FEDERAL COURT OF AUSTRALIA

Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 403

THE COURT ORDERS THAT:

Orders 1 to 5 of 13 April 2011 be vacated.

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    Lend Lease Project Management & Construction (Australia) Pty Ltd (Lend Lease) is a corporation engaged in major construction projects in Australia. Currently one of those projects is the construction at the Brisbane Supreme Court and District Court Project site, 419 George Street Brisbane (the site). Workers on that site include members of the respondent unions.

2    On 13 April 2011 Logan J made interim orders in favour of Lend Lease on its application. The substantive effect of those orders was that the respondent unions were restrained from acting in contravention of an order of Fair Work Australia made 12 April 2011 in respect of particular industrial activity conducted by the respondent unions at the site. By Order 5 the orders took effect on pronouncement, to remain in force until 4.30 pm on 27 April 2011. His Honour also ordered that the matter be adjourned for directions on 27 April 2011 at 2.15 pm.

3    By notice of motion filed 15 April 2011 the respondent unions sought to have the orders of 13 April 2011 vacated, and directions made in respect of the future conduct of the matter. It is clear that the respondent unions are not seeking to appeal against the decision of his Honour. Rather, the respondent unions have sought to advance the hearing currently listed for 27 April 2011, and address the Court on the question whether the interim relief granted on 13 April 2011 should continue.

4    Relevantly to the current proceedings, the respondent unions claim that, because the application heard by his Honour was made on very short notice on 13 April 2011, they were unable to produce any proper evidence in support of their case opposing the orders sought by Lend Lease. Importantly, the respondent unions also claim that the evidence they were able to adduce after the hearing on 13 April 2011 supports a finding that there is no serious question to be tried as to the entitlement of Lend Lease to interlocutory injunctive relief.

5    The notice of motion presents a number of issues for consideration.

6    First, while I was prepared to list the notice of motion for hearing today, it is clear that less than three days have passed since the notice of motion was filed and served. Order 19 rule 3 of the Federal Court Rules provides that, where a notice of motion is required to be served, it shall, unless the Court or a Judge otherwise orders, be served not less than three days before the date fixed for the motion. Mr Friend SC for the respondent unions informed me yesterday that the notice of motion was served on Monday, the day before the hearing. Order 3 rule 3 of the Federal Court Rules permits the Court or a Judge to abridge any time fixed by the Rules. In these proceedings however I understand that Lend Lease does not oppose an abridgment of the time for the hearing of the notice of motion currently before me.

7    Second, the respondent unions have filed material explaining the reason for the absence of material in support of their position before Logan J. I propose to consider whether the reasons contended by the respondent unions have merit.

8    Third, in light of the material filed by the respondent unions and additional material filed by Lend Lease, I will consider whether there is a serious question to be tried sufficient to ground an entitlement to interlocutory relief. The outcome of this consideration has direct bearing on the question whether the interim injunction granted by Logan J should continue to remain in place.

9    Before turning to these issues however it is useful to set out the background to the current notice of motion.

Background

10    The undertaking at 419 George Street Brisbane is a major project involving the construction of premises which, on completion, will house the Supreme Court of Queensland and the District Court of Queensland.

Orders of Fair Work Australia

11    It is clear that there has been industrial activity, in which the respondent unions have played a part, at the site. On 12 April 2011 Senior Deputy President Richards of Fair Work Australia made a number of orders binding all parties to the proceedings currently before me. Of particular importance in the context of the current proceedings are the following orders:

3    INDUSTRIAL ACTION TO STOP, NOT OCCUR AND NOT BE ORGANISED

3.1    All persons and organisations bound by this Order must stop, not engage in and/or not organise industrial action as defined in clause 5 in respect work being conducted at the site and must not further engage in, recommence, or threaten to engage in, industrial action as defined in clause 5 whilst the Order remains in operation.

3.2    The CFMEU, CFMEU -QCWD, BLF, CFMEUQ, CEPU, ETU, AMWU and must:

3.2.1    stop organizing and refrain from further organizing or recommencing the organisation of industrial action as defined in clause 5.

3.2.2    not aid, abet, direct, counsel, procure, authorise, influence or encourage any person to whom this Order applies to engage in conduct referred to in clause 3.2.1 above.

3.2.3    Not threaten or propose to do any of the things referred to in paragraph 5.

3.3    The officials, delegates, employees and agents of the unions identified in the above clauses 2.1.1 to 2.1.7 must:

3.3.1    stop, organizing and refrain from further organizing or recommencing the organisation of industrial action as defined in clause 5.

3.3.2    not aid, abet, direct, counsel, procure, authorise, influence or encourage any person to whom this Order applies to engage in conduct referred to in clause 3.3.1 above.

3.3.3    Not threaten or propose to do any of the things referred to in paragraph 5.

4    OTHER DIRECTIONS

4.1    The unions indentified in the above clauses 2.1.1 to 2.1.7 must each as soon as is reasonably practicable:

4.1.1    Take all reasonable steps to bring the existence of this Order to the attention of their officials, delegates, officers, employees and agents; and

4.1.2    Notify them of the explicit withdrawal of any authorization, encouragement or direction to engage in industrial action as defined in clause 5; and

4.1.3    Issue and distribute (including but not limited to posting, and maintaining for the duration that the Order is in force, on the home page of each union listed in 2.1.1 to 2.1.7 and their branch websites) a communication to the persons mentioned in clauses 2.1.9 to 2.1.11 which:

4.1.3.1    Includes a copy of this Order;

4.1.3.2    Includes a copy of the Recommendation of 12 April 2011 (PR508402);

4.1.3.3    States that the industrial action on the site is to cease and is cancelled;

4.1.3.4    States that members or persons eligible to be members of the union on the site must engage in work as directed by their employer or principal subcontractor at the ordinary commencement of work of Wednesday, 13 April 2011.

