FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2016] FCA 1305

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an application for leave to appeal against interlocutory orders made by Collier J on 14 October 2016. The applicants are the Construction, Forestry, Mining and Energy Union (“CFMEU”) and seven of its organisers or officials. The respondent is the Director, Fair Work Building Industry Inspectorate.

2    On 28 September 2016, the respondent commenced proceedings QUD755/2016 against the applicants. The respondent alleges that the applicants contravened ss 343, 346, 348, 355 and 417 of the Fair Work Act 2009 (Cth). Broadly described, the allegations are that the applicants caused unlawful industrial action to be taken at nine building sites occupied by Hutchinson Builders (“Hutchinson”) in Brisbane. The industrial action is alleged to be aimed at the use by Hutchinson of “non-EBA subcontractors” in Darwin.

3    The respondent sought interim and interlocutory injunctions against the applicants. On 29 September 2016, Greenwood J granted interim injunctions. At the hearing of the application for interlocutory injunctions on 12 October 2016 before Collier J, the applicants did not dispute that the respondent had demonstrated a prima facie case or that the balance of convenience favoured the granting of injunctions. However, the applicants contested the width of the injunctions sought by the respondent. In particular, the applicants contended that the injunctions should be restricted to preventing industrial action at the nine Hutchinson’s building sites in Brisbane and should specifically exclude protected industrial action from their reach.

4    Justice Collier substantially rejected the applicants’ submissions and, relevantly, made the following orders:

1.    Until the hearing and final determination of the proceeding or further order, the first respondent (whether by its officers, delegates, employees or agents, or howsoever otherwise) and the second to eighth respondents be restrained from organising, encouraging, directing, counselling, procuring, aiding or assisting in any stoppage, cessation, disruption or interference of paid work at any building site occupied and/or in the control or responsibility (in whole or in part) of J Hutchinson Pty Ltd T/A Hutchinson Builders (Hutchinson sites).

2.    Without limiting the effect of paragraph 1 of this order, until the hearing and final determination of the proceeding or further order, the first respondent (whether by its officers, delegates, employees or agents, or howsoever otherwise) and the second to eighth respondents be restrained from:

(a)    convening, organising or conducting more than one meeting of workers at the same Hutchinson site within any 7 day period; and

(b)    convening, organising or conducting the meeting referred to in (a) without first giving 48 hours written notice to J Hutchinson Pty Ltd T/A Hutchinson Builders and any employer of any workers that are anticipated to attend the meeting, such notice to include a brief statement of the purpose of the meeting and the precise time, date, location and expected duration of the meeting.

3.    For the avoidance of doubt, paragraphs 1 and 2 of this order do not apply to:

(a)    any bona fide exercise of a right under any State or Territory OHS law as that expression is defined in s 494(3) of the Fair Work Act 2009 (Cth) (FW Act) and r 3.25 of the Fair Work Regulations 2009 (Cth) where such right is exercised by a person holding an entry permit issued pursuant to s 512 of the FW Act; or

(b)    any bona fide advice provided to a person working on a Hutchinson site as to that person's rights in respect of any occupational health and safety issue, including any advice as to when it may be appropriate for a person to cease working because of a reasonable concern of an imminent risk to the person's health or safety.

…

7.    Liberty to apply reserved on 24 hours’ notice.

5    The applicants now seek leave to appeal against Collier J’s orders. The applicants do not seek to dispute the granting of interlocutory injunctions, but only the width and language of those orders. The proposed grounds of appeal, as explained in oral submissions, may be summarised as follows:

1.    Her Honour erred by granting interlocutory injunctions which extend beyond Queensland and the Northern Territory in the scope of their operation.

2.    Her Honour erred in failing to exclude protected industrial action from the scope of the injunctions – with the consequence that the injunctions prevent the applicants from undertaking or organising lawful industrial activity.

3.    Order 2 is unclear, internally inconsistent and ambiguous.

4.    Order 3 is ambiguous.

5.    Her Honour acted upon a wrong principle by proceeding on the basis that she was required to choose between the applicants’ draft order and the respondent’s draft order, rather than exercising the Court’s discretion as to the appropriate order to make.

6    In Décor Corporation Pty Ltd v Dart Industries Inc (1993) 33 FCR 397 (“Décor”) at 398-399, the Full Court held that in an application for leave to appeal, the two principal factors to consider are:

(a)    whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court; and

(b)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

7    In this case, the interlocutory injunctions have an ongoing effect upon the applicants’ substantive rights, particularly the right to take protected industrial action. I accept that leave to appeal should be more readily given where substantive rights are affected than where matters of practice and procedure are involved: Minogue v Williams (2000) 60 ALD 366 at [19].

8    I will consider the factors in Décor by reference to each of the applicants’ proposed grounds of appeal.

9    As to their first proposed ground, the applicants submit that it is well established that an interlocutory injunction should be no wider in ambit than is necessary: Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 at 18 and 36; Optus Networks Pty Ltd v City of Boroondara [1997] 2 VR 318 at 336-337; and National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 556-559. They submit that the respondent made no allegation of any wrongdoing or threats of wrongdoing outside Queensland and the Northern Territory. They also point out that the unchallenged evidence of the applicants was that the CFMEU’s decision-making structures are organised into autonomous divisional branches within each State and Territory. The applicants accept that the principles in House v R (1936) 55 CLR 499 will apply in the appeal. They submit that there was no reasonable basis for her Honour to have inferred that there was a sufficient risk that the applicants would engage in coercive action beyond Queensland and the Northern Territory to justify orders that operate Australia-wide.

