FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2009] FCA 1092

INDUSTRIAL LAW – application for interlocutory injunction to restrain unlawful industrial action – s 38 of the Building Construction Industry Improvement Act 2005 (Cth) – whether action taken was building industrial action – whether action was based on a reasonable concern by employees about an imminent risk to health or safety – application of accessorial liability to union officers – whether prima facie case – no evidence of any imminent risk to any employee’s health or safety – injunction granted

Workplace Relations Act 1966 (Cth), s 740

Industrial Relations Act 1966 (NSW), s 143(5)

Industrial Relations Act 1988 (Cth), s 124

Building and Construction Industry Improvement Act 2005 (Cth),ss 3(1), (2), 36(1), 36(2), 37, 38, 39(1), (3), 48(2), 49, 69

Federal Court of Australia Act 1976 (Cth), s 23

Trade Practices Act 1974 (Cth), s 80(4)  

American Cyanamid Co v Ethicon Ltd [1975] AC 396 referred to

AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) referred to

Australian Broadcasting Commission v O’Neil (2006) 227 CLR 57 applied

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 considered

Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 cited

Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41 cited

Cahill v Construction, Forestry Mining and Energy Union (No 2) (2008) 170 FCR 357 followed

ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 considered

Kadian v Richards [2004] NSWSC 382 cited

Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272 considered

Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 distinguished

Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 cited

Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 cited

Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 cited

Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union of Australia (1987) 54 NTR 6 referred to

Sullman v Sullman [2002] NSWSC 169 cited

AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, JOSEPH McDONALD and MICHAEL BUCHAN

WAD 106 of 2009

GILMOUR J

29 SEPTEMBER 2009

PERTH

REASONS FOR JUDGMENT

The Application

1                     This matter arises from strike action taken by employees of several contractors on 5, 6, 8, 24 and 25 June 2009 at a high rise building site at 915 Hay Street, Perth (“Site”) which is controlled by Diploma Constructions (WA) Pty Ltd. 

2                     In its substantive application filed in June 2009, the applicant (“the ABCC”) seeks relief in respect of alleged breaches by the respondents of s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), a civil penalty provision, which prohibits a person engaging in unlawful industrial action.   

3                     The present application is for an interlocutory injunction to restrain the respondents from engaging in further unlawful industrial action.

4                     The application is supported by the affidavit of Paul William Day sworn 26 June 2009.  Mr Day is the Project Manager forDiploma.  On 2 July 2009 reliance was also placed on the affidavits of Ian Fraser sworn 25 June and 2 July 2009.  I granted interim interlocutory injunctive relief in the following terms:

1.         Until further determination of this application or until further order, each of the respondents (whether by their officers, delegates, agents, employees or other representatives) be restrained from:

            (a)        being engaged in or involved in any contractor (and their employees) or employee who is required to perform building work for Diploma Constructions (WA) Pty Ltd (Diploma):

                        (i)         failing or refusing to attend for building work or failing or refusing to perform any work after attending for building work; or

                        (ii)        placing a ban, limitation or restriction on the performance of building work adopted in connection with an industrial dispute;

            (b)        attending or organising or procuring any person or persons, to attend, within 100 metres of any entrance to the Diploma construction site located at 915 Hay Street, Perth, Western Australia, save for such entry to the site as may be authorised by law, for the purpose of using a public road for reasons unconnected with the said site or for the purpose of complying with these orders.

5                     At the later hearings on 17 and 20 July 2009 the ABCC no longer relied on Fraser’s affidavits.

6                     The respondents rely upon the affidavits by the second respondent (McDonald) and the third respondent (Buchan) affirmed on 2 and 9 July 2009 respectively.  Mr McDonald is the Branch Assistant Secretary of the Western Australian Branch of the first respondent (CFMEU) which is a registered organisation registered in accordance with the Workplace Relations Act 1966 (Cth).  Mr Buchan is employed by the CFMEU and for the last two years he has been the organiser responsible for safety issues.  He holds a certificate in Occupational Health and Safety from the University of Ballarat.   

7                     Following argument, paras 13 and 14 of Mr McDonald’s affidavit were struck out.  The date in the first line of para 52 of Mr Buchan’s affidavit was amended by him from 21 to 22 June 2009.  After the hearing, counsel for the applicant and respondents resolved, by consent, that paras 19, 20, 22 and 41 be struck out of Mr Buchan’s affidavit.  Counsel also agreed that para 18 be amended to delete the words “it became clear that” in the first line, and delete the words “attempting to cut costs across all its sites.  In particular, this was being achieved by” in the second line.  All other objections were withdrawn.

8                     It is in these altered circumstances that I will consider whether or not interlocutory relief ought be granted.

9                     The ABCC's written closing submissions, quite understandably, proceed on the footing that the principal issue before the Court was whether the strike action taken was “building industrial action” under s 36 which was unlawful under s 38 of the BCII Act.  The argument as to whether it was building industrial action focussed on whether the strike action, by the employees, or any of them was excluded from the definition of building industrial action under s 36(1)(g)(i) of the BCII Act in that this action over the relevant dayswas based on a reasonable concern by the employees or any of them about an imminent risk to their health or safety. 

10                  The respondents’ written opening submissions filed 16 July 2009 also proceed, implicitly, on this basis.  The respondents’ central submission was that they did not engage in unlawful industrial action contrary to s 38 of the BCII Act, because the actions of the employees in leaving the Site on the dates mentioned arose squarely from reasonable concerns over imminent risks to their health or safety.  The position taken by the respondents was no different during the course of the hearing.

11                  However, in their written closing submissions delivered to the Court registry late on 31 July 2009 the respondents now also put in issue whether building industrial action occurred, as defined in s 36(1)(c) and (d) and whether the respondents engaged in that building industrial action.

Background

12                  Before 21 April 2009, officials of the CFMEU were allowed access to the Site by Diploma without complying with the right of entry obligations under the Workplace Relations Act 1996 (Cth) (WR Act).  Also prior to that day, CFMEU officials did in fact access the Site regularly.

13                  Mr Buchan held a valid permit under s 740 of the WR Act, but it contained a condition that he not attend, or remain on a site in company with or in concert with Mr McDonald: Order of Australian Industrial Relations Commission dated 18 November 2008.   

14                  Mr McDonald held no permit under s 740 of the WR Act and hence had no greater authority to enter a site than a member of the public.  The CFMEU had been notified by the Diploma Guidelines that Mr McDonald’s entry would not be permitted at all.   

15                  The lawfulness of entry by either Mr McDonald or Mr Buchan is not essential to the ABCC’s application. 

16                  In the period from December 2008 through to June 2009, no industrial action had been taken for health or safety reasons.  This was despite the frequent attendance by Mr Buchan, the CFMEU organiser with responsibility for safety issues, and his view that certain difficulties had emerged at the beginning of 2009.