5    DEFINITION OF INDUSTRIAL ACTION

5.1    For the purpose of this Order, the expression industrial action means:

5.1.1    a failure or refusal by a person to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

5.1.2    a ban, limitation or restriction on the performance of work by a person or on the acceptance of or offering for work by a person;

5.1.3    the performance of work by a person in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by a person, the result of which is a restriction or limitation on, or a delay in, the performance of work.

5.2    For the purpose of this Order, industrial action does not include:

5.2.1    protected industrial action within the meaning of s408 of the Fair Work Act 2009;

5.2.2    action by employees that is authorised or agreed to by his or her employer; or

  5.1.3    action by an employee or subcontractor if:

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

5.2.3.2    the employee did not unreasonably fail to comply with a direction by his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Application before his Honour

12    Before his Honour, Lend Lease sought injunctive relief and the imposition of penalties pursuant to s 421(3) of the Fair Work Act 2009 (Cth) (Fair Work Act) and further, or in the alternative, s 39 and s 49 of the Building and Construction Industry Improvement Act 2005 (Cth) (Building and Construction Industry Improvement Act) and s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). In particular, Lend Lease claimed:

1.    The imposition of a penalty or penalties upon the respondents for contravening sections 38 and 44 of the Building and Construction Industry Improvement Act (“the unlawful conduct”)

 2.    Orders the Court considers necessary to stop the unlawful conduct;

3.    Orders the Court considers necessary to remedy the effects of the unlawful conduct.

13    Lend Lease also sought interlocutory relief in the following terms:

AND the Applicant claims by way of interlocutory relief the following orders:

1.    Until the hearing and determination of this proceeding or until further order, the respondents whether by themselves, their officers, employees or agents be restrained from:

a.    Counselling or procuring any employee or agent of, or person contracted to, Lend Lease Project Management & Construction Pty Ltd, not to work upon the site known as the Brisbane Supreme Court and District Court Project located at 419 George Street Brisbane Queensland (Corner of George, Roma and Herschel Streets, Brisbane) (site);

  b.    Counselling or procuring any person not to enter the said site;

c.    Attending or organising or procuring any person to attend, within 100 metres of any entrance to the said site, 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.

2.    Further directions as to the further conduct of the proceeding.

3.    Costs be reserved.

14    In support of the application before his Honour Lend Lease relied upon an affidavit of Mr Seamus Kearney. It is not in dispute that this was the only material before his Honour at the hearing of 13 April 2011. Logan J summarised the evidence to which Mr Kearney deposed as follows:

12.    Mr Kearney has been, since about September 2006, employed by Lend Lease as a foreman. More particularly since about November 2008 he has been the General Foreman (Structure) on the Law Courts Project site. Lend Lease has about 70 to 80 employees on that project site. On a day to day basis there are approximately 450 persons, including those Lend Lease employees, employed at the project site.

13.    Mr Kearney deposes that on Monday of this week, 11 April 2011, he attended at the Law Courts Project site for work at about 5.55 am. Shortly thereafter, around 6 am, he attended a pre-start meeting of the Lend Lease employees at the site. He had some further discussions with managers on the project. At about 6.55 am that day he was situated on the ground floor, also known as the podium of the project. At about 7 am he noticed workers streaming back through the Roma Street pedestrian gate and entering the podium area to the stairs to the basement lunch rooms. It is in those lunch rooms that the workers’ personal belongings are stored. He was informed, at about 7.15 am, that the workers were going home and out for 24 hours.

14.    The following day, at about 5.55 am, Mr Kearney again attended for work at the Law Courts Project. At about 6 am on 12 April, and for the following 20 minutes, he attended a pre-start meeting. At about 6.30 am he put on his personal protection equipment and went to the podium area. At about 7 am he observed the workforce streaming through the Roma Street pedestrian gate and entering the podium area to the stairs to the basement lunch rooms. At about 5 minutes past 7 am, with a work colleague, he went to the pedestrian crossing on Roma Street, crossed over that road, and then went down that street to where a number of union organisers were standing. He recognised there two persons, a Mr Pearson and a Mr O’Doherty, and others who he observed had AMWU and ETU on their clothing. The AMWU, I note, is more likely than not, in terms of inference from known industrial terminology, not a respondent union. The ETU, on the other hand, is in all likelihood, a reference to a body associated with another union which is a respondent. In any event, a conversation transpired, the effect of which was that Mr Pearson informed Mr Kearney that the workforce was on strike and:

Anyone going up there would be scabs. There is a report-back meeting tomorrow morning.

15.    Today again, at about 5.55 am, Mr Kearney attended the Law Courts project for work. Once again, at about 6 am, he attended a pre-start meeting for Lend Lease employees. At about 6.30 am he decided to go to the Roma Street gate to observe what was happening at the meeting of workers across the park adjacent to the project. I infer from that statement that there was a meeting of workers at the park adjacent to the project in progress at that time. At about 6.45 am Mr Kearney observed some Lend Lease employees standing near the Law Courts project traffic gate situated in Roma Street. He went over to where they were standing, spoke with some of them, the effect of the conversation being an inquiry by him as to what was happening today and if they were aware that a particular individual had resigned from the union.

