FEDERAL COURT OF AUSTRALIA

Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 6) [2012] FCA 1273

THE COURT ORDERS THAT:

1.    The CFMEU whether by itself, its servants, agents or otherwise however, is restrained from:

(a)    organising or engaging in Industrial Action; or

(b)    being Involved in Industrial Action,

on or in connection with the GCUH Project and the Law Courts Project until the Practical Completion of those projects (the Injunction).

2.    Each of Pearson, vink, O’Doherty, Jarvis, Olsen and Malone undertake to the Court that until the Practical Completion of the GCUH Project and the Law Courts Project, they will not intentionally hinder or obstruct any other person when exercising or seeking to exercise their right of entry under the Fair Work Act 2009 (Cth) at the GCUH Site or the Law Courts Site.

3.    The CFMEU, CFMEU (Qld) and CEPU undertake (on a joint and several basis), on or in connection with the GCUH Project and the Law Courts Project, to refrain from organising, engaging in, or being involved in Industrial Action (the Undertaking).

4.    The CFMEU shall provide security in the sum of $150,000 by way of bank guarantee in favour of Lend Lease as surety for compliance by the CFMEU, CFMEU (Qld) and CEPU with the Injunction and the Undertaking (the Bank Guarantee). Such Bank Guarantee will be provided within 30 days of this Order unless otherwise agreed by Lend Lease.

5.    The CFMEU shall obtain the Bank Guarantee in favour of Lend Lease on terms acceptable to Lend Lease.

6.    Lend Lease may only present the Bank Guarantee for payment from the issuing bank in the event that any, all, or a combination of the CFMEU, CFMEU (Qld) and/or CEPU breach the Injunction or the Undertaking.

7.    The determination of whether any of the CFMEU, CFMEU (Qld) and CEPU have breached the Injunction or the Undertaking will be made by way of Court Order, if the parties cannot agree.

Definitions

In these Orders the following definitions apply:

“GCUH Project” means the construction of the Gold Coast University Hospital Project at the GCUH Site.

“GCUH Site” means the site of the construction of the Gold Coast University Hospital at the corner of Parklands Drive and Olsen Avenue, Parklands.

“Industrial Action” means:

(a)    a failure or refusal by a person to attend for work or a failure or refusal to perform any work at all by one or more employees who attend for work;

(b)    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; or

(c)    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.

Industrial Action does not include:

(d)    protected industrial action within the meaning of s 408 of the Fair Work Act 2009 (Cth);

(e)    action by employees that is authorised or agreed to by the employer; or

(f)    action by an employee or subcontractor 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)    the employee did not unreasonably fail to comply with a direction by Lend Lease or his/her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

“Involved in” has the meaning given in s 48(2) of the Building and Construction Industry Improvement Act 2005 (Cth) (as existed prior to the commencement of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth)).

“Law Courts Project” means the construction of the Brisbane District and Supreme Court at the Law Courts Site.

“Law Courts Site” means the site of the construction of the Brisbane Supreme Court and District Court building at 419 George Street, Brisbane (corner of George Street, Roma Street and Herschel Street), Queensland.

“Practical Completion” means the date specified as such in the contract for the construction of the GCUH Project and the Law Courts Project.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 5) [2012] FCA 1144 I ordered that the respondents pay civil penalties in respect of unlawful industrial action in which they engaged in 2011. The background to those orders, the relevant details and my reasons are set out in that judgment.

2    However, as I also made clear in that judgment, whether the Court had power to order the injunctive and associated relief sought by the applicant in accordance with the position agreed by the parties and set out in the Statement of Agreed Facts was debatable in light of the recent decision of Greenwood J in Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd [2012] FCA 1134. It follows that, in considering the application for the injunctive relief sought by the applicant in these proceedings, there are two issues for decision by the Court:

    the jurisdictional issue; and

    if the Court has jurisdiction to make the orders sought – whether the Court should exercise its discretion to do so.

