FEDERAL COURT OF AUSTRALIA

United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro [2010] FCA 22

THE COURT ORDERS THAT:

1          Upon the applicants giving the usual undertaking as to damages, until 5.00 pm on 5 February 2010, pursuant to s 39 and/or s 49(1)(c) of the Building and Construction Industry Improvement Act 2005 (Cth) each respondent is restrained from:

(a)        engaging in or being a party to or in any way associated with or otherwise involved in any of the following actions in relation to building work on the Pluto LNG Project at Burrup Peninsula (Project):

(i)         failing or refusing to attend work on the Project or failing or refusing to accept or perform work on the Project at all;

(ii)        performing work on the Project otherwise than in accordance with the terms of his employment contract;

(iii)       performing work on the Project in a manner different from that in which it is customarily performed, or adopting any practice in relation to work on the project, the result of which is a restriction or limitation on, or a delay in, the performance of that work;

except where such actions:

(i)         are authorised or agreed to by the respondent’s employer; or

(ii)        are based upon the respondent’s reasonable concern about an imminent risk to the respondent’s health or safety and the respondent has not unreasonably failed to comply with the directions of the respondent’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the respondent to perform;

(b)        interfering with or in any way disrupting the performance of work on the Project by any of the following means:

(i)         imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in any bans, limitations, restrictions or delays on the performance of work or the acceptance of work by any of the applicants’ other employees to be performed under their terms of employment or in a manner which work is customarily performed with the applicants; and

(ii)        imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in the taking of days off by any of the applicants’ other employees otherwise than in accordance with rosters specified by the industrial instruments and employment contracts regulating their employment with the applicants.

2          Any person affected by the restraints imposed by the injunctive relief has liberty to apply on 48 hours written or electronic notice to the applicants or the Australian Building and Construction Commission.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          On the applicants’ urgent application for interim injunctive relief, I made orders that are published herewith.  These are my short reasons for doing so.

2                          The applicants seek interim injunctive relief against the respondents as a result of the respondents’ allegedly unlawful industrial action.  That action is said to be in contravention of the Woodside Pluto LNG Project 2009 No. 2 Order of Fair Work Australia dated 23 January 2010, the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and the Fair Work Act 2009 (Cth).  Fair Work Australia is the national workplace relations tribunal established under the Fair Work Act. 

3                          I gave the Australian Building and Construction Commissioner leave to intervene.  Leave was unopposed.  The Commissioner supported the case of the applicants. 

4                          The application is supported by undertakings as to damages filed by all applicants.

5                          The application is also supported by affidavits.  The evidence of Mr Colin Milne, Industrial Relations Consultant, discloses the following matters:

6                          The applicants are building contractors.  They are also 'constitutional corporations'  and have been engaged to carry out the construction of the Pluto LNG Project at Burrup Peninsular (the Project), currently the biggest construction project in the North West of Western Australia.

7                          The respondents are building workers employed by the applicants (or in the case of the thirteenth applicant, employed by its subcontractors) in connection with the construction of the Project.

8                          Employees who work on the Project are required to work under rosters cycles which are 4 weeks on, 1 week off; 5 weeks on, 1 week off; or 6 weeks on, 1 week off.  The employees generally work 10 hour days, Monday to Saturday, on two shifts;

·          commencing at 6.30am and ending at 5.00pm each day; and

·          commencing at 6.30pm and ending at 4.30am each day.

9                          During the period employees are rostered to work on the Project site, they are accommodated at either Gap Ridge Village, Searipple Village or in their own accommodation.

10                        The applicants engage their construction workforce on the Project site under industrial instruments pursuant to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

DECEMBER 2009 INDUSTRIAL ACTION

11                        On or about 27 November 2009, according to Mr Milne, employees on the Project were advised that, effective 4 January 2010, all accommodation at Gap Ridge Village would be managed on a 'Motelling' basis (the Accommodation Changes).  The Accommodation Changes resulted from an acute shortage of accommodation on the Project and were made at a Project level (that is, the decision affected all contractors who use the Gap Ridge Village accommodation).

12                        On 1 December 2009 and 2 December 2009, almost all of the employees on the Project who were rostered to work failed to present for work in protest over the Accommodation Changes (the December 2009 Unlawful Industrial Action).