16.    From the position at that gate Mr Kearney could observe the meeting of the workers in the park opposite. He observed there a person, Mr Pearson, who he had met on previous occasions. At about 7.52 am he observed workers raising their arms into the air and he heard Mr Pearson say words to the effect:

Thank you very much.

17.    At about that time he also received information from Mr O’Doherty who informed him, along with others with whom Mr Kearney was then in company, that the workers had gone out for 24 hours with a report-back meeting tomorrow, 14 April 2011. Shortly before 8 am Mr Kearney observed the workers dispersing from the meeting. He heard a loud cheer as this occurred. He saw them walking in the direction of Roma Street train station, across Roma Street, heading towards the Roma Street gates. He saw them going through those gates across the podium and towards the stairs of the basement and the lunch room. Mr Kearney deposes that work on the project was to have been undertaken today. Details of reinforcement and precast cement columns were programmed for today. Also, formwork was to have been undertaken, construction of decks, altering perimeter screens, installation of facades and fit-out work and services, and petitioning and ceiling work were also to have been undertaken.

18.    Mr Kearney deposes that, because the project was not working today, a number of subcontractors have had to be informed that there were no facilities or services available to assist them. Further, contractors delivering precast columns and reinforcing work have had to be turned away. In addition, curtains have had to be delivered to another site. There were also scheduled service repairs and maintenance of men and materials hoists which were to have been undertaken on and from Monday of this week.

19.    Mr Kearney deposes that if work had been undertaken on the site today he would have expected on-site a full complement of subcontractors. He would have expected that the workforce on the project would have been approximately 400 today.

20.    At the meeting of the workers in the park which he observed Mr Kearney deposes to having identified Mr Pearson from the BLF which, again, I infer to be a reference to part of the union which is the first respondent and Mr O’Doherty from the CFMEU and also an ETU organiser that he had seen the previous day.

15    His Honour found that raised prima facie on Mr Kearney’s affidavit was industrial action in terms of the Fair Work Act, and that in the circumstances this particular action was, in terms of a question raised seriously for trial, in defiance of the orders of Fair Work Australia. Accordingly his Honour was prepared to grant interlocutory injunctive relief sought (at [27]).

Affidavits filed by the respondent unions

16    On 15 April 2011 four affidavits were filed on behalf of the respondent unions. Two of these affidavits were sworn by solicitors acting on behalf of the respondent unions, Mr Charles Massy and Ms Laura Fraser Hardy. The other affidavits were sworn by persons who can be described as union organisers with the first, third and fourth respondent unions, Mr Patrick O’Doherty of the CFMEU and Mr Kane Pearson of the BLF.

Affidavits of the solicitors

17    In their affidavits, Mr Massy and Ms Fraser Hardy depose as to the difficulties they faced in obtaining meaningful instructions on short notice in relation to the application, the serious difficulties in time they faced in obtaining affidavits from their clients, and the efforts they made in order to do both on 13 April 2011.

18    Mr Massy deposed that he is a principal of Hall Payne Lawyers and has conduct of this matter on behalf of the first, fourth and fifth respondent unions. In summary, Mr Massy deposed that:

    He was informed at approximately 1.30 pm on 13 April 2011 by Mr Kevin Crank of the first respondent union that Mr Crank had received correspondence from the solicitors for Lend Lease in respect of events at the site.

    At 1.42 pm Mr Massy received an email from Ms Davison of the first respondent union, forwarding a copy of email correspondence received from the solicitors for Lend Lease. The correspondence stated that Lend Lease considered that the Builders Labourers Federation Divisional Branch of the first respondent (the BLF) was in breach of Fair Work Australia’s orders, and that unless the workers returned to site by 1.00 pm Lend Lease would commence proceedings in the Federal Court of Australia. Mr Massy deposed that the fax header to the correspondence from the solicitors for Lend Lease indicated that it had been faxed to the BLF at 12.36 pm. Similar correspondence was received by the first respondent by email at 12.58 pm.

    Between 1.30 pm and 1.50 pm Mr Massy received instructions to act on behalf of various respondents.

    Hall Payne Lawyers commenced preparing a response to the correspondence from the solicitors for Lend Lease. At 2.06 pm Mr Massy was informed by an employee of the first respondent that an application was being filed in the Federal Court and that it would be heard at 2.15 pm.

    Mr Massy contacted the Federal Court, and was informed by a Deputy District Registrar that the matter would be commencing before Logan J at 2.30 pm.

    Mr Massy briefed Mr Michael Amerena of Counsel to act in the matter, and arranged to meet Mr Amerena at the Federal Court immediately prior to 2.30 pm.

    At 2.15 pm Mr Massy instructed Ms Fraser Hardy, a solicitor with Hall Payne, to contact Mr O’Doherty of the first respondent union and to take an affidavit from him as a matter of urgency. At that time Mr Massy did not have a copy of the application or any affidavit material in support of the application.

    Mr Massy arrived at the Court at 2.31 pm by which time the matter had commenced.

    At 3.00 pm the hearing was adjourned for 20 minutes to allow the respondents to read the application and supporting affidavit. At 3.15 pm Mr Massy telephoned Ms Fraser Hardy. Ms Fraser Hardy informed him that she had taken affidavits from Mr O’Doherty and Mr Pearson, and that it would take approximately 30 minutes for her to finalise the affidavits.