17                  On 21 April 2009, Diploma wrote to the CFMEU advising that Mr McDonald would no longer be allowed access to the Site, or to any Diploma sites.  The letter also confirmed that Diploma would thereafter adhere to a procedure that it called the “Rights of Entry to Comply with Federal Guidelines”.  The action by Diploma was in furtherance of Diploma’s application for Federal Accreditation.  The Implementation Guidelines for the National Code of Practice for the Construction Industry June 2006 require an employer to allow union access only in accordance with the governing procedures. 

18                  On the next day, 22 April 2009, a CFMEU official attended the Site, and recorded the visit as relating to health and safety.  This was the first visit that was expressly recorded as related to safety, but thereafter six were.    

19                  CFMEU officials subsequently made other Site visits, but nothing was of note until 5 June 2009 when Mr Buchan attended the Site and spoke to the employees.  The police were called, a Diploma representative told Mr Buchan to leave but he declined.  The police arrived, as did Mr McDonald.  The police took Mr Buchan and Mr McDonald to the boundary of the Site.  Shortly thereafter, employees other than Diploma’s employees and those working for Global Electrotech Pty Ltd left the Site and a three-day strike began.  There was a return to work on 9 June 2009. 

20                  Mr McDonald again attended the Site on 24 June 2009.  Mr McDonald met with and spoke to the employees.  A number of employees then went on strike for another two days on 24 and 25 June 2009, returning on 26 June 2009.  

21                  All of the stoppages, the respondents say, were for health and safety concerns on the part of the employees.

22                  It is trite that responsible union involvement in health and safety matters is in the interests of employees and in the public interest. 

23                  However, it has been recognised that the building and construction industry has in the past been afflicted by this use of purported health and safety issue to advance other causes.  This artifice seeksto portray unlawful conduct as lawful.    

24                  One legislative counter to this serious problem is thatthe onus of proof is reversed when health or safety is said to be the cause of building employees taking industrial action.  Section 36(1) of the BCII Act defines “building industrial action”.  Under s 36(1)(g)(i) action by an employee is not “building industrial action” if it is based on a reasonable concern by the employee about an imminent risk to his or her health or safety.  Section 36(2) of the BCII Act provides that whenever a person seeks to rely on paragraph (g) that person has the burden of proving that paragraph (g) applies.

25                  This is explained in the Revised Explanatory Memorandum to the Building and Construction Industry Improvement Bill 2005 (Cth) at para 5.134, which stated that the provision was included to prevent persons engaging in industrial action from avoiding responsibility for their actions by relying on spurious health and safety risks.  Subsection 36(2) of the BCII Act is designed to control both:

(a)        spurious claims of health and safety risks; and

(b)        claims of risks, whether valid or not, being spuriously alleged to be imminent risks to health and safety.

26                  The inference for which the ABCC contends is that the industrial action taken on 5, 6, 8, 24 and 25 June 2009 was based on two extraneous matters, not on health or safety, and certainly not on any concern about imminent risk to the health or safety of the employees on the Site.

Power to make interlocutory injunction

27                  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.

28                  Section 39(3) 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.

29                  Section 39(3) is in the same terms as s 80(4) of the Trade Practices Act 1974 (Cth).  In ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Lockhart J (with whom French J agreed) said at 256-7:

Subsections (4) and (5) of s 80 are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief.

. . .

In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly.

. . .

This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions.

Gummow J at 267 came to essentially the same conclusion.

Section 49 BCII Act

30                  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.  Subsection 49(6) defines an eligible person to make an application under s 49(1) and (3) to include the ABCC.  Thus, s 49(1) and s 49(3)(a) empower this Court on the present application, to make an interim injunction in relation to a person who has contravened s 38. 

31                  Section 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]. 

32                  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”.

33                  Significantly, as with subsection 39(3), subsection 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.

34                  Section 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that the court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

35                  The Court is required to make two main inquiries.  The first is whether the applicant has made outa prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held to be entitled to relief.  The second is whether the inconvenience or injury to the applicant if an injunction were refused outweighs or is outweighed by the injury the respondent would suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

36                  Gummow and Hayne JJ with whom Gleeson CJ and Crennan J agreed,in ABC v O’Neill 227 CLR 57 at [65] explained the application of “prima faciecase” as used inBeecham:

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

37                  Their Honours then referred to what was said in Beecham at 622:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

38                  The debate which had existed as to whether an applicant for interlocutory injunctive relief required to demonstrate a “prima facie” case, or a “serious question to be tried”, a phrase, derived from the speech of Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 407was resolved.  These expressions may be used interchangeably so long as their meaning is understood.  As their Honours said at [70]:

There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham, depends upon the considerations emphasised in Beecham.  

39                  An apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even.  A more dubious claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472.  The threshold for a serious question to be tried is not particularly onerous: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41, at [22].

40                  The evidence discloses that building work was being performed at the Site but that many employees failed or refused to attend for and perform building work on 5, 6, 8, 24 and 25 June 2009 and no employer authorised or agreed in advance and in writing to this industrial action.

41                  The ABCC requires, against this factual background, to demonstrate a prima facie case that “building industrial action” has occurred under s 36 and is unlawful under s 37 of the BCII Act, and that each ofthe respondents engaged in the unlawful industrial action for the purposes of s 38.  Whether there has been “building industrial action” depends, in part, upon whether the exception to action having that character is made out to the requisite degree by the respondents under s 36(1)(g)(i).

42                  In its application the ABCC alleges that the respondents contravened s 38 by reason of the employees’ involvement in the following building industrial action:

            (a)        a failure and refusal to attend for building work or a failure to perform any work at all after attending for work: s 36(1)(d);

            (b)        a ban, limitation and restriction on the performance of building work adopted in connection with an industrial dispute: s 36(1)(c).

43                  The respondents point to the fact that they are not the employees in question and did not fail or refuse to attend for building work and are therefore not capable of engaging in building industrial action.  They rely on Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375 at [26].

44                  It follows, they submit, that there is no cause of action against the respondents for engaging in building industrial action and, therefore, unlawful industrial action, in the manner alleged in paragraphs 1(a) and (b) of the Details of Claim in the application, and therefore no serious question to be tried in relation to those allegations.

45                  The respondents further contend that the application does not contain any reference to the accessorial provisions found in s 48(2) which treats persons involved in a contravention of a civil penalty provision as having contravened the provision.

46                  There is no merit in these submissions.

47                  The interlocutory relief sought is expressed as a restraint upon the respondents “being (first) engaged in or (second) involved in …” action by Diploma workers.  This language plainly enough exposes the ABCC’s characterisation of the bases of liability of the respondents.  The first is direct liability under s 38.  The second is accessorial liability under s 48(2).  The expression “Diploma workers” was defined in the application to include both employees of contractors together with employees of Diploma.  It seems, however, that no Diploma employees went on strike.

48                  The interim injunctive relief was couched using the same language.  The ABCC’s written submissions filed on 29 June 2009 at paras 35-38 disclose the alternative statutory bases for the relief sought.    

