FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Bechtel Construction (Australia) Pty Ltd [2013] FCA 667

UPON the usual undertaking as to damages

THE COURT ORDERS THAT:

1.    Until the hearing and determination of this application, or further order, the respondent re-instate Mr Kerry Dodd, dismissed on 4 July 2013, to his former employment on the same terms and conditions that applied prior to 4 July 2013.

2.    The application is otherwise dismissed.

3.    The costs of the application are reserved.

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

REASONS FOR JUDGMENT

1    These proceedings concern an Application for two Interlocutory Orders pending the determination of the principal proceeding.

2    In the principal proceeding the applicant (the “CFMEU”) seeks a declaration that the respondent (“Bechtel”) has contravened s 340 of the Fair Work Act 2009 (Cth) (the “Act”) by terminating the employment of six employees (Brody Gardiner, Kerry Dodd, Shane West, Neil Schwindt, Stephen Farmfield and Zach Mahoney), on 4 July 2013, because each employee had exercised a work place right under the Act; a declaration that Bechtel has contravened s 340 by issuing warnings to a number of employees on 5 July 2013 (thus amounting to adverse action under the Act) because they had each exercised a work place right under the Act; an order that Bechtel treat the termination of employment of each of the six employees as null and void; a re-instatement order; an order rendering the warnings null and void; the imposition of penalties under s 546 of the Act; and, a declaration that Bechtel has breached contracts of employment with each of the six dismissed employees.

3    In aid of the final relief, the CFMEU seeks the following interlocutory orders pending the determination of the proceeding or earlier order. First, an order that each of the six employees dismissed on 4 July 2013 be re-instated to their former employment on the same terms and conditions prevailing on 4 July 2013. Second, that Bechtel treat the warnings issued to employees on 5 July 2013 arising out of or related to those employees ceasing work on 3 July 2013 at the project worksite, as null and void. Third, an order that Bechtel be restrained from issuing warnings to any employee at the project worksite (who is entitled to be a member of the CFMEU) arising out of or related to that person ceasing work at the project worksite on 3 July 2013.

4    The proceedings are brought only by the CFMEU.

5    Counsel for the CFMEU says that each of the dismissed employees is a member of the CFMEU although that matter is the not the subject of any evidence. The CFMEU seeks an interim re-instatement order of each dismissed employee pursuant to s 545 of the Act. Under that section of the Act, the Federal Court may make any order the Court considers appropriate if the Court is satisfied that a person has contravened or proposes to contravene a civil remedy provision of the Act. As to the dismissal conduct on the part of Bechtel, none of the six employees are applicants in the proceeding. None of them have put on any evidence in support of the application for the interlocutory re-instatement orders. None of them have put on any evidence that they ceased work on 3 July 2013 because they were engaged in exercising a work place right of consultation with a CFMEU officer about a safety matter arising under a work place law. None of them have put on any evidence that at the material time they were exercising a work place right under the Act. Even if the six individuals were not astute to the notion that they were exercising a work place right under the Act by doing something, they nevertheless have not put on any evidence of the conduct on 3 July 2013 or the contention that when not returning to work they were engaged in consultations of a particular kind exhibiting particular content which, when assessed, properly falls under the description of the exercise of a work place right under the Act.

6    The application is supported by an affidavit sworn by Mr Ben Loaks who is the Central Queensland Organiser employed by the CFMEU. When the application for the interlocutory orders came before the Court on Thursday 4 July 2013, the application was supported by an affidavit sworn by Mr Tiley a solicitor employed by the solicitors for the CFFMEU. That affidavit was an affidavit of information and belief. In that affidavit Mr Loaks informed Mr Tiley of particular background facts, although the affidavit did not reflect any real content to the critical discussions Mr Loaks says he had with employees of Bechtel on the project worksite on 3 July 2013. Bechtel had not had an opportunity to put on any responsive material and sought to adduce oral evidence in response to the contentions of Mr Loaks.

7    The application was adjourned to 2.30 p.m. on Friday 5 July 2013 to enable the applicant to put on any further evidence in support of the interlocutory application and to enable Bechtel to put on whatever affidavits they might have sought to rely upon. In the end result, the applicant relies upon an affidavit sworn by Mr Ben Loaks on 5 July 2013 and a further affidavit sworn by Mr Tiley which attaches the Bechtel Queensland LNG Projects Union Greenfield Agreement which applies at the work site. The affidavit also attaches some correspondence. Bechtel relies upon the affidavits of Mr Fox, Ms Child and Mr McCarthy all sworn 5 July 2013.