    At 3.50 pm Mr Massy left the Court room and telephoned Ms Fraser Hardy. Ms Fraser Hardy informed Mr Massy that she had completed the affidavits, was leaving the office to come to Court and that she would meet Mr O’Doherty and Mr Pearson at Court.

    At 4.00 pm his Honour gave his decision in relation to this matter. Mr Massy saw Ms Fraser Hardy enter Court Room 3 at approximately 4.10 pm.

19    Ms Fraser Hardy affirmed that she is a solicitor employed by Hall Payne Lawyers. In summary, Ms Fraser Hardy deposed:

    At approximately 2.20 pm on 13 April 2011 she was instructed by Mr Massy to take an affidavit from Mr O’Doherty. Mr Massy also requested that she contact officials of the BLF to ascertain who had attended the site, and to take affidavits from any organisers who had been involved in the dispute.

    Mr Massy impressed upon Ms Fraser Hardy the urgency of the matter.

    At approximately 2.30 pm Mr O’Doherty rang the office of Hall Payne Lawyers. Ms Fraser Hardy took an affidavit from Mr O’Doherty in relation to the dispute that had been occurring at the site. Because she was not aware of the specific nature of the Federal Court proceedings and which matters were directly relevant, it took her some time to take the affidavit.

    At the request of Mr Crank, Ms Fraser Hardy then telephoned Mr Pearson and took an affidavit from him.

    Ms Fraser Hardy arranged for the affidavits to be typed by a secretary employed by Hall Payne Lawyers.

    At 3.00 pm Ms Fraser Hardy saw an email from Mr Crank to Mr Massy (sent at 2.46 pm) with the application attached. Ms Fraser Hardy then amended the draft affidavits to reflect the Court header on the application.

    At approximately 3.15 pm Mr Massy telephoned and advised her to limit the affidavits to information relating to compliance with the order of Fair Work Australia of 12 April 2011 and the conduct of the workplace meeting of 13 April 2011. She advised Mr Massy that it would take her approximately 30 minutes to finalise the affidavits.

    Ms Fraser Hardy telephoned Mr O’Doherty and Mr Pearson to ask further questions about what had occurred during the meeting on 13 April 2011. Several attempts were required to reach both witnesses as both were on the telephone on other calls at various times.

    At approximately 3.50 pm Ms Fraser Hardy received another phone call from Mr Massy, who informed her that she needed to be at Court as soon as possible.

    At 3.55 pm Ms Fraser Hardy left the offices of Hall Payne Lawyers and travelled to the Federal Court by car. At 3.57 pm she received a telephone call from Mr O’Doherty who informed her that he was nearby and would meet her at the Federal Court. Ms Fraser Hardy met Mr O’Doherty as she was walking into the side entrance of the Federal Court.

    After clearing security Mr O’Doherty and Ms Fraser Hardy proceeded to the lifts. Because Ms Fraser Hardy did not know which Court room the matter was being heard in, she attempted to gain access to the Federal Court registry on level 6 of the Commonwealth Law Courts building. As the time was after 4.00 pm however, the lifts did not provide access to level 6.

    Ms Fraser Hardy spoke to the security guards on the ground floor of the Commonwealth Law Courts building. While waiting for the security guards to provide access to level 6, Mr Pearson arrived.

    At 4.07 pm Ms Fraser Hardy attempted to telephone Mr Massy, but there was no answer. The security guards gave Mr O’Doherty, Mr Pearson and Ms Fraser Hardy access to the Registry on level 6. The staff at the Registry informed Ms Fraser Hardy that the matter was being heard on level 7.

    Mr O’Doherty, Mr Pearson and Ms Fraser Hardy proceeded to level 7. Ms Fraser Hardy spoke briefly with the witnesses about their affidavits. When she entered the Court room his Honour was giving his decision.

Affidavits of union officials

20    Mr O’Doherty affirmed that he had been employed as an organiser with the first respondent union in respect of a number of its branches since June 2009. In summary he deposed:

    He is responsible for CFMEU members at the site, and visits the site approximately once per week.

    In recent times workers on the site have begun raising concerns with him to the effect that some of the subcontractors on the site are utilising sham contracting arrangements rather than employing their workers directly. Sham contracting is an important issue in the construction industry: apart from the basic entitlements that persons subject to such arrangements miss out on, those persons are sometimes not covered by workers compensation legislation.

    As a result of these concerns the various construction unions approached Lend Lease ad sought various forms of documentation that would allow the unions to investigate whether sham contracting arrangements were occurring on site.

    Lend Lease was not receptive to the initial approaches by the unions. The workers became dissatisfied.

    On Monday 11 April 2011 the workers on the site met before work and voted to withdraw their labour for a period of 24 hours. Mr O’Doherty deposed that he did not encourage or authorise this action. The workers advised him and other union officials that they wanted to ensure that Lend Lease provided the unions with the documents sought.

    On Tuesday 12 April there was a further meeting at the site. As no documents had been provided by Lend Lease, the workers again decided to withdraw their labour. Mr O’Doherty did not encourage or authorise the workers to withdraw their labour. After that meeting there was a brief conversation between Mr Pearson and Mr Jim Neville, the site manager.