49                  Le Miere J in Leighton Contractors Ltd 164 IR 375 at [26] correctly stated that a defendant who was not a relevant employee and who did not fail or refuse to attend for building work is not capable of engaging in building industrial action with the definition in s 36(1)(d).  However, his Honour was not there considering accessorial liability under s 48(2).  This case does not assist the respondents.

50                  Section 38 of the BCII Act covers acts by persons other than employees. In Cahill v Construction, Forestry Mining and Energy Union (No 2) (2008) 170 FCR 357 at [49]-[57], Kenny J held that the words “a ban, limitation or restriction on the performance of building work” in paras (b) and (c) of the definition of “building industrial action” in the BCII Act covered the imposition of bans, limitations or restrictions by unions.  Arguably s 38 extends to union officers in a case such as this.  In any event the interlocutory injunction as against the CFMEU would, practically, be directed also at its employees, officers or agents.

51                  Further or alternatively, Mr McDonald and Mr Buchan and the CFMEU, are amenable to interlocutory injunctive ordersunder s 49 of the BCII Act by reason of the accessorial liability provisions of s 48(2) if a prima facie case is demonstrated that each aided, abetted, counselled or procured the contraventions by employees; or in the case of Mr McDonald and Mr Buchan that theywere also directly or indirectly knowingly concerned in or a party to those contraventions.

52                  It will be sufficient for present purposes in relation to Mr McDonald and Mr Buchan, as respondents, if in due course, I consider only the question of accessorial liability under s 48, which of course depends on primary liability, upon a prima facie basis, being established against the CFMEU.  

53                  The countervailing factual issues raised by the respondents who by reason of s 36(2) carry the evidentiary burden of whether, for the purposes of s 36(1)(g)(i) of the BCII Act, the industrial action was based on a reasonable concern by the employee(s) about an imminent risk to his or her health or safety.  These factual issues are whether:

(a)        the employee(s) did have a concern(s) about an imminent risk to health or safety;

(b)        the concern in each case was reasonable; and

(c)        the industrial action was "based on" that reasonable concern.

54                  The question is whether the respondents have established on a prima facie basis that by reason of the exception in s 36(1)(g)(i) the actions of the employees on those days did not constitute building industrial action.

55                  If the exception does not apply then the next question is whether, for the purposes of s 37, the building industrialaction in each case was unlawful industrial action.  I do not apprehend there to be any issue taken by the respondents on this question in the event that a prima facie case is made out that the action was building industrial action.

The evidence

5 June 2009

56                  On Friday 5 June 2009 at the Site, employees of several contractors stopped work.  The stoppage commenced at approximately 10.15 am when those employees left the site.

57                  The employees did not return to work that day.

58                  It seems to me very likely that at trial it will be established that the stoppage was initially instigated by Mr Buchan, who first addressed the employees at a“tool-box” meeting on the Site about safety on all Diploma sites although he did not mention specific safety concerns.  

59                  Mr Buchan says that, as he addressed them about “issues” on other Diploma sites, Wes Francis, the Diploma site manager suggested that the employees get a petition up.  This, says the respondents, amounts to a denial of the evidence of Mr Day that he heard Mr Buchan say “I am going to raise a petition for all of the Diploma sites with regards to general safety concerns and send it to John Norrup (a Diploma Director) …”.  I do not consider it to be a denial.  Mr Buchan does not expressly deny what he is alleged to have said but only that it was Francis who (first) raised it.  

60                  At this meeting only one safety related matter was raised by some employees.  It concerned the failure in the static pump line elbow which was part of equipment through which fluid concrete was pumped during concrete pours at the Site.  Mr Buchan described this as a serious safety incident.  It seems that there was a failure in the pump line elbow as a result of which a large piece of stone aggregate, approximately 50mm in diameter, shot out of the pump like a bullet and ended up 50 metres away hitting and damaging a window on the adjacent Woodside building.  This incident occurred on 26 May 2009.  Mr Buchan went to investigate the equipment with Wes Francis because he said concerns had been raised about signs of leakage of slurry on two other locations on the static pump line.  Leaks were noticed and Francis said he would make arrangements to check out the leaks.  Prior to this time, Mr Buchan said that he had a good rapport with Diploma management and that safety issues he had raised were addressedquickly.    

61                  Mr Day says that Mr Francis informed him that Mr Buchan, as he was leaving the Site, told the employees to come outside the gate for another meeting to vote on taking action to leave the Site for a three day period.  Mr Day’s recollection as to this matter was rather vague when cross-examined.   

62                  According to Mr Buchan, however, the employees had already left the Site by the time he got to the ground floor in the company of Mr McDonald, the police and Mr Francis.  

63                  There is a conflict in the evidence.  The mere fact that Mr Buchan was not cross-examined on his version is not determinative: Sullman v Sullman [2002] NSWSC 169; Kadian v Richards [2004] NSWSC 382 at [127].    

64                  Nonetheless I will, for present purposes, accept Mr McDonald’s evidence on this point, with some reluctance.  I say this because, according to Mr Buchan, at the end of the toolbox meeting, he went to the Site entrance.  He gave no evidence that any decision was taken at the toolbox meeting by the employees to walk off the Site nor does he say that he saw them do so when he was at the entrance.  If the employees had determined at the toolbox meeting to walk off the Site then Mr Buchan would have been able to testify to this and as to why such a decision had been made.  He did neither.  He would also have seen them leave the Site but he says nothing about that.

65                  I infer that the walk off by most of the employeeswas likely, in part, as a result of what Mr Buchan had earlier said to them at the toolbox meeting and that he, then and later,together with Mr McDonald were the catalysts for the employees’ decision on 5 June 2009 to strike.  It is most unlikely that there was a spontaneous walk out and subsequent strike action by the employees without that course first being discussed.  Mr Buchan’s silence on this matter is telling.  So also is Mr Buchan and Mr McDonald’s extraordinarily vague evidence as to what occurred at the off-site meeting.  

66                  Whether it was said at the toolbox meeting or at the off-Site meeting or both of these, it seems to me very probable that it will be established that Mr Buchan and Mr McDonald counselled or procured the employees to stop work for three days on 5, 6 and 8 June 2009.  None of the employees who stopped work returned on 6 or 8 June 2009.  That they did not do so is very likely because Mr Buchan and Mr McDonald had exhorted them, and they had agreed, to strike over those three days.  Were this not the case it is likely that the employees or at least some of them would have returned to work on 6 or 8 June but this did not occur.

