalf of Lavalin which had filed a motion on notice seeking to be joined as a respondent to these proceedings. 

37                  In opposition to the interlocutory relief sought by the applicant (and also in support of its oral motion that the application for such relief should be adjourned to some time next week) the respondent submitted that the applicant should have brought this application earlier, that is, the originating application.  Given the relatively short history of the proceedings in the Commission (less than one month) and the nature of those proceedings (including two conciliation conferences) I reject that submission. 

38                  To the same end the respondent accused the applicant of forum shopping, which I took to be an assertion that the applicant was somehow acting in bad faith.  I reject that argument also, because the evidence to date does not support that inference. 

39                  In a further effort to secure an adjournment yesterday afternoon Mr Kucera proffered an undertaking on behalf of his client that it would not during the period of such adjournment proceed in the Commission application against the applicant, but only against the other two respondents.  In refusing the adjournment I took into account the fact that this would still leave the respondent free to seek access on the Site to employees of Killarnee who are carrying on the work comprising some of the applicant’s contractual obligations to Paramount. 

40                  As there was effectively only one working day before the proposed resumption of the Commission proceedings I decided not to adjourn the application for urgent interlocutory relief at that stage.

41                  After hearing argument from all three counsel, I decided to proceed with the application for urgent interlocutory relief as far as was possible, but clearly indicating that I would do what was required to ensure that there was no prejudice to the respondent.  I decided to defer the hearing of Lavalin’s application to be joined as respondent to the proceedings. 

42                  Mr Hotchkin, for the applicant, then made some submissions.

43                  In the course of those submissions it appeared to be the case that, unbeknown to Mr Hotchkin, Commissioner Kenner had reconvened the proceedings in the Commission for this morning.  It was also uncertain precisely what the Commission intended to do next Monday. 

44                  Accordingly I adjourned the interlocutory proceedings to this afternoon.  As it transpires the Commission apparently did not intend to, and in any event has not, convened any further conference or hearing today.

45                  The applicant claims interlocutory relief on the basis that this Court is the appropriate forum to consider the legal issues to which I have just referred.  It has given notice to the Attorneys-General under s 78B of the Judiciary Act (1903) (Cth)for the purposes of the originating application.  

46                  The applicant contends that if, as it submits, this Court is the more appropriate forum than the Commission to determine these issues, then travel and accommodation costs for counsel and representatives of the parties will be wasted next Monday.  The applicant estimates that this will amount to some thousands of dollars.  It also fears that the Commission may determine these issues next Monday if those proceedings are not stayed. 

47                  In further submissions today, Mr Hotchkin revisited the matter of this Court being the more appropriate forum to decide the legal issues raised than the Commission, given the nature and procedures of that body.  He also stressed the unusual circumstance that the Commission has set down the constitutional question for hearing next Friday. 

48                  I granted Lavalin leave to intervene in these interlocutory proceedings.  It filed two affidavits and Mr Caspersz made submissions in support of the applicant's arguments.  He also made other submissions to which I shall refer in a moment, but first, I shall refer to the statutory framework. 

the statutory background

49                  Some of the relevant provisions of the State Act are as follows.

50                  Section 12 of the State Act provides that the Commission is a Court of Record and shall have an official seal.  Section 23 provides that subject to the State Act, the Commission has cognisance of and authority to inquire into and deal with any industrial matter.  Section 24 gives the Commission jurisdiction to determine in any proceedings before it whether any matter is an industrial matter.  Section 44 empowers the Commission to summon any person to attend at a conference.  Section 44(6)(ba) provides that the Commission may at such a conference give such directions with respect to industrial matters and make such orders as will in its opinion prevent the deterioration of industrial relations in respect of that matter until conciliation or arbitration has resolved the matter, or will enable conciliation or arbitration to resolve the matter or encourage the parties to exchange or divulge attitudes or information.  Paragraph (bb) of that subsection provides that the Commission may also with respect to industrial matters, at such a conference, give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under the State Act. 

51                  Under s 44(9), where such a conference has not settled any question, dispute or disagreement in relation to an industrial matter, the Commission may hear and determine that question, dispute or disagreement and may make an order binding the parties in relation to whom the matter is not settled. 

52                  Section 49G defines an authorised representative as meaning a person who holds an authority in force under Div 2G of Part II of the State Act.  Section 49H provides that an authorised representative of an organisation may enter during working hours any premises where relevant employees (a term also defined by s 49G) work, for the purpose of holding discussions at the premises with any of the relevant employees who wish to participate in those discussions.  It is that subsection under which the respondent’s officers sought entry to the Site on 17 January 2004. 

53                  Section 49M of the State Act relevantly provides that an occupier of premises must not refuse or intentionally and unduly delay such entry.  Contravention of that section may give rise to civil penalties. 

the federal act

54                  Part VID of the Federal Act makes provision for AWAs to be made between an employer which is a constitutional corporation (there is no argument that the applicant is not such a corporation) and an employee, being an agreement that deals with matters pertaining to the relationship between an employer and employee.  Such an agreement may be made before the commencement of the employment, see s 170VF.