Jurisdictional issue

3    The question of jurisdiction arises because, as I detail later in this judgment, provisions of the Building and Construction Industry Improvement Act 2005 (Cth) (“BCII Act”) which rendered the conduct of the respondents unlawful were repealed from 1 June 2012 by the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) (“Amendment Act”). A very real question exists as to whether this Court has power to make injunctive orders restraining the respondents from engaging in such conduct, when prima facie it is no longer unlawful. In order to answer this question it is necessary to first have regard to the decision of Greenwood J in Abigroup where relevant issues were explained by his Honour in detail. I will then turn to the facts before me in these proceedings.

Abigroup

4    In Abigroup, on 12 June 2012 a Federal Magistrate extended previously granted interlocutory orders restraining the respondent unions including the Construction, Forestry, Mining and Energy Union (“CFMEU”) from engaging in conduct said to be in contravention of the BCII Act. The unlawful industrial action in which the unions had allegedly been involved was defined by s 37 of the BCII Act, and the relevant injunctive relief was said by the learned Federal Magistrate to have been granted in reliance upon s 39 of the BCII Act. The unions appealed to this Court for orders including that the relief granted by the Federal Magistrate be set aside.

5    As Greenwood J observed in Abigroup at [43]:

The real contest between the parties concerns the question of whether an interlocutory injunction lies in aid of final injunctive relief in the proceedings having regard to the legislative changes that have occurred.

6    At [45]-[54] his Honour set out, in detail, those legislative changes. Materially, at [45]-[47] his Honour said:

[45]    Item 51 of Schedule 1 of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth) (the “Amendment Act”) provides that Chapters 5 and 6 of the Building and Construction Industry Improvement Act 2005 (Cth) are repealed. The Amendment Act was assented to on 15 April 2012 and Schedule 1 of the Amendment Act commenced by operation of s 2 of that Act on a day or days to be fixed by Proclamation. By Proclamation of 24 May 2012, the date of commencement of Schedule 1 is 1 June 2012. Chapter 5 of the 2005 Act contains ss 37, 38 and 39 of the 2005 Act and the inter-related definitions contained in s 36 of the 2005 Act upon which those sections depend. Chapter 6 contains ss 43 and 44 of the 2005 Act. Item 52 of the Amendment Act repeals Part 1 of Chapter 7 and substitutes a new Part 1 under the heading “Powers to Obtain Information etc”. The former Part 1 under the heading “Contravention of Civil Penalty Provisions” of Chapter 7 contained s 49 and the inter-related definitions contained in s 48 upon which, in part, s 49 depends.

[46]    It follows that as from 1 June 2012, the law of the Commonwealth did not comprehend a prohibition upon “unlawful industrial action” as that term was defined and understood for the purposes of Chapter 5 of the 2005 Act. Nor did Commonwealth law comprehend the prohibitions reflected in ss 43 and 44 of Chapter 6 of the 2005 Act, for the purposes of that Act. Similarly, from 1 June 2012, s 49 of the 2005 Act formed no part of the law of the Commonwealth.

[47]    It follows that conduct rendered unlawful under these provisions of the 2005 Act was no longer unlawful on and after 1 June 2012.

7    As his Honour then observed, the repeal by the Commonwealth Parliament of relevant provisions of the BCII Act:

immediately gives rise to the transitional question of the entitlement of a party to a remedy in respect of contraventions of the law occurring up to the date of repeal of both the remedial provisions and those provisions giving rise to the substantive prohibitions upon particular conduct. (at [50])

8    His Honour examined Pt 2 of the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Regulation 2012 (Cth) (“the Regulation”) which addressed “Transitional matters”, and in particular s 2.3 which addressed “Proceedings”, relevantly as follows:

2.3    Proceedings

(1)    For subitem 1(1) of Schedule 2 to the Act:

(a)    if an application, proceeding, appeal or other action (a proceeding) was started under the 2005 Act but not completed before the commencement of this regulation, the 2005 Act (other than Divisions 1 and 2 of Part 2 of Chapter 7) continues in force to the extent necessary to allow the proceeding to be dealt with; and

(b)    if a proceeding could have been started under the 2005 Act in relation to conduct that happened before the commencement of this regulation, but was not started before the commencement of this regulation, the 2005 Act (other than Divisions 1 and 2 of Part 2 of Chapter 7) continues in force to the extent necessary to allow the proceeding to be started and dealt with.