67                  Mr McDonald, on his evidence, addressed the employees outside the Site gate.  Mr Buchan says that he also spoke to them.  According to Mr Buchan, he “saw McDonald talking to these workers”.  I infer that he also heard what Mr McDonald said but he gave no evidence as to what he heard.  He said that, for his part, he told the employees that the police had been called but that he was concerned with raising issues that had been raised at the toolbox meeting.  This evidence is not only vague, it is also ambiguous.  Was he saying that whilst on-Site, although the police were there, he was dealing with the static pump line elbow issue or that he again discussed this matter with the employees at the off-Site meeting.  I consider, in the context of his written evidence that it is probably the former. He then gave evidence thatthe employees “concerned about the safety issues” decided to stop work.  What occurred immediately prior to this was eventful.  Mr McDonald said that he attended the Site because he had been advised by a union member, whose name he could not recall, that Mr Buchan was being arrested at the Site.  He met some employees on the footpath outside the Site and was taken by one of them, whose name, again, Mr McDonald did not know, on to the Site.  They went eventually by the Alimak lift to the 8^th floor where he saw Mr Buchan with police officers and Diploma staff.  He then left the Site.  Mr McDonald’s written evidence, at para 12 of his affidavit, as to what occurred then, was:

Some workers had gathered outside the gate.  There was a brief discussion among these workers which I addressed. 

68                  The vagueness of this evidence tells against Mr McDonald.  He was fully aware, no doubt, from his solicitors and counsel that the case sought to be made against him by the ABCC is thathe had engaged in or was involved in unlawful industrial action by employees failing or refusing to attend work.  At the very least I would have expected him to say why he addressed the employees, what he said to them, what he heard Mr Buchan say to them, what any employees said whether a vote was taken and what was its result.  He did not do so.  I infer that the reason for this is that it would not have assisted his case or that of the other respondents.  This is particularly so when they each carried the evidentiary onus in respect to the s 36(1)(g)(i) exception and could otherwise have given evidence that they were not engaged or involved in the action.  The same criticism may be levelled against Mr Buchan. 

69                  The history of the industrial relations between employees at the Site and Diploma management underlines the significance of the involvement of Mr Buchan and Mr McDonald on and after 5 June 2009.  Employees on the Site had not stopped work for safety or other reasons prior to 5 June 2009.  The history in relation to safety concerns as I have identified discloses a co-operative and reasonable exchange between the workforce and Diploma management.  Safety issues were dealt with quickly.  There is no evidence of any particular employee(s) complaining to Diploma that safety issues were being ignored or flouted.  No employee was called by any of the respondents to give evidence that the employees or any of them had safety grievances either historically or on 5-8 June 2009 or later. 

70                  There is no evidence that any particular employee subjectively held a concern about imminent risk to his or her health or safety. 

71                  The concerns of Mr Buchan about the faulty static pump line, if they be attributed to the employees, are, on the evidence, spurious.  Diploma arranged to have the faulty static pump line inspected by Professional Concrete Pumping Services (“PCPS”).  The faulty pipe was replaced on 27 May 2009 the day following the incident concerned.  The remaining pipes were inspected to make sure none were faulty.  They were all in good working order.  The faulty pipe was returned to the manufacturers for investigation and report.  PCPS provided a report dated 8 June 2009 which confirmed what had been done. 

72                  There is no evidence from Mr Buchan or Mr McDonaldof any particular concern advanced by any employee on 5 June 2009 constituting any reasonable concern of any imminent risk to any employees’ health or safety.  

73                  Mr Buchan took numerous photographs at the Site on 5 June 2009.  They were adduced as objective evidence of imminent risks to the health or safety of employees.  He was cross-examined extensively as to these.

74                  At approximately 10.15 am on 5 June 2009, and after the employees had left the Site, Mr Day telephoned Mr Andy Watson, a safety consultant at Millenium Safetynet Services and instructed him to carry out a safety audit of the Site to ensure that there were no safety breaches.  Mr Watson attended the Site shortly after this to conduct an audit.  The Millenium Audit Review Report has a rating scale for the matters the subject of the report.  The rating scale is as follows:

75                  There was a column in the report opposite each line item containing a safety observation in the report under the heading “Achieved”.  It is in this column that the rating figure is found.  There were 109 separate observations contained in the report.  None of these achieved a rating of less than 2.  Ten observations had a rating of2.  All of the others achieved a rating of 4.  Accordingly, the vast majority of observations were in the category where no action was required and ten were in the category where attention was required within the next two days.  That would be within two days of 5 June 2009. 

6 June 2009

76                  The stoppage continued on 6 June 2009.  There is no evidence of any safety concern held by employees on that day.  The striking employees simply failed to attend for and perform building work.  Mr Buchan and Mr McDonald did not attend the Site on 6 June 2009 and their respective affidavits do not refer to 6 June 2009.

77                  Mr Buchan took no photographs of the Site on 6 June 2009.

8 June 2009

78                  On 8 June 2009 the stoppage continued.  The striking employees did not attend for work. 

79                  Mr Buchan returned to the Site on Monday 8 June 2009.  He says that he noticed mess and slurry which in his experience would be left by concrete cutters.  He said that on that morning one of the employees whose name he could not remember handed him a note with the heading “Issues for Monday’s Meeting”.  That note is in evidence and to the extent that reliance is placed on it by the respondents going to health and safety issues it contained the following:

·         Unsafe access for pedestrians in laneway when men working above (overhead protection needed);

·         Bins never emptied (needed to be done daily);

·         Clean floor (needed daily);

·         Clean and hygienic toilets for Level 4 (needed 4 weeks ago);

·         Site entry has always after concrete pour left messy (needs to be cleaned and dry).

80                  Mr Buchan says that on 8 June 2009, following an inspection by him at the Site in company with Mr Francis and Lisa Sherrell, the Diploma Occupational Health and Safety Representative, he gave a list of his site safety concerns to Ms Sherrell and completed a number of site safety improvement notices.  He did not specify what was on the list. 

81                  The first two notices were dated 5 June and the second two were dated 8 June 2009 although all of them were written by him on 8 June 2009.  I cannot accept that Mr Buchan considered that any of the matters, even if correct, constituted an imminent risk to the health or safety of the employees.  Had he thought this to be so he would not have waited till 8 June to call on Diploma to attend to these matters.  He would also have deposed in his evidence that the alleged safety issues had this serious and urgent character, but he did not do so.  They contained the following:

Site Safety Improvement Advice 0236

·         area around man and material hoist risk from slips, trips, falls due to the concrete slurry from concrete coring and pumping;

·         open holes through ground level slab risk from material falling to basement below - penetrations not securely covered;

·         water on ground level increasing risk from slips and trips also restricting general movement around the area;

·         open penetrations central service duct next to lift shaft several level

·         noise hazards brick saw operating next to window crew;

·         build-up of rubbish - full bins several levels;

·         electrical lead running along ground through water.

Site Safety Improvement Advice 0237

·         Public protection traffic management - Risk to public with insufficient labour controlling public when cranes and trucks are being set up and operating on Hay Street i.e. spotters controlling public during crane lifts;

·         Failure of static concrete pump. Leaking on 2 bends incident earlier which narrowly missed worker and aggregate from concrete striking Woodside tower window;

·         Poor cleanliness and hygiene of toilets, washrooms and lunchrooms;

·         increase risk from falls when working on ladder next to lift shaft opening when not fully covered over.