55                  An AWA starts operating on the later of the day after a filing receipt is issued by the Australian Industrial Relations Commission (“the AIRC”) or the day specified in that agreement as the starting day or the day the employment commences – see s 170VJ.  There are 17 filing receipts in evidence.

56                  Section 170VQ(1) relevantly provides that during its period of operation an AWA operates to the exclusion of any award that would otherwise apply to the employees’ employment, subject to exceptions in subsections (2) and (3) which do not appear to have relevance to the present matter.

57                  Section 170VR(1) of the Federal Act provides that subject to that section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.  Some of those exceptions are found in s 170VR(2) which provides that provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

            (a)        occupational health and safety;

            (b)        workers’ compensation;

            (c)        apprenticeship;

            (d)        any other matter prescribed by the regulation [there is no suggestion at this stage that there is any such other relevant matter prescribed by the regulations].

58                  The applicant contends that rights of entry under the State law do not fall within any of these exceptions. 

59                  Section 285B of the Federal Act contains provisions relating to investigating suspected breaches of that Act and s 285C contains provisions pursuant to which a person who holds a permit - and the same person is referred to in s 285B - may enter the premises for certain purposes described in that section. 

60                  Section 412 confers jurisdiction on this Court with respect to matters arising under the Federal Act in relation to the various applications, actions, questions and other matters referred to in that subsection.

61                  Section 422 relevantly provides that an appeal lies to this Court from a judgment of a court of a State in a matter arising under the Federal Act.  Subsection 422(2) provides that it is not necessary to obtain the leave of this Court or the court appealed from in relation to such an appeal. 

62                  Section 414 relevantly provides that the jurisdiction of the Court under s 422 (i.e. the appellate jurisdiction just identified) is exclusive of the jurisdiction of any court of a State to hear and determine such an appeal. 

Further consideration of the contentions and my reasoning

63                  In addition to its reliance on ss 170VQ(1) and (4) and s 170VR(1), as I understand the applicant’s case, both in the Commission and in this Court it argues that the provisions in the State Act which purport to provide rights of entry to the Site are inconsistent with the provisions of s 285B and s 285C (and related sections) of the Federal Act, either because the Federal provisions were intended to regulate that subject matter completely, exhaustively or exclusively, or because the provisions of the State Act alter, impair or detract from the operation of the Federal Act in that respect. 

64                  The provisions of the AWAs are not in evidence at this stage in this Court. 

65                  In my view, as I held in Woodside Energy v MacDonald [2003] FCA 69 which raised very similar questions, the applicant’s case raises serious questions to be tried both in relation to whether the right of entry provisions under the State Act are inconsistent with the provisions of the Federal Act to which I have just referred, and also as to the application of ss 170VQ(1) and (4) and 170VR(1).  I now turn to the balance of convenience. 

66                  As I observed in Woodside (at par 120) the phrase balance of convenience is a convenient shorthand reference to the risk of doing an injustice to the party to be enjoined if an interlocutory injunction is granted, in comparison with the risk of doing an injustice to the party seeking the interlocutory injunction if such an order is not made.  Of course, those two factors – the serious question to be tried and the balance of inconvenience – are not in watertight compartments; they are considered separately and also together. 

67                  I also observed in Woodside, that usually an interlocutory injunction is granted to preserve the status quo pending the hearing and determination of the principal proceedings in which final relief is sought. 

68                  Embodied in that question, so far as is relevant to the present matter, is the question whether restraining the respondent from exercising its rights to resort to the Commission for what are in substance equivalent to enforcement orders and also restraining it from exercising the entry rights which it claims, amounts to maintaining the status quo. 

69                  In my view, the status quo is that the respondent may continue to seek entry and, if it is denied entry and if subsequently the relevant provisions of the State Act are held to have application (i.e. there is a finding in its favour), the respondent could have recourse to the relevant Tribunal for the appropriate penalties.  It might be said that all it would be deprived of in the meantime (by an interlocutory injunction) is access to the Site and the workers by virtue of a mandatory order from the Commission.  But an injunction restraining the respondent from exercising or seeking to exercise its rights of entry might be seen as going beyond merely preserving the status quo.

70                  For present purposes, I shall work on the assumption that the interlocutory orders sought by the applicant are designed to maintain the status quo, though I have some doubt about that proposition. 

71                  In my opinion, the balance of convenience is finely balanced. 

72                  The factors which I take into account as being advanced by the applicant include the following. 

73                  First there is the question of the most appropriate forum to resolve these questions.  It is not entirely clear what the Commission intends to do next Monday but from the material before the Court, it appears that the Commission will on Monday hear evidence on matters which include: 

            (a)        whether there are AWAs in fact covering all of the employees of Killarnee;

            (b)        the content of the AWAs and whether they say anything about rights of entry;

            (c)        who the parties to the AWAs are and whether the Killarnee entity employing the workers is also a party to any relevant AWA; and

            (d)        whether the AWAs were validly made.

74                  The respondent refers to this as “the AWA evidence”.

75                  In my view, the Commission has jurisdiction or power to enquire into the factual situation concerning the existence and content of the relevant AWAs. 