    On the same day Lend Lease filed an application with Fair Work Australia pursuant to s 418 of the Fair Work Act. Mr O’Doherty attended the hearing, was aware that the order had been made and understood the terms of the order. Mr O’Doherty obtained a copy of the order.

    A further meeting of the workers at the site was held at 6.15 am on 13 April 2011. Of the approximately 280 workers present, approximately 150 were CFMEU members.

    At the meeting the following events occurred:

    Mr Pearson began the meeting by saying in words to the effect:

We are being totally transparent, we aren’t going to be lying to you. I have received correspondence saying that we can get the records but the CFMEU and the ETU haven’t. Pat is going to read out the orders.

    Mr O’Doherty then read out the order of Fair Work Australia to the workers.

    Mr Chris Lynch, a union official with the Electrical Trades Union, then read out particular parts of the orders of Fair Work Australia and said in words to the effect:

Do you understand what this means?

    Subsequently Mr Lynch said in words to this effect:

You boys have been ordered back to work and you must go back to work. The orders took effect from yesterday afternoon until 12 June. The orders must be obeyed, you must go back to work and you have orders on you until the 12th June.

    The workers asked whether we had received the industrial records so that we could conduct an audit of the contractors on site.

    Mr O’Doherty said in words to the following effect:

Jamie McQueen is going to put a letter in and ask for the industrial records and we haven’t received them as of yet.

    One of the workers then stood up and then said:

If the BLF only have the ok we don’t think it is fair that the CFMEU and ETU can’t get access to them. They are trying to divide the union and until at such times that you can bring the documents to the park and show us that we have them we will not return to work.

    The workers then made noises that indicated they were in support of this statement.

    A different worker then put forward a motion that:

We won’t be returning to work until we see the document. There will be a report back on Thursday morning. If all the Unions have the documentation here in the park, then we will return to work.

    Mr O’Doherty thought that then Mr Lynch said again:

Do you understand that the orders say that you must return to work?

    Mr O’Doherty could see and hear workers nodding and saying that they understood the orders.

    Mr O’Doherty disputed evidence of Mr Kearney in relation to Mr Pearson thanking the workers, in that it is normal practice for an official to thank the members for their time and attendance at meetings. Thanking the workers for attending was not thanking them for withdrawing their labour.

    Mr O’Doherty became aware that Lend Lease had commenced action in the Federal Court in respect of the site when he received a phone call from Ms Fraser Hardy at approximately 2.24 pm on the relevant day.

    Mr O’Doherty’s evidence of events after he met Ms Fraser Hardy at the Commonwealth Law Courts building is consistent with evidence of Ms Fraser Hardy.

21    Mr Pearson deposed that he has been the Assistant State Secretary of the BLF in Queensland since January 2011 and as an organiser for approximately four years. His responsibilities as organiser include activities at the site. In summary, Mr Pearson deposed:

    Sham contracting is a significant issue in the construction industry, and there is heightened knowledge of the issues surrounding sham contracting in the construction industry.

    Many of the workers at the site are concerned about issues of sham contracting at the site. Unions have approached Lend Lease and requested Lend Lease to provide various documents evidencing the subcontractors present on site, the arrangements that those subcontractors were using to engage labour and the compliance of those subcontractors with the applicable industrial entitlements and regulations. As a result on 11 April 2011 the workers voted not to return to work until the relevant information was forwarded to the unions. Neither he nor any other union officials present encouraged or authorised the taking of this industrial action.

    Similar events occurred on Tuesday 12 April 2011. After the meeting on 12 April 2011 Mr Pearson had a conversation with Mr Neville, and informed Mr Neville that the workers had voted to strike, and that Mr Mick Tully of Lend Lease was aware of the demands of the workers.

    Mr Pearson became aware of the order of Fair Work Australia on the evening of 12 April 2011. On the morning of 13 April 2011 he printed out approximately 30 copies of the order for distribution at the meeting of workers later that morning.

    At meeting of workers on the morning of 13 April 2011, in summary the following events occurred:

    The meeting began by Mr Pearson introducing the other officials in attendance.

    Almost immediately one of the workers asked if the documents in relation to sham contracting had been provided. Mr Pearson advised that Lend Lease had agreed to provide the documents to the BLF but not the other unions.

    Mr O’Doherty read out the orders of Fair Work Australia. Mr Lynch then explained the terms of the orders in layman’s language, and made it clear that the workers had to return to work.

    Mr Lynch then said in words to the effect:

Do you understand what I am saying?

    Mr Pearson then said in words to the effect:

Before we go any further, does everybody understand what is being said?

    None of the workers indicated that they did not understand the terms of the order.

    Mr Pearson said to the workers in effect:

The terms of the Order mean that you have to go back to work. We think that you should comply with the terms of the Order and return to work.

    No workers asked any further questions about the terms of the Fair Work Australia orders. However one of the workers stood up and made a statement to the effect that Lend Lease had not given the workers what they wanted.

    Another worker then stood up and said in words to the following effect:

I want to put a motion that Bovis comply by giving all the relevant information to the Unions about the contracting arrangements and that the motion still stands from Monday.

    The workers then decided to put this resolution to the vote, and voted in favour of the resolution, namely that the workers would not return to work until the information regarding contractors was provided to the unions.

    At the end of the meeting Mr Pearson said to the workers in words to the effect:

Thank you for your time.

    Late on 13 April 2011 Mr Pearson learned that Lend Lease had agreed to provide the documents that were being sought by the workers to all the unions.