Site Safety Improvement Advice 0238

·         unsafe access for pedestrians in lane way when men working above;

·         evacuation siren;

·         no access to alimak from shed when concrete is being placed;

·         no cleaning and poor hygiene to toilets - level 4;

·         no trade coordination - workers working on top of each other;

·         site entry has always been left messy, slippery increasing risks from slips and trips;

·         Engineer sign off for penetration above sub-station;

·         JSA's with overlapping of trades to be identified and controlled.

Site Safety Improvement Advice 0239

·         hygiene issue with state of toilets, state of vinyl, floors, edge strip missing from doors, dirty walls;

·         power boards non compliant with AS 3012-2003;

·         many fire extinguishers missing or empty;

·         use of single lift bags - multiple times;

·         open lift shaft entries not fully boarded out;

·         riserline concrete line supported by prop on join clamp;

·         some unsecure penetrations;

·         concern with static pump line leaks;

·         additional bins required. All bins full on all levels.

The Alimak and the Preston Deck issue

82                  Mr Buchan says that he was advised by an employee at the Site, whose name he did not know, that on 22 June and 23 June 2009 there were two further serious “near misses” at the Site involving the Alimak crane and the Preston Deck.  It became apparent in his cross-examination that he was confused about the actual dates.  Eventually he conceded the correct dates were Saturday 20^th and Monday 22^nd June.  He does not depose to when he was told this but I infer that it was probably on 23 June.  Certainly when Mr McDonald attended at the Site on 24 June it was a matter which he raised with Mr Day.   

24 June 2009

83                  Mr Buchan did not attend the Site on 24 June 2009 but Mr McDonald did so at approximately 6.00 am on that day.  He said that there were employees gathered outside the Site and that he began a discussion with them about safety issues on the Site.  He spoke later to Mr Day who, he says, asked him what the issues were.

84                  Mr McDonald says that he told Mr Day that employees had legitimate safety concerns regarding Diploma’s management of the site and these concerns were not being addressed.  He says that he told him about the Alimak being unsafe, problems with the cranes and safety concerns arising as a result of Diploma requiring the employees to pour concrete when it was dark.

85                  According to Mr Day the relevant discussion he had with Mr McDonald was as follows:

McDonald:        “You have safety issues.”

Me:                  “What are they?”

McDonald:        “The Alimak and the concrete pour.”

Me:                  “Can you be more specific?”

McDonald:        “You know what they are.  The crane and the Alimak and you have had the concrete pourers working to 7.30pm on the concrete pour.”

Me:                  “With regards to the Alimak, its all been dealt with and its all been resolved.  With regards to the concrete pour, I have had no complaints and I will look into it.”

86                  The Alimak was a temporary lift system attached to the outside of the building under construction.  It was used to take employees and others as well as materialsto the different floors of the building.

87                  The safety issue involved a crane load coming within two meters of the Alimak while it was in operation.  This occurred on 20 and 22 June 2009. Work stopped immediately and the issue was resolved on Monday, 22 June 2009 following a meeting between Diploma and the CFMEU.  The outcome of the meeting was to revise the applicable JSA (Job Safety Analysis) in consultation with Mr Buchan and with advice from Millenium and to re-induct all the applicable employees.  The Alimak was closed until this process had taken place.  Mr Buchan did not object to the new JSA. 

88                  Mr Day said that following his discussion with Mr McDonald, he spoke to Telfer Bowman of D & Z Constructions Pty Ltd by phone and asked him about the concrete pour.  Mr Bowman told him that he knew nothing about it, but would ring him back.

89                  Shortly after, Mr Bowman rang him back and advised him that he had spoken to the concreters who had said that they were not unhappy working the duration of the pour, but said that when they had finished the pour someone had turned off the temporary lights in the temporary stairwell.

90                  In response to this concern, Diploma put secondary lights on the temporary stairwell so that if the temporary lights were turned off, the secondary lights would still remain on for employees leaving the Site.

91                  Mr McDonald says that he recalled Mr Day saying the safety issues were being dealt with and that he would look into any other safety issues the employees raised.  Despite this, after being addressed by Mr McDonald certain of the employees again took strike action.

25 June 2009

92                  Mr Buchan says that on the 25 June 2009 he arrived at the Site around 7.00 am.  The employees were all standing outside the gate and he says that he recommended to them that they should go back to work and give Diploma another chance to improve safety on the Site as senior management made a commitment to improve site conditions.  He said however that the employees voted to remain off the job except for anyone who was required to make the area safer.  He said the entry to the Site was still under water although much had been done which, in his view, went a long way to making the Site safer.  He went for a walk around 2.00 pm through the Site and was satisfied that the Site was ready for the following morning.

93                  Mr Buchan was not cross-examined as to this evidence and I will, for present purposes, accept it as correct.  However I do so again reluctantly given what occurred the following day.

94                  It is no mere coincidence that the work stoppages on 5, 6, 8 and 24 June were immediately associated with, and in my view, it is highly probable that they were the result of the attendance at the Site and what was said to the employees variously across those days by Mr Buchan and Mr McDonald.

95                  No photographs were taken on 24 or 25 June 2009. 

96                  There is no evidence of any subjective concern by any employee or any objective evidence about any imminent risk to their health or safety being present on either24 or 25 June 2009. 

26 June 2009

97                  Mr Buchan arrived at the Site on 26 June 2009 when he checked the lighting with an employee, Mr John Kuljis, from the top of the job down.  He said it was agreed, although not between whom, that several areas were identified which required additional lighting but apart from this issue and one or two other minor matters the safety issues had been adequately addressed by Diploma.  He said that there was a short Site meeting off-site and the employees returned to work.  

Building industrial action

98                  Section 36(1) of the BCII Act does not make any provision as to liability. It merely defines “building industrial action”.  Liability is under s 38 of the BCII Act.  It provides that a person must not “engage” in unlawful industrial action.

99                  Section 36(1) relevantly provides: 

(1)        In this Chapter, unless the contrary intention appears:

            “building industrial action” means:

            (a)        …

            (b)        …

            (c)        a ban, limitation or restriction on the performance of building work, … in connection with an industrial dispute (within the meaning of subsection (4)); or

            (d)        a failure or refusal by persons to attend for building work or a failure or refusal to perform any work at all by persons who attend for building work;

            but does not include:

            (e)        …

            (f)        …

            (g)        action by an employee if:

                        (i)         the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and

                        (ii)        …

            “constitutionally-connected action” means building industrial action that satisfies at least one of the following conditions:

            (a)        …

            (b)        the action … adversely affects a constitutional corporation in its capacity as a building industry participant;

            …

            “excluded action” means building industrial action that is protected industrial action (as affected by Part 3 of this Chapter).