8    The background facts drawn from Mr Loaks’ affidavit are these.

9    Mr Loaks is the CFMEU Central Queensland Organiser responsible for a construction site at Curtis Island near Gladstone where Bechtel is constructing a natural gas processing facility. The site is known as the QCLNG site (the “Site”). Mr Loaks has been the CFMEU organiser for the Site since 2011. There are approximately 200 members of the CFMEU who work at the Site. In his role as organiser, Mr Loaks meets regularly with representatives of Bechtel and visits the Site. The employees (and particularly the CFMEU members) usual start time is 6.30 a.m. or 7.00 a.m. Their first smoko break is from 10.00 a.m. to 10.30 a.m. Their second smoke break is from 1.30 p.m. to 2.00 p.m. They usually finish work at 4.30 p.m., on the day shift.

10    Since March 2013 Mr Loaks has been raising issues with Bechtel representatives about various matters including safety concerns. Mr Loaks says that as at 3 July 2013 Bechtel had not adequately responded to the safety concerns and those concerns have not been resolved to the satisfaction of the members. The safety concerns are reflected, in very general terms, in Annexures BL1, BL2, BL3 and BL4. BL1 raises a range of matters to do with a superannuation fund, an MIC program, adequate covers over a walkway from the ferry and matters described as a “large list of breaches to be rectified” arising out of an s 117 Notice which is a notice under the Work Health and Safety Act 2011 (Qld) (the “WHS Act”) which entitles a “WHS entry permit holder” to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act that relates to or affects a relevant worker. BL1 is an email dated 25 March 2013. BL2 is an email dated 21 June 2013 and it raises a number of issues, two of which are said to be related to safety questions, namely, a requested extension on the southern walkways on the camp (at the Site) and a matter concerning the mess hall arrangements. Some of the other issues may or may not touch upon a health and safety question. BL3, 24 June 2013, requests a response to the earlier emails. BL4, an email dated 24 June 2013 presses for a written response to the earlier matters and BL5, an email dated 28 June 2013 says that Mr Loaks is still awaiting a response. Bechtel contends that these matters were dealt with orally and each of the issues raised in the first two emails had been addressed and were no longer in issue on 3 July 2013.

11    On 3 July 2013 Mr Loaks attended the Site pursuant to a notice given to Bechtel under s 484 of the Act. Mr Loaks was not purporting to enter the worksite pursuant to a notice under s 117 of the WHS Act. As mentioned, s 117 entitles the relevant permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act that relates to or affects a relevant worker. The WHS permit holder “must reasonably suspect before entering the workplace that the contravention has occurred or is occurring”: s 117(2). Section 118 provides that while at the workplace under Div 2 of Pt 7, the permit holder may “consult with the relevant workers in relation to the suspected contravention” (s 118(1)(b)) and “warn any person whom the WHS entry permit holder reasonably believes to be exposed to a serious risk to his or her health or safety, emanating from an immediate or imminent exposure to a hazard, of that risk” (s 118(1)(e)).

12    I am satisfied that the WHS Act is a workplace law for the purposes of the Fair Work Act 2009 (Cth).

13    Mr Loaks says that shortly after arriving at the ferry terminal to travel from Gladstone to Curtis Island, he had a discussion with Ms Wane, Bechtel’s Human Resources Manager who said that Mr Fox would go through Mr Loakes’ issues when he reached the island. Mr Loakes pressed his concern for a written response to the issues. Mr Loakes arrived at the Site and entered under the entry notice under s 484 of the Act earlier given to Bechtel. Mr Loakes says that he sought to discuss safety concerns with Mr Fox, Bechtel’s Human Resources Officer. Mr Fox could not find the list of issues, according to Mr Loakes. Mr Loakes then had a discussion at approximately 10.00 a.m. until, he says, 10.30 a.m. at the Cribb sheds near the Cluster 8 area.

14    Mr Loakes says that in this discussion one of the members asked when was Bechtel going to start being compliant with the code in relation to crane works at high winds? Mr Loakes understood the question to refer to the code of practice regulating the use of cranes in high wind conditions (winds of 7 metres per second or above). Another member asked, what is being done about the sewerage? That question concerned the amenity of some of the Cribb room facilities. Mr Loakes says that members raised two serious safety incidents that had occurred at an adjoining construction site (the GLNG Site) for which Bechtel is also the principal contractor. Mr Loakes says that one of the members asked, what has been happening at the GLNG Site? The member said: “we’ve been limited on feedback and it is the same thing that we’ve had happening here, using dog boxes at high winds and stuff”.