13                        On 2 December 2009, orders were made in respect of the December 2009 Unlawful Industrial Action by Deputy President McCarthy of Fair Work Australia (FWAB) for the employees of the first applicant to return to work, such orders to remain in force until 18 January 2010.

JANUARY 2010 INDUSTRIAL ACTION

14                        On 21 January 2010, further information was provided to workers by Foster Wheeler WorleyParsons on the ‘motelling’ basis of accommodation.

15                        On 22 January 2010 and 23 January 2010, almost all of the employees on the Project who were rostered to work failed to present for work in protest over the Accommodation Changes (the January 2010 Unlawful Industrial Action).

16                        On 23 January 2010, orders were made (effective midnight on 24 January 2010) in respect of the January 2010 Unlawful Industrial Action by Commissioner Cloghan of FWA for employees of the Applicants (other than the Thirteenth Applicant) who were union members to return to work, such orders to remain in force until 28 February 2010.

CURRENT INDUSTRIAL ACTION

17                        On 25 January 2010, almost all of the employees on the Project who were rostered to work failed to present for work in protest over the Accommodation Changes (the Current Unlawful Industrial Action).

18                        On 26 January 2010, there was scheduled work to be performed (despite the public holiday).  Once again, most employees who were required to work failed to present for work.

19                        On 26 January 2010, the local union organisers for the Project were contacted and advised of the proposed urgent application to this Court.  The unions were also requested to inform their members of the applicants’ intention to seek the urgent relief.  The unions requested they be kept informed but did not wish to be heard on the application.

20                        On 27 January 2010, employees on the Project held a meeting in the car park at the Project site commencing at 6.30am and resolved to continue to take industrial action until at least 30 January 2010.

21                        On 27 January 2010, almost all of the employees who were rostered to work failed to present for work.

EFFECT OF INDUSTRIAL ACTION

22                        Mr Milne believes that further industrial action on the Project by the respondents is probable, given the on‑going implementation of the Accommodation Changes over the next 2 months.

23                        He believes the alleged impact of the industrial action on the Project is significant, totalling well in excess of $500,000 per day.  These losses arise from:

(a)        delay to the current construction program, which ultimately could affect the completion date for the Project;

(b)        the costs of having machinery, plant and equipment and general site infrastructure available but not being effectively utilised;

(c)        the loss of a percentage of workers who resign due to the industrial action and have to be replaced.  There is already a shortage of adequately qualified workers in certain positions and therefore some workers who choose to resign to avoid the industrial action will be very difficult to replace;

(d)        significant accommodation costs while no productive work is being carried out (approximately $90 per night, per employee); and

(e)        the costs of additional security on site.

24                        There is also a risk that delay to the construction program resulting from industrial action will cause:

(a)        extension of time claims by contractors;

(b)        contractual penalties claims against contractors for non‑completion of contracted work within the contracted time; and

(c)        the inability of WBPL to meet contracts for future gas sales.

25                        Mr Milne has been informed that the situation in and around the accommodation camps, particularly at Gap Ridge Village, is volatile and could easily become violent.  He is informed and believes that threats have been made against employees who are not participating in the industrial action, which has resulted in FWW significantly increasing the level of security personnel on site and around the accommodation.

26                        The respondents are currently and have been since 22 January 2010, striking in protest over changes to their accommodation arrangements.  There are over 1500 employees involved in this action.  Their action is said to be disrupting the performance of the work on the Project and causing significant financial loss to the applicants. 

27                        On 23 January 2010, orders were made by Commissioner Cloghan of Fair Work Australia for employees of the applicants (other than the thirteenth applicant) who were union members to return to work, such orders to remain in force until 28 February 2010.  The applicants say that most workers have not done so but those who have returned to work are said to be subject to threats from those who have not returned.

28                        The applicants argue that the respondents are engaged in unlawful industrial action for the purposes of the BCII Act.  

29                        The Court has jurisdiction to grant an interim injunction to prevent the respondents from engaging in unlawful action under s 39 and s 48 of the BCII Act.

30                        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.

31                        Section 39(3) of the BCII Act 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.

32                        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.  Section 49(6) defines an eligible person to make an application under s 49(1) and (3) to include ‘a person affected by the contravention’.  It follows that s 49(1) and s 49(3)(a) of the BCII empower the Court on the present application, to make an interim injunction in relation to a person who has contravened s 38 of the BCII.