            “industrially-motivated” means motivated by one or more of the following purposes, or by purposes that include one or more of the following purposes:

            (a)        …

            (b)        …

            (c)        advancing industrial objectives of an industrial association;

            (d)        disrupting the performance of work.

            . . .

100               There is no issue that most employees failed or refused to perform any work on the several days alleged in June 2009.  It is not necessary to identify which is the apposite limb under s 36(1)(d) in the case of each day.  Nor do I think there to be a serious issue that there was a ban on the performance of building work on those days.

101               The sufficient enquiry for present purposes in the cases of Mr Buchan and Mr McDonald, as I earlier observed, is whether there is a prima facie case that by their conduct, they attract accessorial liability under s 48(2).  Section 48(2) relevantly provides:

(2)   For the purposes of this Part, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. For this purpose, a person is involved in a contravention of a civil penalty provision if, and only if, the person:

       (a)     has aided, abetted, counselled or procured the contravention; or

       (b)     has induced the contravention, whether by threats or promises or otherwise; or

       (c)     has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

       (d)     has conspired with others to effect the contravention.

102               Mr Buchan and Mr McDonald addressed the employees concerned who shortly thereafter took industrial action by failing or refusing to work on 5, 6 and 8 June 2009.  Mr McDonald addressed them on 24 June and Mr Buchan on 25 June 2009.

103               I find that in respect to the strike action taken on 5, 6 and 8 June 2009 there is a prima facie case that Mr Buchan aided and abetted, counselled or procured a ban, limitation or restriction on the performance of building work: (ss 48(2)(a) and 36(1)(c)) and/or a failure or refusal by the employees to attend for building work or a failure or refusal to perform any work at all by the employees who had attended for building work (s 36(1)(d)). 

104               By s 69(1)(b) and (3), the conduct of each of Mr Buchan and Mr McDonaldis taken to be the conduct of the CFMEU for all purposes of the BCII Act, unless a committee of management or a person authorised by the committee or an officer of the CFMEUtook reasonable steps to prevent Mr Buchan’s and Mr McDonald’s actions: s 69(2).

105               There is no evidence that such reasonable steps were taken.  Mr McDonald was in company with Mr Buchan on 5 June 2009immediately before the three daystoppage, yet that stoppage occurred.  Mr McDonald is an Assistant Secretary of the CFMEU, and superior to Mr Buchan in the CFMEU.  Each of them addressed the employees.  I infer that Mr McDonald took no steps to prevent Mr Buchan’s action on that day.  Indeed, to the contrary, I consider there to be a prima facie case established in the case of Mr McDonald to the same effect as in relation to Mr Buchan in respect to the 5, 6, 8 and additionally, in respect to 24 June 2009.  There is no evidence that any steps, reasonable or otherwise, for the purposes of s 69(2) were taken to prevent Mr Buchan or Mr McDonald’s actions.

106               Accordingly, I find that a prima facie case has been established that the CFMEU, by the actions of Mr Buchan and Mr McDonald, contravened s 38 of the BCII Act on 5, 6, 8 and 24 June 2009 but not on 25 June 2009.

107               These findings depends on the related finding, which I make, that the ABCC has made out a prima facie case that the industrial action taken by the employees was building industrial action under s 36(1).  In so finding I reject the respondents’ submissions that it has established a prima facie case that the health and safety exception under s 36(1)(g)(i) has been established.  I do so for the following reasons. 

108               Section 36(1)(g)(i) requires that the action taken was based on reasonable concern about imminent risk to health or safety.  There is accordingly a necessary direct relationship between the concern and the action taken. 

Reasonable concern

109               In Ranger Uranium Mines Pty Ltd v Federated Miscellaneous Workers’ Union Of Australia (1987) 54 NTR 6 at 9, Nader J of the Supreme Court of the Northern Territory outlined the followingfactors relevant to a determination of whether action taken by the respondent Union was justified.  Ranger had sued for alleged economic torts.  The union said its conduct was justified because its motivating purpose was the protection and promotion of the safety of the workers.  His Honour outlined the following factors:

(a)        How seriously did the situation threaten health and safety?

(b)        What efforts had been made in the past by the workers (or others to their knowledge) to eliminate that risk?

(c)        What response has the employer made to reduce the risk?

(d)        Is the issue genuine or is it a pretext to further a less worthy objective?

(e)        What other methods, if any, were available to the defendants to achieve such "less worthy objective?"

110               This approach to justification is a useful, if imprecise, analogue for whether action taken in this case was “based on a reasonable concern” under s 36(1)(g)(i).  Munro J in AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) at [45] thought it to be so in respect to a predecessor provision namely s 124 of the Industrial Relations Act 1988 (Cth).

111               In Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272, Vice President Justice Walton considered whether, under s 143(5) of the Industrial Relations Act 1996 (NSW), a strike was based on a reasonable concern for health and safety of employees.  There was no requirement for the concern for health and safety to be an imminent risk.  Nonetheless his Honour considered the concepts of “imminence”, “seriousness”, “proportionality” and “justification” which would be relevant to the exercise of the Court’s discretion:  

(a)        Whether it is a “reasonable” concern involves an objective assessment of the nature of that concern;

(b)        A concern may be reasonable so long as it is not fanciful, illogical or irrational at the time the concern arises, without the benefit of hindsight and the knowledge of whether a real risk does in fact exist;

(c)        There is no need to establish that an actual risk existed at the time;

(d)        The reasonableness must be assessed from the perspective of an ordinary and reasonable person in the position of the employees involved at the relevant time;

(e)        The reasonable concern must continue during all times that the relevant industrial action is occurring; and

(f)        Previous incidents, occurrences or beliefs may be relevant to a basis for a concern for health or safety in the circumstances.

112               Accordingly the issue is not whether certain matters did in fact constitute a risk to health or safety, but rather whether any employee reasonably held a concern about an imminent risk to their health or safety.

113               The applicant accepts, correctly in my view, that an employee may have a concern even though his or her concern arose only from something communicated by a union official.  However, such a concern must still be objectively reasonable.  It will not be reasonable merely because it was raised by a union official.

Imminent

114               The word “imminent”, in this context, means “likely to occur at any moment”: Macquarie Dictionary Online 2009.  The concept of imminence describes the risk to the employees’ health or safety.  Accordingly, the probability of risk eventuating such that the employee is likely to be harmed or placed in an unsafe position requires to be considered.   

115               Even where a building site conforms to legislative or industry standards, there will always exist risks to health or safety.  The question however is whether there exists an "imminent risk" to health or safety for the purposes of s 36 of the BCII Act.

116               The ABCC submits thatnone of the alleged risks was higher than a bare possibility of harm and that none qualifies as "imminent" at the time the industrial action occurred on the Site.