15    Mr Loakes says that as a result of these questions he suspected that Bechtel was contravening the WHS Act by not providing a safe system of work for members and he resolved to investigate these suspected contraventions. Mr Fox asked Mr Loakes shortly after 10.30 a.m. for the meeting to be wound-up. If the meeting was to continue much longer, the men would have their pay docked. Mr Loakes says he told the men that they ought to head back to work but that he would come back at 1.00 p.m. and consult about the safety issues. Mr Loakes says the men returned to work at 10.40 a.m.

16    Mr Loakes says that between 10.40 a.m. and 1.40 p.m. he addressed with Mr Fox and Ms Wane the long-standing safety issues raised in the earlier emails. Mr Loakes asked Mr Fox what he knew about the incident involving the dog box at GLNG. Mr Fox said he knew nothing about it. Mr Loakes says that he did not raise with Mr Fox any of the other safety issues which the workers had foreshadowed at the first smoko meeting. He felt it was premature to do so until he had consulted with the workers about those issues later in the day. Mr Loakes’ consultation session began at 1.00 p.m. At 1.00 p.m. Mr Fox told Mr Loakes and the members that Bechtel considered the members to be taking unlawful industrial action by participating in the consultation at 1.00 p.m. (rather than from 1.30 p.m. to 2.00 p.m. during the proper smoko break) and that they would have four hours’ pay deducted from their wages. The meeting proceeded.

17    During the meeting Mr Loakes says he discussed a safety issue relating to fatigue arising out of employees waiting at the ferry terminal for up to two hours which was of concern for the employees involved in twelve hour shifts. Mr Loakes says that he spoke in detail with the men about the safety issues raised in the first smoko break. He spoke to them about two incidents at the GLNG plant and the nature of the injuries suffered. He spoke to them about their concern that Bechtel was covering-up matters such as chains which became tangled up in the birdcage when the wind blew. One member said that Bechtel fails to follow its own safe work method statements and if a person puts in a hazard card, “you are the worst bloke in the world”. Mr Loakes says the consultation went from shortly after 1.00 p.m. until before 1.30 p.m. and no issues other than safety issues were raised. At 1.30 p.m. the men had their smoko break. Bechtel’s industrial action declarations meant that the members would not be paid for working for the balance of their shift that day. They withdraw their labour and did not wish to work if they would not be paid. Mr Loakes says the men were willing to return to work at 2.00 p.m. if the industrial action declaration was withdrawn. It was not. Approximately 70 works failed to return to work on 3 July 2013. The vast majority of those employees are members of the CFMEU. At about 7.00 p.m. on 3 July 2013 Mr Loakes sent a notice under s 117 of the WHS Act to Bechtel in relation to the consultations with the employees about the safety issues, on 3 July 2013.

18    On 4 July 2013 Bechtel terminated the employment of the six men mentioned earlier. Of those six, Mr Loakes says that he is informed by Mr Dodd, Mr Mahoney and Mr West that if they are not re-instated pending the hearing, or successful in obtaining alternative employment, they will be unable to meet their financial commitments and those of their families.

19    Mr Fox says that the issues raised by Mr Loakes in the 21 March 2013 email had been dealt with by Ms Wane and those matters were regarded as resolved. Mr Fox says that many of the issues are not related to safety concerns at all in the event. Mr Fox says that the issues raised by Mr Loakes were discussed with Ms Wane and also with Mr Munro, an employee of Bechtel at the Site. Mr Fox says that he explained to Mr Munro Bechtel’s position on the various issues and as far as he understood it both Mr Fox and Mr Munro regarded the matters as sufficiently finalised. Mr Fox was told by Mr Munro that Mr Munro was happy with the discussion and clarification of the issues. Mr Munro made the point that Mr Loakes, however, wanted a response in writing.