    Some time after 2.30 pm on 13 April 2011 Mr Pearson received a telephone call from Ms Fraser Hardy of Hall Payne Lawyers, informing Mr Pearson of the urgent Federal Court hearing which was occurring. Mr Pearson had not seen the affidavit of Mr Kearney, and was unable to respond to the matters raised in that affidavit. Mr Pearson gave an affidavit to Ms Fraser Hardy, and met Ms Fraser Hardy at the Federal Court building.

    On 14 April 2011 Mr Pearson, Mr O’Doherty and Mr Lynch attended a meeting of workers from the site. At the commencement of the meeting the union officials informed the workers that an order had been made in the Federal Court requiring them to return to work, and distributed a copy of the order to the workers. Mr Pearson, Mr O’Doherty and Mr Lynch similarly informed the workers.

    One of the workers then asked whether the documents in relation to sham contracting had been provided. Mr Pearson and Mr O’Doherty showed the workers the documents that they had received. He then advised the workers that in accordance with their requests the unions would commence investigating workers’ concerns in relation to sham contracting on the site.

    Once the workers were aware that the documents had been provided there was a noticeable change in the demeanour of the workers.

    Mr Pearson then said to the workers:

In accordance with the order and as we have the information that you are requesting, I propose that you all go back to work in accordance with the orders.

    Mr Pearson thought he saw all workers in attendance vote in favour of that resolution. Mr Pearson then said in words to the effect:

The motion is carried, thank you for your time.

    Since the meeting on 14 April 2011 there has been no further industrial unrest at the site. The underlying industrial dispute over the provision of documents has been resolved.

Further affidavits filed by Lend Lease

22    Lend Lease has also filed further affidavits upon which they relied at the hearing before me, namely affidavits of Mr Tully and Mr Neville, and a supplementary affidavit of Mr Kearney.

23    Mr Tully is currently the Operations Manager at Lend Lease, and has worked in the construction industry for approximately 20 years of which 18 years have been with Lend Lease. In summary, Mr Tully deposed as follows:

    He is aware of a campaign by the unions against “sham contracting”.

    On 28 February 2011 the members of the first respondent, the BLF and the ETU who were working on a number of Lend Lease project sites voted to withdraw their labour from the sites for 48 hours in relation to allegations of sham contracting. Those sites were the Gold Coast University Hospital, the site the subject of these proceedings, Multiplex Hilton Hotel and Wintergarden.

    On 28 February 2011 Fair Work Australia made orders in relation to this industrial action, and recommended that Lend Lease meet with the first respondent and the BLF to investigate allegations of sham contracting. Lend Lease arranged to meet with the unions on 2 March 2011 and 3 March 2011 however the first respondent did not appear, although Mr Crank of the BLF did attend.

    Mr Tully understands that similar industrial action occurred at the sites of other principal contractors in relation to alleged sham contracting.

    Lend Lease held weekly meetings with the unions throughout March 2011 to enable issues to be tabled.

    On 4 April 2011 union members met at the Gold Coast University Hospital site and voted to withdraw labour for 48 hours. No reason was given to Lend Lease for this industrial action. Further industrial action took place at that site on 6 April 2011 for reasons related to payment of employees of one of the subcontractors.

    At approximately 7.00 am on 11 April 2011 Mr Tully was contacted by Mr Neville who advised that the CFMEU, BLF and ETU workforce had withdrawn labour for 24 hours. Mr Neville informed Mr Pearson by telephone that Mr Neville and Mr Kearney had met with CFMEU officials, that the workforce had concerns in relation to sham contracting and that the workers wanted relevant documents to be provided to the unions.

    More specific issues in relation to sham contracting were raised with Mr Tully later in the morning of 11 April 2011 by Mr Jamie McQueen of the CFMEU. Mr Tully communicated these concerns to project managers at the site. Upon receiving information in relation to these issues, Mr Tully relayed the information to Mr McQueen. Mr Tully understood from Mr McQueen that union organisers would be instructing the workforce to return to work.

    On 12 April 2011 Mr Neville contacted Mr Tully and informed him that workers at the site had not commenced work. At approximately 10.00 am that morning Mr Tully received a notice from Mr Pearson in respect of alleged contraventions of the Workplace Health and Safety Regulations 2008 at the site and requiring production of induction records and records of payment by employers. Mr Tully received similar notices in relation to the Gold Coast Hospital Project. Mr Tully agreed in principle to the notices.

    On 12 April 2011 Lend Lease obtained orders in relation to unlawful industrial action from Fair Work Australia.

    On 13 April 2011 Mr Neville informed Mr Tully that workers at the site had again not commenced work. Mr Tully believes that the industrial action taken by the unions against Lend Lease is part of a broad campaign against sham contracting.

24    Mr Neville is the Site Manager at the site. In summary, Mr Neville deposed that:

    On 11 April 2011 he observed a meeting being held at the Roma Street Parklands between union organisers and workers who work at the site.

    On that day there were approximately 350 workers employed on site by subcontractors. Approximately 350 workers participated in the meeting. Mr Neville estimated that 350 workers did not return to the site after the meeting.

    At approximately 7.15 am Mr Neville participated in a meeting on the site with Mr Kearney, Mr Pearson, and Mr Stewart, Mr Sutherland and Mr Vince of the CFMEU. Mr Sutherland and Mr Vince informed Mr Neville that Mr Pearson of the BLF had conducted the meeting of the workers, and that the reason for the meeting related to allegations of sham contracting and the refusal of Lend Lease to provide induction records to the unions. Mr Sutherland or Mr Vince also said that the meeting was about sham contracting at the Gold Coast Hospital University Project site, in that the workers at the site had engaged in industrial action in support of a message about sham contracting.