Example of proceeding

A proceeding that would be started because of a person’s failure to comply with a requirement to produce a document.

…

(The 2005 Act is defined by s 1.3 of the Regulation as the BCII Act as in force immediately before the commencement of the Regulation.)

9    Before Greenwood J Abigroup Contractors Pty Ltd claimed that the transitional or savings provision contained in the Regulation had the effect of preserving the jurisdiction and power of the Court to make, in and for the purposes of the proceeding, the interlocutory orders of 12 June 2012, because (in summary):

    the proceeding was commenced under the BCII Act;

    the proceeding was not completed before the commencement of the Regulation on 1 June 2012;

    the BCII Act therefore continued in force (by virtue of the transitional Regulation); and

    sections 36, 37, 38 and 39 of the BCII Act are therefore saved and “continue” expressly for the purpose of enabling “the proceeding to be dealt with”.

10    At [77] however, his Honour found as follows:

The Amendment Act repealed from 1 June 2012 all of the provisions relied upon by Abigroup as the source of the right to be vindicated at trial on 26 November 2012. There is simply no basis under the primary Act as amended for granting at trial a permanent injunction to restrain the applicants from engaging, as to the future, in the conduct complained of. That conduct is no longer prohibited conduct at least in terms of the law as it stood prior to 1 June 2012 under the 2005 Act. The perceived vice to be remedied by the Amendment Act’s repeal of the relevant provisions as revealed by the Explanatory Memorandum is the perceived anomaly of a separate conduct regime for the Building and Construction industry rather than the general conduct regime of the Fair Work Act 2009 (Cth).

11    Importantly, his Honour continued:

[79]    Although the relevant provisions forming the basis of Abigroup’s claims were repealed effective from 1 June 2012, the transitional Regulation continues the pre-Amendment Act provisions in force, not generally, but only to an extent. The relevant words are words of limitation not general extension.

[80]    The 2005 Act continues in force “to the extent necessary to allow the proceeding to be dealt with”. Since the conduct complained of could not be unlawful (so far as the Act is concerned) if engaged in by citizens on and after 1 June 2012, it is a highly tortured construction of the transitional Regulation, directed as it is, to the statutory purpose of continuing the 2005 Act in force only to the extent necessary, to enable a particular uncompleted proceeding to be completed, to treat the transitional Regulation as continuing the 2005 Act in force to such an expansive extent that the applicants might be enjoined permanently from engaging in conduct no longer rendered unlawful or the subject of any statutory prohibition under the Act.

12    Accordingly, his Honour held that there was no basis for the interlocutory orders made by the Federal Magistrate, and that the transitional Regulation did not confer power or jurisdiction to make the interlocutory orders in relation to conduct in the period after 1 June 2012.

These proceedings

13    In these proceedings an interlocutory injunction was granted by Dowsett J on 26 May 2011. His Honour’s orders were in the following terms:

1.    Pursuant to s 421 of the Fair Work Act 2009 (Cth) and s 39 of the Building and Construction Industry Improvement Act 2005 (Cth), until the trial of these proceedings or other earlier order, the first respondent be restrained from, by itself, its servants, agents or otherwise howsoever:

(a)    organising industrial action as defined in cl 5 of the Order of Fair Work Australia dated 12 April 2011 PR508384 (annexure “A” to this order);

(b)    organising industrial action as defined in cl 5 of the Order of Fair Work Australia dated 4 April 2011 PR508114 (annexure “B” to this order);

(c)    aiding, abetting, counselling, procuring, authorising, influencing or encouraging any person to whom such orders apply to engage in any such industrial action.

2.    This order applies with respect to the sites defined in annexure A and annexure B.

3.    …

4.    …

5.    …

14    In making these orders his Honour observed in Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FCA 590 at [11]:

[11]    When matter QUD 110 of 2011 came before me on Tuesday and Wednesday, it was in the form of an application for an injunction pursuant to s 421(3) of the Australian Fair Work Act 2009 (Cth), based upon an order made by Fair Work Australia on 4 April 2011. That order relates to the Gold Coast Hospital site and expires on 1 June this year…

15    His Honour noted later in the judgment at [16]-[18]:

[16]    Another order was made by Fair Work Australia on 12 April 2011 and expires, as I understand it, on 12 June. It was in substantially similar form and is clearly binding upon the first respondent, its servants and agents.