20    On 2 July 2013 Mr Fox received a copy of Mr Loakes’ entry notice under s 484. On 3 July 2013 Mr Loakes, Mr Fox and Ms Gardiner, a Bechtel Workforce Relations Representative, met in Bechtel’s main office and had a discussion. A further meeting occurred in a meeting room and Mr Loakes asked about the issues raised in the earlier emails. Mr Fox explained that he had discussed the issues with Mr Munro on Site on 28 June 2013 and the issues were regarded as closed. Nevertheless, Mr Loakes pressed for a written response. Just before 10.00 a.m. Ms Gardiner and Mr Fox accompanied Mr Loakes to Cluster 8, 9. 10 and 11 where Mr Loakes wanted to talk to employees. Ms Gardiner and Mr Fox left Mr Loakes to conduct the meeting. At 10.30 a.m. Ms Gardiner and Mr Fox asked Mr Loakes to wind-up the meeting. Five minutes later Mr Loakes said to Ms Gardiner and Mr Fox that the men wanted a response to the issues Mr Loakes had raised and that no-one would work until they received written responses to Mr Loakes’ email. Mr Fox suggested that Ms Gardiner, Mr Loakes and Mr Fox meet in Bechtel’s office to settle on the issues so the outcome could be relayed to the group at 1.30 p.m. Mr Loakes responded in emphatic language that he wanted answers immediately. Further exchanges occurred. The workers disbanded at approximately 10.50 a.m. and returned to work.

21    Mr Fox says that shortly thereafter he heard, on Mr Loakes’ radio, Mr Munro telling the workers that there would be a meeting at 1.00 p.m. to discuss a response to the issues.

22    At 11.10 a.m. Mr Loakes, Mr Gardiner and Mr Woodley (an employee and member of the group that had met with Mr Loakes at 10.00 a.m.) went to Bechtel’s main office to discuss Bechtel’s response to the issues raised in the emails. Mr Fox detailed Bechtel’s position in detail. Mr Loakes took notes. The meeting was amicable. After Mr Fox’s comments, Mr Loakes said he wanted to speak to Ms Wane regarding CBUS access to Site (concerning superannuation) and an issue regarding depression in the construction industry.

23    Mr Fox says, consistent with Mr Loakes’ evidence, that Mr Loakes did not raise any safety issues or even mention safety during the meeting or at any stage prior the meeting.

24    At the end of the meeting Mr Loakes simply said that he would now like to speak to Ms Wane. Mr Fox then came upon Mr Loakes and Ms Wane talking outside Ms Wane’s office. He heard Mr Loakes ask Ms Wane why she hadn’t responded to the email of 21 June 2013. Ms Wane said that she had dealt with the issues and it was Bechtel’s practice to discuss the issues orally with Bechtel employees and union delegates and officials. Ms Wane said that she had had those discussions on 28 June with Mr Munro, and on 27 June 2013 Mr Munro and Mr Watson had also discussed the issues.

25    At 1.00 p.m., about 50 workers were waiting at the Cluster 8, 9, 10, 11 area. Mr Loakes said that he had not organised the meeting for 1.00 p.m. Mr Fox said that everyone was hear to meet him at 1.00 p.m. Ms Wane took the position that since the workers had arrived to conduct a meeting prior to their scheduled lunch period, they were engaged in unlawful industrial action. Because the workers had stopped working with a view to meeting Mr Loakes outside their lunch break, Mr Fox was of the view that they ought to be told that their actions amounted to unlawful industrial action. Mr Loakes and Mr Downham told the men that lunch was not until 1.30 p.m. and that meeting at 1.00 p.m. was unlawful industrial action and they would be docked a minimum of four hours’ pay as a result. Mr Fox says the meeting concluded at 1.40 p.m. Mr Loakes said that the men would return to work at 2.00 p.m. if Bechtel elected not to dock them their pay. Bechtel did not agree to that proposal. Mr Fox says Mr Loakes met with the men for another 45 minutes and the meeting concluded at about 2.45 p.m.

26    Mr Fox says that the first occasion when he became aware that Mr Loakes was raising a safety issue was on 3 July 2013 at 8.32 p.m. when Ms Wane forwarded to Mr Fox, Mr Laokes’ email attaching an s 117 Notice. Mr Fox says that neither Mr Loakes nor any of the employees taking industrial action on 3 July 2013 raised any safety issues with him on 3 July 2013 or mention anything about safety. None of the employees said to Mr Fox that Mr Loakes was taking steps or exercising rights under s 117 of the WHS Act or otherwise.

