FEDERAL COURT OF AUSTRALIA

John Holland Pty Ltd ACN 004 282 268 v Construction, Forestry, Mining and Energy Union [2009] FCA 324

EMPLOYMENT – consideration of an application made in the course of dealing with a range of notices of motion for an order varying the terms of an interlocutory injunction made on 6 March 2009 – ex tempore reasons given refusing a variation of the order

Workplace Relations Act 1996 (Cth) – s 760

Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 - cited

JOHN HOLLAND PTY LTD ACN 004 282 268 v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, THE COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION, ONG & OTHER ORGANISERS and AUSTRALIAN WORKERS' UNION

QUD63 of 2009

GREENWOOD J

25 MARCH 2009

BRISBANE

THE COURT ORDERS THAT:

1.         The application for variation of the interlocutory order made by the Court on 6 March 2009 is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

EX TEMPORE REASONS FOR JUDGMENT

1                          I have an application before me to vary an order made by me on 6 March 2009 in proceeding QUD63 of 2009, commenced by John Holland Proprietary Limited against a number of respondent parties, the first of which I will simply describe by the acronym CFMEU, and others.  The order made on that occasion was an order in these terms:

(1)        Until further order, the first, second and third respondents be restrained, whether by themselves, their servants or agents, from entering the Abbot Point site under section S760 of the Workplace Relations Act 1996 (Commonwealth) for the purpose of holding discussions with the applicant’s employees. 

2                          The court noted in order 1 that, for the purposes of order 1, the Abbot Point site is the Abbot Point coal terminal owned by the Ports Corporation of Queensland.  The second order was that the applicant was to file particular material by certain dates.  There were other directions orders made for the filing of material in the proceeding.  It had been foreshadowed in the course of the application on 6 March 2009 that the respondents in QUD63 of 2009 intended to file proceedings on their own behalf against the applicant, John Holland Pty Ltd, and perhaps other parties, in which it would be said that contraventions of the Workplace Relations Act 1996 (Cth) (‘the “Workplace Relations Act”) had occurred on the part of the foreshadowed respondents. 

3                          Those events, by recollection, relate to particular events which occurred on-site on 19 November 2008, 13 February 2009 and 5 March 2009, which gave rise to the application in urgent circumstances for an interlocutory injunction restraining particular individuals from attempting to enter the site, pursuant to notices given under section 760 of the Workplace Relations Act.  The central contention was that those notices were invalid for reasons I will mention in a moment.  The proposition advanced now is that the order of 6 March 2009 ought to be varied and in its place there ought to be an order - a recognition by the court that the first, second, and third respondents in the proceeding will give an undertaking until completion of the final hearing of the matter, that they will not by themselves, their servants, or agents, seek to enter the Abbot Point X50 site under section 760 of the Workplace Relations Act for the purpose of holding discussions with the applicant’s employees, except as provided in terms of paragraph B of the foreshadowed order. 

4                          Paragraph B foreshadows that Mr Bradley, Mr Robinson and Mr Peter Ong would be entitled to enter the site on two nominated occasions or perhaps one nominated occasion for a period of no longer than four hours to discuss particular matters of concern to those individuals.  Those matters of concern are reflected in an affidavit sworn by Mr Terry Bradley on 23 March 2009 in which Mr Bradley deposes to a number of matters and they are these:  Mr Bradley is an organiser of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU).  Mr Bradley says that he holds the position of AMWU organiser and that he has held that position since 19 February 1999.  He is the holder of an “entry permit” for the purposes of Part 15 of the Workplace Relations Act. 

5                          He says that he has been to the John Holland X50 site at Abbot Point on three occasions and has also held meetings with members and employees from John Holland in connection with what is known as the X25 and X50 sites at locations outside the John Holland sites.  He says that he has been made aware by members and employees of John Holland working at the X50 site at Abbot Point of a range of grievances and complaints those individuals and employees have in relation to their employment.  I should explain that the term “X50 site” is a reference to a site at which expansion work on the Abbot Point coal‑loading facilities is being undertaken by John Holland Proprietary Limited, pursuant to contracts entered into with the Ports Corporation of Queensland. 

6                          Mr Bradley further says that issues have been raised by the employees he has mentioned concerning matters at the site.  He says that these matters have been raised at meetings that have been held outside the site.  He says that he has had contact by telephone and has received complaints.  He says that one AMWU member in particular has been relaying to him complaints both on his own behalf and complaints in relation to other employees.  The particular employee/member has rung on multiple occasions in February and March 2009.  Mr Bradley does not identify these particular employees, and no doubt that is for reasons of confidentiality and concern about disclosure of the names of the individuals to their employer. 

7                          Mr Bradley further says that he has been informed by Kane Lowth, another organiser for the AMWU responsible for Abbot Point sites, that complaints have been relayed to that member and then relayed to Mr Bradley.  The issues raised by these members, according to Mr Bradley at paragraph 8 of his affidavit, include safety issues involving issues in circumstances where employees who had raised such an issue had been dismissed; concerns that supervisors at the site had threatened workers if they raised safety issues or refused to work in the rain; concerns that workers had been threatened with dismissal if they raised problems about working conditions; concerns about lack of amenities in the crib room; and, specifically, a problem concerning overflowing toilets.