[17]    … The applicant also seeks to justify its application for relief by reliance upon the Building and Construction Industry Improvement Act 2005 (Cth).

[18]    Pursuant to s 69(1) of that Act, the first respondent is responsible for the conduct of its officers and agents. Section 39 provides that an injunction may be made restraining unlawful industrial action. As I understand the way in which the first respondent has conducted proceedings today, it resists relief only upon the basis that it submits that it is not responsible for what the various officers did, or that their conduct was not sufficiently serious to justify the grant of an injunction. It is not, as I understand it, disputed that if I accept evidence of what was done, it demonstrates unlawful industrial action. For reasons which I have given, it seems to me to be clear that there is a prima facie case of conduct by officers of the first respondent, amounting to unlawful industrial action. In those circumstances, I find that there is a prima facie case against the first respondent.

16    It is in light of these reasons that his Honour ordered an interlocutory injunction against the respondents until the trial of these proceedings or other earlier order. Materially, however, the matter did not go to trial, but rather settled between the parties to the extent that civil penalty orders were sought. In a Statement of Agreed Facts and Contentions filed 23 December 2011, the parties stated as follows:

[73]    The CFMEU, CFMEUQ and CEPU further agree to the injunction granted by Dowsett J on 26 May 2011 (the Injunction) continuing to apply in respect of the GCUH Project and the Law Courts Project until the respective dates of Practical Completion of each project.

17    Further at [74] of the Statement of Agreed Facts and Contentions the unions made certain undertakings and agreed to, inter alia, the provision of bank security by the CFMEU as surety for compliance with the agreed injunction and undertaking.

Submissions of the parties in relation to injunctive relief sought

18    In summary, Lend Lease Project Management & Construction (Australia) Pty Ltd (“Lend Lease”) and the Director, Fair Work Building Industry Inspectorate (“Director”) submit that the Court has jurisdiction to make the orders agreed by the parties in relation to injunctive relief. The respondent unions submit that the Court does not.

19    Lend Lease submits, in summary, that:

    Section 7 of the Acts Interpretation Act 1901 (Cth) deals with the repeal of a statute. Section 7(2)(e) provides:

(2)    If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

    The right on the part of Lend Lease and the Director to pursue their cause of action under the BCII Act against the respondents was a right accrued under s 38 of the BCII Act and was unaffected by the repeal of Ch 5 and Ch 6 of that Act.

    No contrary intention was disclosed in the Amendment Act which repealed Ch 5 and Ch 6 of the BCII Act.

    In any event, Greenwood J’s decision in Abigroup is distinguishable from these proceedings because:

o    unlike the position in Abigroup the respondents in this case have admitted their contraventions of the BCII Act and agreed to give undertakings and consent to an injunction being granted by the Court. The proposed injunction and undertakings agreed to by the parties forms an essential component of the settlement between the parties.

o    Abigroup involved an application for an interlocutory injunction pending a final hearing later in the year. In this case the application is for final relief following a hearing of the matter which took place several months before the relevant provisions of the BCII Act were repealed.

o    the industrial action the subject of the proposed undertakings and injunctions in this case is industrial action which the respondents would, in any event, be prohibited from undertaking pursuant to ss 417-421 of the Fair Work Act 2009 (Cth) (“Fair Work Act”).

20    The Director adopted and supported the submissions of Lend Lease, and further submitted, in summary, that:

    Abigroup is distinguishable in this case.

    by the plain words of s 2.3 of the Regulation the BCII Act continues in force to the extent necessary to allow the proceeding to be dealt with.

    the proceedings here have been compromised on agreed terms, and the phrase “to the extent necessary to allow the proceeding to be dealt with” is clearly engaged in that the compromise of the proceedings, to be effected, requires such orders to be allowed to be made (although subject to the Court’s discretion).