76                  It will then need to consider the effect of ss 170VQ and 170VR.  It will also need to consider, subject to there having been compliance with s 78B of the Judiciary Act, the questions arising under s 109 of the Constitution. 

77                  It appears that the Commission proposes to consider that matter (i.e. the constitutional matter) next Friday.  The Commission appears in this matter, I must say, to be proceeding at a somewhat unusually precipitous pace to a consideration of an important constitutional point.  My provisional view is that in considering the questions of interpretation and application of the statutory provisions of the Federal Act, and the constitutional question the Commission is, as a “Court of the State of Western Australia” invested with Federal jurisdiction to decide those matters under s 39(2) of the Judiciary Act.  

78                  This Court quite clearly also has jurisdiction in respect of the matters in issue between the parties in this application.  In exercising its functions or deciding not to do so, the Commission may also have to travel a part of the way down that path.  If, as events transpire, it emerges that the Commission falls into jurisdictional error or error of law which may impinge on the rights of the parties to this application, this Court would, in my view, have power within its jurisdiction conferred by the Federal Act, or by the Judiciary Act (or both) - or power conferred by the Federal Court of Australia Act 1976 (Cth) – to make orders to ensure that those rights were not unduly prejudiced pending either an appeal or in the exercise of its other federal jurisdiction.

79                  Counsel for Lavalin urges the Court to grant the interlocutory injunction, because it wants a legally binding determination by way of a speedy disposition of the constitutional point in this Court. 

80                  I have considered the submissions of the applicant and Lavalin to the effect that this Court is the more appropriate forum in which to resolve the constitutional questions which they raise. 

81                  I accept that generally such matters should not be determined other than in a superior court.  But in the circumstances, and on the evidence before me to date, I see no overbearing prejudice to the applicant or Lavalin in allowing the Commission proceedings to go ahead.  The Commission cannot, of course, conclusively decide the constitutional questions or the proper application of the relevant provisions of Part VID of the Federal Act, or the interpretation and application of ss 285B and 285C. 

82                  I also consider that each of the matters which the Commission proposes to consider next week would be a “matter arising under” the Federal Act within s 422 of that Act.  

83                  Accordingly if the Commission falls into error in carrying out its task, then this Court has exclusive jurisdiction to hear and determine an appeal in relation to that matter. 

84                  I take into account the evidence that the relevant work to be carried out by Killarnee on Site is expected to last between three and six months. 

85                  The likelihood is that the Commission will make factual findings relatively quickly.  As Mr Kucera submitted, proceedings before the Commission are quite well advanced.  The grant of the injunction sought would, in my view, give rise to the substantial risk that the respondent would be finally shut out from what it claims are its rights. 

86                  I should say something about the undertaking proffered by the respondent in paragraph 32 of Mr Kucera’s affidavit sworn today.  I incorporate that undertaking by reference without reading it out.  The undertaking does not extend to Killarnee and the applicant has, in my view, a clear interest in the question of potential industrial unrest involving the employees and its subcontractors.  I note the respondent’s evidence that BGC has only four workers on site, but Killarnee has between 40 and 60 employees on site.

87                  Nevertheless, the undertaking given by Mr Kucera in paragraph 32 of his affidavit will be noted in the orders which I propose to make. 

88                  On balance, I think that the interests of justice are best served by allowing the proceedings before the Commission to proceed at least to the stage where it finds whether there are in place AWAs in respect of all the workers concerned.  Only at that stage will the Commission be obliged to consider the applicant’s arguments that the relevant provisions of the Federal Act can have no application either as a matter of construction or by reason of s 109. 

89                  If the Commission gets to that stage and decides against the applicant on all those points and proceeds to make the orders sought by the respondent, the applicant may, in my view, immediately appeal to this Court under s 422 of the Federal Act.  If appropriate, the Commission’s orders could be stayed.  But the Court will then have the benefit of findings of fact made by the Commission. 

90                  For the foregoing reasons, and for the present, I do not propose to make the interlocutory injunction sought. 

91                  However, I will make an order giving liberty to the applicant to make further application for urgent interlocutory relief on 48 hours written notice to the respondent.  The orders which I propose to make are as follows:  The Court notes the respondent’s undertaking through counsel as expressed in paragraph 32 of the affidavit of Timothy Robert Kucera, sworn and filed today, namely:

‘The CFMEUW undertakes that it will not seek any orders from the Western Australian Industrial Relations Commission against BGC Contracting Pty Ltd in Commission matter C13 of 2004 and will upon the acceptance of this undertaking immediately discontinue that matter insofar as it seeks any relief against BGC Contracting Pty Ltd.’  

92                  And the Court orders that:

1.         The applicant's application for the interlocutory relief sought in its amended application filed on 19 February 2004 is refused, but with liberty to renew that application on two day's written notice to the respondent.

2.         The application is otherwise adjourned to a directions hearing on a date to be fixed, at which time the Court will also consider the motion filed by SNC-Lavalin (SA) Inc on 19 February 2004 to be joined as a respondent to this application.

Associate:

Dated:              22 March 2004