27    On the morning of 4 July 2013 Mr Fox considered the workers who had been involved in the action and whether disciplinary ought to be taken. Ms Child conducted meetings with Mr Dodd and Mr Mahoney. Mr Fox conducted meetings with Mr Gardiner, Mr West, Mr Schwindt and Mr Farmfield.

28    As to Mr Gardiner, he commenced employment with Bechtel on 24 April 2012. He met with Mr Fox at 12.30 p.m. on 4 July 2013. Mr Munro was present as Mr Gardiner’s support person. The discussion took place about the events. Mr Gardiner said that he attended the meeting but returned to work after 2.00 p.m. Mr Gardiner did not say anything about a discussion of safety issues or any consultation with Mr Loakes abut safety. Mr Gardiner’s employment was terminated by Mr Fox on the basis that Mr Gardiner engaged in unlawful industrial action. Mr Fox took into account an earlier history of absenteeism as part of the reason for the termination of employment.

29    As to Mr Farmfield, Mr Fox met with Mr Farmfield on 4 July, Mr Munro was present as a support person. Mr Farmfield had commenced employment with Bechtel on 6 March 2013. Mr Fox says that Mr Farmfield seemed to accept that the meeting constituted unlawful industrial action and did not provide a response as to the reasons why he took part in the meeting. Mr Fox pointed out at the meeting that Mr Farmfield did not resume work until 2.45 p.m. on 3 July 2013. Mr Fox says that at no time did Mr Farmfield say anything about safety or that the meeting with Mr Loakes involved consultation about safety. Mr Fox terminated Mr Farmfield’s employment on the basis of his participation in what Mr Fox regarded as unlawful industrial action and prior breaches in relation to safety rules.

30    As to Mr West, he commenced employment with Bechtel on 20 June 2012. Mr Fox met with Mr West on 4 July 2013. Mr Munro was present as a support person. Mr West returned to work at 2.45 p.m. Mr West did not contend (or say anything about) discussing safety issues with Mr Loakes. Mr Fox terminated Mr West’s employment on the basis of his participation in the activity.

31    As to Mr Schwindt, he commenced employment with Bechtel on 18 July 2012. Mr Fox met with Mr Schwindt on 4 July 2013. Mr Schwindt did not have anyone present as a support person. Mr Schwindt said that he did not go back to work after the meeting but in hindsight he ought to have gone back. Mr Schwindt did not suggest that anything in relation to safety was discussed at the meeting. Mr Fox terminated Mr Schwindt’s employment on the basis of his involvement in the activity and his refusal to return to work. Mr Fox says he had no reason to believe that any issue of safety was alive.

32    As to Mr Mahoney, Ms Child attended a meeting with him on 4 July 2013. Mr Scriffigano was present. Mr Munro attended as Mr Mahoney’s support person. Mr Mahoney did not contend that he attended the meeting with Mr Loakes to discuss safety. Mr Mahoney did not deny that ceasing to perform duties and then refusing to return to work amounted to engaging in unprotected industrial action. Mr Scriffigano decided that Mr Mahoney’s employment was to be terminated on the basis of Mr Mahoney’s refusal to work after 2.00 p.m. on 3 July 2013. Mr Mahoney refused to sign a letter of termination.

33    As to Mr Dodd, Ms Child met with him on 4 July 2013. Mr Scriffigano and Mr Downham were present. Mr Munro attended as Mr Dodd’s support person. Mr Dodd said that he was not going to work for the remainder of the day once he heard that anyone in the area would be docked four hours’ pay for taking an unauthorised break from work. Mr Dodd had arrived at the Cribb area at approximately 1.25 p.m. for the purpose of washing-up prior to the smoko break. Ms Child said that Mr Dodd stated that he went back to his crane at 3.30 p.m. to shut down for the day. Ms Child says that Mr Dodd did not mention safety at all during the disciplinary meeting. Ms Child and Mr Scriffigano were not willing to accept Mr Dodd’s version of the events. Mr Scriffigano elected to terminate Mr Dodd’s employment on the footing that he had refused to return to work. Mr Dodd left the Site by ferry, collected his car and drove home to Childers.