21    The case of the respondents, namely that the Court lacks jurisdiction to make the orders sought, is (in summary) as follows:

    although the respondents do not resile from the position as stated in the Statement of Agreed Facts and Contentions, the law has clearly changed.

    the parties cannot confer on the Court jurisdiction which the Court does not have.

    The reasoning in Abigroup applies to the effect that the Court no longer has jurisdiction to grant the agreed injunctive relief.

Injunctive relief

22    The form of the interlocutory injunction ordered by Dowsett J on 26 May 2011 is not controversial. It is not unusual for interlocutory orders to be made until trial or earlier order (cf discussion in Meagher RP, Heydon JD and Leeming MJ, Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (4th ed, LexisNexis Butterworths, 2002) at [21-405]). As the High Court observed in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 181:

Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf Woods v Sheriff of Queensland; Hutchinson v Nominal Defendant; Chanel Ltd v F.W. Woolworth & Co Ltd.

(footnotes omitted.)

23    Further in Chanel Ltd v F.W. Woolworth & Co Ltd [1981] 1 All ER 745 Buckley LJ, with whom the other judges of the Court of Appeal agreed, observed (at 751):

In my judgment an order or an undertaking to the court expressed to be until further order, by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown.

24    There appears to be no dispute before the Court that his Honour’s orders remains in force. No trial of the proceedings has taken place; nor has any order been made by the Court to disturb the injunction. To that extent, while the parties have reached agreement to resolve the dispute between them, the respondents remain bound by his Honour’s orders of 26 May 2011. Practically, the parties have, in the Statement of Agreed Facts and Contentions, agreed that the injunction should, in fact, cease to have effect at the practical completion of the Law Courts Project and the Gold Coast University Hospital (“GCUH”) Project. The Court has been presented with submissions and material from which the inference must be drawn that circumstances have changed such that the intervention of the Court, bringing to an orderly conclusion the injunction currently in force, is warranted.

25    In my respectful view the reasoning of Greenwood J in Abigroup clearly states the law. However, the peculiar facts in the proceedings before me are clearly distinguishable from those in Abigroup where the Federal Magistrate had made interlocutory injunctive orders, extending existing injunctive relief pursuant to the BCII Act, after the relevant legislation had ceased to have effect. The injunctive relief which the parties in these proceedings agreed in the Statement of Agreed Facts and Contentions should be granted by this Court can be most accurately described as the continuation of a proceeding commenced prior to the repeal of Ch 5 and Ch 6 of the BCII Act. In order for the proceedings in this Court to be properly finalised now that the parties have reached agreement in relation to substantive claims, it is necessary that dispositive orders be made in relation to the current injunctive orders binding the respondents. This is not a case where the Court is only varying an existing interlocutory injunction, pending orders by way of final relief, as was the case in Abigroup. Section 2.3(1)(a) of the Regulation provides that the BCII Act continues in force to the extent necessary to allow the proceeding to be dealt with. An orderly disposition of the existing interlocutory order, of necessity, requires an order in terms of now-repealed provisions of the BCII Act. In my view, the proceedings currently before the Court are precisely the type of fact situation contemplated by the relevant transitional provisions. It follows that, in my view, the Court has jurisdiction to make the orders to which the parties have agreed.

26    In any event, it is also clear that the interlocutory orders made by Dowsett J on 26 May 2011 were made pursuant to s 421 of the Fair Work Act as well as s 39 of the BCII Act. Section 421 remains in effect, and is a separate statutory basis for the injunctive relief to which the parties have agreed. While it is not in dispute that the orders made by Dowsett J on 26 May 2011 related to orders of Fair Work Australia which expired on 12 June 2011 and 1 June 2011 respectively:

    I am not persuaded that those orders cannot form the foundation of any continuing injunction as submitted by the respondents. Indeed, if that were the case one might hypothesise that his Honour’s orders of 26 May 2011 should have automatically lapsed at the expiry of the Fair Work Australia orders on 12 June 2011 and 1 June 2011, and no suggestion is made by the parties that this was the case. It is clear that his Honour’s orders were made on the basis that his orders would continue in operation beyond the expiry of the Fair Work Australia orders.