8                          Mr Bradley says that access to the site is not easy.  He says that holding meetings offsite is not an adequate alternative because rental housing in the town of Bowen is very difficult to obtain and employees are spread in various residential locations.  Thus convening a meeting is difficult.  In addition, Mr Bradley says that he would like to be able to conduct a meeting on site in circumstances where managerial representatives are excluded from those meetings so that there would inferentially be a free flow of information about these matters of concern.  At paragraph 13, Mr Bradley says that relying on complaints relayed through union representatives on site is not possible.  He says that because the AMWU has not had access to the site, there is no formal delegate structure in place to enable members to report issues to their delegate who can then pass the information on appropriately to either Mr Bradley or other AMWU officers.  At paragraph 13, Mr Bradley says that:

The level of intimidation directed towards employees who raise issues has also contributed to the failure of any informal delegate structure to develop.

9                          I accept that these are matters of concern to Mr Bradley.  I am concerned that the affidavit by Mr Bradley puts these matters at a very high level of generality and a high level of abstraction.  The affidavit, understandably perhaps, does not mention the name of individuals, but it does not descend into specific particulars or really hard content where the complaints might be deposed to by Mr Bradley in the sense of saying, “I was informed by an anonymous employee of this complaint in words to this effect.”  In the absence of some specific and concrete examples, I am not persuaded that events have taken place which would warrant the discharge or varying of the interlocutory order, at least so far as such an application is based upon facts put forward by Mr Bradley. 

10                        The second matter which is raised as relevant to the question of a variation of the interlocutory undertaking is that when the order was made on 6 March 2009, it was contemplated that the questions alive in the proceeding would be largely questions of construction of two particular agreements struck between the Ports Corporation of Queensland and John Holland Pty Ltd, and the construction of two Union Greenfield Agreements.  The point of construction, put simply, would be to determine whether or not there is symmetry between the work to be undertaken under the two contracts and the field of work falling within the scope of each of the Greenfield Agreements.  The second point arising from that question of symmetrical construction is, therefore, whether or not the Greenfield Agreements “cover the field” in such a way that notices given under section 760 of the Workplace Relations Act may not be valid. 

11                        I was satisfied on 6 March 2009 that, of course, in terms of the High Court’s decision in Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457, that there was a prima facie case made out in the sense that there was a sufficient threshold of success in the proceeding made out taking account of the balance of convenience.  One of the influences at the time, in terms of making the order, apart from being satisfied of the integers in O’Neill’s case was that dates could be found on 19 and 20 March 2009 for the hearing of the matter which, as I say, largely involved questions of construction, although, no doubt, there would be some questions of factual controversy to be resolved which would require findings of fact.  Nevertheless, the scope of the proceedings seem to be reasonably well contained. 

12                        On the hearing of the application, the respondents in proceeding QUD63 of 2009, as I said earlier, indicated that they may wish to commence their own proceedings.  Those proceedings were in fact commenced on 11 March 2009.  Directions orders were made for the orderly progression of both matters and, in particular, orders were made that the two proceedings would be heard together since they involved common issues and common factual questions, and that any question of pecuniary penalties to be determined in either proceeding on application by the relevant parties would be dealt with as a separate question.

13                        What emerged, of course, was that with the filing of the statement of claim in the related matter (QUD66 of 2009), the matters raised by the applicant parties in that proceeding were a little more complex than had been thought and the filing and serving of affidavits was likely to be more detailed than was first thought.  As a result, the matter was brought back for a Directions Hearing and further orders were made.  The dates of 19 and 20 March 2009 for the hearing of the trial were vacated and dates of trial were identified and allocated for 23 and 24 April 2009.

14                        Accordingly, the position that emerges now is that both of these proceedings, with their pleadings and affidavits, and all interlocutory steps, including discovery, will be heard and determined in final terms on 23 and 24 April 2009.  In other words, in about the space of one month, the court will make available a trial of each proceeding, not in terms of an interlocutory hearing but in terms of final dispositive relief, and hopefully the court will be able to quell the controversy between these parties, in final terms.

15                        That being so, it seems to me that it is unrealistic and inappropriate, in terms of the preservation of the balance between the parties, to enable the individuals suggested in terms of the proposed order to have leave, in effect, to enter the site pending the determination of the proceedings.  As I say, the proceeding will be determined within the space of about four weeks.  It is very likely that judgment will be given in the week following the hearing of the matter on 23 and 24 April 2009, for reasons I mentioned at the Directions Hearing and I will not repeat those reasons in these ex tempore observations.

16                        Since the matter can be progressed to final relief rapidly and judgment given quickly, it seems to me that it is in the interests of parties that the status quo be preserved pending the trial.  If the position had emerged that an interlocutory order had been made, either pending hearing or until further order, in circumstances where no trial was possible until the very latter part of this year or perhaps early next year, different questions might arise. 

17                        I accept, for the purpose of the argument, that an arguable question arises on the footing put forward by Mr Pearce on behalf of the respondent parties in QUD66 of 2009, and there is an arguable question raised about the construction issues and whether or not the two Union Greenfield Agreements cover the field in terms of the symmetrical body of work that is contemplated, and whether they have that effect.

18                        In any event, accepting for the moment that that raises an arguable question, it does not influence me to change the view I have formed that on the basis of the affidavit of Mr Malcolm Davis and particularly the annexed documents which were comprehensive, there is a sufficient prima facie case made out in terms of O’Neill’s case.  The circumstances which have emerged and which are relied upon by the respondents in this proceeding in seeking a variation of the interlocutory order, are not sufficient to justify or make appropriate a variation in the terms of the present orders. 

19                        Accordingly, I reject the application for variation of the orders.

Associate:

Dated:         25 March 2009