34    On the basis of the evidence of Mr Loakes I am satisfied of these matters. Even though s 117 of the WHS Act contemplates that the permit holder must reasonably suspect before entering the workplace that a contravention has occurred or is occurring, I am satisfied that there is a serious question about the construction of s 117 in the sense that a permit holder under the WHS Act who has lawfully entered the Site under an s 484 notice, might become aware of safety circumstances which cause him or her to reasonably suspect a contravention has occurred or is occurring. Such a person might not need to leave the Site and then exercise a right of entry on the basis of a reasonably held suspicion, in place, before then re-entering the worksite. Bechtel says that such a person who becomes aware of safety concerns and who is lawfully on-site would be entitled to meet with the employees in the breaks and discuss safety issues. Whatever the proper construction and operation of the provision might be, and its application to the facts of the case, there is nevertheless a serious question to be tried about that matter.

35    As to the testes to be applied in exercising the discretion as to whether an interlocutory order ought to be made, the tests are those set out in CEPU v Bluestar Pacific Pty Ltd (2009) 184 IR 333 at [21] also [23]-[25]; Construction, Forestry, Mining and Energy Union v Abigroup Contractors Pty Ltd [2012] FCA 1134 at [70]-[71], [74]-[76]; Samsung Electronics Co. Limited v Apple Inc. (2011) 286 ALR 257 at [55]-[59]; MUA v Patricks Stevedores (1998) 195 CLR 1; Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464. See also, as to the forensic task at trial Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [45] per French CJ and Crennan J.

36    I am also satisfied that Mr Loakes has raised some evidence of contended discussions about matters of safety. A discussion of a matter of safety under a workplace law by an employee with a permit holder is the exercise of a workplace right for the purposes of s 341 of the Act and an employer must not take adverse action (termination of employment) because a person has exercised a workplace right. Similarly I am satisfied that there is some evidence of Bechtel issuing warnings against other employees. I am also satisfied that Bechtel has terminated the employment of the six employees on the basis that they stopped work to attend a meeting outside the permitted hours and failed to return to work at the resumption time for their shift. I am satisfied that Bechtel seeks to characterise participation in the meeting outside break times and a refusal to resume work at the resumption times as unlawful industrial activity and thus the operative cause for the termination is that conduct. However, it is necessary to consider the strength of the prima facie case or serious questions to be tried. None of the employees have put on any evidence that they attended the meeting outside the break times and refused to resume until the times they actually resumed, for the reason that they were concerned about a safety issue and wanted to, and did, consult with Mr Loakes about safety matters. Mr Loakes did not tell Mr Fox that safety issues had been raised at the first meeting. He did not seek to agitate the merits of any safety issue raised apart from a question about an incident at an adjoining project site. None of the men in the termination meetings, five of whom were assisted by an accompanying person, protested that Bechtel was taking a view of the matter which was entirely inconsistent with a perfectly legitimate discussion about safety concerns. The only evidence as to the content of the discussion is the evidence of Mr Loakes. Counsel for the CFMEU recognises that at the trial of the action much evidence would be called from the men (and women) attending the meeting who would talk about the discussions. The applications for interim re-instatement are grounded solely upon Mr Loakes’ evidence. In the absence of any evidence from any one of the employees deposing to any foundation facts, I am not satisfied that the strength of the serious question to be tried justifies the exercise of the discretion to make an interim re-instatement order pending the trial, subject to what follows.

37    As to Mr Dodd, his employment was terminated on the basis that he engaged in unlawful industrial activity because he was, apparently, in the area of the Cribb huts at about 1.25 p.m. and he seems to have been swept up in the notion that he was there before the formal break time and was thus engaged in a meeting which amounted to engaging in unlawful industrial activity. Ms Child says that Mr Dodd said that once he heard that his pay would be docked four hours, he refused to return to work. Mr Dodd seems to have arrived five minutes too early. Who knows what position he may have adopted had his pay not been docked four hours on the assumption that he arrived to participate in the meeting scheduled for 1.00 p.m. I am not satisfied that Mr Dodd was engaged in unlawful industrial activity, when he refused to return to work upon either hearing or being told that his pay had been docked.

38    Apart from being unconvinced about the strength of the serious question to be tried on the part of the six employees (apart from Mr Dodd’s circumstances), these employees are project employees who have not been part of the Bechtel cohort for any length of time. It seems to me that the better course is for directions orders to be made for an urgent trial of the action. A directions hearing ought to be convened as soon as possible for the making of those orders.

39    I do not propose to make any interlocutory orders other than an order that Mr Dodd’s employment be re-instated on the terms and conditions prevailing at 4 July 2013, pending the trial of the action. I will make no orders in relation to the warning letters. The costs of the application will be reserved for later determination.

Associate:

Dated:    8 July 2013