    His Honour’s approach in granting injunctive relief extending past the expiry of the Fair Work Australia orders is neither unusual nor improper – another recent example of an injunction being granted by this Court following breach of orders of Fair Work Australia which had expired prior to the grant of the injunction is United Group Resources Pty Ltd v Calabro (No 7) [2012] FCA 432.

    It is clear that his Honour made orders granting interlocutory relief on 26 May 2011 on the basis that the orders of Fair Work Australia, made pursuant to s 418 of the Fair Work Act, had been breached. Paragraph 5 of the Orders PR508384 (dated 12 April 2011) and PR508114 (dated 4 April 2011) made by Fair Work Australia defined industrial action in terms of, inter alia, failure or refusal to attend or perform work. While breaches of the orders of Fair Work Australia are not expressly admitted in the Statement of Agreed Facts and Contentions, it is clear from the conduct admitted in that document that those orders were in fact breached. Section 421(3) of the Fair Work Act specifically empowers the Court to grant an injunction if the Court is satisfied that a person has contravened an order of Fair Work Australia.

27    It follows in my view that this Court has power under s 421 of the Fair Work Act to order that the current interlocutory injunction binding the respondents be discharged at a date specified.

Conclusion

28    As in my view the Court has power to order the injunctive relief sought, I now turn to the question of whether the Court ought make those orders.

Discretion

29    The parties have agreed that, in summary, the unions should be restrained from organising, engaging in or being involved in unlawful industrial action on or in connection with the GCUH Project and the Law Courts Project until the practical completion of those projects.

30    Where a person has contravened a civil penalty, the Court has a broad discretion to make orders it considers appropriate.

31    In considering whether to grant the relief sought by the parties, I take the following considerations into account:

    “[T]he fact the unlawful industrial action has ceased is not of itself a reason not to grant an injunction”: United Group Resources Pty Ltd v Calabro (No 2) [2010] FCA 71 at [19].

    Similarly, the “degree of likelihood that the conduct will occur is obviously very relevant but no fixed degree of persuasion that the conduct will occur is necessary”: Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [28], cited in Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2012] FCA 748 at [53].

    “The fact that unlawful conduct has occurred makes the court more disposed towards ordering relief”: Kestrel Coal Pty Ltd at [30], cited in United Group Resources Pty Ltd v Calabro (No 2) at [22].

    The conduct the subject of these proceedings was not a one-off incident. The fact that the unlawful industrial action conduct was repeated supports an order deterring similar future conduct: Hadgkiss v Construction, Forestry, Mining and Energy Union (No 4) [2007] FCA 425 at [84]; United Group Resources Pty Ltd v Calabro (No 7) at [49].

    As observed by McKerracher J in United Group Resources Pty Ltd v Calabro (No 7) at [47]:

Most statutes which empower a court to grant statutory injunctions are “public interest” statutes and as such the prime objective of the power thus conferred is to compel compliance with the statutory obligation so as to ensure that the public interest is served. To that end, it is relevant to consider whether granting the injunction would have some utility or serve a purpose within the contemplation of the legislation…

In this case the injunctive relief sought only restrains the relevant unlawful conduct. This is consistent with the objects of the BCII Act: Woodside Burrup Pty Ltd v Construction, Forestry, Mining & Energy Union [2011] FCA 949 at [158]; United Group Resources Pty Ltd v Calabro (No 7) at [54].

    The proposed injunction only restrains the respondent unions for a limited time, referable to the relevant projects and the sites on which those projects are being “practically completed”, which is reasonable in the circumstances: United Group Resources Pty Ltd v Calabro (No 7) at [56].

    The proposed injunction forms an essential part of the settlement between the parties: Woodside Burrup Pty Ltd at [160].

32    In my view it is appropriate to grant injunctive relief in the terms agreed by the parties.

Bank Guarantee

33    The CFMEU has agreed to provide a bank guarantee in the sum of $150,000 in favour of Lend Lease as security for compliance by the unions with the terms of the agreed injunctive relief.

34    In my view this is in the nature of further deterrence of unlawful industrial action. It is appropriate to make an order in the terms agreed.

Associate:

Dated:    15 November 2012