    On 12 April 2011 the workers at the site again went on strike. Mr Neville asked the union organisers whether there was any feedback, and Mr Pearson replied:

Mick Tully knows what the unions are after with the induction records.

    On 13 April 2011 Mr Neville attended work as normal at the site, and printed the Fair Work Australia orders from the previous day. He observed that there was a meeting being held in the Roma Street Parklands, and noticed that Mr Pearson, Mr O’Doherty and Mr Lynch were conducting the meeting. After the meeting one of the workers walking past said words to the effect of “The order was burned”, which Mr Neville took to be a reference to the order of Fair Work Australia.

    At approximately 7.00 am Mr Neville was approached by Mr O’Doherty who said words to the effect of:

The workers have voted to withdraw their labour for 24 hours and we have to report back to them on the documentation supplied by Lend Lease.

    By “documentation”, Mr Neville understood Mr O’Doherty to mean reference to the site induction records which Mr Pearson had previously requested. Mr O’Doherty also said that the burning of the document “came from the floor”.

    Mr Neville assisted in the process of allowing Mr Pearson and another person on site access to inspect and photocopy site induction records.

    On 14 April 2011 Mr Neville observed a meeting of workers being held in Roma Street Parklands, and again saw Mr Pearson, Mr Lynch and Mr O’Doherty addressing the workers. After the meeting Mr Neville and Mr Kearney approached the union officials and Mr Pearson asked if there was any feedback. Mr O’Doherty said:

The meeting addressed that Lend Lease have supplied induction records and that the site would return to work.

    That day the site returned to work as normal.

    Mr Neville considers that the industrial action at the site relates to the campaign of the unions against alleged sham contracting.

25    In his supplementary affidavit Mr Kearney gave additional evidence consistent with that of Mr Tully and Mr Neville.

Absence of evidence in support of respondent unions’ position at previous hearing

26    In this case it is not in dispute that the application before Logan J was listed for urgent hearing before his Honour, and that the respondent unions received very little notice of the application or the details of the application. It is also not in dispute that, during the course of the hearing, his Honour had informed the parties of the need to receive all material from the parties by 4.00 pm. The urgency of the hearing was clearly related to the claim of Lend Lease in respect of alleged breaches of the Fair Work Act earlier that day and the allegation of possible further breaches, and was referable to the fact that Lend Lease was seeking only an interim injunction in light of the circumstances of the case.

27    The affidavits of Mr Massy and Ms Fraser Hardy are testament to the efforts they made to assist their clients in very difficult circumstances. It is also apparent from the evidence of Mr O’Doherty and Mr Pearson that key staff of the respondent unions were unaware of the Lend Lease application until advised by Hall Payne Lawyers, and were unable to respond in an informed manner to the affidavit of Mr Kearney until late on the afternoon of the hearing.

28    I am not persuaded that it was a viable option in the circumstances for the respondent unions to produce testimony via oral evidence in Court before his Honour. I accept the submission of Mr Friend SC that it was appropriate for the respondent unions to be in a position to properly instruct their solicitors, and that in fact witnesses for the respondent unions were on their way to Court with sworn affidavits when judgment was delivered. I also note the evidence of Mr Massy and Ms Fraser Hardy of the difficulties in locating Mr O’Doherty and Mr Pearson and obtaining instructions from them.

29    In my view it is appropriate that the Court now have regard to the affidavits of Mr O’Doherty and Mr Pearson filed on behalf of the respondent unions in respect of the application, and the question whether interlocutory relief ought be granted.

Interlocutory Relief

30    Principles relevant to the consideration by a Court as to whether interlocutory relief should be granted in particular circumstances were explained by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19]. In that case their Honours said:

in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction.

31    In O’Neill, Gummow and Hayne JJ explained that the question whether there is a serious question to be tried imports the obligation to establish a prima facie case for permanent relief, and more particularly whether the plaintiff has shown a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial.

32    In this case, on the material before me, I am not satisfied that Lend Lease has demonstrated a serious question to be tried, namely whether the respondent unions have contravened the order of Fair Work Australia made 12 April 2011 and therefore have breached s 421(3) of the Fair Work Act. I form this view for the following reasons.

Evidence of respondent unions

33    First, the evidence produced by the respondent unions in the affidavits of Mr O’Doherty and Mr Pearson is not disputed. The evidence of Mr O’Doherty and Mr Pearson clearly supports the contention of the respondent unions that at the meeting of workers held on 13 April 2011 the respondent unions (through the union organisers) were not acting in breach of the orders of Fair Work Australia made the previous day but rather were informing the workers of the obligation to comply. As is clear from those orders, parties including the respondent unions were restrained from, inter alia, engaging in and/or organising industrial action as defined in the orders in respect of work being conducted at the site, including aiding, abetting, directing, counselling, procuring, authorising, influencing or encouraging any person to engage in such conduct, or threatening or proposing to engage in such industrial action. “Industrial action” for the purposes of the Fair Work Australia orders included failure or refusal to work. The evidence of Mr O’Doherty and Mr Pearson is that they and other union organisers attended the meeting of workers on the morning of 13 April 2011, explained the terms of the Fair Work Australia orders, distributed copies of the orders of Fair Work Australia, and instructed the workers to return to work.