117               The ABCC argues thatonly two risks in evidence could have arguably constituted an “imminent risk” for the purposes of industrial action: the static line elbow rupture on 26 May 2009; and the crane load proximity to the Alimak hoist on 20 and 22 June 2009.  As I set out in some detail above the concrete pumping was stopped when the static line elbow rupture was noticed.  The elbow was replaced and the problem was investigated.  In the case of the Alimak work was stopped immediately when the incident concerning the crane load proximity to the Alimak occurred and the issue was resolved on 22 June 2009.  Accordingly, these two incidents were resolved by Diploma and thereafter did not constitute any continuing imminent risks to any employee’s health or safety.

118               On the days that these separate incidents occurred, there was no general stoppage of all work on the Site.  Rather, both reasonably and responsibly,there was an immediate and focussed response by Diploma to the particular risks which had been raised. 

119               The allegations in respect of 5 June 2009 in my opinion, even if established at trial, do not constitute evidence of any “imminent risk” to any employee’s health or safety.  In relation to these issues, there is, as I have noted, no evidence of a complaint being made by any employee to Diploma or to an occupational, health and safety representative about the matters raised by the respondents.  If there was in fact a bona fide safety concern about these issues, it would, it seems to me, have been reported as appears to have been what occurred historically.  The respondents have not made out a prima facie case that the actions taken on that day were based on a reasonable concern on the part of any of the employees as to an imminent risk to their or any employees, health or safety.

120               There was no concrete pour on 5, 6 or 8 June 2009 for which any replacement static pump line elbow could present an imminent risk to an employee’s health or safety.

121               None of the employees nor any of the respondents attended the Site on 6 June to check as to whether any “risks” existed.  All the issues identified by Millenium were, on the evidence of Mr Day, fixed within 24 hours.  None of these in any event constituted an imminent risk to any employee’s health or safety. 

122               The evidence does not disclose that any employee had even arguably a reasonable concern as toany imminent risk to their health or safety on 6 June 2009.

123               The photographs taken by Mr Buchan on 5 and 8 June do not, in my view, raise a prima facie case that there was any reasonable concern as to an imminent risk to the health or safety of any employee.  I set out more fully my reasons for so concluding below. 

124               Any safety issues that were present on the Site on 8 June 2009, that were not on the Site on the morning of 5 June 2009, are incapable of constituting a basis for the industrial action that commenced on 5 June 2009 and continued on to 6 June 2009. 

125               Any safety issues that were present on the Site on 8 June 2009, that were not present on the Site on the morning of 5 June 2009, are also incapable of constituting a basis for industrial action on 8 June 2009.  The employees in question were still on strike.  Despite the content of Mr Buchan’s list which he completed following his site inspection and which he gave to Ms Sherrell on 8 June and the content of the Site Safety Improvement Advices dated 5 and 8 June 2009 prepared on 8 June by him he, nonetheless according to Mr Day, told Mr Day that the employees would return on Tuesday being 9 June 2009.  This was not contradicted by Mr Buchan or challenged during cross-examination of Mr Day.  Mr Buchan said thisto Mr Day before any remedial action had taken place in respect of the list of safety concerns or the Site Safety Improvement Advice.  Indeed, on the following day, 9 June 2009, the employees returned to work and only then, after the employees returned to work on 9 June 2009, did Mr Buchan address the employees.  Despite the content of the Improvement Advices and what was depicted in the photographs which Mr Buchan had taken the day before no such strike action occurred on 9 June.

126               I infer that it is likely Mr Buchan knew that the employees would return to work on 9 June because this is what had been discussed and agreed to at the meetings with the employees on 5 June.

127               There is a great deal of evidence, particularly from Mr Day, refuting what was said to be represented in some 38 photographs taken by Mr Buchan on 5 June 2009 and 8 June 2009 and grouped under sheets described as “Safety Observations”.  These were the subject of lengthy and detailed closing written submissions by the ABCC which contends that whatever the photographs depict they do not individually or in combination constitute evidence of imminent risks to the employees’ health or safety at the Site on those days. 

128               The respondents, in light of what they characterise as the acceptance by the ABCC that it is open for the Court to conclude that there is a serious question to be tried about whether the action taken by the employees falls within the exception to building industrial action contained in s 36(1)(g) of the Act, expressly declined to make submissions to address the evidence of Mr Day regarding his interpretation of the photographs taken by Mr Buchan, or to address the ABCC’s closing submissions in respect to these.

129               In fact the ABCC has variously submitted that the issue under s 36(1)(g)(i) as to the alleged reasonable concerns as to health and safety ought now be determined.  The ABCC submits that there is extensive evidence by affidavits, photographs and the parole evidence of Mr Day, who was cross-examined on this aspect of his evidence, to justify this course.  The evidentiary onus is upon the respondents in this respect.  They introduced the photographs and placed central reliance upon s 36(1)(g)(i). 

130               Mr Day’s explanation in his evidence-in-chief concerning the photographs persuades me that none of them constitute evidence of any imminent risk to health or safety.  The respondents have not made out a prima facie case in this respect.

131               The Improvement Advices issued by the CFMEU to Diploma on 8 June 2009 are all in the form “You are advised to address the following matters...”.  None are in the form of “work must cease until the following matters are addressed...”.

132               Accordingly, these Improvement Advices do not show that employees had a reasonable concern for an imminent risk to their health or safety. Nor do they show that the industrial action was based on such concerns.  They tend to show the opposite.

133               Two of these Improvement Advices were issued on 8 June 2009 but backdated to 5 June 2009. This calls into question why the respondents did not issue Improvement Advices to Diploma on 5 June 2009.  The appropriate inference is that there was no concern, reasonable or otherwise, as to any imminent risk to the health or safety of any employee. 

134               I am satisfied that the respondents have not made out a prima facie case that there was anyconcern by any employee about an imminent risk to their health or safety on 8 June 2009.

135               The evidence is that the Alimak incidents on 20 and 22 June 2009 were raised by employees both with Diploma and with the CFMEU.  However, there is no evidence that any employee held any concern about the incidents of 20 and 22 June 2009 on the days of the industrial action which occurred on 24 and 25 June 2009.  The only evidence is that the problem was resolved immediately, and that Mr Buchan was involved in that resolution.  Mr Buchan had access to Mr Day’s affidavit, but has not contradicted this evidence.  Mr Day was not cross-examined on this evidence and his evidence for present purposes should be accepted.  Mr McDonald said that he told Mr Day on 24 June that the Alimak was unsafe.  He does not say why he considered it unsafe.  He did not, for example, say that the Alimak was by design or mechanical failure or otherwise inherently unsafe.  I note that this is the same Alimak lift which Mr McDonald used on 5 June to take him to the 8^th floor of the building at the Site.

136               The issue of the lighting on the Site was also resolved by Diploma.  This issue did not form part of Mr McDonald’s reasons for attending the Site on 24 June 2009.  In any event, there was no concrete pour on 24 June 2009.  It could not have constituted an imminent risk to the health or safety of any employee.