10    Justice Collier’s orders were made pursuant to s 545 of the Fair Work Act. Section 545(1) confers a wide power to make “any order the court considers appropriate” if satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

11    Justice Collier identified the factor that made it appropriate to grant an injunction extending beyond Queensland and the Northern Territory as the risk of future contravening conduct by the applicants in respect of other Hutchinson sites in Australia. Her Honour found that such a risk was demonstrated by the following matters:

    There was evidence that the applicants’ activities were referable not to issues at the nine specific sites in Brisbane, but, more generally, sites “under the Hutchies banner.”

    It was likely that there were many Hutchinson projects in Australia outside Queensland and the Northern Territory.

    The CFMEU operates nationally with a federal structure, and her Honour was “not convinced at this stage of the proceeding that the CFMEU would not act holistically in respect of Hutchinson sites outside Queensland and the Northern Territory to achieve an outcome desired by one of the Divisional Branches”.

12    It is clear that there was sufficient evidence to allow her Honour to infer that there was a risk that the applicants would engage in coercive action at Hutchinson sites outside Queensland and the Northern Territory in support of its campaign to have Hutchinson stop using non-EBA contractors in Darwin. Her Honour noted the evidence of the CFMEU’s Divisional Branch Secretary, Mr Ravbar, that the CFMEU’s construction and general division in Queensland and the Northern Territory operate autonomously from divisions and branches in other States, and her Honour also noted that the industrial action had occurred only in Queensland. However, it was reasonably open to her Honour to conclude that there remained a sufficient risk of similar industrial action in other States to justify an Australia-wide injunction. The applicants’ prospects of persuading a Full Court to the contrary are poor.

13    The applicants also argued that her Honour, in the passage quoted at [11], reversed the burden of proving the existence of a risk of similar industrial action being taken outside Queensland or the Northern Territory. However, read in context, her Honour was merely pointing to the absence of evidence from the CFMEU showing the absence of risk in circumstances where there was ample evidence that such a risk existed. The applicants’ prospects of success upon this argument are also poor.

14    The applicants’ next ground is that her Honour erred in failing to exclude protected industrial action from the scope of the injunction. Her Honour noted that protected industrial action under s 408 of the Act must relate to a proposed enterprise agreement. The only enterprise agreement with Hutchinson referred to in the evidence before her Honour was approved on 9 November 2015 and had a nominal expiry date of 2 July 2019. Her Honour concluded that there was no apparent imperative for an exception for protected industrial action from the proposed restraints. In my opinion, her Honour was clearly correct in that conclusion.

15    Evidence produced by the applicants in this application indicates that the CMFEU is in the process of negotiating an enterprise agreement in New South Wales with Hutchinson and that it may wish to organise protected industrial action “quite shortly”. There was no evidence of that proposed industrial action before her Honour. Otherwise, her Honour may have excluded such action from the scope of the injunctions. It is open to the CFMEU to apply under the liberty to apply provision of the order for a variation of the injunctions to allow it to organise protected industrial action.

16    The applicants’ next ground is that order 2 is unclear, internally inconsistent and ambiguous. There may be some force in those criticisms. Justice Collier herself described the wording of order 2 as “awkward”. Order 2 commences with the words “Without limiting the effect of paragraph 1 of this order”, suggesting that a more specific restraint is to be described. Instead, the order goes on to carve out an exception to order 1 where a stoppage of work is due to the calling of a meeting with 48 hours’ written notice. However, I do not think that the order is so uncertain as to suggest that substantial injustice will be caused if leave to appeal is refused. If there is any confusion that may be caused to the applicants, they can make use of the liberty to apply provision.

17    The applicants next criticise the use of the word “bona fide” in order 3, submitting that it is unclear if it refers to a subjective state of mind or an objective test. In my opinion, it is clear that it refers to the subjective state of mind of the persons referred to in the order.

18    Finally, the applicants contend that her Honour acted upon a wrong principle by proceeding on the basis that she was required to choose between the applicants’ draft order and the respondent’s draft order, rather than exercising the Court’s discretion as to the appropriate orders to make. The respondent’s counsel described the applicants’ submission as suggesting that her Honour was engaged in judging a beauty contest. I do not think that there is any support for this ground to be found in her Honour’s reasons. To the contrary, the reasons show that her Honour was conscious of the discretion she was required to exercise and did so based on a consideration of the merits of the arguments. It cannot be inferred that her Honour slavishly followed the draft order provided by the respondent without an independent consideration of whether it was appropriate to make orders in those terms.

19    For these reasons, I consider that the applicants have not demonstrated sufficient prospects of success in the proposed appeal to allow a grant of leave to appeal, nor have they demonstrated that they will be caused substantial injustice if leave is refused. In these circumstances, the application for leave to appeal will be dismissed.

Associate:    

Dated:    4 November 2016

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