33                        Importantly, s 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].

34                        The power to grant injunctive orders in circumstances where a breach or arguable breach of an Act has or is likely to occur is not uncommon in Federal statutes.  The considerations to be taken into account are the strength of the case on that issue, the purpose and objectives of the statute and the balance of convenience.  Except to the extent that the specific considerations of the Act in question require addressing, the determination as to whether or not to grant injunctive relief is a process which accords with the general approach in equity to the grant of injunctions.

35                        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’.

36                        As with s 39(3), s 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.

37                        The grant of interim relief under the BCII Act must also be considered in light of the objects of the Act.  The main object of the BCII Act is set out in s 3.  Relevantly, subs 2 provides that the main object is to be achieved by the following means:

…

(b)        promoting respect for the rule of law;

(c)        ensuring respect for the rights of building industry participants;

(d)        ensuring that building industry participants are accountable for their unlawful conduct;

38                        The Court is also empowered to grant interim injunctions under s 417(3)(b) and s 545(2) of the Fair Work Act in respect of industrial action and s 421 in respect of any contravention of an order of Fair Work Australia.  There may well also be an arguable case on that ground.  I am satisfied that there is an arguable case that the respondents are engaging in unlawful industrial action under the BCII Act and in industrial action under the Fair Work Act contrary to that Act in that they have not obeyed the order of Commissioner Cloghan in contravention of s 421(1) of that Act.  For present purposes, however, given the urgency of the matter, s 39 and s 49 BCII provide sufficient a basis on which to frame the grant of interim short term relief.

39                        As to the balance of convenience, the evidence at this stage discloses that the actions of the respondents have been and are disrupting the construction of the Project and are causing severe financial loss to the applicants.  The daily costs is in hundreds of thousands of dollars.  Damages would not be an adequate remedy in this matter because:

(a)        the respondents are individuals and are unlikely to have the financial means to meet the level of damages awarded;

(b)        the employees who are not participating in industrial action are being subjected to a serious risk of physical and/or psychological harm.

40                        The balance of convenience, in my view, favours the grant of the relief on an interim basis. 

41                        An interim injunction in the terms sought in the first part of the applicants’ application for interlocutory relief will be granted.  The relief will be short term relief which in substance, requires compliance with the order of Fair Work Australia, that is to say, a return to work.  The orders also direct that others returning to work should not be prevented from doing so.  However, I have also added liberty to any person affected by the restraints imposed by the orders to apply on short notice.  I made the following orders:

1            Upon the applicants giving the usual undertaking as to damages, until 5.00 pm on 5 February 2010, pursuant to s 39 and/or s 49(1)(c) of the Building and Construction Industry Improvement Act 2005 (Cth) each respondent is restrained from:

(a)        engaging in or being a party to or in any way associated with or otherwise involved in any of the following actions in relation to building work on the Pluto LNG Project at Burrup Peninsula (the Project):

(i)         failing or refusing to attend work on the Project or failing or refusing to accept or perform work on the Project at all;

(ii)        performing work on the Project otherwise than in accordance with the terms of his employment contract;

(iii)       performing work on the Project in a manner different from that in which it is customarily performed, or adopting any practice in relation to work on the project, the result of which is a restriction or limitation on, or a delay in, the performance of that work;

except where such actions:

(iii)       are authorised or agreed to by the respondent’s employer; or

(iv)       are based upon the respondent’s reasonable concern about an imminent risk to the respondent’s health or safety and the respondent has not unreasonably failed to comply with the directions of the respondent’s employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the respondent to perform;

(b)        interfering with or in any way disrupting the performance of work on the Project by any of the following means:

(iii)       imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in any bans, limitations, restrictions or delays on the performance of work or the acceptance of work by any of the applicants’ other employees to be performed under their terms of employment or in a manner which work is customarily performed with the applicants; and

(iv)       imposing, maintaining or aiding, abetting, encouraging, directing, procuring, inducing, advising or otherwise being involved in the taking of days off by any of the applicants’ other employees otherwise than in accordance with rosters specified by the industrial instruments and employment contracts regulating their employment with the applicants.

2          Any person affected by the restraints imposed by the injunctive relief has liberty to apply on 48 hours written or electronic notice to the applicants or the Australian Building and Construction Commission.

Associate: 

Dated:         29 January 2010

SCHEDULE OF RESPONDENTS