137               Again I find that the respondents have failed to establish a prima facie case in relation to the exception in s 36(1)(g)(i) as to any reasonableconcern by any employee about an imminent risk to their health or safety on 24 and 25 June 2009.

Unlawful industrial action

138               I am satisfied that a prima facie case has been established that the strike action on the days in question constituted building industrial action.  I am also satisfied, for the following reasons, that a prima facie case has been established that the building industrial action was unlawful industrial action for the purposes of s 37. 

139               Section 37 is in these terms:

37        Definitionof unlawful industrial action

            Building industrial action is unlawful industrial action if:

            (a)        the action is industrially-motivated; and

            (b)        the action is constitutionally-connected action; and

            (c)        the action is not excluded action.

140               The expressions “industrially motivated”, “constitutionally-connected action” and “excluded action” are defined in s 36.

141               It is very probable thatthe industrial action was for the purposes ofs 36 of the BCII Act “industrially motivated”, such purposes including the disruption of the performance of work.  It was arguably also to advance the industrial objectives of the CFMEU.  

142               Diploma is a constitutional corporation in that it is a trading corporation carrying out the construction of buildings for profit under commercial contracts with landowners.  The industrial action taken has, without question, adversely affected it.  Thus this industrial action is “constitutionally connected action” under s 36 of the BCII Act.

143               It is not suggested that the industrial action was “excluded action” pursuant to s 36 of the BCII Act and I find that it was not such action.

The real reasons for the strikes

144               The ABCC submits that I should find a prima facie case, by inference, that the real reasons why the strikes occurred were because Diploma involved the police in having Mr McDonald and Mr Buchan removed from the Site on 5 June 2009 and because they were a response to Diploma’s actions taken, advice of which was given to CFMEU on 21 April 2009, that Mr McDonald would no longer be allowed access to the Site or to any Diploma Site and that, in order to gain Federal Accreditation Diploma would require adherence by the CFMEU to Diploma’s Guidelines.  These reasons may well have been the motivation behind the strikes.  It is unnecessary that I form a view as to this even on a prima facie basis.  It is enough that I have concluded that there is a prima facie case established by the ABCC that the respondents engaged in unlawful industrial action.  Whatever the real reasons I am satisfied to the necessary degree that they had nothing to do with any reasonable concern as to any imminent danger to the health or safety of any employee on the Site.

145               It is of particular concern that the CFMEU, Mr McDonald and Mr Buchan have, as I have found on a prima facie basis, hidden behind spurious concerns as to the health and safety of employees to advance, as I infer, their own unspecifiedindustrial aims.  It is the very behaviour which the Commonwealth Parliament has made clear should be eradicated from the building industry in this country.  It is conduct that directly undermines the main object of the BCII Act (s 3(1)) which 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. 

146               In particular it undermines the legislations expressed means of achieving this object which include promoting respect for the rule of law; ensuring respect for the rights of building industry participants; and improving occupational health and safety in building work: s 3(2). 

147               I am satisfied for the above reasons not only that the ABCC has established a prima facie case for the relief sought but that it has a very strong case, on the evidence before me, for that relief.

Balance of convenience

148               The ABCC points to three matters to support its contention that the balance of convenience favours the grant of interlocutory injunctive relief.  These are:

(a)        A danger of repetition of the unlawful building industrial action, subject to s 39(3)(a) of the BCII Act;

(b)        A danger of damage "to any person" (i.e. not merely to Diploma) from further industrial action, subject to s 39(3)(c) of the BCII Act; and

(c)        No or little prejudice to the respondents.

Danger of repetition

149               This Court may grant injunctive relief under s 39 and its power to do so may, under s 39(3)(a), be exercised whether or not it appears that the respondents intend to engage again in the relevant conduct.  The question of repetition is nonetheless of relevance to the exercise of the discretion, but the relevance is set in the particular context of public interest injunctions, as distinct from those related to private proprietary interests: ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 256/7 per Lockhart J; 267 per Gummow J; 268 per French J.  The Court is inclined to grant an injunction in cases of statutory injunctions in the public interest where there has been unlawful conduct, in order to add contempt to the disincentives for repetition: per French J at 268 where his Honour said:

There is room … for an injunction that is intended not to restrain an apprehended repetition of contravening conduct but to deter an offender from repeating the offence.  That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court.

150               In this case, a prima facie case has been established of contraventions which have already occurred twice over a combined period of 4 days.  

Danger of damage "to any person"

151               On each of the days that industrial action occurred, the evidence is that the following persons suffered damage or were exposed to damage:

(a)        5, 6 and 8 June 2009 - Diploma, Commercial Tiling Services Pty Ltd, Action Interiors Pty Ltd, Firesafe Systems Pty Ltd, Planet Plumbing (WA) Pty Ltd, Triple M Mechanical Services WA Pty Ltd, Micos Curtain Wall Australia Pty Ltd, D & Z Constructions, Ward Post Tensioning Pty Ltd, and Betta Bricklaying (WA) Pty Ltd.

(b)        24 June 2009 - Diploma, Micos Curtain Wall Australia Pty Ltd, D & Z Construction, Ward Post Tensioning Pty Ltd, and Betta Bricklaying Pty Ltd.

(c)        25 June 2009 - Diploma, Traditional Scaffolders Pty Ltd, Micos Curtain Wall Australia Pty Ltd, D & Z Construction, Ward Post Tensioning Pty Ltd, and Betta Bricklaying (WA) Pty Ltd.

152               There may well have been others including suppliers to the project such as concrete batchers and truck deliverers who may have suffered or been exposed todamage.

153               In any event this application for an interlocutory injunction does not engage the adequacy of damages test set out in American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408.  That test applies where the injunction is to restrain interference with a legal right of the plaintiff.  The ABCC’s application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply.  It is not in respect of any interference with anylegal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations 38 FCR 248 per French J at [268].

No prejudice to the respondents

154               No injunction is sought against any employee.  Each is free to take industrial action if reasonably concerned about an imminent risk to his or her health or safety.  Only the CFMEU and its officers are to be enjoined.  Even thenthe conduct to be enjoined is unlawful conduct.  There is, accordingly, no prejudice to the respondents.

155               For these reasons the balance of convenience strongly leans toward the grant of the interlocutory relief sought.

156               I am satisfied that interlocutory injunctive relief ought be made against each of the respondents.  Section 49(1) and (3) of the BCII Act are a sufficient source of power in this case.

157               I do not consider that the potential pecuniary penalties under s 49(1)(a) or payment of compensation for damage under s 49(1)(b) ought stand in the way of this relief.  There are important public policy considerations involved which extend beyond relief of that kind.  The sanctions available for contempt provide a strong disincentive to the repetition of such further conduct.

158               I will defer the making of actual orders as the respondents have indicated that they wished to be heard on the form of these should the Court be minded to grant interlocutory injunctive relief.

Associate:

Dated:         29 September 2009