34    Mr O’Doherty and Mr Pearson gave further evidence that the workers on 13 April 2011 decided themselves, on the motion of one of their number, not to return to work that day, contrary to the information provided to them by the union organisers. Mr Pearson deposes that there is heightened knowledge of the issues surrounding sham contracting among workers in the construction industry. The evidence of Mr O’Doherty and Mr Pearson is that the decision of the workers was taken against the backdrop of tension on the site arising from concerns of workers on the site (and on other Lend Lease sites) in relation to the issue of sham contracting.

35    I accept the evidence of Mr O’Doherty and Mr Pearson which leads to the inference that, to that extent, they could not control the decision of the workers on the site on the morning of 13 April 2011. It is clear from the evidence of these witnesses that the workers wanted documentation from Lend Lease to be provided to the unions, and were not prepared to return to work without Lend Lease providing that documentation notwithstanding the orders of Fair Work Australia.

36    This explanation is to some extent supported by the material produced by Lend Lease. It is clear from the evidence of both Mr Tully and Mr Neville that the issue of sham contracting was an issue of importance throughout the industry, including at the site. This is consistent with an inference which may be drawn that the issue was important not only to the union organisers but also to the workers on the site themselves, which workers were represented by several unions.

37    Mr Murdoch SC for Lend Lease submitted that the industrial action which commenced at the site on Monday 11 April 2011 was in fact a “sympathy strike” to enforce the issues the union organisers had on the Gold Coast, and that the industrial action which commenced at the site last week was at the behest of the unions. In my view, even if this were the case and industrial action prior to the orders of Fair Work Australia was orchestrated by the unions, it does not necessarily mean that the unions or their organisers acted in breach of the orders of Fair Work Australia and, inter alia, encouraged continuing industrial action by the workers at the site after 12 April 2011.

38    Further, I am not persuaded by the contention that there is a marked contrast between the way the union behaved at the meeting of 13 April 2011 and the way the union behaved at the meeting of 14 April 2011, which should give rise to an inference against the respondent unions. Specifically, Lend Lease submits that the absence of a motion by the union organisers to the meeting of 13 April 2011, that the workers return to work, suggests that the respondent unions endorsed the actual motion which was put to the contrary, and which reinforced the motion from the previous Monday that the workers strike. In his submissions Mr Murdoch SC contrasted that approach with the motion put by the union organisers to the meeting on 14 April 2011, that the workers return to work.

39    In my view however, no such inference should be drawn. I accept the submission of Mr Friend SC that no motion was put by the union organisers on 13 April 2011 that the workers return to work because in fact there was no choice about the matter, as the workers had been directed to return to work by Fair Work Australia. I consider that the appropriate inference which should be drawn concerning the motion at the meeting of 14 April 2011 was that, in light of not only the Federal Court order but the agreement by Lend Lease to produce documentation concerning sham contracting to the unions, the motion was intended to encourage the workers to return to work as the workers had received satisfaction from Lend Lease. I do not consider that any adverse inferences should be drawn from the approach of the union organisers on the successive days.

Inferential evidence of Lend Lease

40    Second, all evidence filed by Lend Lease as to the actions of the respondent unions and their organisers in respect of breaches of the Fair Work Act is at this stage inferential at best. In particular, the evidence of witnesses for Lend Lease is no more than suggestive that the union organisers at the meeting of 13 April 2011 breached the orders of Fair Work Australia. No evidence on behalf of Lend Lease was given by any person who actually attended the meetings.

41    While the presence of union organisers at a meeting where the workers vote to continue industrial action is suggestive that the union organisers encouraged that decision, particularly where the union organisers were conducting the meeting, such an inference can be rebutted on the production of evidence to the contrary. In my view this has occurred in the form of the evidence of Mr O’Doherty and Mr Pearson. I consider that the evidence of these witnesses successfully answers the evidence of Mr Kearney, and rebuts the inference that the union organisers encouraged the decision of the workers on 13 April 2011 to continue their industrial action.

Civil Penalty provision

42    Third, I note that in O’Neill Gummow and Hayne JJ endorsed earlier observations of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 where their Honours said, in relation to the establishment of a prima facie case:

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.

43    In this case the application for relief is founded in s 421 of the Fair Work Act, which is a civil penalty provision. Serious practical consequences potentially flow from a finding that a party has breached such a provision, including pecuniary penalty orders. The material produced by Lend Lease in my view does not support a finding that there is a serious question to be tried in respect of breach of the Fair Work Act by the respondent unions, in light of the evidence filed by the unions in this matter.

Return to work at site

44    Finally, I note that it is not in dispute that work at the site has returned to normal, and that the provision of documentation by Lend Lease to the unions has had a significant influence in this respect. Notwithstanding the history of industrial action in relation to Lend Lease sites concerning sham contracting, I am not satisfied on the evidence currently before me that there is a risk that the respondent unions will contravene the orders of Fair Work Australia in the future such that an injunction against them is justified.

Conclusion

45    In my view Orders 1 to 5 of 13 April 2011 should be vacated. I note also that Order 35 rule 7 of the Federal Court Rules empowers the Court to dissolve interim injunctions early. I note that, in making such an order, I have had the luxury of not only time but of extensive additional material, neither of which were available to his Honour. I will now hear the parties in relation to directions to take this matter forward.

Associate:

Dated:    20 April 2011